This Week in Ridiculous Regulations

Congress averted a government shutdown and continued to negotiate over nearly $5 trillion in combined spending. Merck announced an antiviral pill for COVID-19 that could reduce the risk of hospitalization or death in half, which could potentially free up hospital beds if the FDA allows it to market. Meanwhile, agencies issued new rules ranging from perishable mail to heaters.

On to the data:

  • Agencies issued 93 final regulations last week, after 59 the previous week.
  • That’s the equivalent of a new regulation every two hours and 51 minutes.
  • With 2,469 final regulations so far in 2021, agencies are on pace to issue 3,283 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 39 proposed regulations in the Federal Register last week, after 39 the previous week.
  • With 1,582 proposed regulations so far in 2021, agencies are on pace to issue 2,102 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
  • Agencies published 502 notices last week, after 492 notices the previous week.
  • With 16,655 notices so far in 2021, agencies are on pace to issue 22,148 notices this year. 2020’s total was 22,480.
  • Last week, 1,401 new pages were added to the Federal Register, after 1,113 pages the previous week.
  • The average Federal Register issue this year contains 290 pages.
  • With 54,585 pages so far, the 2021 Federal Register is on pace for 72,586 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 10 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 $1.42 billion to $4.81 billion. 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 318 final rules meeting the broader definition of “significant” in 2021, with six in the last week. This is on pace for 516 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 679 new rules affect small businesses; 83 are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

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

This Week in Ridiculous Regulations

CEI held its Julian Simon Award dinner, honoring the development economist William Easterly. We also paid remembrance to 2020’s winner, the late, great Steve Horwitz. Congress returned from recess and there is drama surrounding the debt limit and the proposed $3.5 trillion spending bill. Meanwhile, agencies issued new rules ranging from imported animal drugs to cotton.

On to the data:

  • Agencies issued 59 final regulations last week, for the third straight week. Though not a meaningful coincidence, I do not believe this has happened before since I began tracking these numbers.
  • That’s the equivalent of a new regulation every two hours and 51 minutes.
  • With 2,376 final regulations so far in 2021, agencies are on pace to issue 3,246 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 39 proposed regulations in the Federal Register last week, after 46 the previous week.
  • With 1,543 proposed regulations so far in 2021, agencies are on pace to issue 2,108 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
  • Agencies published 492 notices last week, after 458 notices the previous week.
  • With 16,153 notices so far in 2021, agencies are on pace to issue 22,067 notices this year. 2020’s total was 22,480.
  • Last week, 1,113 new pages were added to the Federal Register, after 1,231 pages the previous week.
  • The average Federal Register issue this year contains 291 pages.
  • With 53,182 pages so far, the 2021 Federal Register is on pace for 72,656 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 10 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 $1.42 billion to $4.81 billion. 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 307 final rules meeting the broader definition of “significant” in 2021, with six in the last week. This is on pace for 502 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 656 new rules affect small businesses; 82 are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

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

Senate Judiciary Antitrust Hearing on Big Data Based on Flawed Premises

This press release was originally posted at cei.org.

WASHINGTON – The Senate Judiciary Committee’s Subcommittee on Antitrust will hold a hearing today on the implications of data on competition. Subcommittee Chair Senator Amy Klobuchar (D-MN) told POLITICO, “Big data is at the core of our modern economy, powering targeted advertising, driving artificial intelligence. It’s a really intense competition issue at its core.”

Competitive Enterprise Institute Senior Fellow Ryan Young said:

“Sen. Klobuchar and her colleagues are arguing that the sheer scale of Big Data makes it difficult for smaller companies to compete in areas such as targeted advertising and algorithm development. There are several problems with this argument.

“One is that new companies are still entering the market and succeeding. TikTok is now garnering more viewing time than Google’s YouTube, and was the most-downloaded app of 2020, surpassing established giants such as Facebook. Zoom, which nobody had heard of two years ago, almost instantly overtook established competitors from Microsoft and other tech giants, and its brand has even become a verb.

“Two, simply having data and established networks of users did not stop Amazon from failing with its Fire phone, Google failing with its social Network Google+, or the anemic performance of Facebook’s Portal devices.

“Three, if the ad market was anti-competitive, the big companies would be able to get away with raising their prices. Instead, ad prices fell by half over the period 2009-2019, even as print ad prices doubled in some cases. Google, Facebook, Apple, and other incumbents spend billions of dollars on research and development. Companies that feel safe from competition do not do this.

“Sens. Klobuchar, Hawley, and others want to write new, expanded antitrust laws. All this would accomplish is give incumbent companies another set of regulations they can game in their own favor; regulatory capture is real. A greater threat of being sued would also have a chilling effect on innovations that regulators might not understand or approve of. The economy needs room to recover, not more central direction from Washington.”

Read more:

Not Always an Antitrust Issue: Airline Edition

The Justice Department is gearing up to file an antitrust case against JetBlue and American Airlines over an alliance they recently formed. The Wall Street Journal reports:

The lawsuit, which could come as soon as Tuesday, is expected to argue that the recently forged alliance threatens competition and higher fares, the people said.

American and JetBlue announced their alliance in July 2020, saying boosting their offerings in the Northeast by marketing one another’s flights on certain routes would allow them to become more formidable competitors at the three New York area airports and in Boston.

Assume, for the sake of argument, that the American-JetBlue pact is anti-competitive (the airlines dispute this, and I have not yet reached a conclusion). Is antitrust enforcement the right tool for increasing competition? Probably not. Antitrust regulation has a number of built-in flaws that cannot be reformed.

Market conditions can change in a lot less time than it takes to conduct a trial, which is why the case over big IBM’s dominance in mainframe computing, filed in 1969, was eventually dropped—in 1982, when personal computers were taking over the market.

Competing in the courtroom takes resources away from competing in the market, and can have a chilling effect on efficiency-enhancing innovations and business practices.

And then there is regulatory capture, where businesses coopt regulators for their own purposes. It wouldn’t be surprising to see other airlines try to influence this case, just as rival software companies did during the Microsoft case in the late 1990s. Oracle went as far as attempting to bribe rivals’ office janitors to hand over trash that might have contained sensitive documents.

A better solution would be to repeal existing regulations that bar international airlines from operating domestic flights in the U.S.—which is essentially a Jones Act for airlines. That reform alone would expose American’s and JetBlue’s joint flights to hundreds of potential new competitors. It would require no new spending, no court costs, and no lawyer fees. The airlines could compete in the marketplace, not the courtroom, and those worried about increasing concentration in the airline industry would have far less to worry about.

Antitrust is trendy right now. Its high visibility is one reason why activists are calling for using antitrust enforcement everywhere from airlines to health care to live events—and not just against the Big Tech companies that garner most of the headlines.

When you have a hammer, everything looks like a nail. But sometimes the correct tool for the job is a screwdriver or a saw. This is one case where the right tool is regulatory reform, not an antitrust prosecution.

For more CEI research on antitrust, see our dedicated antitrust website, as well as Wayne Crews’s and my paper “The Case against Antitrust Law.”

This Week in Ridiculous Regulations

Inflation remains high at over 5 percent, California’s governor will finish out his term after a recall attempt failed, and culture warriors got outraged at each other over a gala in New York. Meanwhile, agencies issued new rules ranging from tobacco advertising to job titles.

On to the data:

  • Agencies issued 59 final regulations last week, after 59 the previous week.
  • That’s the equivalent of a new regulation every two hours and 51 minutes.
  • With 2,309 final regulations so far in 2021, agencies are on pace to issue 3,243 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 46 proposed regulations in the Federal Register last week, after 29 the previous week.
  • With 1,512 proposed regulations so far in 2021, agencies are on pace to issue 2,124 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
  • Agencies published 458 notices last week, after 354 notices the previous week.
  • With 15,661 notices so far in 2021, agencies are on pace to issue 21,996 notices this year. 2020’s total was 22,480.
  • Last week, 1,231 new pages were added to the Federal Register, after 931 pages the previous week.
  • The average Federal Register issue this year contains 293 pages.
  • With 52,069 pages so far, the 2021 Federal Register is on pace for 73,131 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 10 such rules so far in 2021, one 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 $1.42 billion to $4.81 billion. 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 301 final rules meeting the broader definition of “significant” in 2021, with three in the last week. This is on pace for 423 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 643 new rules affect small businesses; 80 are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

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

John Stuart Mill on the Limits of Economics

We must never forget that the truths of political economy are truths only in the rough: they have the certainty, but not the precision, of exact science.

-John Stuart Mill, Principles of Political Economy, Book 2, chapter XVI.4, p. 422.

John Stuart Mill on Lawyers

The exorbitantly-paid profession of lawyers, so far as their work is not created by defects in the law, of their own contriving, are required and supported principally by the dishonesty of mankind.

-John Stuart Mill, Principles of Political Economy, Book 1, chapter VII.5, p. 110.

This Week in Ridiculous Regulations

The 2021 Federal Register surpassed 50,000 pages in a short Labor Day week. Fresh off a trillion-dollar infrastructure bill, Congress began work on a $3.5 trillion reconciliation bill, which will in turn be followed by a roughly $6 trillion budget bill. Meanwhile, agencies issued new rules ranging from floating cabins to shipping human blood.

On to the data:

  • Agencies issued 59 final regulations last week, after 72 the previous week.
  • That’s the equivalent of a new regulation every two hours and 51 minutes.
  • With 2,250 final regulations so far in 2021, agencies are on pace to issue 3,251 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 29 proposed regulations in the Federal Register last week, after 39 the previous week.
  • With 1,466 proposed regulations so far in 2021, agencies are on pace to issue 2,118 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
  • Agencies published 354 notices last week, after 467 notices the previous week.
  • With 15,203 notices so far in 2021, agencies are on pace to issue 21,970 notices this year. 2020’s total was 22,480.
  • Last week, 931 new pages were added to the Federal Register, after 1,604 pages the previous week.
  • The average Federal Register issue this year contains 294 pages.
  • With 50,833 pages so far, the 2021 Federal Register is on pace for 73,461 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 nine 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 $1.42 billion to $4.81 billion. 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 293 final rules meeting the broader definition of “significant” in 2021, with two in the last week. This is on pace for 423 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 622 new rules affect small businesses. 78 are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

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

Court Rules Apple App Store Rules Do Not Violate Antitrust Laws

This press release was originally posted on cei.org.

A federal district court today ruled that Apple’s rules regarding payments on its App Store do not violate antitrust laws. The case, brought by video game maker Epic Games, alleged Apple violated antitrust laws by requiring purchases be made on its own system.

Director of CEI’s Center for Technology and Innovation Jessica Melugin said:

“With a court finding it is not a monopoly, the decision is largely a victory for Apple. The company will mostly continue to operate their private property, the Apple App Store, by the rules it wishes. Apple will not be forced to allow outside payment systems from developers and the App Store can remain the exclusive app download method on iPhones and iPads. The finding that Apple is in violation of California state law under the software giant’s prohibition on developers telling users there are alternative and cheaper payment options is along the lines of concessions it has already started to make with internal policy changes and legal settlement offers. Consumers will continue to benefit from Apple’s intact security, convenience and reliability at the App Store.”    

Senior Fellow Ryan Young said:

“The wisdom of Apple’s business practices is constantly being put to the test by consumers. Their size does not protect them from flops like the Newton tablet, its failed Ping social network, or its forgotten Pippin gaming console. Same goes for the App Store’s payment and commission policies.

“The separate question of whether Apple’s App Store is a monopoly is less debatable. Making that case requires defining Apple’s market so narrowly that real-world consumers can escape its boundaries with a dozen keystrokes or less. Before Apple booted Epic’s Fortnite game from its App Store in August 2020, roughly 90 percent of Fortnite downloads came through non-App Store vendors. Epic tried to define Apple’s market this way; the court disagreed.

“Any market is a monopoly if you define it narrowly enough. But those types of language games don’t always hold up in court. Real-world considerations keep getting in the way.” 

Latest Producer Price Index Indicates Inflation Too High

This press release was originally posted on cei.org.

The government’s latest numbers on average changes in prices, as measured by the Producer Price Index (PPI), are up at an annualized rate of 8.3 percent – higher than the Consumer Price Index’s latest reading of 5.4 percent.

CEI Senior Fellow Ryan Young says the discouraging numbers indicate Congress should change course.

“The PPI is often seen as a leading indicator of what is to come, and today’s high reading indicates inflation is much higher than the Fed’s longtime target inflation rate of about 2 percent. High inflation is bad news for the near future. While a return to 1970s-era stagflation remains unlikely because the only damper on an otherwise-sound economy is the pandemic, today’s inflation is still cause for concern because policymakers may not learn the right lessons.

“The main causes of today’s inflation are heavy deficit spending and a loose Federal Reserve policy. The Federal Reserve indicated it will dial things back a bit on its end starting next year, but since there is a midterm election coming up, it will likely face political pressure to keep interests low. On spending, both parties are proving hopeless.

“Today’s inflation is preventable. People are opening up to the extent they feel safe doing so. Congress’ ongoing spending binge will have little or no effect on people’s safety decisions. Policymakers should instead encourage prudence in dealing with COVID risks without risking backlash by being too heavy-handed about it. The most useful actions policymakers could take would be passing non-spending stimulus measures such as loosening regulations on occupational licensing, trade restrictions, and excessive permit and paperwork burdens.”