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Rulemaking is one of the most widespread activities in the federal government. And while there are extensive rules for rulemaking itself, the extent of annual rulemaking is impressive when you add it all up. Our next guest has been keeping a tally for years and has a few ideas for reform. Wayne Crews is the vice president for policy and senior fellow at the conservative-leaning Competitive Enterprise Institute. And he joined  the Federal Drive with Tom Temin.

Interview transcript: 

Tom Temin: I was looking at this in the context of the idea of finding better notice methodologies so that people affected by rulemaking will know about them. And a recent set of recommendations that went to the Administrative Conference of the United States said that simply posting in the Federal Register is insufficient. But aside from that, the volume of it can be really daunting for affected parties or people that want to weigh in on rulemaking. Give us a sense of the number of Federal Register pages every year that get generated, and how that translates back to the Code of Federal Regulations.

Wayne Crews: Well, sure,  a this is an important topic. You know, the federal government does things in one of two ways. Generally, it will spend, it’ll run programs, and that’ll also regulate, which affects the private sector. And regulations do matter a lot, because we get, say a few dozen laws every year. But generally we get at least 3000 regulations every year. So if you got a multiple of regulations coming out of you know, some 18 regulations for every law that comes out. And on top of that, speaking of the the notice that you’re talking about, there are these so called guidance documents, these are the notices, memoranda, circulars, bulletins, administrative interpretations, all these ways that agencies also serve notice to the public with respect to what agencies are up to, well, how do we go about the measurement, no matter what you think the federal government spending, you can always look up the debt, you can always see what the deficit is, but it’s not the same for regulations, you do get the notice in the Federal Register. But remember, the Federal Register now is exceeding 70,000 pages a year, we had several record setting years under Obama, where the Federal Register exceeded 80,000 pages. Now, we’re at the point where, under Biden, it looks like after the Trump hiatus, you might say, remember, Trump put in place a one in two out procedure for regulations that worked especially for a time in the early part of the administration becomes harder to do that, you know, law of diminishing returns. But President Biden has eliminated the Trump restraints on regulation with respect with one and two out and has asked agencies to work together on several whole of government campaigns that are aimed at equity, climate crisis, competition, policy, and so forth. So I would expect you’re going to see additional regulations from the Biden administration. And, and one indicator of this, I just noticed, if you were to go to the Federal Register website and look up its database on the number of regulations that came out last year, in 2021, under Biden, you’re gonna find there were 3000. But if you look at the new updates, that has been posted on PDFs on the Federal Register web page, guess what the number of rules for last year has jumped up to over 4000. It’s been a long time since we had more than 4000 rules that was back in the ’90s. So it’s very, very important that the public get notice.

Tom Temin: And when you talk about the number of pages 70,000 80,000, that’s a given years set of Federal Registers and it resets to zero at the new year.

Wayne Crews: That’s right. That’s right, you get, you know, 70,000 pages a year. At this point under Trump, they dropped down significantly, but in his last year, like any president, when you when your term is ending, and you and the next guy is coming in, you’ll often see what referred to as midnight rules or midnight regulations where they try to rush out the last things they want to get on the books before they depart from office. Same thing was happening under Trump, in his case, arguably, but not all, arguably, some of what he was doing was deregulatory. And you saw the same thing under under President Obama, you saw the big jump during his last year. But yes, you get 70,000 pages roughly give or take 3000 rules that come out every year. And then those rules and regulations wind up of course in the Code of Federal Regulations, which now exceeds 186,000 pages. Something else that took place that’s interesting in this regard to just this past week, the Senate Committee on Homeland Security and Government Affairs had held a confirmation hearing for the nomination for the head of the Office of Information and Regulatory Affairs, within the Office of Management and Budget. In some of these same questions that you’re talking about how to best give public notice about rules and regulations. It did come up. A big topic at that at that hearing was what will be done with respect to this better disclosure of agency guidance documents. And also the Office of Management and Budget is updating the so called circular A4 That looks at the regulatory impact analyses for rules and regulations, right and how they go about assessing costs and benefits. So there are a lot of things in play a lot of rules in the works. But there are also a lot of things in play in terms of the policy of how we address them and disclose them. But to the extent that more governance now happens through guidance document, as opposed to law or as opposed to regulation, we don’t have a code of federal regulations to disclose guidance documents. And that’s something that I think policymakers are going to be looking at over the next couple of years.

Tom Temin: We’re speaking with Wayne Crews. He’s the vice president for policy and a senior fellow at the conservative Competitive Enterprise Institute. And about those guidance documents. There was a Trump executive order that agencies had to post them at their websites. And that executive order was rescinded by President Biden, I think on the first day, isn’t that a great way for the general public to understand that wants to comply with a rule whether they like it or not?

Wayne Crews: I would affirm that guidance document transparency and disclosure is a bipartisan issue. There’s something called the GOOD Act, which stands for guidance out of darkness, which would require the disclosure and posting and you know, in a single location of agency guidance documents, and guess what, as a California Senator Kamala Harris, the vice president now was a co-sponsor of the GOOD Act and the guidance out of darkness legislation under the Trump administration, his executive orders on guidance documents required a portal, agencies began to put them together. I can tell you I had before the Trump executive order, I did an inventory of regulatory dark matter, which is what I took the calling the hidden guidance document, you might say the most I could come up with Tom was a few 1000 guidance documents. After I did that report, the House Government Affairs Committee looked at the guidance document phenomenon and issued a report called shining light on regulatory dark matter. And even then agencies only came up with about 13,000 guidance documents that they were easily able to disclose to the committee after the Trump executive order on disclosure of guidance documents at each agency’s website at agency name.gov/guidance. The agencies at that point had put out about 73,000, when Biden came in, I did another tally. And I have come up now with 107,000 guidance documents that you can readily access. So it’s a good thing that Trump did that I think I’m disappointed that Biden has eliminated it. But I think if we can disclose to the public that hey, we know a lot more now about guidance documents than we did prior to that Trump order that we might get a little bit of bipartisan traction, in terms of disclosure and, and maintaining and preserving that disclosure of guidance documents. That’s the impression I got to from the hearing last week on regulatory oversight, when you had Kyrsten Sinema asking about the disclosure of regulations and making sure that the public was able to find these guidance documents. So despite the heated partisan environment that we’re in right now, I do think that there is some latent ability and willingness and desire to agree on addressing the guidance document phenomenon because as the federal government does more things, you know, in the wake of COVID, in the wake of various crises, it becomes more important to disclose and track guidance documents as they assume more importance on what the federal government’s doing.

Tom Temin: Wayne Crews is the vice president for policy and a senior fellow at the Competitive Enterprise Institute.

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