What's New from the GW Regulatory Studies Center
12/11/19 - Upcoming CRA Deadline has Implications for Regulatory Oversight by Congress, by Daniel R. Pérez
12/3/19 - Designing a Choice Architecture for Regulators, by Susan E. Dudley & Zhoudan Xie
12/2/19 - STB's Railroad Revenue Adequacy, by Jerry Ellig
11/22/19 - Regulatory Impact Analysis and Litigation Risk, by Christopher Carrigan, Jerry Ellig, & Zhoudan Xie
11/20/19 - Unified Agenda Released without FY 2019 Regulatory Reform Report, by Daniel R. Pérez
11/6/19 - STB's Market Dominance and Final Offer Rate Review, by Jerry Ellig
11/18/19 - Rail Regulators Ponder Benefit-Cost Analysis, by Jerry Ellig
11/12/19 - Tracking Regulatory Activity through Trends in Federal Budgets, by Mark Febrizio
11/6/19 - Tracking Regulatory Activity through Trends in Federal Budgets, by Brian Mannix
10/23/19 - Regulators’ Budget: Homeland Security Remains Key Administration Priority, by Mark Febrizio, Melinda Warren, & Susan E. Dudley
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New Commentaries from the George Washington University Regulatory Studies Center
OIRA’s Regulatory Reform Report for Fiscal Year 2019
Upcoming CRA Deadline has Implications for Regulatory Oversight by Congress
Unified Agenda Released without FY 2019 Regulatory Reform Report
Rail Regulators Ponder Benefit-Cost Analysis
Tracking Regulatory Activity through Trends in Federal Budgets
Exhaustion can be Exhausting! EPA Proposes Reforms to Permit Appeals Process
ED Settles on Less Ambitious Overhaul of Borrower Defense
Are Agencies Responsive To Mass Comment Campaigns?
Bigger Stones for David: Tools to Give OIRA More Leverage in Regulatory Review
OIRA’s Regulatory Reform Report for Fiscal Year 2019
12/18/19 -- The Regulatory Reform Results for Fiscal Year 2019 are out, and OIRA is touting that regulatory agencies produced $13.5 billion in present value cost savings. Beyond the glossy highlights, however, are a few important “firsts” in implementation, such as total agency cost savings falling short of the government-wide targets.
Upcoming CRA Deadline has Implications for Regulatory Oversight by Congress
12/11/19 -- The Congressional Review Act allows Congress to disapprove regulations issued by agencies and contains a lookback provision that places almost six months of rulemaking in jeopardy of elimination by the next Congress. The window for this period of review opens in 2020, but agencies will have to weigh the tradeoffs of rushing to publish their rules before the window. According to the 2020 House calendar, any rules issued after May 19, 2020 may be subject to review by the 117th Congress.
Unified Agenda Released without FY 2019 Regulatory Reform Report
11/20/19 -- This morning, the Office of Information and Regulatory Affairs (OIRA) released its annual Regulatory Plan and semiannual Unified Agenda of Regulatory and Deregulatory Actions. Notably absent is the Regulatory Reform Status Report, which tracks executive agency performance in complying with the deregulatory requirements of Executive Order (EO) 13771. With regards to actions listed as active in the Agenda, agencies plan to issue an average of approximately 2.5 significant deregulatory actions for every 1 regulatory action.
Rail Regulators Ponder Benefit-Cost Analysis
11/18/19 -- Although regulatory impact analysis would certainly not automate STB regulatory decisions, it would provide a coherent and organized framework for discovering and presenting information about the likely consequences of regulatory alternatives.
Tracking Regulatory Activity through Trends in Federal Budgets
11/12/19 -- The FY 2020 Regulators’ Budget requests an overall increase in spending. Details within that request point to a notable increase in spending for agencies focused on homeland security, with a decrease in agency spending for regulators focused on the environment and energy.
Exhaustion can be Exhausting! EPA Proposes Reforms to Permit Appeals Process
11/6/19 -- The proposed Environmental Appeals Board reforms will provide a faster path to a final EPA decision, so that applicants can either live with it or challenge it in court, but in either case they will not be stuck in administrative limbo.
ED Settles on Less Ambitious Overhaul of Borrower Defense
10/16/2019 - The Department of Education recently published its long-awaited, final rule detailing how the agency will process borrower defense and other loan discharges related to its Federal Direct Loan Program. The final rule applies to all loans disbursed on or after July 1, 2020 and departs from the agency’s approach to adjudicating claims under the Obama administration.
Are Agencies Responsive To Mass Comment Campaigns?
10/7/19 -- New research finds that agencies perform a detailed review of mass comment campaigns on their proposed rules, but the affect of these campaigns on the outcome of final rules may be negligible.
Bigger Stones for David: Tools to Give OIRA More Leverage in Regulatory Review
10/2/19 -- Regulatory review of agency rulemaking activity through the Office of Information and Regulatory Affairs should be linked to each agency’s strategic planning, and carry budgetary consequences. This will help agencies to more clearly define their goals, achieve their objectives, and reward positive results.
Research
STB's Rate Review and Market Dominance -- Reply Comment
By: Jerry Ellig
This reply comment addresses issues raised during two recent proceedings where the Surface Transportation Board proposed a streamlined approach to assessing whether a railroad has market dominance and a final offer process for small rate disputes.
Designing a Choice Architecture for Regulators
By: Susan E. Dudley & Zhoudan Xie
Recognizing that cognitive biases can also affect regulators themselves, this article attempts to undertand how the institutional environment in which regulators operate interacts with their cognitive biases. This article offers suggestions for improving the regulatory choice architecture at federal agencies by having public managers and policy makers factor in predictable biases when regulating individual behaviors or market transactions.
STB's Railroad Revenue Adequacy
By: Jerry Ellig
The Surface Transportation Board will hold a hearing on December 12 to discuss recommendations from the STB's Rate Reform Task Force. This comment addresses several of the task force's proposals, and provides additional recommendations for the STB to improve its revenue adequacy regulations.
Regulatory Impact Analysis and Litigation Risk
By Christopher Carrigan, Jerry Ellig, and Zhoudan Xie
This paper explores the role that the regulatory impact analyses (RIAs) that agencies are required to prepare for important proposed rules play in decisions by courts about whether these rules should be upheld when they are challenged after promulgation. The results suggest that better RIAs are associated with lower likelihoods that the associated rules are later invalidated by courts, provided that the associated agency explains how it used the RIA in its decision-making. When the agency does not describe how the RIA was utilized, there is no correlation between the quality of analysis and the likelihood the regulation will be invalidated. An explanation of the RIA’s role in the agency’s decision also appears to increase the likelihood that the regulation will be invalidated by inviting an increased level of court scrutiny, and as a result, the quality of the RIA must be sufficiently high to offset this effect.
STB's Market Dominance and Final Offer Rate Review
By: Jerry Ellig
The two rulemakings this comment addresses are the Surface Transportation Board’s (STB’s) latest efforts to develop simpler and less costly rate complaint processes. These two proceedings provide an excellent opportunity for the STB to “test drive” the framework for benefit-cost analysis that is most commonly employed by federal agencies: the analytical principles and requirements articulated in President Clinton’s Executive Order 12866 and OMB Circular A-4. The most common and accurate term for this type of analysis is “Regulatory Impact Analysis” (RIA), because a full RIA involves more than just estimation of benefits and costs. This comment briefly explains the RIA framework and demonstrates how it could be used to answer key factual questions the STB must answer in order to accomplish its statutory goals.
Consultation as Policymaking Innovation: Comparing Government Transparency and Public Participation in China and the United States
By Steven J. Balla & Zhoudan Xie
This article compares government transparency and public participation in consultation—a prominent instrument of policymaking innovation—across China and the United States. The analysis specifically focuses on consultation at the Chinese Ministry of Commerce (MOC) and United States Environmental Protection Agency (EPA)—leading agencies in the implementation of consultation in policymaking in their respective countries—as a means of evaluating best practices in China relative to a corresponding benchmark in the United States. The analysis reveals both similarities and differences in transparency and participation at the MOC and EPA. The findings suggest that differences in the Chinese and American political systems, rather than issues of administrative capacity, are the primary limitations of consultation as a policymaking innovation in contemporary China.
Regulators’ Budget: Homeland Security Remains Key Administration Priority
By: Mark Febrizio, Melinda Warren, and Susan Dudley
10/23/19 -- The annual report for FY 2020 finds that the president's proposed Budget would increase overall spending on regulatory agencies over FY 2019 levels. The total request of $75.2 billion in regulatory outlays is a 2.9% increase year-to-year when adjusted for inflation. The report also finds that the number of regulators would rise from 281,606 to 287,063 – a 1.9% increase relative to 2019. These topline figures hide some large proposed increases in some regulatory agencies and large decreases in others. Regulators in the Department of Homeland Security would receive a 9.2 percent real increase in resources and a 5.6 percent increase in staff in 2020. On the other hand, the Department of Energy would receive 31.8 percent less in 2020 than appropriated in 2019.
Lost in the Flood?: The Efficacy of Mass Comment Campaigns in Agency Rulemaking
By: Steven J. Balla, Alexander R. Beck, Elizabeth Meehan, and Aryamala Prasad
By assembling information about more than 1,000 mass comment campaigns that occurred during Environmental Protection Agency rulemakings between 2012 and 2016, the analysis addresses the manner in which the agency responds to campaigns and the association between campaigns and the substance of rules.
Where's the Spam? Interest Groups and Mass Comment Campaigns in Agency Rulemaking
By: Steven J. Balla, Alexander R. Beck, William C. Cubbison, & Aryamala Prasad
Through an analysis of more than one thousand mass comment campaigns submitted on Environmental Protection Agency rulemakings between 2012 and 2016, this article's findings suggest that mass comment campaigns are not a phenomenon meriting unique explanation, but rather occur in a manner similar to lobbying in other policymaking venues, such as lawmaking in Congress. The research also confirms expectations that campaigns submitted by regulated entities (i.e., industries) are more substantive than campaigns generated by beneficiaries of stringent regulations (e.g., environmental advocacy groups).
Dynamic Benefit-Cost Analysis for Uncertain Futures
By: Susan E. Dudley, Daniel R. Pérez, Brian F. Mannix, & Christopher Carrigan
Policymakers face demands to act today to protect against a wide range of future risks, and to do so without impeding economic growth. Yet traditional analytical tools may not be adequate to frame the relevant uncertainties and tradeoffs. Challenges such as climate change, nuclear war, and widespread natural disasters don't lend themselves to decision rules designed for discrete policy questions and marginal analyses. We refer to such issues as "uncertain futures."
Muddling-Through and Deep Learning for Managing Large-Scale Uncertain Risks
By: Tony Cox
Building on Charles Lindblom's research on the limits of rational-comprehensive decisionmaking, Tony Cox provides insights on how machine learning can help individuals and institutions make better informed decisions - improving society's experience of 'muddling through' policymaking under uncertainty.
From Football to Oil Rigs: Risk Assessment for Combined Cyber and Physical Attacks
By: Fred S. Roberts
Reviewing risk assessment to scenarios of terrorist attacks on critical infrastructure including U.S. sporting venues and the international maritime transportation system. Fred Roberts notes that these assessments traditionally treat physical and cyber attacks separately and are inappropriate for considering the risk of combined attacks that include both a physical and cyber component. He proposes a framework informed by expert judgement to determine whether an attacker would likely prefer executing a combined or traditional physical attack on a given target.
Nuclear War as a Global Catastrophic Risk
By: James Scouras
James Scouras identifies nuclear war as a global catastrophic risk and suggests that multidisciplinary studies that combine insights from "historical case studies, expert elicitation, probabilistic risk assessment, complex systems theory, and other disciplines" can address many of the shortcomings of single analytic approaches. He suggests that experts can address current gaps in their assessments of the consequences of nuclear weapons by further investigating understudied phenomena (e.g., the effects of electromagnetic pulses, nuclear winter, the prolonged effects of radiation).
Responsible Precautions for Uncertain Environmental Risks
By: W. Kip Viscusi, Joel Huber, & Jason Bell
Elaborating on best practices for decisionmakers facing low probability, high consequence hazards. Viscusi, Huber, and Bell point out that these uncertain risks create incentives to pursue suboptimal policy approaches that potentially over commit public resources to less consequential hazards.
David Versus Godzilla: Bigger Stones
By: Jerry Ellig & Richard Williams
For nearly four decades, U.S. presidents have issued executive orders requiring agencies to conduct comprehensive regulatory impact analysis (RIA) for significant regulations to ensure that regulatory decisions solve social problems in a cost-beneficial manner. Yet experience demonstrates that agency RIAs often fail to live up to the standards enunciated in executive orders and OMB guidance. We suggest four managerial changes that could increase OIRA’s leverage.
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