The Federal Register published 572 pages of documents on 15 November 2016.
The pages were not indicative of the number of new regulations.
This was interpreted by numerous dubious publications to mean that Obama had, in just one day, added hundreds of pages of new regulations to the books:
The Obama administration added 527 pages worth of new rules and regulations TODAY! That’s a new single day record…
This is the anaconda that (day-by-day) squeezes the life out of the American economy. The federal government has enmeshed itself into the economic, social, and private lives of everyone. To call this “freedom” is to completely misunderstand what freedom means. It’s authoritarianism and it grows relentlessly.
The Federal Register is a daily publication in which federal agencies list documents that include: Notices; Proposed Rules; Rules; and Presidential Documents. Not all of the documents are associated with new regulations. Documents published under “Notices,” for example, are generally items like public meeting announcements or requests for public comment on a matter. While “Presidential Documents” may include executive orders, they may also be holiday proclamations. Thus, the interpretation that more pages in the Federal Register means more new regulations is misleading.
The Congressional Research Service explained in a 4 October 2016 report that while Federal Register page counts are sometimes employed “as measures of total federal regulatory burden,” the method isn’t a reliable one:
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 2015, approximately 30% of the total pages in the Federal Register were in the “Rules and Regulations” section, the section in which final rules are published.
Nevertheless, the Competitive Enterprise Institute article prompted a string of stories that 572 pages (or 527 pages, depending on the presence of a repeating typo) of new regulations were added in one day:
President Obama on Thursday set a record for the most pages of federal rules and regulations ever issued in a year by one president, adding 572 pages to the Federal Register, bringing his 2016 total to 81,640 pages.
And he still has weeks left to add to that figure.
While WND claims the page count came on “Thursday,” which would have been 17 November 2016, we actually found that on that date, 652 pages were published under 127 total documents. It seems the Competitive Enterprise Institute is actually referring to 15 November 2016 (which would have been a Tuesday, although CEI doesn’t specify the date), when 572 pages were published, or a total of 83 documents. In other words, the aggregate page count reported by Competitive Enterprise Institute is accurate, but the characterization that they represent 572 pages of new regulations is misleading.
Jim Hemphill, special assistant to the director for the Office of the Federal Register, told us that documents published under “Notices” are not regulatory in nature. On 15 November 2016, of the 83 documents published on the Federal Register, 72 of them were Notices. There were four Proposed Rules, and seven Rules published. Obama did not file any presidential documents that day.
Hemphill added that a document may include pages of explainer text while the regulation itself may be very short. When the Center for Medicare and Medicaid Services publishes reimbursement rate changes, for example, the documents tend to be massive — and when that happens, there may be a spike in page counts in the Federal Register.
Any attempt to do any analysis just on the numbers of pages or documents is really going to be a faulty analysis.
As noted in the CRS report, the yearly tally of “Final Rules” has steadily declined since 1976, when there were 7,401. In 2015, there were 3,410. But even this number isn’t a reliable representation of new regulations:
The number of regulations issued each year includes both new regulations as well as deregulatory actions. Under the [Administrative Procedure Act of 1946], 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.
While it is true that on 15 November 2016, 572 pages were published in the Federal Register, it is misleading to claim the number is indicative of a record high in new federal regulations.
The Competitive Enterprise Institute did not return our request for comment.