Alternate history

Obviously, the doomed project is a mess. But how should things have gone?

To be clear, the original timeline was impossible. The team was formed in December 2010 or so, it was a normal project in all respects except for the deadline pressure and one piece of red tape Congress cut for us, and the timeline called for publishing an interim rule in the summer and a final rule by the end of 2011. That can't be done. Not by this agency, not with this kind of project, not without more time and/or more red tape being cut for us. Two projects I'm on have both been under review by other agencies for more than a year, and that's just for one stage of them. Rulemaking projects can not be completed in a year. The second version of the schedule, though, with the interim rule published by the end of the year, actually might not have been crazy.

When Congress gave us the mandate, the Congressmen behind that amendment (or rather, the industry lobbyists, but that's a topic for a whole other post) probably pictured something less than 20 pages long, almost all of which would have been organizational stuff or legally mandated boilerplate restating our justification for doing it. They probably thought the amendatory instructions could be less than a page long.

That's unrealistic in this case. The amendatory instructions couldn't have been shorter than three pages. Blame the current regulatory status quo for that. I don't know whether it was created by one particular regulatory project or by accretion of regulations over the years or what, but either way it wasn't logically organized. Add in another page or two to the preamble to explain that we had to fix a previously existing mess, and that's at least a 25-page document.

And you know, if we had done it like that, the deadline doesn't look crazy. Still difficult, considering how many people need to approve of it, and unfair, considering how much of it is out of our control, but not crazy.

But then there's at least one more element, which Congress didn't foresee but should have. Basically, it's a conflict between two standards. The mandate was phrased in terms of the current, most modern standard. But another standard exists that is also used in some parts of the industry. If we just did what Congress said and ignored the other standard, it would carve out a huge, bizarre exception. It would give people an incentive to use the older, deprecated standard. It would probably be objectively bad for the country, and would certainly be bad for this agency. But since Congress didn't actually tell us to do this, we would have to spend time to close that loophole and justify our actions. So that would add about, say, five pages to the document and one week to the timeline. Now we're right on the edge of the "not crazy" line.

And then we get to the stuff that does not fall under the mandate at all. (Which, again, is a gray area.) Some of it probably should be included no matter what because it really is necessary for basic safety, environmental protection, or to enforce other requirements. Some of it would be a good idea, but if we had to wait a few more years to do it, the delay probably wouldn't cause a disaster. Some of it probably isn't a good idea at all. There is a lot of stuff in this gray area; like I've said, the mandate applies to a category that this agency was already working on broad revision of, so there's a long list of things they have been waiting to do. I can make educated guesses about what falls where in the gray area, but I'm not an expert and it's not my decision.

But the thing is, if you put anything from the gray area into the rulemaking, the idea of meeting the deadline is crazy. If we thought that the deadline was seriously important, we should have identified the really most essential bits in the gray area and planned on going over the deadline by just a month or two. On the other hand, if we want to say that the deadline doesn't matter and we're doing this rulemaking "right" regardless of how long it takes, we should have had an aggressive but otherwise normal timeline. Due in part to competing priorities in different offices, our current approach to the deadline seems to be the worst of both worlds.