Inertia Wins!

The federal regulatory process is a complicated thing. As with any complex body of law, there are loopholes that agencies can exploit. Over at the Washington Times, Wayne Crews and I point out three of these loopholes, and kindly suggest that Congress close them.

The first is “sue and settle.” Agencies like the EPA work closely with environmental and other pressure groups that sue targeted employers or states over some grievance to force a settlement, opening what our Competitive Enterprise Institute colleague William Yeatman aptly describes as “EPA’s New Regulatory Front.” Litigation is costly. Companies routinely settle to avoid protracted court battles, and settlement terms usually force compliance with the goals of the EPA or the allied interest group.

The second option, involving what are called guidance documents, is less opaque, but no lovelier. Agencies issue these to clarify rule interpretations when there is confusion. As the House oversight panel report explains: “Guidance documents, while not legally binding or technically enforceable, are supposed to be issued only to clarify regulations already on the books.” Guidance documents can be helpful, since many regulations are so poorly written that they border on incomprehensible.

Some guidance documents exceed mere helpful clarification. The committee report continues: “However they are increasingly used to effect policy changes, and they often are as effective as regulations in changing behavior due to the weight agencies and the courts give them.”

If the first two options aren’t available, agencies have a third way to regulate outside the rules: good old-fashioned emergency powers. The APA contains a loophole that allows agencies to avoid the public comment period and make final rules effective on their publication date during an emergency, as determined by the agency itself.

Read the whole thing here.

BBC News: Man freed after getting his head stuck in bin in Aberdeen

The article’s picture of this Scottish Homer Simpson is priceless.

Just another week in the world of regulation:

•  71 new final rules were published last week, down from 82 the previous week.
• That’s the equivalent of a new regulation every 2 hours and 22 minutes — 24 hours a day, 7 days a week.
• All in all, 2,861 final rules have been published in the Federal Register this year.
• If this keeps up, the total tally for 2012 will be 3,850 new rules.
• 968 new pages were added to the 2012 Federal Register last week, for a total of 59,616 pages.
• At its current pace, the 2012 Federal Register will run 78,858 pages.
• Rules are called “economically significant” if they have costs of $100 million or more in a given year. The 39 such rules published so far in 2012 have compliance costs of at least $17.4 billion. Two of the rules do not have cost estimates, and a third cost estimate does not give a total annual cost. We assume that rules lacking this basic transparency measure cost the bare minimum of $100 million per year. The true cost is almost certainly higher.
• No economically significant rules were published last week.
• So far, 285 final rules that meet the broader definition of “significant” have been published in 2012.
• So far this year, 547 final rules affect small business. 78 of them are significant rules.

Highlights from final rules published last week:

• If you buy your prune insurance from the Federal Crop Insurance Corporation, you should be aware of upcoming changes to your policy.
• Practice makes perfect – especially if you follow the Federal Trade Commission’s new Rules of Practice that were published on Thursday.
• Several new defense acquisitions regulations were published last week, mainly intended to prevent fraud, overcharging, and low quality.
• Remember the U.S.-Colombia free trade agreement? U.S. Customs and Border Protection and the Treasury Department have teamed up to pass an interim rule implementing its tariff reductions.

For more data, go to TenThousandCommandments.com.