Category Archives: regulation

How do regulations get made? Agencies have to follow specific procedures, first outlined in the 1946 Administrative Procedure Act. The trouble is that many agencies simply ignore the law. Wayne Crews documents several cases of such procedural abuse in his new paper, “Mapping Washington’s Lawlessness 2016: A Preliminary Inventory of ‘Regulatory Dark Matter.’”

The rulemaking process has been updated and amended over time, and it can get technical. But the basic principles are pretty simple. For a detailed look at the process, see Susan Dudley and Jerry Brito’s excellent primer. Wayne’s point is that more and more often, agencies are ignoring proper procedure. Perhaps folks at the EPA, HHS, and other agencies should read Dudley and Brito.

The first principle is that only Congress can legislate. Agencies can’t just unilaterally issue regulations; Congress has to pass legislation directing them to issue rules. Agencies do have some discretion, but their regulations do have to have statutory authority. More and more, agencies are flouting Congress and acting on their own. In 2014, Congress passed 224 laws—while agencies issued 3,554 regulations. Recent examples of non-congressional legislating include net neutrality, carbon emissions, and subsidies to health insurance exchanges—which led to the King v. Burwell Supreme Court case.

Another principle is public participation and transparency. Before a new regulation can take effect, an agency has to publish a proposed version of the rule in the daily Federal Register. Once it’s published, that opens a comment period where anyone, from the general public to policy experts, can submit comments about the rule. Comment periods vary, but typically last from 30 to 90 days. Agencies are required to respond to and take into account the public’s comments before the final version of the regulation takes effect.

The TSA’s body scanner policies openly violated this legal requirement, leading CEI and two other groups to sue the TSA. A proposed regulation for full-body scanner use never appeared in the Federal Register. The public never had a chance to comment on the rule. The TSA just went ahead and installed the scanners without telling anybody how they were going to use them, and what safeguards they would have against abuse. This complete lack of transparency is a serious form of regulatory dark matter.

Guidance documents are another increasingly popular form of dark matter. Regulations aren’t always clearly written, and the people drafting them can’t anticipate every problem or question that might come up. If a court has a question, an agency can issue a guidance document spelling out the agency’s intention or clearing up an ambiguous clause. Since many regulations are specialized and technical, judges routinely defer to the guidance documents, which means they have de facto force of law. Agencies know this, and will take advantage of it to sneak through regulatory requirements without having to put them before the public.

There are still other forms of dark matter, which Wayne documents in his paper. Agencies have issued about half a million Notices in the Federal Register over the last twenty years, many of which contain backdoor regulations. Presidential documents and memoranda, only some of which appear in the Federal Register, are also used to regulate outside of the proper rulemaking process.

The quantity and quality of regulatory dark matter is a threat not just to the economy, but to bedrock principles of government such as separation of powers, checks and balances, and public transparency.

What to do about it? Wayne has several reform ideas. One is to get Congress more involved. Two ways to accomplish that are enforcing and expanding the Congressional Review Act, and passing the REINS Act, which would require Congress to vote on all executive branch regulations costing more than $100 million per year. Over in the executive branch, the Office of Management and Budget needs to take account of all agency notices and memoranda, not just their formal regulations. Agencies themselves need to be subject to stricter disclosure requirements, along the lines of the Regulatory Accountability Act.

For more on the dark matter problem and its solutions, read the whole paper here.

With most of December still to go, the 2015 Federal Register is already the seventh largest ever, going back to 1936. It remains on pace to set the all-time page count record. New regulations from the last week cover everything from catfish inspections to swap entities.

On to the data:

• Last week, 61 new final regulations were published in the Federal Register, after 60 the previous week.
• That’s the equivalent of a new regulation every two hours and 48 minutes.
• So far in 2015, 3,146 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,376 new regulations this year, fewer than the usual total of 3,500-plus.
• Last week, 1,247 new pages were added to the Federal Register, after 2,227 pages the previous week.
• Currently at 75,917 pages, the 2015 Federal Register is on pace for 81,457 pages. This would break the all-time record set in 2010, with 81,405 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 34 such rules have been published so far this year, three in the past week.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.68 billion to $4.93 billion for the current year.
• 282 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 518 new rules affect small businesses; 82 of them are classified as significant.

Highlights from selected final rules published last week:

• 42 pages of new catfish inspection rules.
• Lower assessment rates for onion growers in certain parts of Idaho and Oregon.
• Minimum wage requirements for federal contractors.
• A compliance guide for small businesses involved in federal acquisitions.
• The FCC continues to revise its spectrum auction policies.
• A new regulation for those of you thinking of fishing for bigeye tuna in Guam.
• Two new swap regulations, courtesy of the Dodd-Frank bill.

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

Despite a respite for Thanksgiving, the 2015 Federal Register is now on pace to set an all-time record page count. It began publication in 1936. New regulations from the short week cover everything from California raisins to recombinant DNA technology.

On to the data:

• Last week, 60 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 48 minutes.
• So far in 2015, 3,085 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,383 new regulations this year, fewer than the usual total of 3,500-plus.
• Last week, 2,227 new pages were added to the Federal Register, after 1,556 pages the previous week.
• Currently at 74,670 pages, the 2015 Federal Register is on pace for 81,875 pages. This would break the all-time record set in 2010, with 81,405 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 31 such rules have been published so far this year, one in the past week.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.63 billion to $4.88 billion for the current year.
• 272 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 508 new rules affect small businesses; 76 of them are classified as significant.

Highlights from selected final rules published last week:

• Tax increase for south Texas onion growers.
• Tax increase for California raisin producers.
• Meanwhile, Florida tomato growers get a tax cut.
• Official federal recognition for the Eagle Foothills winemaking region in Idaho.
• Another Dodd-Frank stress-testing regulation.
• Two more Dodd-Frank regulations for consumer leasing and truth-in-lending.
• The FDA issued new regulations for handling produce.
• Recombinant DNA technology.
• Vision tests for train conductors.

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

The number of new regulations on the year passed the 3,000 mark last week, and theFederal Register is nearly on pace to set an all-time record page count. New rules cover everything from identifying jelly to avoiding seabirds, as well as more than 200 pages of crowdfunding regulations.

On to the data:

• Last week, 67 new final regulations were published in the Federal Register, after 44 the previous week.
• That’s the equivalent of a new regulation every two hours and 30 minutes.
• So far in 2015, 3,025 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,376 new regulations this year, fewer than the usual total of 3,500-plus.
• Last week, 2,227 new pages were added to the Federal Register, after 1,556 pages the previous week.
• Currently at 72,897 pages, the 2015 Federal Register is on pace for 81,359 pages. This threatens the all-time record set in 2010, with 81,405 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 31 such rules have been published so far this year, one in the past week.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.63 billion to $4.88 billion for the current year.
• 263 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 494 new rules affect small businesses; 72 of them are classified as significant.

Highlights from selected final rules published last week:

• Airbag standards for side-facing seats on Boeing 747 airplanes.
• The International Jelly and Preserve Association has succeeded in its efforts to revoke standards of identity for artificially sweetened jelly and fruit preserves.
• The FDA is reclassifying a salivary stimulation device.
• Just in time for Thanksgiving, federal right-of-way regulations for Indian land.
• The federal government is implementing a Seabird Avoidance Program for fishermen.
• Good news: the Delmarva Peninsula fox squirrel is no longer an endangered species.
• 229 pages of new crowdfunding regulations from the SEC. Take that, entrepreneurs!
• 502-page Medicare payment regulation.

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

Wednesday’s Veterans’ Day holiday made it a short work week, but the Federal Register still passed the 70,000-page mark, with new regulations covering everything from Flugzeugbaus to recreational salmon.

On to the data:

• Last week, 44 new final regulations were published in the Federal Register, after 77 the previous week.
• That’s the equivalent of a new regulation every three hours and 49 minutes.
• So far in 2015, 2,958 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,377 new regulations this year, fewer than the usual total of 3,500-plus.
• Last week, 1,556 new pages were added to the Federal Register, after 1,850 pages the previous week.
• Currently at 70,933 pages, the 2015 Federal Register is on pace for 80,974 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 31 such rules have been published so far this year, one in the past week.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.63 billion to $4.88 billion for the current year.
• 257 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 481 new rules affect small businesses; 70 of them are classified as significant.

Highlights from selected final rules published last week:

• Another regulation for Flugzeugbau gliders. That makes 103 Flugzeugbau regulations since 1994.
• A 311-page Medicare regulation meets the $100 million annual threshold for economic significance, though a precise cost estimate is not exactly forthcoming in the text. Since this is government spending and not compliance costs, I am scoring this rule as zero-cost in the running compliance cost tally.
• Traffic enforcement rules from NASA.
• Energy conservation standards for walk-in coolers and freezers.
• Federal regulations for recreational salmon fishing.

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

New rules last week covered everything from relaxed grape handling to unclaimed funerary objects.

On to the data:

• Last week, 77 new final regulations were published in the Federal Register, after 83 the previous week.
• That’s the equivalent of a new regulation every two hours and 11 minutes.
• So far in 2015, 2,914 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,388 new regulations this year, far fewer than the usual total of 3,500-plus.
• Last week, 1,850 new pages were added to the Federal Register, after 2,137 pages the previous week.
• Currently at 69,377 pages, the 2015 Federal Register is on pace for 80,671 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 30 such rules have been published so far this year, two in the past week.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.63 billion to $4.88 billion for the current year.
• 253 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 469 new rules affect small businesses; 67 of them are classified as significant.

Highlights from selected final rules published last week:

• $479.5 million of new steam-generated electricity rules from the EPA.
• A new Medicare rule aims to save $260 million in government spending in FY 2016. Since this is government spending and not compliance costs, I am scoring this rule as zero-cost in the running compliance cost tally.
• Federal regulations for unclaimed funerary objects.
• Energy efficiency rules for high-rise apartments and condos.
• The federal government has a Watch, Watch Instruments, and Jewelry Program.
• Relaxed handling requirements for grapes from southeastern California.
• New labeling requirements for room air conditioners’ water and energy usage.
• Slowly but surely, the FCC moves into the 20^th century with regulations partially inspired by Nobel economist Ronald Coase’s 1959 article on spectrum auctions. See here and here. It’s good to see the FCC catching up with best practices from two generations ago, though one fears what will happen when its attention turns to the current century. Hopefully that won’t happen until the next century.

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

The pace of new rules has picked up recently, with 80 or more final regulations and more than 2,000 Federal Register pages for the second straight week. New rules cover everything from bricks to housekeepers.

On to the data:

• Last week, 83 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 one minute.
• So far in 2015, 2,837 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,378 new regulations this year, far fewer than the usual total of 3,500-plus.
• Last week, 2,137 new pages were added to the Federal Register, after 2,048 pages the previous week.
• Currently at 67,526 pages, the 2015 Federal Register is on pace for 80,067 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 28 such rules have been published so far this year, five in the past week, which is a high for the year.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.15 billion to $4.40 billion for the current year.
• 242 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 461 new rules affect small businesses; 65 of them are classified as significant.

Highlights from selected final rules published last week:

• New EPA rules for bricks and clay will have capital costs of $62.3 million, annual costs of $24.6 million, and will close an estimated two to four businesses.
• New ozone regulations, also courtesy of the EPA. The 178-page rule is economically significant, though the EPA declined to include any cost data with the rule, instead referring the reader to outside documents. This is not good transparency on the EPA’s part. For now, I am scoring it as zero-cost in the running compliance cost tally, but hope to include its figures, if they are in fact publicly available, in the near future.
• 30-day delay on new labor regulations for domestic workers.
• Rules for historical research in the Defense Secretary’s files.
• An economically significant rule for agricultural quarantines. Some fees are being lowered, and others are being adjusted for inflation. But a lengthy section titled “Economic Impacts” never actually says what the total impact will be. This is an unfortunate lack of transparency from the Animal and Plant health Inspection Service, forcing me to score this rule as zero-cost on the running compliance cost tally.
• Government health care being what it is, the Veterans Affairs Department is wisely expanding options for veterans to pursue non-VA health care. The rule is economically significant, with $10 billion of funding through 2017. Since this is government spending and not compliance costs, I am scoring it as zero-cost on the running compliance cost tally.
• Airplane passengers and crew may travel with e-cigarettes in their carry-on luggage, but not in their carry-on luggage. This is “to address an immediate safety risk.”
• $15.4 billion in economically significant education spending over the period 1994-2025. Again, since this is spending, I am scoring it as zero-cost in the compliance cost tally.

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

A normal week ended with a bang, with more than 450 pages of EPA regulations swelling Friday’s Federal Register to more than 800 pages (normal is around 300). New rules cover everything from power plants to cotton.

On to the data:

• Last week, 80 new final regulations were published in the Federal Register, after 63 the previous week.
• That’s the equivalent of a new regulation every two hours and 6 minutes.
• So far in 2015, 2,754 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,359 new regulations this year, far fewer than the usual total of 3,500-plus.
• Last week, 2,048 new pages were added to the Federal Register, after 1,796 pages the previous week.
• Currently at 65,119 pages, the 2015 Federal Register is on pace for 79,414 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. 23 such rules have been published so far this year, one in the past week.
• The total estimated compliance cost of 2015’s economically significant regulations ranges from $3.13 billion to $4.38 billion for the current year.
• 230 final rules meeting the broader definition of “significant” have been published so far this year.
• So far in 2015, 445 new rules affect small businesses; 62 of them are classified as significant.

Highlights from selected final rules published last week:

• Bona fide cotton spot markets.
• Two new regulations from the EPA on carbon emissions from power plants. This 304-page rule from the EPA will cost $1.4 billion to $2.5 billion annually, while for this 152-page rule, “The EPA does not anticipate that this final action will result in any notable compliance costs.”
• The federal government has a United Soybean Board. It is adjusting its membership.
• Copper loop retirements.
• 21 new FAA regulations. See them all here.
• Fresh peppers from Ecuador may now be imported into the U.S. under certain conditions.

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