The Biden administration ended the last calendar year with a whisper. It added only 1,400 pages to the Federal Register. That’s a slow week for a document that grows by 75,0000 or 85,000 pages a year. And yes, there is someone who tracks this. For what it means, the Federal Drive with Tom Temin turned to the deputy chief policy editor at Ballotpedia, Caitlin Styrsky.
Tom Temin: Ms. Styrsky, good to have you on.
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Caitlin Styrsky: Thanks for having me,
Tom Temin: Just briefly tell us about Ballotpedia, because the Federal Register and ballots don’t necessarily sound like they go together in the same sentence.
Caitlin Styrsky: So Ballotpedia is what we like to call the encyclopedia of American politics. And one of the projects that we have here at Ballotpedia, as part of our policy team, is to track the Federal Register additions to the Federal Register dating all the way back to 1936.
Tom Temin: And so for people that really care about the issues, you can learn a lot, if you have the intestinal fortitude to read the Federal Register.
Caitlin Styrsky: Definitely. We have all of that data available for readers. So they can definitely deep dive when they have a chance.
Tom Temin: And for those in the federal government — the two or three that may not know what goes into the Federal Register —maybe just give us a sense of what it’s made of.
Caitlin Styrsky: The Federal Register has several different types of documents that are added to it each week. And we track all of those documents as part of our project here at Ballotpedia. Notices is the first type of document that’s added, and that includes information about federal agency activities, such as announcements of upcoming meetings, recent agency reports, updates to proposed rules, any requests for public comment, that type of information. They also include presidential documents, which are executive orders, proclamations or any sort of announcement from the Executive Office of the President. We also track proposed rules, as well as final agency rules.
Tom Temin: Yeah, some of those rules can get pretty lengthy. I mean, say, if CMS changes a rule in the way healthcare providers are paid, it could be a 300-page entry.
Caitlin Styrsky: Oh, definitely. Yes.
Tom Temin: So that means that prolific as the Biden administration is at writing executive orders, executive orders are really a smallish part of the whole activity, aren’t they?
Caitlin Styrsky: They are a smaller proportion of the Federal Register compared to proposed rules and final rules, yes. And notices. Notices are actually the largest category of documents in the Federal Register.
Tom Temin: And you showed that in 2021, then. The Federal Register totaled 74,532 pages. The year before in 2020, 87,352. And going back one more year to 2019, it was 72,564. It looks like the average is around [70,000-75,000]. And then we had a year with [87,000]. Is that another result of COVID?
Caitlin Styrsky: Interesting, that’s actually pretty on a par with the page counts that we’ve been seeing in recent years. So the Federal Register reached an all time high of 95,894 pages. That was back in 2016. And then it generally is common to see page totals decline a bit in the first year of a presidential administration, and then rise from there a little bit, as the administration kind of gets its bearings and begins its regulatory activity.
Tom Temin: Now 2016, though, was the last year of an eight-year administration —or two four-year terms of Obama team. So is that gigantic total 90, almost 96,000 pages, is that a result of trying to get into policy everything they possibly could before leaving office, knowing at least for a short part of the years that they would be succeeded by someone from the different party?
Caitlin Styrsky: So that could be one conclusion you could draw. You have to be really cautious when you draw conclusions using federal register page numbers. Several factors kind of complicate any sort of page-specific or document-specific comparisons between years or administrations. So, for example, proposed rules didn’t need to be added until after the Administrative Procedure Act was passed in 1946. And then in the mid 60s, explanatory preamble started to be added to documents. And so that’s significantly started to lengthen some of these page totals, especially the year end page totals for the final Federal Register. And then if you go all the way prior to 1976, the Federal Register wasn’t broken down by categories. So then it kind of makes it a little more complicated to compare document totals for years when we don’t have that data to look back to. So when you’re talking about 2016, it is common at the end of the presidential administration for them to pass what’s known as midnight regulations —those kind of last minute regulations that they tried to put through prior to the new administration taking office. An interesting thing to note is that even though page totals have increased over the years, actual real rule counts have declined. So you can’t really draw conclusions about whether a large number of pages at the end of the year unnecessarily correlates to a large number of rules. For example, Biden’s rule count in this last year was actually the second lowest rule count since records have been kept since 1976. So it’s kind of hard to make those comparisons between rules and page numbers, if that makes.
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Tom Temin: Interesting, yes. We’re speaking with Caitlin Styrsky. She’s deputy chief policy editor at Ballotpedia. So does, in the end, the up-and-down page count have any meaning at all, do you think?
Caitlin Styrsky: So we like to think of it as a common measure of an administration’s overall regulatory activity. And that accounts for both regulatory and deregulatory actions. So it’s kind of a large snapshot of kind of how a presidential administration is functioning in terms of its regulatory activity. But in terms of drawing any more specific or nuanced conclusions about what that might mean, it would take significantly more parsing out of the data.
Tom Temin: Sure. And if you have a last minute, at the end of an administration, stuffing of the rulemaking, you might have an equal reduction of the same rulemaking at the beginning of the next administration.
Caitlin Styrsky: Right, that’s true. And we actually do have a separate tracking project at Ballotpedia, which is the federal agency rules repealed under the Congressional Review Act, which, you know, is in the news recently. The Trump administration used it, and the Biden administration has also used it. So that is an area you kind of want to look toward when you’re looking at overall rule counts as well.
Tom Temin: And in the age of looking at the long-term trend, as this thing has gone electronic and it’s easier to generate material and you don’t have as much storage need physical storage, has it gotten fatter in the electronic age versus when the whole thing was submitted in paper and printed and paper?
Caitlin Styrsky: That’s a great question. I don’t think necessarily the size of the Federal Register correlates to whether it’s been electronically published or not. I think it’s just grown over time in general.
Tom Temin: Sure. Is there any single agency that contributes the most in terms of pages? Do you know that?
Caitlin Styrsky: You know, that’s a great question. And that’s not something that we’ve independently looked at it Ballotpedia. We don’t break our data down by agency. But it is something that you could certainly look into because the Federal Register website is actually very user friendly. And you can certainly break that information out if you’re interested.
Tom Temin: Because some agencies, it’s simply what they do is more complicated. I mentioned CMS, because I’ve read a couple of CMS rules, or perused them let’s say, and literally changing one little thing takes 300 pages. Where some, maybe I dont know, OSHA, if you change the screws used to hold a shelf up, so it doesn’t fall on somebody’s head, that could be a relatively short rule.
Caitlin Styrsky: Right. Well, and that goes back to what we were talking about earlier, how page counts don’t necessarily correlate to large rule counts. So it kind of takes a little more parsing of the data to kind of get in the weeds there and figure that out.
Tom Temin: And those prefaces — the explanatory premises you mentioned — they were added a number of years ago. But that kind of, that idea then seems to indicate that rulemaking is written in such a way that you need an explanation to tell people what it is you’re going to tell them in the actual rule or proposed rule.
Caitlin Styrsky: Right, yes. If you ever take the time to look through a lot of those rule makings in the Federal Register, they can be very lengthy and they can be very explanatory. So they kind of hold your hand in a lot of cases and walk you through what the changes
Tom Temin: In some way, rule changes read like legislation, where people think when they hear a grand idea of the purpose of a legislation, when you actually read the bills, you’re just reading chapter and verse on citations of old bills. And it’s almost — it’s not almost — it is incomprehensible. And so the explanatory preface can give you the picture that they’re actually trying to paint in legalistic language. Fair enough?
Caitlin Styrsky: Fair enough. Yes. And also, those rules generally include information about periods of public comment when readers can go in and leave their own opinions and suggestions for rules as well. So that’s important to note as well.
Tom Temin: And what do you like best about the Federal Register?
Caitlin Styrsky: I just like working with the numbers. I enjoy breaking it down and comparing the numbers from administration to administration. Like, for example, last year was the final year of the Trump administration. So we were able to go through and kind of compare page counts in the final year of different administrations going going back to Carter. So that was kind of a fun little side project to be able to do. And it’s just kind of, like I said, it’s a good snapshot of overall regulatory activity.
Tom Temin: Caitlin Styrsky is deputy chief policy editor at Ballotpedia. Thanks so much for joining me.
Caitlin Styrsky: Thank you for having me.