Week in Regulation
November 6, 2023
From Table Saws to Investment Advisers
The regulatory candy bucket for this past Halloween week sure filled up quickly. There were 17 rulemakings with some measurable economic impact, including several in the billion-dollar range. Last week’s haul was a fairly eclectic mix as well. The main items of the week involved updated safety standards for table saws and the latest round of action in yet another one of those long-winding regulatory sagas: the “Fiduciary Rule.” Across all rulemakings, agencies published $10.4 billion in total costs and added 9.8 million annual paperwork burden hours.
- Proposed Rules: 44
- Final Rules: 44
- 2023 Total Pages: 75,979
- 2023 Final Rule Costs: $117.7 billion
- 2023 Proposed Rule Costs: $512.3 billion
NOTABLE REGULATORY ACTIONS
The most significant action of the week – at least in terms of estimated costs – was the proposed rule from the Consumer Product Safety Commission (CPSC) entitled “Safety Standard Addressing Blade-Contact Injuries on Table Saws.” The proposal seeks to “establish a performance standard that requires table saws to limit the depth of cut to no more than 3.5 millimeters when a test probe, acting as surrogate for a human finger or other body part, approaches the spinning blade at a rate of 1 meter per second (m/s).” CPSC estimates that, over a 30-year period, total costs from this rulemaking would amount to nearly $5.5 billion. This marks the second week in a row that CPSC has provided the week’s costliest rulemaking. It is worth noting, however, that unlike the previous week’s rule on furnaces and boilers that had costs exceeding benefits by a substantial margin, the Commission expects this action to yield $9.5 billion in total benefits.
The other major action of the week was the proposed rule from the Department of Labor (DOL) regarding “Retirement Security Rule: Definition of an Investment Advice Fiduciary.” This rulemaking represents the Biden Administration’s latest salvo in the now-long-running thread of regulatory action on the parameters of a “fiduciary” adviser under the Employee Retirement Income Security Act of 1974. The American Action Forum’s (AAF) Thomas Kingsley provides further insight on the proposal’s main details here. DOL estimates that the rule will impose nearly $1.6 billion in costs over a 10-year window.
TRACKING THE ADMINISTRATIONS
As we have already seen from executive orders and memos, the Biden Administration will surely provide plenty of contrasts with the Trump Administration on the regulatory front. And while there is a general expectation that the current administration will seek to broadly restore Obama-esque regulatory actions, there will also be areas where it charts its own course. Since the AAF RegRodeo data extend back to 2005, it is possible to provide weekly updates on how the top-level trends of President Biden’s regulatory record track with those of his two most recent predecessors. The following table provides the cumulative totals of final rules containing some quantified economic impact from each administration through this point in their respective terms.While much of the week’s most significant action took place on the proposed rule side of the ledger, there was some upward movement in the Biden Administration’s final rule tallies as well. Costs increased by $1.5 billon and paperwork burdens grew by 1.3 million hours. A Securities and Exchange Commission rule regarding “Reporting of Securities Loans” provided the majority of those respective increases. The other two administrations covered here saw lesser – but still meaningful – cost increases. A Trump-era rule on establishing a “Domestic Hemp Program” was the primary driver of a $750 million week-over-week cost increase. Meanwhile, the $303 million cost bump during this time in the Obama Administration represented the most modest shift of the bunch. A rule implementing provisions of the Affordable Care Act within the Medicare Shared Savings Program was the main factor there.
THIS WEEK’S REGULATORY PICTURE
Last Wednesday, Treasury published a final rule regarding “Indorsement and Payment of Checks Drawn on the United States Treasury.” As the fairly mundane title suggests, the rule seeks to amend “regulations that govern the payment of checks drawn on the United States Treasury (Treasury checks).” As it turns out, under the current Treasury check-cashing process, there is a not-insubstantial amount of overpayment from the federal purse.
As Treasury notes:
Currently, when either Fiscal Service or a payment certifying agency puts a “stop payment” (also known as a “check stop”) on a Treasury check to cancel it, there is a possibility that the canceled check may still be paid. … When a canceled or “stopped” check is subsequently paid, this leads to what is known as a payment over cancellation (POC). POCs are improper payments, which can amount to $100 million or more each year.
The core issue, as least in terms of the relevant regulatory code appears to be that, currently, “a financial institution generally is not liable for a POC if the institution has taken ‘reasonable efforts’ to ensure the check is authentic,” but not that it is “valid.” Essentially, prior to this rule change, institutions receiving federal checks merely had to confirm that the check in question was not counterfeit. This rule adds the validity condition, requiring institutions to confirm “[the check] has not been previously negotiated or canceled.”
Of course, if the relevant financial institutions do not receive the proper information regarding a given check in a timely fashion, requiring them to verify its validity becomes problematic. For instance, as explained in the rule’s background section, “several days often pass before Fiscal Service can provide information on Treasury check returns that the Federal Reserve Banks transmit to financial institutions through existing communication channels.” To remedy this, Treasury notes that it is making certain “enhancements to its post payment processing system” to expedite that information exchange. Institutions will also have the option to confirm validity via the “Treasury Check Verification System.”
As one can imagine, the processing of paper checks is a diminishing issue here in the year 2023. Treasury notes in response to a commentor’s concerns that “the number of Treasury checks issued each year has generally declined, from approximately 170 million in 2012, for example, to approximately 45 million in fiscal year 2023.” Nevertheless, tightening up the potential for unnecessary and/or invalid dispersal of federal payments seems like a worthwhile goal.
Since January 1, the federal government has published $630 billion in total net costs (with $117.7 billion in new costs from finalized rules) and 188.2 million hours of net annual paperwork burden increases (with 5.1 million hours in coming from final rules).