The notion that the regulatory process is broken, and that valid and necessary rules take far too long to implement because of an onerous bureaucratic process, has become an oft-repeated claim these days. This has led to calls for reforms that would speed up rulemakings.

Numerous anecdotes are used to support the notion that the system deters rulemaking. For instance, a recently issued U.S. Environmental Protection Agency regulation required five years of analysis before it became a final rule; a worker safety rule sat at the Office of Information and Regulatory Affairs (OIRA) for three years; and a food safety regulation from 2011 is currently being held up by legal issues, although the Obama administration still hopes to implement the rule.

However, argument by anecdote can lead us astray. Broader data reveal that the regulatory mechanisms currently in place work just fine and regulatory ossification is hardly a government-wide problem.

The problem with the regulatory state has never been that it places too many barriers in front of bureaucrats who are making new regulations. If there is any bias in the process, it errs in the direction of hastening regulations—a point we’ve made in these pages previously (“Explaining Delays in Regulatory Publication,” Winter 2014–2015). Decisionmakers at federal regulatory agencies have every incentive to make regulations because that is their currency to promotions, notoriety, and the praise of their “stakeholders.” Agency economists are motivated to provide cost-benefit analyses that support their agency’s actions and not rock the boat. And OIRA, the ostensible gatekeeper of regulations, often has a difficult time convincing the White House politicos to expend political capital to push back on an ill-thought-out regulation that may create a public relations firestorm, no matter how counterproductive the rule may be.

The data / To determine whether the ossification bogeyman has any credence, we reviewed 361 regulations deemed “major” and “economically significant” (defined as a rule with an effect on the economy of $100 million or more, thereby rendering it automatically subject to scrutiny from OIRA) issued by the federal government between 2005 and 2014. The regulations in our universe came from 71 different federal agencies and sub-agencies.

We note in our analysis when each rulemaking first made an appearance in the Unified Agenda, which is how regulators officially notify the public that they are working on a new rule. We then recorded when the final rule was published in the Federal Register and measured the total time of the rulemaking. In some instances our methodology might underestimate the length of a rulemaking because regulators can begin work on a regulation before it is published in the Unified Agenda. At the same time, there are occasions where little work has been completed on a rule before it appears in the Unified Agenda.

Our method measures the time until formal publication in the Federal Register, not when OIRA receives the final rule. As we detailed in our article last year, there can be a sizeable gap between the time when OIRA informally releases a rule and when it reaches final publication; in some cases it has exceeded six months. We include this publishing delay as part of “regulatory ossification” even though the rule is final, affected parties are on notice, and the agency’s work is largely finished aside from potentially needing to defend the rule in court.

Finally, we want to avoid conflating the notion of regulatory ossification with delays from litigation. Our intent is to measure the outcome of the regulatory process itself; lawsuits are, we argue, external to this system. Of course, potential litigation does inform regulatory behavior to some degree: the agencies issuing regulations keenly want to avoid court fights, which can have an unpredictable outcome and also consume agency resources and attention better spent elsewhere. Because litigation is generally unwanted, often unanticipated, and has a duration that’s inherently unpredictable, we exclude its effect in our analysis.

Results / The median time it takes to move from initial notice of a proposed rule in the Unified Agenda to final publication is 401 days. Given what’s entailed in a final rule—which involves giving official notice to affected parties, an economic analysis, a review by OIRA, an opportunity for stakeholders to meet with the agency and OIRA and to provide their own critique of the rule, and (typically) approval by the White House—13 months does not seem excessively long.

There are a few outliers in our data set that do provide a degree of prima facie evidence for regulatory ossification. For example, six rulemakings (1.7 percent) took more than 10 years to complete and another 34 rules (9.4 percent) took more than five years. However, those are outliers: 167 rulemakings (46.3 percent) needed less than a year from the time they were proposed until they became a regulation, more than four times the number that languished for five years.

The median time it takes to move from initial notice to final publication is 401 days. Given what’s entailed, 13 months doesn’t seem excessively long.

Focusing on a relatively few “outliers” gives a misleading impression of the situation. The degree to which regulations spend an excessive amount of time in the system is specific to certain agencies and not a problem endemic within the federal government. For instance, the EPA’s Office of Air and Radiation typically needs 2.5 years to complete a significant rule, while the Centers for Medicare and Medicaid Services (CMS) needs just over one year for its median rulemaking. The Occupational Safety and Health Administration issues far fewer rules than the CMS and EPA, but OSHA’s rules are almost invariably bound to create significant industry pushback. OSHA anticipates this and proceeds at a very deliberate pace; the agency promulgated just four rules over the period we examined, but the rules on average took a decade from proposal to completion.

The 13-month median length also reflects a few “instantaneous rulemakings”: agencies published 22 final rules without a proposed rulemaking and before the first appearance in the Unified Agenda. For example, the rule establishing preventative coverage for group health plans under the Affordable Care Act appeared in the fall 2010 Unified Agenda, but the agency had issued an interim final rule the previous July. Excluding those rules doesn’t significantly alter the results, boosting the median time from 401 to 440 days.

While the instantaneous rulemakings have a slight effect on our results (mitigated by our examination of the median length rather than mean), they reveal a great deal about the regulatory process. In many instances, stakeholders, industry, or economists have little notice that economically significant measures are looming. The Obama administration has published 12 economically significant rules without first issuing notice in the Unified Agenda; many of those were interim final rules implementing the Affordable Care Act, which was obviously a White House priority.

Matter of priority / When an administration wants a rule to move quickly through the process, it does so. Legal and statutory battles can complicate those efforts, but after we examined the implementation of the Dodd-Frank Act and the Affordable Care Act, we became convinced that regulators can grease the skids when they want to.

From the end of 2010, shortly after President Obama signed both laws, until the end of 2012, the administration ushered through 26 major Dodd-Frank final rules and 35 major Affordable Care Act final rules. For those 61 major rules, the supposedly ossified regulatory process sped up considerably. Congress didn’t finish both laws until the summer of 2010, but just two years later the federal government had formulated regulatory plans, proposed rules, taken public comment, and finalized the rules—an urgency no doubt exacerbated by the 2012 presidential election.

This haste does not always lead to good policy. The faster a rule moves through the regulatory process, the more the analysis suffers—a phenomenon that the Mercatus Center has thoroughly demonstrated and one that comports with common sense. Regulators should get rules right the first time, not leave flawed rules to review by federal courts. Most recently, the Supreme Court vacated the EPA’s mercury rule because of cost-benefit concerns. In the words of Justice Antonin Scalia, “No regulation is ‘appropriate’ if it does significantly more harm than good.”

Overstated barriers / If a regulatory process that needs 13 months to propose, analyze, discuss, and issue the typical major rule is symptomatic of an ossified regulatory system, then progressives have won the debate. But we argue that there are currently too few barriers in place to prevent agencies from promulgating ill-thought-out rules, and we see no pressing need to remove further constraints on rulemaking.

The discussion on the length of the rulemaking process has been driven largely by hyperbole and anecdote, and rarely from an analytical perspective. Policymakers should be less concerned about the speed of rulemaking and more focused on whether there is a compelling government need to regulate. The long-term effect of finalized regulations—which gets precious little attention these days—should matter much more to agencies, OIRA, and Congress than how long it takes to issue those regulations.