Takes More Time to Write Rules Than Be President

Adding advance notice to the otherwise lengthy rulemaking process means, on average, major rules take longer to complete than a presidential term, according to new research released today by Public Citizen.

Michael Tanglis, senior researcher for Public Citizen’s Congress Watch division and lead author of the study, concluded “historic delays” in finalizing rules are becoming the new norm.

Looking at more than 20 years of data, or about 19,000 rulemakings, Tanglis said economically significant rulemakings—or rules with an annual economic impact of at least $100 million—took about 2.4 years on average to complete, he said.

But getting an advance notice of proposed rulemaking (ANPRM) could stretch that span to 4.4 years, the study found.

Tick tock

ANPRMs have the most “profound” effect on rulemaking lengths, Tanglis said, while adding that statutory requirements actually shorten rulemaking lengths, and Regulatory Flexibility Act analyses increase rulemaking lengths only slightly.

“So what that means, is that on average, a president will be unable to pass an economically significant rulemaking with an ANPRM in one term as president,” Tanglis said.

Still, only about 4 percent of the rulemakings from 1996 to 2016 were economically significant, and currently, just 7 percent of economically significant rulemakings require an ANPRM, Tanglis said. But legislation has been introduced to increase that dramatically, he said.

Last October, the Senate Homeland Security and Governmental Affairs Committee approved the Early Participation in Regulations Act (S. 1820) by a vote of 8-4.

The bill, sponsored by Sen. James Lankford (R-Okla.), would require agencies to publish an ANPRM at least 90 days before moving forward on any major rule.

The key aspect of the bill is that it would require an agency to enumerate the problem it is trying to address and to seek public input, Lankford said at the committee markup. Which certainly sounds reasonable.

But Amit Narang, regulatory policy advocate at Public Citizen, argued that this bill, like other Republican proposals, sounds better than it is.

“Adding more steps to the regulatory process would only add to the already record-breaking delays,” Narang said. “For the architects of the GOP’s regulatory agenda, that’s precisely the point.”