Inertia Wins!

How much does regulation cost? It’s hard to tell, due to a lack of transparency. The government is legally required to tell the public how much it spends ($6.55 trillion in 2020), and how big the national debt is ($28 trillion as of June 2020). But regulatory agencies are reluctant to share their cost information—when they bother to calculate it at all. That’s why Wayne Crews puts together his Ten Thousand Commandments report every year. If agencies won’t make their basic information public, somebody should.

Wayne estimates, based on the incomplete information that agencies do disclose, that federal regulations cost about $1.9 trillion per year, or about $14,368 per household. That is more than households spend on food, clothing, health care, or any other expense except for housing (which is itself artificially expensive due to zoning and land-use regulations, steel and lumber tariffs, and financial regulations that make lending and mortgages more expensive).

Put another way, if the federal regulatory state were its own country, it would have the world’s eighth largest GDP, behind Italy and ahead of Brazil.

It is worth emphasizing that $1.9 trillion per year is just an approximation, based on the limited information agencies make available. Other studies give even higher estimates. It is also possible the real number is lower, but the fact that agencies have not offered credible estimates, even though these would make them look good, makes this unlikely.

This year’s Ten Thousand Commandments also contains a wrap-up of the Trump administration’s impact on regulatory costs. The picture is mixed.

On the plus side, Executive Order 13771 cleaned out hundreds of old rules from the books by requiring agencies to remove two old regulations for each new one it issued. Though this one-in, two-out policy had diminishing returns as the low-hanging fruit was mostly picked after the first two years, it was still a success. The order’s additional requirement that agencies impose zero net new regulatory costs served as a soft regulatory budget, putting a cap on the burdens that agencies could impose.

New regulations under Trump reached their lowest levels since recordkeeping began in the 1970s. In 2019, the number of new rules went below 3,000 for the first time ever—despite the fact that getting rid of old rules requires publishing new rules to formalize the changes. Federal Register page counts also went down sharply, though Trump’s final edition ended up as the second highest in the Register’s 85-year history, exceeded only by Barack Obama’s final year.

On the downside, Trump increased regulation in several policy areas. His administration doubled tariffs and added other trade restrictions affecting hundreds of trillions of dollars of goods, further restricted immigration, filed the two largest antitrust lawsuits since the 1990s, made frequent threats to regulate or punish media companies, and showed little concern for separation of powers and other checks on executive power.

From the perspective of institutional design, the administration made a strategic error that let most of his reforms be reversed when he left office. Most of Trump’s positive regulatory reforms came through executive orders, which can be repealed by the next president. Permanent reform requires congressional legislation. Although Trump’s party held a majority in both congressional chambers for his first two years, he did not work with them to codify regulatory reforms.

For example, while Rep. Bob Good (R-VA) introduced the Guidance Out Of Darkness (GOOD) Act to enact permanent guidance document reform similar to the ones in Trump’s Executive Order 13891, the administration’s priorities were elsewhere. President Biden was able to undo them, and most of Trump’s other regulatory reforms, on his first day in office.

Guidance documents exist to clarify definitions and ambiguities in regulations. Courts routinely defer to them in cases, meaning that guidance documents often have the force of law, despite rarely going through the proper rulemaking process. Guidance documents are part of the larger problem of “regulatory dark matter,” which describes the phenomenon of agencies issuing new regulations through guidance documents, notices, press releases, and even blog posts without proper transparency and accountability.

EO 13891 was one of the first attempts to rein in dark matter rulemaking. It required agencies to publish all of their guidance documents in a single, searchable online portal accessible to the public. Guidance documents not published in the portal would no longer have any effect. The GOOD Act would have made this policy permanent.

Other reforms met a similar fate, such as the REINS Act to require congressional votes on major new regulations, and the Pandemic Preparedness, Response, and Recovery Act), which would have created an independent commission to put together a package of rules for Congress to repeal that are harming the COVID response and economic recovery.

It is important that the next reform-minded president learns from Trump’s mistake and involves Congress in reform efforts. Executive orders are better than nothing, but they are not enough.

For more on how big the regulatory state has grown, and for ideas to reform it, read the 2021 edition of Ten Thousand Commandments.

Negotiators reached a deal on a bipartisan infrastructure bill, at least for now. There were also marathon committee markup sessions for five antitrust bills. Meanwhile, agencies issued new rules ranging from bean insurance to frozen mangos.

On to the data:

• Agencies issued 82 final regulations last week, after 53 the previous week.
• That’s the equivalent of a new regulation every two hours and three minutes.
• With 1,536 final regulations so far in 2021, agencies are on pace to issue 3,200 final regulations this year. 2020’s total was 3,149 final regulations.
• Agencies issued 41 proposed regulations in the Federal Register last week, after 24 the previous week.
• With 1,006 proposed regulations so far in 2021, agencies are on pace to issue 2,096 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
• Agencies published 437 notices last week, after 413 notices the previous week.
• With 10,574 notices so far in 2021, agencies are on pace to issue 22,029 notices this year. 2020’s total was 22,480.
• Last week, 1,489 new pages were added to the Federal Register, after 931 pages the previous week.
• The average Federal Register issue this year contains 282 pages.
• With 33,851 pages so far, the 2021 Federal Register is on pace for 70,523 pages in 2021. The 2020 total was 87,352 pages. The all-time record adjusted page count (subtracting skips, jumps, and blank pages) is 96,994, set in 2016.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. There are two such rules so far in 2021, none from the last week. Agencies published five economically significant rules in 2020 and four in 2019.
• The running cost tally for 2021’s economically significant rules ranges from net savings of $100.7 million to net costs of $362.5 million. The 2020 figure ranges from net savings of between $2.04 billion and $5.69 billion, mostly from estimated savings on federal spending. The exact numbers depend on discount rates and other assumptions.
• Agencies have published 21 final rules meeting the broader definition of “significant” in 2021, with two in the last week. This is on pace for 44 significant rules in 2021. 2020’s total was 79 significant final rules.
• In 2021, 318 new rules affect small businesses. Seven are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

• Crop insurance for peas and beans.
• Edible livestock blood.
• Fokker airplanes.
• 8YY charge reform.
• The Kanab ambersnail is being removed from the Endangered Species List.
• A tax decrease on California-grown walnuts.
• Minority-owned banks.
• Mattress flammability.
• The definition of fair housing.
• Infant sleep products.
• Prohibited substances in organic foods.
• Frozen mangos are no longer part of the federal Mango Promotion, Research, and Information Order.

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

Members of Congress introduced five antitrust bills last week. Antitrust activist Lina Khan was confirmed to a seat on the Federal Trade Commission (FTC), and in a surprise move, was immediately afterward made FTC chair. There was no Federal Register on Friday in observance of Juneteenth. Meanwhile, agencies issued new rules ranging from chinch weed to educational loans.

On to the data:

• Agencies issued 53 final regulations last week, after 65 the previous week.
• That’s the equivalent of a new regulation every three hours and 10 minutes.
• With 1,454 final regulations so far in 2021, agencies are on pace to issue 3,161 final regulations this year. 2020’s total was 3,149 final regulations.
• Agencies issued 24 proposed regulations in the Federal Register last week, after 27 the previous week.
• With 965 proposed regulations so far in 2021, agencies are on pace to issue 2,098 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
• Agencies published 413 notices last week, after 328 notices the previous week.
• With 10,137 notices so far in 2021, agencies are on pace to issue 22,037 notices this year. 2020’s total was 22,480.
• Last week, 931 new pages were added to the Federal Register, after 1,050 pages the previous week.
• The average Federal Register issue this year contains 281 pages.
• With 32,360 pages so far, the 2021 Federal Register is on pace for 70,348 pages in 2021. The 2020 total was 87,352 pages. The all-time record adjusted page count (subtracting skips, jumps, and blank pages) is 96,994, set in 2016.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. There are two such rules so far in 2021, none from the last week. Agencies published five economically significant rules in 2020, and four in 2019.
• The running cost tally for 2021’s economically significant rules ranges from net savings of $100.7 million to net costs of $362.5 million. The 2020 figure ranges from net savings of between $2.04 billion and $5.69 billion, mostly from estimated savings on federal spending. The exact numbers depend on discount rates and other assumptions.
• Agencies have published 20 final rules meeting the broader definition of “significant” in 2021, with two in the last week. This is on pace for 43 significant rules in 2021. 2020’s total was 79 significant final rules.
• In 2021, 301 new rules affect small businesses. Seven are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

• Tax treatment of small businesses.
• The new White Bluffs viticultural area.
• As well as the new Palos Verdes and The Burn of Columbia Valley viticultural areas.
• Medical malpractice claims by military personnel.
• Underground injection control in Michigan.
• Archaeological artifacts from Turkey.
• Compliance date delays for new drinking water regulations.
• The water howellia, a plant from the Pacific northwest, and the Lepanthes eltoroensis, and orchid species from Puerto Rico, are being removed from the Endangered Species List.
• The beardless chinch weed, a plant from Arizona and northern Mexico, is being added to the Endangered Species List and is getting critical habitat.
• N-ethylpentylone is now a Schedule I controlled substance.
• No more usage limits on William D. Ford educational loans.

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

The economic recovery continues, but Congress is still intent on passing unneeded stimulus and infrastructure spending. Inflation is also up, and five antitrust bills are being introduced. Meanwhile, agencies issued new rules ranging from madtoms to low-fat yogurt.

On to the data:

• Agencies issued 65 final regulations last week, after 54 the previous week.
• That’s the equivalent of a new regulation every two hours and 35 minutes.
• With 1,401 final regulations so far in 2021, agencies are on pace to issue 3,155 final regulations this year. 2020’s total was 3,149 final regulations.
• Agencies issued 27 proposed regulations in the Federal Register last week, after 32 the previous week.
• With 931 proposed regulations so far in 2021, agencies are on pace to issue 2,119 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
• Agencies published 328 notices last week, after 299 notices the previous week.
• With 9,724 notices so far in 2021, agencies are on pace to issue 21,901 notices this year. 2020’s total was 22,480.
• Last week, 1,050 new pages were added to the Federal Register, after 956 pages the previous week.
• The average Federal Register issue this year contains 284 pages.
• With 31,426 pages so far, the 2021 Federal Register is on pace for 70,779 pages in 2021. The 2020 total was 87,352 pages. The all-time record adjusted page count (subtracting skips, jumps, and blank pages) is 96,994, set in 2016.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. There are two such rules so far in 2021, none from the last week. Agencies published five economically significant rules in 2020, and four in 2019.
• The running cost tally for 2021’s economically significant rules ranges from net savings of $100.7 million to net costs of $362.5 million. The 2020 figure ranges from net savings of between $2.04 billion and $5.69 billion, mostly from estimated savings on federal spending. The exact numbers depend on discount rates and other assumptions.
• Agencies have published 19 final rules meeting the broader definition of “significant” in 2021, with two in the last week. This is on pace for 40 significant rules in 2021. 2020’s total was 79 significant final rules.
• In 2021, 293 new rules affect small businesses. Six are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

• New rules for international arms trafficking.
• The Drug Enforcement Administration has declared a bunch of new controlled substances.
• The definition of fair housing.
• Pilot records database.
• The Agriculture Department is inflation-adjusting its penalties.
• Oil and gas operation trespassing penalties are also being inflation-adjusted.
• The Neuse River waterdog is now a threatened species, and the Carolina madtom is now an endangered species. Both are receiving critical habitat.
• Juvenile delinquency grants.
• The Environmental Appeals Board.
• The Veterans Affairs Department is making its guidance documents less transparent to the public.
• The standards for low-fat and nonfat yogurt have been revoked.

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