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_______________________________

Institute for Workplace Studies----------------- Professor Samuel B. Bacharach

School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor---------------------- Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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Congressional Research Service (CRS)

 

Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register

Maeve P. Carey, Analyst in Government Organization and Management

May 1, 2013

http://www.fas.org/sgp/crs/misc/R43056.pdf

[full-text, 21 pages]

 

Summary

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.

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 Government Accountability Office

(GAO). Some of those rules have a large effect on the economy, and others have a significant

legal and/or policy effect, even if the costs and benefits are minimal. On the other hand, many

federal rules are routine in nature and impose minimal regulatory burden, if any. In addition, rules

that are deregulatory in nature and those that repeal existing rules are still defined as “rules”

under the Administrative Procedure Act (APA, 5 U.S.C. §§ 551 et seq.) and are therefore included

in that total.

 

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 crosstime

comparisons. However, the total number of Federal Register pages may not be an accurate

way to measure regulatory activity for several reasons. In addition to publishing proposed and

final rules in the Federal Register, agencies publish other items that may be related to regulations,

such as notices of public meetings and extensions of comment periods. The Federal Register also

contains many other items related to non-regulatory activities, including presidential documents,

notices, and corrections. In 2011, approximately 32% of the total pages in the Federal Register

were in the “Rules and Regulations” section, the section in which final rules are published.

 

This report serves to inform the congressional debate over rulemaking by analyzing different

ways to measure federal rulemaking activity. The report 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. When available, data are provided on each type of

rule. Finally, the report provides data on the number of pages and documents in the Federal

Register each year and analyzes the content of the Federal Register.

 

Contents

Introduction ...................................................................................................................................... 1

Brief Overview of Federal Rulemaking ........................................................................................... 2

Statutory Requirements ............................................................................................................. 2

Executive Branch Requirements and Guidance ........................................................................ 4

Number of Final Rules Published in Recent Years .......................................................................... 5

“Major” Rules .................................................................................................................................. 6

“Significant” Rules .......................................................................................................................... 8

“Economically Significant” Rules ................................................................................................. 10

Rules Issued Without Notice and Comment Under “Good Cause” ............................................... 13

“Interim Final” Rules .............................................................................................................. 13

“Direct Final” Rules ................................................................................................................ 13

Number of Pages and Documents in the Federal Register ............................................................ 14

The Federal Register Act ......................................................................................................... 14

The Content of the Federal Register ....................................................................................... 14

 

Figures

Figure 1. Number of Pages Published Annually in the Federal Register, 1937-2011 .................. 16

 

Tables

Table 1. Total Number of Final Rules Published in Recent Years, 1997-2012 ................................ 5

Table 2. Total Number of “Major” Final Rules Published, 1997-2012............................................ 7

Table 3. Total Number of Reviews at OIRA, 1994-2012 ................................................................ 9

Table 4. Total Number of “Economically Significant” and Non-“Economically Significant” Reviews at OIRA, 1994-2012 ........................ 11

Table 5. Average Number of Days for “Economically Significant” and Non- “Economically Significant” Reviews, 1994-2012 ........................ 12

Table 6. Annual Content of the Federal Register: Number of Pages and Number of Documents, 1976-2011 .......................................... 17

 

Contacts

Author Contact Information........................................................................................................... 18

 

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