Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register
Released: 2016-10-04T00:00:00

Introduction

Federal rulemaking is an important mechanism through which the federal government implements policy. Federal agencies issue regulations pursuant to statutory authority granted by Congress. Therefore, Congress may have an interest in performing oversight of those regulations, and measuring federal regulatory activity can be a useful way for Congress to conduct that oversight. The number of federal rules issued annually and the total number of pages in the Federal Register are often referred to as measures of the total federal regulatory burden.

Certain methods of quantifying regulatory activity, however, may provide an imperfect portrayal of the total federal rulemaking burden. For example, the number of final rules published each year is generally in the range of 2,500-4,500, according to the Office of the Federal Register. While some of those rules may have substantial economic, legal, or policy effects, many of them are routine in nature and impose minimal regulatory burden, if any.

The Federal Register provides documentation of the government's regulatory and other actions, and some scholars, commentators, and public officials have used the total number of Federal Register pages each year as a measure for the total amount of regulatory activity. Because the Federal Register has been in print since the 1930s, the number of pages can be useful for cross-time comparisons. However, the total number of Federal Register pages may not be an accurate way to measure regulatory activity for several reasons. For example, the Federal Register contains many other items, not all of which are related to regulations.

This report serves to inform the congressional debate over rulemaking by analyzing different ways to measure federal rulemaking activity. The report begins with a brief overview of how agencies issue rules, identifying the most significant statutory requirements, executive orders, and guidance documents that comprise the rulemaking process. The report then provides data on and analysis of the total number of rules issued each year, as well as information on other types of rules, such as "major" rules, "significant" rules, and "economically significant" rules. These categories have been created by various statutes and executive orders containing requirements that may be triggered if a regulation falls into one of the categories. For example, if a rule is designated "economically significant" under Executive Order (E.O.) 12866, the issuing agency is generally required to perform a cost-benefit analysis and submit the rule for review to OMB's Office of Information and Regulatory Affairs (OIRA). When available, data are provided on each type of rule.

Finally, the report presents data on the number of pages and documents in the Federal Register each year and analyzes the content of the Federal Register .

Brief Overview of Federal Rulemaking

When Congress enacts legislation, it frequently delegates rulemaking authority to federal agencies. Regulations issued by agencies are often the means through which specific requirements are then established. Regulations must be issued pursuant to statutory authority, and the process under which agencies issue regulations is governed by numerous statutory requirements and executive orders. In addition, OMB has issued guidance to agencies detailing how some of those requirements should be met. This section of the report briefly describes the significant statutory and executive requirements and guidance documents.

Statutory Requirements

The most significant statute governing the rulemaking process is the Administrative Procedure Act of 1946 (APA). The APA defines a rule as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." The APA established standards for the issuance of rules using formal rulemaking and informal rulemaking procedures. Informal rulemaking, also known as "notice and comment" rulemaking or "Section 553" rulemaking, is the most common type of rulemaking.

When issuing rules under the APA, agencies are generally required to publish a notice of proposed rulemaking (NPRM) in the Federal Register , take comments on the NPRM, publish a final rule in the Federal Register , and provide for at least a 30-day waiting period before the rule can become effective. The APA specifically authorizes any federal agency to dispense with its requirements for notice and comment if the agency for good cause finds that the use of traditional procedures would be "impracticable, unnecessary, or contrary to the public interest." The APA also provides a good cause exception for the 30-day waiting period between the publication of a final rule and its effective date.

While the APA's notice and comment procedures comprise the general structure of the rulemaking process, a number of other statutory requirements have been added to the process in the decades since enactment of the APA.

The Paperwork Reduction Act (PRA), originally enacted in 1980, established a process under which agencies have to consider the paperwork burden associated with regulatory and other actions. Under the PRA, agencies generally must receive approval from OIRA for information collections from 10 or more nonfederal "persons." The Regulatory Flexibility Act (RFA), also originally enacted in 1980, requires regulatory flexibility analyses for proposed and final rules that will have a "significant economic impact on a substantial number of small entities" (SEISNSE). Other provisions of the RFA require that certain agencies convene advocacy review panels for rules that may have a SEISNSE to solicit feedback from affected entities and that agencies reexamine rules with a SEISNSE to determine whether any changes to or repeal of the rules may be necessary. Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 added requirements for agencies (other than independent regulatory agencies) to analyze costs resulting from regulations containing federal mandates upon state, local, and tribal governments and the private sector. The analysis requirement in UMRA is triggered when a rule "may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year." The Congressional Review Act (CRA), enacted in 1996, established a mechanism through which Congress could overturn federal regulations by enacting of a joint resolution of disapproval. The CRA also requires that "major" rules (e.g., those that have a $100 million effect on the economy) have a delayed effective date of at least 60 days, and that agencies submit their rules to both houses of Congress and the Government Accountability Office (GAO) before the rules can take effect. Since it was enacted, the CRA has been used one time to overturn a rule.

Executive Branch Requirements and Guidance

In addition to the current statutory requirements for the rulemaking process, Presidents also have issued executive orders and OMB has issued guidance providing requirements and guidelines for agencies to follow when issuing rules.

E.O. 12866 , issued by President William Clinton in 1993, calls for OIRA to review "significant" regulatory actions at both the proposed and final rule stage. It also requires agencies to assess potential costs and benefits for "significant" rules, and, for those deemed as "economically significant" regulatory actions, agencies are required to perform a cost-benefit analysis and assess the costs and benefits of "reasonably feasible alternatives" to the planned rule. Furthermore, under E.O. 12866, agencies generally must "propose or adopt a regulation only upon a reasoned determination that the benefits" of the rule "justify its costs." E.O. 12866's requirements for OIRA review and cost-benefit analysis do not apply to independent regulatory agencies. To provide guidance to agencies on what to include and consider in their cost-benefit analyses of rules, OMB issued OMB Circular A-4 , a document that describes "best practices" for agencies' regulatory impact analyses. OMB, under President George W. Bush, also provided guidelines for agencies to follow when issuing guidance documents. President Barack Obama has issued several executive orders on rulemaking, and his Administration has issued a number of guidance documents for agencies on how best to issue rules. Most importantly, E.O. 13563 reaffirmed many of the principles of E.O. 12866 and instructed agencies to conduct a retrospective review of their regulations. Following the issuance of E.O. 13563, President Obama issued E.O. 13579 , requesting that independent regulatory agencies also participate in the retrospective reviews.

Number of Final Rules Published in Recent Years

Table 1 presents the approximate number of rules by year since 1976, the first year for which the Office of the Federal Register has data available. The number provided in the table for each year is the number of documents published in the final rules section of the Federal Register .

Although the number of regulations issued each year is generally in the thousands, many of those regulations deal with routine matters. For example, a rule issued on April 2, 2013, by the U.S. Coast Guard provided notice of a "temporary deviation from the operating schedule that governs the Third Street Drawbridge across the China Basin, mile 0.0, at San Francisco, CA. The deviation is necessary to allow the public to cross the bridge to participate in the scheduled CycleSF, a community event." Because the change is considered a rule but only has a temporary effect, it does not make any changes to the Code of Federal Regulations (C.F.R.), which is the comprehensive codification of permanent rules and regulations. Captured under the definition of a rulemaking in the APA, such items are published in the "Rules and Regulations" section of the Federal Register .

The number of regulations issued each year includes both new regulations as well as deregulatory actions. Under the APA, a "rulemaking" is defined as "the agency process for formulating, amending, or repealing a rule," which means that agencies must undertake a regulatory action whenever they are issuing a new rule, changing an existing rule, or eliminating a rule. Therefore, not all of the regulations counted in the table above are necessarily new regulatory actions issued by agencies. Some of them could be minor amendments, including technical corrections without substantive change, or they could even include regulatory actions in which agencies are getting rid of regulations or attempting to make regulations less burdensome on the public.

"Major" Rules

As mentioned above, the CRA was enacted in 1996 and established procedures for the congressional review of agency regulations. Under the CRA, each federal agency is required to send its covered final rules to GAO and to both houses of Congress before the rules can take effect. Section 804(2) of the CRA also created a category of rules called "major" rules, which are those that the Office of Information and Regulatory Affairs Administrator determines has resulted in or is likely to result in

(A) an annual effect on the economy of $100,000,000 or more;

(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or

(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The term does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.

The CRA contains two requirements for major rules. First, agencies are generally required to delay the effective dates of "major" rules until 60 days after the rule is submitted to Congress or published in the Federal Register , whichever is later. Second, the Comptroller General must provide a report on each major rule to the appropriate congressional committees of jurisdiction within 15 days of when a rule is submitted or published. The report must include a summary of the agency's compliance with various rulemaking requirements (such as regulatory impact analyses that agencies may be required to perform while undergoing a rulemaking action). These reports are posted on GAO's website.

Table 2 presents the total number of major rules published during each calendar year since 1997, as reported by GAO. Rules in the GAO database are those that have been submitted to GAO under the CRA (5 U.S.C. §801(a)(1)(A)(i)). Data begin in 1997 because the CRA was enacted in 1996, making 1997 the first full year for which data are available.

A 2011 CRS report examined the 100 major rules published in 2010 and concluded that rules are determined to be "major" for a variety of reasons, not just due to compliance costs. For example, 37 of the rules appeared to be major because they involved transfers of funds from one party to another, most commonly the transfer of federal funds through programs such as grants, Medicare or Medicaid funds, special pay for members of the military, and crop subsidy payments. Ten other rules appeared to be major because they prompted consumer spending or because they established fees for the reimbursement of particular federal functions (e.g., issuance of passports and oversight of the nuclear power industry). Thirty-nine rules appeared to be major because they were expected to result in at least $100 million in annual benefits, costs, or both.

"Significant" Rules

The definition of a "significant" rule, found in E.O. 12866, is a rule that is likely to

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

Under E.O. 12866, agencies (other than independent regulatory agencies) are required to submit rules to OIRA for centralized review that are identified by agencies or determined by OIRA to be "significant." The agency must provide specific information to OIRA, including the text of the action; a detailed description of the need for the action; an explanation of how the action will meet that need; an assessment of the potential costs and benefits of the regulatory action; and an assessment of how the regulation "promotes the President's priorities and avoids undue interference with State, local, and tribal governments."

While the number of major rules is accessible on GAO's Federal Rules Database, the number of significant rules issued each year is not readily available. No requirement currently exists for agencies or other entities to keep track of how many significant rules are issued each year. However, data are available for the number of reviews at OIRA each year, because OIRA logs on its website each rule it receives for review under E.O. 12866. The number of "significant" rules reviewed each year is not the same as the number of "significant" rules issued each year—for example, a rule could be reviewed at OIRA late in one calendar year but not actually issued until the next calendar year. In addition, because OIRA reviews proposed and final rules, the total number of reviews is much higher than final rules issued each year. However, the number of reviews at OIRA each year may give some idea of annual regulatory activity.

Table 3 lists the total number of reviews at OIRA annually from 1994 to 2015, including prerules, proposed rules, interim final rules, final rules, and notices. Data begin in calendar year 1994 because E.O. 12866 was issued near the end of 1993.

"Economically Significant" Rules

"Economically significant" rules are those rules that fall into category (1) of "significant" rules, or those that may

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

For rules that are considered "economically significant," agencies are required to complete a detailed cost-benefit analysis under Section 6(a)(3)(C) of E.O. 12866.

Although the definition of an "economically significant" rule is very similar to the definition of a major rule, the definition of a major rule is a bit broader. Both definitions have a similar $100 million threshold, but the definition of major rule also includes other categories (see section entitled " "Major" Rules " above). As stated in OMB's guidance on implementing the Congressional Review Act,

the main difference is that some additional rules may be captured by the CRA definition that are not considered "economically significant" under E.O. 12866, notably those rules that would have a significant adverse effect on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Table 4 lists the total number of "economically significant" reviews and non-"economically significant" reviews by OIRA each calendar year from 1994 to 2015.

The table refers to reviews, not just rules, because OIRA also reviews some agency guidance documents. In some cases, agencies may submit a single rule to OIRA for review more than one time in a year.

Finally, Table 5 lists the average review times for "economically significant" and non-"economically significant" reviews from 1994 to 2015. Under E.O. 12866, OIRA has the responsibility to meet certain timelines for review of regulatory actions. For notices of inquiry, advanced notices of proposed rulemaking, or other "preliminary" regulatory actions, OIRA must respond to the agency within 10 working days. For other regulatory actions such as proposed and final rules, OIRA has 90 calendar days in which to review rules. However, there are no consequences in the order if OIRA fails to meet the deadline for review.

In general, since 1996, the average time to review "economically significant" rules has been shorter than for non-"economically significant" rules. One possible explanation for this trend is that "economically significant" rules might be of higher salience and political importance, therefore warranting higher priority from OIRA. Another potential reason is that OIRA frequently engages in informal reviews, collaborating with the regulatory agency in advance of the official receipt of the rule. As a result, much of the work that goes into reviewing economically significant rules may take place in advance.

Rules Issued Without Notice and Comment Under "Good Cause"

As described above, under the APA, agencies are generally required to undergo some basic steps when issuing a rule. Those steps include the publication of a proposed rule in the Federal Register ; the opportunity for interested persons to submit comments on the proposed rule; publication of a final rule that includes a "concise general statement" of the "basis and purpose" of the rule; and at least a 30-day waiting period before the rule can take effect.

The APA allows for an exception to two of these requirements if an agency has "good cause": the agency can issue a rule without notice and comment, or it can waive the 30-day waiting period before the rule can take effect. The agency must give supporting reasons for invoking the good cause exception, and its use of good cause is subject to judicial review. Proper use of the good cause exception must reflect that following the typical notice-and-comment procedures are "impracticable, unnecessary, or contrary to the public interest."

"Interim Final" Rules

One use of the good cause exception allows agencies to issue "interim final" rules. When issuing an interim final rule, an agency invokes good cause, issues a rule, and then holds a post-promulgation comment period. If the agency is persuaded by any of the comments and so chooses, the rule can be amended in light of those comments.

"Direct Final" Rules

Federal agencies sometimes invoke another use of the good cause exception to engage in "direct final" rulemaking. "Direct final" rulemaking is used when an agency deems a rule to be routine or noncontroversial. Under "direct final" rulemaking, an agency will issue a final rule without prior notice and comment. The rule may take effect unless at least one adverse comment is received by the agency, in which case the agency must withdraw the rule and proceed with the normal notice and comment procedures. If no adverse comments are received, the rule will become effective.

Number of Pages and Documents in the Federal Register

Under the APA, agencies are required to publish proposed and final rules in the Federal Register . Agencies also publish other items related to regulations in the Federal Register , such as notices of meetings and the extension of comment periods, as well as many other items related to non-regulatory governmental activities. Because the Federal Register provides documentation of the government's regulatory and other actions, some scholars, commentators, and public officials have used the total number of Federal Register pages each year, which has increased substantially since its creation, as a proxy measure for the total amount of regulatory activity. The number of pages in the Federal Register, however, may not be an accurate proxy for regulatory activity or measure of regulatory burden for several reasons. This section discusses the history and content of the Federal Register and why it may not provide an accurate measure of regulatory activity.

The Federal Register Act

The Federal Register Act created the Federal Register in 1935 as a result of the increasing number of administrative actions, laws, and regulations associated with the New Deal. During the New Deal, the role of federal agencies changed substantially—as one scholar noted, the federal government was entering new realms of public policy as a result of laws passed under the New Deal, such as agriculture, assistance for the aged and disadvantaged, housing and home ownership, and banking and securities. Many statutes that Congress passed granted rulemaking authority to these new federal agencies. To create a centralized mechanism for documenting the increasing number of rules and administrative actions, Congress created the Federal Register . Since the 1930s, the Federal Register has been the vehicle for notifying the public of the federal government's actions.

The Content of the Federal Register

As noted above, the number of pages in the Federal Register may be only a rough approximation of regulatory activity each year for several reasons. First, the section of the Federal Register devoted to publishing final rules is relatively small, because the Federal Register documents other non-regulatory activities as well. For example, in 2015, approximately 30% of the total pages were in the "Rules and Regulations" section, which is where final rules are published. The other portions of the Federal Register are used for such items as presidential documents, proposed rules, notices, and corrections. Other than the proposed rules, these additional sections typically have little, if anything, to do with federal regulations. Over 1,000 pages each year are blank pages or skips, which are designed to leave room for other materials and to maintain the integrity of the individual sections.

Second, while the Federal Register provides a compilation of governmental activity that occurs each year, including new regulations that are issued, many of the final rules are amending rules that have been previously issued and therefore may not accurately be considered to be new rules. Similarly, as mentioned above, if an agency eliminates an already existing rule, this is considered a "rulemaking" action under the APA and would be published in the rules and regulations section of the Federal Register , even if it is a deregulatory action.

Third, when agencies publish proposed and final rules in the Federal Register , they include a preamble along with the text of the rule. The preamble often includes such information as statements of the statutory authority for the rule; information and history which the agency deems to be relevant; a discussion of the comments received during the comment period; an explanation of the agency's final decision; and in some cases, information about certain analyses that may have been required during the rulemaking process. It is possible, therefore, that the actual regulatory text provided in a rule could be relatively small compared to the size of the entire rulemaking document in the Federal Register . For example, a rule issued on January 25, 2013, by the Department of Health and Human Services pursuant to the Affordable Care Act modifying Health Insurance Portability and Accountability Act (HIPAA) and other regulations was 137 pages in total. Of the 137 pages, 121 pages comprised the preamble and 16 pages actually amended the Code of Federal Regulations. Much of the preamble discussed the comments received following the NPRM, as well as estimates of costs and benefits and a list of the associated information collections.

Finally, the number of pages in the Federal Register may also not be an accurate reflection of the amount of regulatory burden that stems from a rule. For example, a short rule could impose a very large burden on a large number of regulated entities. On the other hand, a lengthy rule could contain less burdensome requirements but greater detail and only apply to a small number of entities. Because the preamble to the rule contains detailed information about the rule itself and the agency's response to the comments it received, the number of pages of a particular rule in the Federal Register could be related to other factors such as a large number of comments received or an in-depth cost-benefit analysis completed by an agency.

Figure 1 documents the change in the number of pages in the Federal Register over time. As the data show, the number of pages has increased since publication of the Federal Register began. The number of pages reached a peak in 1980 at 87,012 pages; decreased to 47,418 pages in 1986; then increased again and has been approximately between 65,000 and 85,000 pages for the past two decades.

Table 6 provides a more detailed examination of the total page count provided in Figure 1 and provides information on the number of pages in each rulemaking section in the Federal Register . In addition, Table 6 provides data on the number of rulemaking documents in each section of the Federal Register . Data were obtained from the Office of the Federal Register and, at the time of writing of this report, were available from 1976 through 2015.

The number of documents published in the proposed rule and final rule sections of the Federal Register can be useful for cross-year comparisons. However, as mentioned above, not all of the documents in each of these sections are rules, so these data may not provide a precise count of how many rules are issued each year or of the total regulatory burden each year.

Other types of documents may also be included in the proposed and final rules sections of the Federal Register, as mentioned above . For example, on August 6, 2012, in the final rules section, the Federal Motor Carrier Safety Administration issued a two-page "Notice of public listening sessions and extension of comment period." Because this action was related to a regulation, the document was published in the final rules section, but the document itself is not a regulation.

Finally, as previous mentioned in this report, under the APA's definition of "rulemaking," an amendment or repeal of a rule is considered a rule. Therefore, some of the pages and documents counted below could be reducing the burden associated with a previously issued rule by amending or repealing the rule.