To follow-up on my intuition that the Labor LGBT rule was unusual in how it was to be cleared the same day it was already at the Federal register to be published, I checked all of the Federal regulations since 2009 to see how often that’s happened in this Administration.
Answer: it doesn’t that often. This year the average delay from completion to publication has been an astonishingly-high 108 days. For rules associated with the Affordable Care Act or the Dodd Frank Act (where the rules have been published), the delays trend lower, but rarely less than three, and generally not on what would be considered “major” rulemakings.
The “short delay” alerts flag rules with less than 3 days between clearance and publication, as was going to be the case with the Labor rule (it has now been delayed due to technical issues at the Federal Register). Mostly minutiae of the bureaucracy, with a glaring exception:
Short Delay! RIN 0938-AQ74: Preventive Services Under the Affordable Care Act (CMS-9992-F) – Cleared 2011-08-01, Published 2011-08-03
That would be the second “compromise” on the contraception mandate, when HHS was scrambling.
Thus I remain curious about why this rule was timed for publication so quickly. Certainly worth asking about, in my opinion.
In these results, “Significant” means economically significant, generally having an economic impact of $100 million or greater. “ACA” refers to rules associated with the Affordable Care Act. “DF” refers to rules associated with the Dodd Frank Act. “Inconsistent Dates” counts the number of rules where the dates do not align (i.e. clearance after publication or receipt of the rule after it’s been cleared).
Calculating Intervals Related to OIRA Review of Federal Regulations – here’s the perl script. in the line that begins with “curl” replace “YTD” with a year to gather results for that year.
2014 Year to Date:
Short Delay! RIN 1090-AB05: Procedures for Reestablishing a Government-to-Government Relationship With the Native Hawaiian Community – Cleared 2014-06-18, Published 2014-06-20
Short Delay! RIN 1205-ZA00: Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Notice – Cleared 2014-03-13, Published 2014-03-14
Short Delay! RIN 0938-AR62: Prospective Payment System for Federally Qualified Health Centers; Changes to Contracting Policies for Rural Health Clinics and CLIA Enforcement Actions for Proficiency Testing Referral (CMS-1443-FC) – Cleared 2014-05-01, Published 2014-05-02
Short Delay! RIN 0584-AE25: Child Nutrition Programs: Local School Wellness Policy Implementation under the Healthy, Hunger-Free Kids Act of 2010 – Cleared 2014-02-24, Published 2014-02-26
Short Delay! RIN 1505-AC49: Regulations for the Gulf Coast Restoration Trust Fund – Cleared 2014-07-29, Published 2014-07-31
Short Delay! RIN 0910-AG38: “Tobacco Products” Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act – Cleared 2014-04-24, Published 2014-04-25
Short Delay! RIN 1219-AB72: Criteria and Procedures for Proposed Assessment of Civil Penalties – Cleared 2014-07-29, Published 2014-07-31
Short Delay! RIN 1205-AB63: Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants – Cleared 2014-10-07, Published 2014-10-09
Total Rules: 275
Average from Receipt to Completion: 21.2181818181818
Average from Completion to Publication: 108.156363636364
Significant Rules: 71
Average from Receipt to Completion (Significant): 12.4366197183099
Average from Completion to Publication: 85.3943661971831
ACA Rules: 25
Average from Receipt to Completion (ACA): 6.36
Average from Completion to Publication: 29.32
DF Rules: 3
Average from Receipt to Completion (DF): 18
Average from Completion to Publication: 123.333333333333
Inconsistent Dates: 2
2013:
Short Delay! RIN 1615-ZB16: Extension and Redesignation of Sudan for Temporary Protected Status – Cleared 2013-01-08, Published 2013-01-09
Short Delay! RIN 1210-AB48: Ex Parte Cease and Desist and Summary Seizure Orders Under ERISA Section 521 – Cleared 2013-02-27, Published 2013-03-01
Short Delay! RIN 0938-AR68: Minimum Essential Coverage Exemptions (CMS-9958-P) – Cleared 2013-01-30, Published 2013-02-01
Short Delay! RIN 1235-AA03: Amendments to the Family and Medical Leave Act of 1993 – Cleared 2013-02-04, Published 2013-02-06
Short Delay! RIN 1210-AB51: Filings Required of Multiple Employer Welfare Arrangements and Certain Other Entities That Offer or Provide Coverage for Medical Care to the Employees of Two or More Employers – Cleared 2013-02-27, Published 2013-03-01
Short Delay! RIN 0651-AC77: Changes to Implement the First Inventor to File Provisions of the Leahy-Smith America Invents Act – Cleared 2013-02-12, Published 2013-02-14
Short Delay! RIN 3095-AB78: Incorporation by reference – Cleared 2013-09-30, Published 2013-10-02
Short Delay! RIN 0648-BC97: Framework Adjustment 50 to the Northeast (NE) Multispecies Fishery Management Plan – Cleared 2013-03-27, Published 2013-03-29
Total Rules: 255
Average from Receipt to Completion: 19.756862745098
Average from Completion to Publication: 144.894117647059
Significant Rules: 65
Average from Receipt to Completion (Significant): 13.4923076923077
Average from Completion to Publication: 131.692307692308
ACA Rules: 31
Average from Receipt to Completion (ACA): 7.93548387096774
Average from Completion to Publication: 25.4838709677419
Inconsistent Dates: 3
2012:
Short Delay! RIN 0938-AR17: Hospice Wage Index for FY 2013 (CMS-1434-N) – Cleared 2012-07-25, Published 2012-07-27
Short Delay! RIN 0938-AQ63: Payments for Primary Care Services Under the Medicaid Program (CMS-2370-P) – Cleared 2012-05-09, Published 2012-05-11
Short Delay! RIN 0938-AQ70: Pre-Existing Condition Insurance Plan; High Risk Pool (CMS-9995-F) – Cleared 2012-08-28, Published 2012-08-30
Short Delay! RIN 0651-AC55: CPI Adjustment of Patent Fees for Fiscal Year 2013 – Cleared 2012-05-14, Published 2012-05-14
Short Delay! RIN 1653-ZA04: Employment Authorization for Syrian F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of Civil Unrest in Syria Since March 2011 – Cleared 2012-04-02, Published 2012-04-03
Short Delay! RIN 0584-AD59: Nutrition Standards in the National School Lunch and School Breakfast Programs – Cleared 2012-01-24, Published 2012-01-26
Total Rules: 260
Average from Receipt to Completion: 19.0384615384615
Average from Completion to Publication: 73.2461538461538
Significant Rules: 52
Average from Receipt to Completion (Significant): 16.8269230769231
Average from Completion to Publication: 83.8653846153846
ACA Rules: 38
Average from Receipt to Completion (ACA): 8.36842105263158
Average from Completion to Publication: 57.7894736842105
DF Rules: 4
Average from Receipt to Completion (DF): 22
Average from Completion to Publication: 35.5
Inconsistent Dates: 1
2011:
Short Delay! RIN 0938-AQ74: Preventive Services Under the Affordable Care Act (CMS-9992-F) – Cleared 2011-08-01, Published 2011-08-03
Short Delay! RIN 2900-AN94: Caregivers Program – Cleared 2011-05-03, Published 2011-05-05
Short Delay! RIN 0938-AQ15: Part A Premiums for CY 2012 for the Uninsured Aged and for Certain Disabled Individuals Who Have Exhausted Other Entitlement (CMS-8044-N) – Cleared 2011-10-31, Published 2011-11-01
Short Delay! RIN 0938-AQ16: Part B Monthly Actuarial Rates, Monthly Premium Rates, and Annual Deductible Beginning January 1, 2012 (CMS-8045-N) – Cleared 2011-10-31, Published 2011-11-01
Short Delay! RIN 0938-AQ14: Inpatient Hospital Deductible and Hospital and Extended Care Services Coinsurance Amounts for CY 2012 (CMS-8043-N) – Cleared 2011-10-31, Published 2011-11-01
Short Delay! RIN 1010-AD73: Revisions to Safety and Environmental Management Systems Requirements(SEMS) – Cleared 2011-09-12, Published 2011-09-14
Total Rules: 483
Average from Receipt to Completion: 30.592132505176
Average from Completion to Publication: 60.0269151138716
Significant Rules: 76
Average from Receipt to Completion (Significant): 16.5131578947368
Average from Completion to Publication: 48.6710526315789
ACA Rules: 39
Average from Receipt to Completion (ACA): 7.25641025641026
Average from Completion to Publication: 27.6923076923077
DF Rules: 11
Average from Receipt to Completion (DF): 43.0909090909091
Average from Completion to Publication: 36.3636363636364
Inconsistent Dates: 3
2010:
Short Delay! RIN 1615-ZA93: Extension of the Designation of Honduras for Temporary Protected Status; Automatic Extension of Employment Authorization Documentation for Honduras
– Cleared 2010-05-04, Published 2010-05-05
Short Delay! RIN 1218-AC45: Occupational Injury and Illness Recording and Reporting Requirements – Cleared 2010-01-27, Published 2010-01-29
Short Delay! RIN 1615-ZA94: Extension of the Designation of Nicaragua for Temporary Protected Status;Automatic Extension of Employment Authorization Documentation for Nicaragua
– Cleared 2010-05-04, Published 2010-05-05
Total Rules: 513
Average from Receipt to Completion: 34.0584795321637
Average from Completion to Publication: 54.3918128654971
Significant Rules: 109
Average from Receipt to Completion (Significant): 21.7614678899083
Average from Completion to Publication: 51
ACA Rules: 32
Average from Receipt to Completion (ACA): 8.28125
Average from Completion to Publication: 18.53125
Inconsistent Dates: 0
2009:
Short Delay! RIN 0790-AI59: Retroactive Stop Loss Special Pay Compensation – Cleared 2009-10-21, Published 2009-10-23
Short Delay! RIN 0938-AP73: Premiums and Cost Sharing (CMS-2244-FC) – Cleared 2009-10-28, Published 2009-10-30
Short Delay! RIN 0925-ZA05: National Institutes of Health Guidelines for Human Stem Cell Research – Cleared 2009-07-06, Published 2009-07-07
Total Rules: 410
Average from Receipt to Completion: 31.7829268292683
Average from Completion to Publication: 38.9585365853659
Significant Rules: 73
Average from Receipt to Completion (Significant): 19.6849315068493
Average from Completion to Publication: 32.2602739726027
Inconsistent Dates: 7