Category Archives: regulation

CEI’s Battered Business Bureau: The Week in Regulation

It was just another week in the world of federal regulation, with new rules covering everything from Nixon’s archives to black bears.

On to the data:

  • Last week, 66 new final regulations were published in the Federal Register, after 80 the previous week.
  • That’s the equivalent of a new regulation every two hours and 33 minutes.
  • With 589 final regulations published so far in 2016, the federal government is on pace to issue 3,068 regulations in 2016. Last year’s total was 3,406 regulations.
  • Last week, 1,601 new pages were added to the Federal Register, after 1,600 pages the previous week.
  • Currently at 13,237 pages, the 2016 Federal Register is on pace for 68,943 pages. The 2015 Federal Register had an adjusted page count of 81,611.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Six such rules have been published so far in 2016, one in the last week.
  • The running compliance cost tally for 2016’s economically significant regulations ranges from $629 million to $1.46 billion.
  • 56 final rules meeting the broader definition of “significant” have been published this year.
  • So far in 2016, 116 new rules affect small businesses; 20 of them are classified as significant.

Highlights from selected final rules published last week:

  • There is a drawbridge in Seaside Heights, New Jersey. A federal regulation determines when it goes up and down.
  • The Homeland Security Department is loosening certain visa requirements for foreign graduates with degrees in STEM fields who want to temporarily work in the U.S.
  • Good news: the Lousiana black bear is no longer an endangered species. The American black bear, which is similar in appearance but not endangered, is also being removed from the list.
  • The Corporation for National and Community Service has a new address.
  • The National Archives and Records Administration is changing its policies regarding its Nixon administration materials.
  • Pay regulations for boat pilots in the Great Lakes.

For more data, see Ten Thousand Commandments and follow @10KC and@RegoftheDay on Twitter.

Regulatory Discretion: Both Good and Bad

From p. 137 of Cornell political scientist Theodore Lowi’s 1969 book The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority:

The move from concreteness to abstractness in the definition of public policy was probably the most important single change in the entire history of public control in the United States.

Lowi’s point concerns the separation of powers. In theory, Congress passes a law directing a regulatory agency to regulate something in a specific way, then the agency does so. The executive branch executes legislation; hence its name.

This is not how things work in practice. More and more, Congress delegates its legislative powers away to the executive branch. On issues ranging from health insurance subsidies to power plants to Internet infrastructure, executive branch agencies act unilaterally. And when they cite congressional statutes, they do so abstractly, not concretely, just as Lowi said nearly 50 years ago.

An example: the text of the Clean Air Act says nothing about CO2 emissions. But a few years ago, the EPA issued a cap-and-trade regulation for CO2 emissions, even though Congress explicitly rejected a bill to do so. The EPA justified its decision on the abstract principles on which the Clean Air Act is based. The fact that the text of bill, as amended over the years, does not mention CO2 emissions as a pollutant, did not matter to the EPA.

There is a role for discretion in regulatory matters. Discretion makes it possible to avoid regulatory abuses, clear needless bureaucratic hurdles, and avoid obvious stupidities such as suspending children from school for wielding Pop-Tart “guns” in cafeterias.

But Lowi makes a good point: discretion is a double-edged sword. Without a clear separation of powers, its outer edge can spill blood by executive order just as easily as the inner edge can cut innocents loose from government-mandated ropes.

CEI’s Battered Business Bureau: The Week in Regulation

After several years and multiple lawsuits, the TSA deigned to issue a formal rule for its use of full-body scanners. CEI’s Marc Scribner finds that the “TSA has still failed to justify the procedures that it imposes on millions of Americans each day.” Other federal federal agencies issued new regulations covering everything from wine to lamb.

On to the data:

  • Last week, 80 new final regulations were published in the Federal Register, after 67 the previous week.
  • That’s the equivalent of a new regulation every two hours and 6 minutes.
  • With 523 final regulations published so far in 2016, the federal government is on pace to issue 3,041 regulations in 2016. Last year’s total was 3,406 regulations.
  • Last week, 1,600 new pages were added to the Federal Register, after 1,415 pages the previous week.
  • Currently at 11,636 pages, the 2016 Federal Register is on pace for 67,652 pages. The 2015 Federal Register had an adjusted page count of 81,611.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Five such rules have been published so far in 2016, one in the last week.
  • The running compliance cost tally for 2016’s economically significant regulations ranges from $629 million to $1.46 billion.
  • 53 final rules meeting the broader definition of “significant” have been published this year.
  • So far in 2016, 102 new rules affect small businesses; 19 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

CEI’s Battered Business Bureau: The Week in Regulation

It was a short work week in Washington due to George Washington’s Birthday, also known as President’s Day. Even so, federal agencies still published new regulations covering everything from poles to cypress trees.

On to the data:

  • Last week, 45 new final regulations were published in the Federal Register, after 56 the previous week.
  • That’s the equivalent of a new regulation every three hours and 44 minutes.
  • With 376 final regulations published so far in 2016, the federal government is on pace to issue 2,848 regulations in 2016. Last year’s total was 3,406 regulations.
  • Last week, 940 new pages were added to the Federal Register, after 1,281 pages the previous week.
  • Currently at 8,621 pages, the 2016 Federal Register is on pace for 65,311 pages. The 2015 Federal Register had an adjusted page count of 81,611.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Four such rules have been published so far in 2016, none in the last week.
  • The running compliance cost tally for 2016’s economically significant regulations ranges from $402 million to $1.24 billion.
  • 43 final rules meeting the broader definition of “significant” have been published this year.
  • So far in 2016, 76 new rules affect small businesses; 18 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and@RegoftheDay on Twitter.

CEI’s Battered Business Bureau: The Week in Regulation

The big regulatory news this week is the Supreme Court’s decision to delay the EPA’s big power plant emission regulation. Other than that, agencies issued 56 new final regulations covering everything from train windows to foreign cotton.

On to the data:

  • Last week, 56 new final regulations were published in the Federal Register, after 58 the previous week.
  • That’s the equivalent of a new regulation precisely every three hours.
  • With 331 final regulations published so far in 2016, the federal government is on pace to issue 2,853 regulations in 2016. Last year’s total was 3,406 regulations.
  • Last week, 1,281 new pages were added to the Federal Register, after 1,371 pages the previous week.
  • Currently at 7,681 pages, the 2016 Federal Register is on pace for 66,216 pages. The 2015 Federal Register had an adjusted page count of 81,611.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Four such rules have been published so far in 2016, one in the last week.
  • The running compliance cost tally for 2016’s economically significant regulations ranges from $402 million to $1.24 billion.
  • 39 final rules meeting the broader definition of “significant” have been published this year.
  • So far in 2016, 68 new rules affect small businesses; 17 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

The Improvisational Fed, and Unpredictable Regulations

Improvisation can be a wonderful thing when performed by talented hands—Charlie Parker, Miles Davis, and the like. The Federal Reserve, especially for the past several weeks, has fancied itself an improvisational talent on that level. But like most humans, Janet Yellen is no Charlie Parker. They should consider a return to the Paul Volcker/early Alan Greenspan adherence to a defined rule. But that isn’t the end of the story—any substantive Fed reforms will fail unless they are coupled with a thorough program of regulatory reform reaching through the entire executive branch. This post will examine a few worthwhile Federal Reserve reforms, then some regulatory reforms, most of which have already passed the House.

The rest of the executive branch has a similar lesson to learn—more complexity and an ever-increasing stock of rules means less predictability and more uncertainty for businesses, investors, and consumers. Agencies’ increasing tendency to regulating through non-transparent “dark matter” means only makes the problem worse.

As far as the Fed goes, the point is not so much which rule a central bank should adopt, but that it must have a rule in the first place, and follow it consistently. Here are three possibilities.

One is a Taylor rule, which the U.S. Federal Reserve followed for the better part of the 1980s and 1990s, with good results. A Taylor rule raises interest rates when growth and inflation are high, and lowers interest rates when growth and inflation are low. In other words, if the economy looks like it might be overheating, the Fed automatically touches the brakes a little bit. And if it looks sluggish, the Fed pushes the gas pedal a little bit, by predictable, predefined amounts.

The Taylor rule can even be summarized in a single equation, making it easy for central bankers to know how they should react to a given set of economic conditions. The Taylor rule worked pretty well when the Fed was following it, but its attempts at managing the business cycle rub this analyst the wrong way—hubris at worst, spitting into the wind at best.

Another possibility that doesn’t have those problems is NGDP targeting, most famously advocated for by Scott Sumner. Instead of interest rates, NGDP targeting directly targets the money supply itself. If Nominal Gross Domestic Product (NGDP) goes up by 5 percent, then so does the money supply, in lockstep. It attempts to keep each dollar describing the same amount of wealth, which should result in stable, predictable prices. Some central bankers prefer having, say, a 2 percent inflation rate in perpetuity. Why someone would prefer such a thing is beyond me, but the NGDP targeting equation can easily be modified to build in a small inflation or deflation as bankers wish. The important thing, again, is not so much what the inflation level is, but that it is steady, and the Fed sticks to principle, even during a crisis.

There are also significant measurement problems with finding out exactly what GDP is at any given time, but an NGDP targeting rule is still far preferable to the Fed’s whim on any given day.

A third possibility is the Friedman rule, named for Milton Friedman. A Friedman rule deflates the currency at the same rate as the prevailing interest rate on government bonds. The goal is to make people indifferent about keeping money in their wallet, versus a savings account. This means people will make those allocation decisions based on economic efficiency, not the vagaries of inflation. Deflation is unsustainable in the long run, and central bankers are hyper-wary of deflation in general, ironically because of Friedman’s own work. He, along with Anna J. Schwartz, convincingly argued that rapid deflation was the Great Depression’s single largest cause.

Each of these rules—and there are others—has its own advantages and drawbacks. The larger point is that the Fed needs to follow some kind of rule, and stick to it. Its inept free-jazz improvisational approach makes entrepreneurs and investors skittish, and results in far less long-term investment.

Regulatory agencies have similar problems. Would you invest in a 30-year project if you had no idea if the EPA would confiscate your land, or if some other agency finds some obscure rule to kill your project? That’s why regulations to be simple and predictable.

Fortunately, a number of reforms are now winding their way through Congress. The REINS Act, as regular readers know, would require Congress to vote on all executive branch regulations with annual costs of more than $100 million.

The SCRUB Act could save nearly $300 billion per year if it works as planned. It would set up an independent commission to comb through all federal regulations, and send Congress a repeal package for an up-or-down vote, with the goal of trimming at least 15 percent from annual compliance costs, currently estimated at $1.9 trillion.

The ALERT Act would establish a one-in, one-out rule similar to what Canada has had for several years. If an agency wants to issue a new rule, it must first get rid of a similar dollar amount of old rules.

The Sunshine Act would rein in a practice called sue-and-settle, under which activist groups sue agencies for missing deadlines or not enforcing rules strictly enough. Since the agencies are often on the same side, and may in some cases be collaborating behind the scenes, they are only too happy to reach a settlement expanding the agency’s power and authority.

Other options include a regulatory budget, similar to the spending budget the federal government is supposed to issue each year. Each agency would have a “budget” of regulatory costs it is allowed to impose, and must prioritize its rule enforcement so it doesn’t exceed its cap. Finally, automatic sunsets for new regulations would automatically scrub old rules from the books unless Congress sees fit to renew them. This would prevent obsolete or harmful rules from becoming immortal.

The Fed’s improvisational approach does no favors to entrepreneurs, investors, or consumers. Nor does the increasingly arbitrary and capricious approach many regulatory agencies are turning towards. Just as the Fed should bind itself to a predictable and stable rule, so should agencies embrace reform to keep their regulations as simple and predictable as possible.

CEI’s Battered Business Bureau: The Week in Regulation

Back to business as usual this week, with new regulations covering everything from Taiwanese orchids to student pilots.

On to the data:

  • Last week, 58 new final regulations were published in the Federal Register, after 56 the previous week.
  • That’s the equivalent of a new regulation every two hours and 54 minutes.
  • With 275 final regulations published so far in 2016, the federal government is on pace to issue 2,855 regulations in 2016. Last year’s total was 3,406 regulations.
  • Last week, 1,371 new pages were added to the Federal Register, after 1,096 pages the previous week.
  • Currently at 6,400 pages, the 2016 Federal Register is on pace for 66,666.66 pages. The 2015 Federal Register had an adjusted page count of 81,611.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Four such rules have been published so far in 2016, one in the last week.
  • The running compliance cost tally for 2016’s economically significant regulations ranges from $402 million to $1.24 billion.
  • 32 final rules meeting the broader definition of “significant” have been published this year.
  • So far in 2016, 62 new rules affect small businesses; 14 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and@RegoftheDay on Twitter.

How to Get Rid of Obsolete Regulations

The House this week is considering H.R. 1675, the Encouraging Employee Ownership Act, sponsored by Rep. Randy Hultgren (R-Ill.). I’ll leave it to my colleague John Berlau to comment on the bill’s impact on employment and financial regulation. But I do want to point out an important regulatory reform it contains for getting rid of old or obsolete rules. The idea is similar to something CEI has been promoting for years: retrospective review. While this particular bill would only affect the Securities Exchange Commission (SEC), the model can easily be applied to other agencies.

Typically, benefit-cost analysis for regulations is done only before they come into effect. Once a rule goes live and we actually have real-world data on it, nothing is done to measure it. This is a problem, especially since complicated rules are prone to unintended consequences. Even the most diligent analyst cannot foresee everything. That’s why regulations should also be subject to cost analysis after coming into effect, not just before.

There are lots of ways to do retrospective review. The way the Encouraging Employee Ownership Act goes about it is to require the SEC to, at least once per decade, look at each of its “significant” regulations (for which there is a special definition) and have the Commissioners vote on whether to keep them, scrap them, or update them. This review doesn’t necessarily involve benefit-cost analysis, just the SEC Commissioners’ judgment. This sort of periodic review is a regulatory best-practice that all agencies should engage in periodically.

The entire Code of Federal Regulations is now longer than 175,000 pages long. Surely some of its rules are obsolete, redundant, or ineffective. These should be gotten rid of, and retrospective review is one way to encourage agencies to clean out their regulatory attics every now and then.

The Encouraging Employee Ownership Act’s review procedures are an improvement on the status quo. But there is one further improvement I would make: have the review to be done outside the agency, not inside. While the SEC might prune back rules that are obviously outdated, the Commissioners are unlikely to vote for any major reductions in their own power and authority. Having the review done instead by the Office of Management and Budget (OMB) or by an independent commission, such as the one the SCRUB Act would create, would have fewer incentive problems than asking the SEC to police itself.

Another, simpler model would be to simply have built-in sunsets for all new regulations. Rules would expire automatically after, say, five years unless Congress votes to keep them. This means obsolete or harmful rules would automatically fall off the books without Congress or agencies having to do so much as lift a finger.

Regulatory reform is a neglected issue compared to more telegenic issues such as tax and budget battles, immigration, or foreign policy. But regulation is just as important, if not more so. The Encouraging Employee Ownership Act’s retrospective review requirements for the SEC represent a step in the right direction. If anything, all federal agencies should be subject to similar reform.

CEI’s Battered Business Bureau: The Week in Regulation

The big Snowzilla storm came and went, but still made its presence known in the Federal Register. For many documents, there is a lag of a few days between submission and publication. So while the first three days of the week was business as usual despite a government slowdown, Thursday’s edition was only 69 pages, and Friday’s was 92 pages. A normal day is around 300 pages. Despite the temporary slowdown, regulators still issued rules covering everything from spray valves to alien medical exams.

On to the data:

  • Last week, 56 new final regulations were published in the Federal Register, after 59 the previous week.
  • That’s the equivalent of a new regulation precisely every three hours.
  • With 217 final regulations published so far in 2016, the federal government is on pace to issue 2,855 regulations in 2016. Last year’s total was 3,406 regulations.
  • Last week, 1,096 new pages were added to the Federal Register, after 1,213 pages the previous week.
  • Currently at 5,029 pages, the 2016 Federal Register is on pace for 66,172 pages. To give some context, the 2015 Federal Register had an adjusted page count of 81,611.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Three such rules have been published so far in 2016, one in the last week.
  • The running compliance cost tally for 2016’s economically significant regulations ranges from $402 million to $1.24 billion.
  • 27 final rules meeting the broader definition of “significant” have been published this year.
  • So far in 2016, 55 new rules affect small businesses; 13 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and@RegoftheDay on Twitter.

Weird Laws in Every State

There are some doozies in an infographic put together by Olivet Nazarene University.