Does Extending a Comment Period Equal Regulatory Delay?

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Study suggests a link between comment period extensions and delays in final rules.

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Does extending a comment period equal regulatory delay? The short answer is “yes.” Numerous media accounts suggest that an extension of a comment period amounts to a delay in a regulation, no matter the length of the extension. Given that many rulemaking proceedings span several years before a rule is finalized, does an extension of the comment period by 30 to 60 days really count as a meaningful delay?

After reviewing more than 360 “major” and “economically significant” rulemakings from the past ten years, I can report that the answer is “yes.” Rules that allow more time for comments are generally associated with longer rulemaking periods. Of course, rulemaking time cannot simply be explained by a longer comment period. These comment extensions should be viewed as a symptom, and not as the cause, of regulatory delay, as the rulemakings receiving extensions are often controversial, expensive, or subject to intense litigation. The length of a comment period is obviously but one metric to use in examining a rule’s life.

To conduct our study of regulatory delay and comment periods, we examined major completed rulemakings in the Unified Agenda, from the fall 2006 edition to the most recent spring 2014 edition. There were numerous rulemakings listed as “completed” but that were actually withdrawn, and we removed those entries. In the end, 361 remaining major rulemakings actually found their way into the Federal Register.

Here’s the bottom line on delay: rulemakings with extended comment periods took almost twice as long to complete as rules without such extensions. For example, of the 361 rulemakings in the sample, regulators extended the comment period for 88 of them. On average, those measures took 1,133 days to complete, or 3.1 years. However, using the median is probably a better measure of central tendency because the range extended to over 16 years for one rulemaking. (We measured “length of rulemaking” from the first publication in the Unified Agenda to the final publication in the Federal Register). Using the median, these periods shrank to 795 days – or 2.1 years.

Compare those figures to rules without an extended comment period: 351 days, or 0.96 years (median). It certainly appears that extending the comment period is associated with a delay.

But there are a few caveats. Because we defined the length of rulemaking as the initial Unified Agenda entry to final publication in the Federal Register, there were several rulemakings that, because they were never originally listed in the Unified Agenda, have negative time horizons. For example, interim final rules that agencies do not initially list in the Unified Agenda, but that later appear in the Agenda, obviously do not have extended comment periods for their proposed versions. The rule establishing preventative coverage for group health plans under the Affordable Care Act, for example, was listed in the fall 2010 Unified Agenda, which was published on November 29, 2010. However, the Unified Agenda listing occurred after the agency issued an interim final rule, published on July 19, 2010. Thus, the rulemaking had a negative time horizon because the first notice was a publication in the Federal Register, not in the Unified Agenda.

Excluding these rulemakings (just 24 in total) does not significantly alter the results. For example, the median period for rules with an extended comment period grew to 2.25 years from 2.1 years. For all other rules, the median length of the time for completion grew to 1.04 years from 0.96.

Our methodology does fail to recognize that agencies probably begin working on long-term actions before notice in the Unified Agenda. But what it fails to capture in that respect, it also assumes the rulemaking is not final until the Federal Register publication. As previous research has shown, there can be a significant lag – up to 197 days – between when the Office of Information and Regulatory Affairs finishes its review of a final rule and the publication of that rule in the Federal Register.

Beyond establishing overall length of rulemaking, and demonstrating that extensions of comment periods are associated with a regulatory life around twice as long as those without extensions, Unified Agenda data allow us to contrast target publication dates with actual publication dates. For rules that provided a target publication date in their Unified Agenda entry, we were able to compare the scheduled publication date with the actual Federal Register date. For the sample as a whole, the “gap” between the Unified Agenda target and actual publication was a median of just ten days, which is somewhat incredible considering the life of most rulemakings.

Yet, rules with extended comment periods missed their target publication by a median time of 49.5 days, compared to just seven days for rulemakings without comment extensions. The averages for extended and “normal” rules were 193 days and 60 days, respectively. This demonstrates, generally, that extending the comment period is associated with longer rulemaking timelines and that these rules are more likely to miss their initial publication dates.

The above evidence makes sense intuitively. A rulemaking that extends the comment period by 30 to 60 days is likely to take longer, and as the data demonstrate, it will probably miss its scheduled publication by roughly 50 days. Although there are countless factors involved in rulemaking delay, it is clear that extending the comment period will likely result in a lengthier process.

Sam Batkins

Sam Batkins is the Director of Regulatory Policy at the American Action Forum. He previously worked for the U.S. Chamber of Commerce, Institute for Legal Reform and the National Taxpayers Union.