This Week in Ridiculous Regulations

Retail sales declined 16.4 percent in April, setting a new record low for the second month in a row. Congress returned to Washington, putting the economy in further danger. Meanwhile, regulatory agencies issued new final regulations ranging from foreign journalists to dog licenses.

On to the data:

  • Last week, 47 new final regulations were published in the Federal Register, after 69 the previous week.
  • That’s the equivalent of a new regulation every three hours and 34 minutes.
  • Federal agencies have issued 1,155 final regulations in 2020. At that pace, there will be 3,039 new final regulations. Last year’s total was 2,964 regulations.
  • There were also 53 proposed regulations in the Federal Register last week, for a total of 841 on the year. At that pace, there will be 2,213 new proposed regulations in 2020. Last year’s total was 2,184 proposed regulations.
  • Last week, agencies published 450 notices, for a total of 8,278 in 2020. At that pace, there will be 21,784 new notices this year. Last year’s total was 21,804.
  • Last week, 2,036 new pages were added to the Federal Register, after 1,323 pages the previous week.
  • The 2020 Federal Register totals 29,589 pages. It is on pace for 77,866 pages. The 2019 total was 76,288 pages. The all-time record adjusted page count (which subtracts 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. Three such rules have been published this year. Four such rules were published in 2019.
  • The running cost tally for 2020’s economically significant regulations ranges from net savings of between $1.38 billion and $4.19 billion. 2019’s total ranges from net savings of $350 million to $650 million, mostly from estimated savings on federal spending. The exact number depends on discount rates and other assumptions.
  • Agencies have published 26 final rules meeting the broader definition of “significant” so far this year. 2019’s total was 66 significant final rules.
  • So far in 2020, 232 new rules affect small businesses; 10 of them are classified as significant. 2019’s totals were 501 rules affecting small businesses, with 22 of them significant.

Highlights from last week’s new final regulations:

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

Time for a Federal Price Gouging Law?

Amazon’s vice president of public policy, Brian Huseman, calls for a federal price gouging law in a recent post over at Amazon’s in-house blog. This is a bad idea for several reasons.

One is that there are already effective ways to reduce price gouging without regulation. At Amazon, Huseman writes, “We deploy dynamic automated technology to proactively seek out and pull down unreasonably priced offers, and we have a dedicated team focused on identifying and investigating unfairly priced products that are now in high demand, such as protective masks and hand sanitizer.”

This should be a competitive selling point for Amazon, not a call for more regulation. Regulations, remember, are made by the government we have, not the government we want. Amazon’s technology and in-house policies are almost certainly more effective than what Donald Trump, Nancy Pelosi, or Mitch McConnell would enact during an election year and a pandemic. Company-level policies are also more adaptable than federal-level policies as technology and circumstances change.​

In fact, if Amazon isn’t already doing so, it could license or sell its anti-price gouging technology to competitors for a profit. Price gouging is unpopular, and companies that fight against it look good to customers. Amazon does not need federal regulations to force this business opportunity into being.

Looking at price gouging legislation from Amazon’s perspective, but without the public relations filter, they stand to gain three things from a federal price gouging law:

  1. Regulatory certainty. One federal standard is easier to follow than dozens of state standards.
  2. Liability protection. Amazon will face fewer price gouging lawsuits if the company is cooperative with legislators, or even has a hand in crafting the rules.
  3. Rent-seeking, which is economists’ term for using government for unfair advantage. Price gouging legislation is a way for Amazon to raise rivals’ costs without having to improve its own offerings. Amazon has already invested in artificial intelligence algorithms (AI) and in enforcing guidelines for its third-party sellers. Many of Amazon’s competitors have not, especially the smaller ones.

There is something to be said for the first two items, though there are also arguments against them. But the third item, rent-seeking, is anti-competitive behavior at its worst. One of the primary reasons CEI opposes antitrust regulation, for example, is that antitrust regulations themselves are a major rent-seeking opportunity. Big companies routinely game the rules to thwart competition. Price gouging legislation is another example of the same rent-seeking process. These initiatives happen when companies compete in Washington, rather than the marketplace.

Other Factors

Amazon’s call for a price gouging bill might be part of a larger effort to get itself out of antitrust crosshairs. Ironically, such a bill would make retail less competitive. Not only would Amazon raise rivals’ costs, legislation would prevent companies from competing with each other to offer price gouging policies their customers most prefer.

The timing is as bad as the idea itself. Retail sales declined by 16.4 percent in the month of April, the worst ever recorded—for the second month in a row. Retailers have enough to deal with without having to spend resources complying with new rules their competitor helped to write.

There is a federalism angle, as well. A federal rule would impose standards on more than a dozen states that intentionally refuse them.

Prices Are More than Money

As any good economist will tell you, money isn’t everything. Prices are a lot more than money. Every good has a mix of both money and non-money prices. Price gouging legislation is ultimately ineffective because it only reduces ­money prices during a crisis. Tamping down on those means more severe non-money price increases. These cannot be legislated away.

A high money price causes people who don’t urgently need toilet paper or hand sanitizer to hold off until later, when the price goes back down. That leaves more left over for people who need it now. This matters a great deal during an emergency. On the other side of the equation, that same money price increase also induces producers and distributors to go the extra mile, often literally.

What about non-money prices? One example of a non-money price is when a good becomes harder to find. You might have to drive to a store further away or do some deep digging online for some potentially shady sources. Queuing and waiting lists emerge or shipping times might take longer. These things don’t cost money, but they still have a price. They are not measured in dollars, but in wasted time, extra hassle and stress, and lost opportunities. These non-money price increases leave people with less time left over for other things such as job searches, home schooling, or even taking some time for self-care.

Shortages will happen during a crisis. That is unavoidable. The question is how to deal with them. Just as pushing on a balloon doesn’t change how much air is in it, squeezing down on money prices with a price gouging regulation doesn’t actually do anything to stop price increases. It mostly just redirects them to non-money areas.

What is the correct mix of money- and non-money prices? That is a subjective value judgment. There is no truly right or wrong answer, which is another reason why federal price gouging legislation is bad policy.

Public opinion is pretty well set against price gouging. Importantly, though, most anti-price gouging activists have likely not considered the tradeoffs they would pay in steeper non-money prices. Some of them would likely change their mind if they did. Pollsters should find out. Corporate PR departments would likely change their tune quite a bit based on the results.

Federal price gouging legislation would not stop price increases or alleviate shortages. It would sharply increase non-money prices during emergencies and drive some economic activity into black markets. Companies can set their own price gouging policies without regulation, as Amazon has proven with a mix of AI and sanctions against violating sellers. The rent-seeking aspect of potential price gouging legislation is worth considering for people concerned about business ethics and about large companies gaining an unfair advantage over smaller rivals.

In short, a price gouging bill is #NeverNeeded. Congress has already passed enough harmful flash policy. There’s no need for still more.

This Week in Ridiculous Regulations

The first full week of May featured a continuing pandemic with a death toll that now exceeds the Vietnam War, the biggest unemployment increase in U.S. history, a hailstorm in the D.C. area, freezing temperatures in parts of Midwest, and murder hornets. Meanwhile, regulatory agencies issued new final regulations ranging from walnut reserves to organic regulations.

On to the data:

  • Last week, 69 new final regulations were published in the Federal Register, after 48 the previous week.
  • That’s the equivalent of a new regulation every two hours and 26 minutes.
  • Federal agencies have issued 1,105 final regulations in 2020. At that pace, there will be 3,070 new final regulations. Last year’s total was 2,964 regulations.
  • There were also 57 proposed regulations in the Federal Register last week, for a total of 733 on the year. At that pace, there will be 2,156 new proposed regulations in 2020. Last year’s total was 2,184 proposed regulations.
  • Last week, agencies published 428 notices, for a total of 7,842 in 2020. At that pace, there will be 21,784 new notices this year. Last year’s total was 21,804.
  • Last week, 1,323 new pages were added to the Federal Register, after 3,112 pages the previous week.
  • The 2020 Federal Register totals 27,643 pages. It is on pace for 76,787 pages. The 2019 total was 76,288 pages. The all-time record adjusted page count (which subtracts 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. Three such rules have been published this year. Four such rules were published in 2019.
  • The running cost tally for 2020’s economically significant regulations ranges from net savings of between $1.38 billion and $4.19 billion. 2019’s total ranges from net savings of $350 million to $650 million, mostly from estimated savings on federal spending. The exact number depends on discount rates and other assumptions.
  • Agencies have published 24 final rules meeting the broader definition of “significant” so far this year. 2019’s total was 66 significant final rules.
  • So far in 2020, 220 new rules affect small businesses; nine of them are classified as significant. 2019’s totals were 501 rules affecting small businesses, with 22 of them significant.

Highlights from last week’s new final regulations:

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

April Pandemic-Caused Unemployment Rate Underscores Urgency of Getting Rid of #Neverneeded Regulations

The following is a press release originally posted at cei.org:

CEI senior fellow Ryan Young indicated that April’s 14.7 percent unemployment rate was unsurprising and will probably continue in May. He called on policymakers to keep deregulating as a prime way of helping people.

“The best thing policy makers can do is to waive regulations that prevent people from picking up the pieces. Businesses will need easier access to loans, crowdfunding, and other financing than they have now. Occupational licenses that keep out new workers in order to protect existing businesses are, in many cases, more harmful now than ever. Months-long permit processes that prevent businesses from adapting to the new conditions must be eased and sped up. A great deal of economic pain is inevitable right now. Congress, the President, and the states should act immediately to minimize the unnecessary self-inflicted pain that regulations are causing right now.”

For a list and discussion on #neverneeded regulations, visit neverneeded.cei.org/.

 

This Week in Ridiculous Regulations

Thursday’s Federal Register was not published online until late in the evening due to a technical error. Friday’s edition did not appear until the afternoon. Both editions are more than 1,000 pages each; an average day is under 300 pages. The 2020 Federal Register passed 25,000 pages, and is poised to surpass last year’s page count by more than 1,000 pages. The number of final regulations in 2020 also passed the 1,000 barrier. Meanwhile, regulatory agencies issued new final regulations ranging from fuel economy to seasonal workers.

On to the data:

  • Last week, 48 new final regulations were published in the Federal Register, after 55 the previous week.
  • That’s the equivalent of a new regulation every three hours and 30 minutes.
  • Federal agencies have issued 1,036 final regulations in 2020. At that pace, there will be 3,048 new final regulations. Last year’s total was 3,150 regulations.
  • There were also 49 proposed regulations in the Federal Register last week, for a total of 733 on the year. At that pace, there will be 2,156 new proposed regulations in 2020. Last year’s total was 2,184 proposed regulations.
  • Last week, agencies published 425 notices, for a total of 7,414 in 2020. At that pace, there will be 21,806 new notices this year. Last year’s total was 21,804.
  • Last week, 3,112 new pages were added to the Federal Register, after 1,464 pages the previous week.
  • The 2020 Federal Register totals 26,318 pages. It is on pace for 77,405 pages. The 2019 total was 76,288 pages. The all-time record adjusted page count (which subtracts 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. Three such rules have been published this year. Four such rules were published in 2019.
  • The running cost tally for 2020’s economically significant regulations ranges from net savings of between $1.38 billion and $4.19 billion. 2019’s total ranges from net savings of $350 million to $650 million, mostly from estimated savings on federal spending. The exact number depends on discount rates and other assumptions.
  • Agencies have published 24 final rules meeting the broader definition of “significant” so far this year. 2019’s total was 66 significant final rules.
  • So far in 2020, 202 new rules affect small businesses; nine of them are classified as significant. 2019’s totals were 501 rules affecting small businesses, with 22 of them significant.

Highlights from last week’s new final regulations:

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

This Week in Ridiculous Regulations

New unemployment applications were down to 4.4 million last week. This is still more than an order of magnitude greater than the pre-coronavirus record. With roughly 26 million people now claiming benefits, the unemployment rate is likely now at Great Depression-era levels. Meanwhile, regulatory agencies issued new final regulations ranging light-duty vehicles to golden parakeets.

On to the data:

  • Last week, 55 new final regulations were published in the Federal Register, after 49 the previous week.
  • That’s the equivalent of a new regulation every three hours and three minutes.
  • Federal agencies have issued 988 final regulations in 2020. At that pace, there will be 3,088 new final regulations. Last year’s total was 3,150 regulations.
  • There were also 39 proposed regulations in the Federal Register last week, for a total of 684 on the year. At that pace, there will be 2,138 new proposed regulations in 2020. Last year’s total was 2,184 proposed regulations.
  • Last week, agencies published 462 notices, for a total of 6,989 in 2020. At that pace, there will be 21,841 new notices this year. Last year’s total was 21,804.
  • Last week, 1,464 new pages were added to the Federal Register, after 1,352 pages the previous week.
  • The 2020 Federal Register totals 23,204 pages. It is on pace for 72,513 pages. The 2019 total was 76,288 pages. The all-time record adjusted page count (which subtracts 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. Two such rules have been published this year. Four such rules were published in 2019.
  • The running cost tally for 2020’s economically significant regulations ranges from net savings of between $180 million and $4.69 billion. 2019’s total ranges from net savings of $350 million to $650 million, mostly from estimated savings on federal spending. The exact number depends on discount rates and other assumptions.
  • Agencies have published 20 final rules meeting the broader definition of “significant” so far this year. 2019’s total was 66 significant final rules.
  • So far in 2020, 195 new rules affect small businesses; eight of them are classified as significant. 2019’s totals were 501 rules affecting small businesses, with 22 of them significant.

Highlights from last week’s new final regulations:

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

Retro Review: Vlad Tarko on Elinor Ostrom

My review of Vlad Tarko’s excellent intellectual biography of Elinor Ostrom is up at cei.org. Ostrom was the first woman to win the economics Nobel. In addition to popularizing the concept of polycentric governance, she, along with her husband Vincent Ostrom, co-founded the Workshop at Indiana University, which continues to produce high-quality multidisciplinary scholarship.

Trump Defers Tariff Payments for Struggling Businesses: A Good Start, More Needed

President Trump has deferred selected tariff payments for companies experiencing coronavirus-related hardship. U.S. Customs issued a press release here and the temporary final rule appeared in the April 22 Federal Register. It came after more than two weeks of starts, stops, denials, reversals, and at least one accusation of “fake news” from the president. This indicates that trade policy is still an area of uncertainty and not something rebuilding businesses can plan around—potentially endangering post-virus economic recovery.

The deferrals are better than nothing. But it is important not to oversell them. Here is a bit of context on the impact they are likely to have:

  • They are deferrals, not exemptions. U.S. producers will still pay all affected tariff duties, just 90 days later. Because of this, companies have no reason to reduce prices for consumers.
  • The deferrals are only for imports made in March and April—precisely when imports significantly slowed. That limits their usefulness in buying time for cash-strapped businesses.
  • None of the Trump tariffs from 2017 onwards are eligible for deferrals. Since Trump has roughly doubled tariffs, this means about half of all tariffs are not eligible for deferred payment. That includes the steel and aluminum tariffs, the China tariffs, and other recent measures against the European Union, Turkey, and India.
  • Antidumping and countervailing duties are also ineligible for deferred payments. These are the most common type of trade barrier, further limiting the deferrals’ impact.
  • Companies must be experiencing “significant financial hardship” to be eligible This means a company must have lost at least 60 percent of its sales since this time in 2019.

The Cato Institute’s Dan Ikenson estimates the deferrals will total about $6 billion. That is certainly enough to buy some time for some struggling businesses. For context, total customs duties in 2019 were $85 billion. Total U.S. imports were $3.43 trillion (in chained 2012 dollars; $3.77 trillion in 2019 dollars). The most newsworthy part of these deferrals might be how newsworthy they aren’t.

The administration and Congress could do much better. A more wide-ranging trade relief measure ewould include Trump’s newly enacted tariffs. It could even do away with them entirely.

Considering the hemming, hawing, and uncertainty that surrounded even this small deferral, Congress should give businesses some stability to plan around by taking back the tariff-making authority it delegated away to the president in the 1960s and 1970s. This would prevent further increases while insuring against ad hoc multibillion-dollar policy changes with little or no notice.

While better than nothing, this deferral is far less than what needs to be done to allow businesses to rebuild, save consumers money, and for supply networks to get medical equipment where it is most needed.

That said, the deferral has a subtle hidden benefit. It marks at least the second time the Trump administration has tacitly admitted that Americans, not foreign exporters, pay tariffs. The first admission happened last August when adviser Peter Navarro called a delay in upcoming new China tariffs “President Trump’s Christmas present to the nation.” More such presents would help protect public health right now while helping with economic rebuilding when the pandemic passes.

On the Radio: #NeverNeeded Regulations

At 7:15 ET today, I’ll appear on the Lars Larson Show to talk about #NeverNeeded regulations.

Congress Has Already Introduced Bills to Reform #NeverNeeded Regulations

Policy makers have already waived more than 350 regulations and counting that were slowing the pandemic response and harming economic recovery. But with a 185,000-page Code of Federal Regulations and plenty more rules at the state and local levels, there is more to do. Fortunately, a number of bills have already been introduced in Congress that could help get rid of more #NeverNeeded regulations.

CEI’s Agenda for Congress has more reform ideas, though not all of them are applicable to the #NeverNeeded effort. For a guide on identifying #NeverNeeded regulations, see our handy infographic. We also a have a short paper full of reform ideas and the neverneeded.cei.org website. And of course, the #NeverNeeded social media hashtag is a continuing source of new ideas.

Fixing the Regulatory Process

Regulations from the Executive in Need of Scrutiny (REINS) Act (S. 92) 

This bill would require Congress to vote on new regulations costing more than $100 million per year. The Senate version is sponsored by Rand Paul (R-KY), Chuck Grassley (R-IA), Joni Ernst (R-IA), Todd Young (R-IN), and Ted Cruz (R-TX). Rep. Jim Sensenbrenner (R-WI) sponsors the House version. The REINS Act is a separation of powers bill intended to make sure agencies don’t go rogue and pass major rules Congress never authorized through legislation.

While the REINS Act would affect fewer than 50 rules in an average year out of more than 3,000, it would add stability to an uncertain regulatory climate. Agencies would have to stay within the bounds Congress has legislated for them, and would not be able to pass hasty “flash policy” that could hurt the virus response and economic recovery. For more, see my paper on the REINS Act.

Guidance Out Of Darkness (GOOD) Act (S.380)

Agencies are required to put new regulations through a notice-and-comment rulemaking process. This allows the public to see and contribute to draft versions of regulations before they become final. But agencies routinely avoid this transparency and accountability by enacting regulation through other means such as guidance documents, memoranda, or even press releases and blog posts. CEI’s Wayne Crews calls these extralegal rules “regulatory dark matter.” Courts routinely defer to dark matter in cases, meaning it has de facto force of law.

President Trump issued an Executive Order last year requiring agencies to make all of their guidance documents public. This is an excellent start, but the problem with Executive Orders is that the next president can undo them on a whim. Dark matter reform needs the permanence that comes with congressional legislation. The GOOD Act, sponsored by Sen. Ron Johnson (R-WI) and Rep. Mark Walker (R-NC), would increase agency transparency and accountability. It would also add stability to the regulatory environment that recovering businesses can plan around during a chaotic time. Wayne Crews has more on regulatory dark matter here.

Jones Act Repeal

Open America’s Waters Act of 2019 (S. 694) 

The Jones Act costs the economy somewhere between $656 million to $9.8 billion per year. The Open America’s Waters Act, sponsored by Sen. Mike Lee (R-UT), would repeal it entirely. The Jones Act is a shipping law from 1920 that is essentially a Buy American law for moving goods between U.S. ports. Incumbent shipping companies love the Jones Act for obvious reasons—it keeps competition out. But because of the Jones Act, shipping between U.S. ports is slow and expensive.

There is little incentive to innovate or save costs, and the ships are aged and small, since there is little need to invest in fleet improvements in a government-protected cartel. This contrasts sharply with international shipping, where the Jones Act does not apply. When competition is allowed, shipping is cheaper, faster, more reliable, and more competitive.

An effective coronavirus response needs medical supply networks to be fast, flexible, and affordable. Improved shipping will also aid in the coming economic recovery. The Jones Act has long been obsolete. Now is the ideal time to finally get rid of it, and the Open America’s Waters Act would do just that. CEI’s Mario Loyola’s forthcoming Jones Act paper has more.

Protecting Access to American Products Act (S. `1873)

If outright repeal of the Jones Act proves not possible politically, then this bill, also sponsored by Sen. Lee, is a second-best backup plan. It would streamline the Jones Act waiver process

National Environmental Policy Aact Reform

Federal Permitting Reform and Jobs Act (S. 1976)

This bill would ease environmental permitting and other obstructions that delay infrastructure projects. It builds on previous reforms in the Fix America’s Surface Transportation Act of 2015. The Senate version is sponsored by Sen. Rob Portman (R-OH) and the House version’s bipartisan sponsors include Reps. Kelly Armstrong (R-ND), Rob Bishop (R-UT), and Collin Peterson (D-MN). Congress is clearly committed to trillions of dollars of “flash policy” such as stimulus and bailouts. Much of it will be wasteful, but reforms such as this bill will help at least a little more of that money spent on projects instead of on red tape.

This list is only a beginning. Adding to it would help public health during the COVID-19 response and with economic recovery when it is safe again. Policy makers can find plenty of ideas in CEI’s new #NeverNeeded paper, as well as our Agenda for Congress.