What's New from the GW Regulatory Studies Center
8/5/18 - The Wall Street Journal, Commissions are Mulvaney's Error of Omission, by Susan E. Dudley & Sally Katzen
8/2/18 - Benefit-Cost Analysis as a Check on Administrative Discretion
8/2/18 - Improving Regulatory Science: A Case Study of the National Ambient Air Quality Standards
8/1/18 - Regulation Digest, Vol. 7, No. 30
8/1/18 - Regulatory Insight: Trump Administration Picks up the Regulatory Pace in its Second Year
7/25/18 - Regulation Digest, Vol. 7, No. 29
7/24/18 - FCC Process Reform Underscores Need for Economic Review at Independent Regulatory Agencies
7/18/18 - Regulation Digest, Vol. 7, No. 28
7/17/18 - Public Interest Comment: Increasing Consistency and Transparency in EPA's Benefit Cost Analysis
7/16/18 - DHS Proposes Raising Barriers to Foreign Entrepreneurship in the U.S.
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New Commentaries from the George Washington University Regulatory Studies Center
Regulatory Sandboxes: The future of regulation?
FCC Process Reform Underscores Need for Economic Review at Independent Regulatory Agencies
DHS Proposes Raising Barriers to Foreign Entrepreneurship in the U.S.
Regulators’ Budget: OIRA’s Growth and the Future of Regulatory Reform
FDA's Proposal to Regulate Nicotine Levels
U.S. and Canada Sign Agreement on Regulatory Cooperation
Spring Unified Agenda Sustains Deregulatory Focus
GDPR: Does it matter on this side of the Atlantic?
Regulating Within a Budget
Regulatory Sandboxes: The future of regulation?
8/2/18 - On June 19, 2018, the Deloitte Center for Government Insights published an article on The Future of Regulation: Principles for Regulating Emerging Technologies. In it, William D. Eggers, Mike Turley, and Pankaj Kishnani lay out the business and technological challenges of regulating today’s technologies. The article offers five principles for regulating emerging technologies: adaptive regulation, outcome-based regulation, risk-weighted regulation, collaborative regulation, and regulatory sandboxes.
FCC Process Reform Underscores Need for Economic Review at Independent Regulatory Agencies
7/24/18 - Federal Communications Commission Chairman Michael O'Rielly recently made the case for the agency to provide more detailed benefit-cost analyses, and to establish better internal processes aimed at improving regulatory outcomes - other independent agencies should take note.
DHS Proposes Raising Barriers to Foreign Entrepreneurship in the U.S.
7/16/18 - The Department of Homeland Security is proposing to eliminate its international entrepreneur program, which was created in 2017, despite the agency's previous findings that the program will increase economic growth, job creation, and U.S. based innovation. The proposal also runs contrary to the administration's declared policy of shifting towards a more merit-based immigration system, decreasing regulatory costs, and demonstrated early success from the program.
Regulators’ Budget: OIRA’s Growth and the Future of Regulatory Reform
7/9/18 - As OIRA continues to oversee the Trump Administration's efforts to cut regulatory red tape, the growing scope of OIRA's regulatory review could mean increases in staffing and funding. A look at this year's Regulators' Budget shows a larger OIRA staff than years past, a signal that growing responsibilities might require more resources in the future.
FDA's Proposal to Regulate Nicotine Levels
6/25/18 - In a comment filed on the advanced notice, David Zorn observes that FDA’s plan to develop a maximum nicotine level for cigarettes in hopes to establish a standard that doesn't initiate or perpetuate addiction to cigarettes for potential smokers is a novel and creative approach to promote public health. Although such an approach was suggested decades ago, it has not been implemented in any other country.
U.S. and Canada Sign Agreement on Regulatory Cooperation
6/06/18 - The Treasury Board of Canada and the U.S. Office of Information and Regulatory Affairs signed a Memorandum of Understanding last week to continue collaborating on the Canada-United States Regulatory Cooperation Council. With the goal of reducing unnecessary differences between the two countries' regulatory framework, the MOU promotes a joint effort to create mutually beneficial economic outcomes, despite recent trade tariffs imposed on Canada by the U.S.
Spring Unified Agenda Sustains Deregulatory Focus
5/10/2018 - The Spring 2018 Unified Agenda includes a total of 3,352 regulatory actions, 234 of which are classified as regulatory, 611 as deregulatory, with the remainder exempt or classified as “other.” Of the total number of actions, 139 are economically significant. The Agenda distinguishes between active regulations (those with milestones within the next 12 months), long-term actions, and completed actions. Of the 2,226 actions listed as active approximately 24% are published for the first time in this Spring Agenda.
GDPR: Does it matter on this side of the Atlantic?
5/07/2018 - Europe's implementation of the General Data Protection Regulation (GDPR) will compel companies and organizations to abide by new data collection requirements, and require certain firms to staff a Data Protection Officer tasked with monitoring data security and producing impact assessments. Further changes will require individuals to "opt-in" to all forms of data sharing, and require companies to report any data breaches within 72 hours. These changes will certainly impact U.S.
Regulating Within a Budget
4/23/18 - Despite his rhetoric on regulation, President Trump continues to require agencies to make decisions based on an understanding of regulatory benefits and costs. Although he has overlaid a budget constraint on these existing requirements, and his executive orders signal less emphasis on estimating regulatory benefits, this may not be all bad.
Research
Public Interest Comment: Increasing Transparency in Considering Costs and Benefits in the Rulemaking Process
By: Brian F. Mannix
In this comment, Mannix explores the reasons why the Environmental Protection Agency might choose to conduct a rulemaking on the general topic of how it considers benefits and costs, reviews some of the legal considerations that should be brought to bear on that effort, and recommends that the administration consider encouraging this type of activity in other agencies.
Public Interest Comment: EPA's Benefit-Cost Analysis in the Rulemaking Process
By: Joseph J. Cordes
In this comment, Cordes discusses the value-added of using benefit-cost analysis in the regulatory process, the extent to which guidance is presently available on the application of benefit-cost analysis to regulatory analysis, the specific issue of which stakeholders should receive standing in benefit-cost analysis, and the inclusion of indirect effects, also referred to as co-benefits, in benefit-cost calculations.
Benefit-Cost Analysis as a Check on Administrative Discretion
By Brian F. Mannix
Benefit-cost analysis (BCA) continues to be the principal tool used by American presidents to guide the discretionary decisions of regulatory agencies under their supervision, and increasingly it is viewed by the courts as an important consideration for agencies to take into account in justifying their regulatory decisions. This paper argues that BCA is properly viewed, not simply as a technocratic planning tool, but as a solution to a principal-agent problem. Specifically, it is intended to test whether an agency can demonstrate that it is acting in the public interest. Viewed in this light, some common analytical practices used by regulatory agencies become questionable. A BCA should not, for example, use an assumption that consumers are irrational to support a claim that coercive regulation is making them better off. Consumer sovereignty is axiomatic in BCA, and an agency that uses BCA to justify its actions must accept individuals’ judgments about their own welfare.
Improving Regulatory Science: A Case Study of the National Ambient Air Quality Standards
By Susan E. Dudley & Marcus Peacock
This paper explores the motivations and institutional incentives of participants involved in the development of regulation aimed at reducing health risks, with a goal of understanding and identifying solutions to what the Bipartisan Policy Center has characterized as “a tendency to frame regulatory issues as debates solely about science, regardless of the actual subject in dispute, [that] is at the root of the stalemate and acrimony all too present in the regulatory system today.” We focus our analysis with a case study of the procedures for developing National Ambient Air Quality Standards under the Clean Air Act, and attempt to identify procedural approaches that bring greater diversity (in data, expertise, experience, and accountability) into the decision process.
Trump Administration Picks up the Regulatory Pace in its Second Year
By Bridget C.E. Dooling
With the first 18 months of the Trump Administration complete, we can check in on his regulatory activity to date. This new analysis shows that Trump's regulatory activity is 70% lower than it was at the same point in the Obama Administration; a striking result for an administration that has made regulatory reform a signature issue.
Public Interest Comment: Increasing Consistency and Transparency in EPA's Benefit Cost Analysis
By Susan E. Dudley
In this comment, Dudley supports EPA’s efforts to improve the transparency and consistency of the analysis supporting its significant regulations and, referring to the Consumer’s Guide to Regulatory Impact Analysis, reviews ten tips for achieving this objective. She encourages EPA, as a first step, to review all its statutory authority and, to the maximum extent possible, interpret its statutory standards through a lens of standard benefit-cost analysis principles.
Public Interest Comment on DHS's Proposed Rule: Removal of International Entrepreneur Parole Program
By: Daniel R. Pérez & Lisa Zimmer
The Department of Homeland Security is proposing to eliminate its international entrepreneur program, which was created in 2017, despite the agency's previous findings that the program will increase economic growth, job creation, and U.S. based innovation. The proposal also runs contrary to the administration's declared policy of shifting towards a more merit-based immigration system, decreasing regulatory costs, and demonstrated early success from the program.
Public Interest Comment on FDA’s Advanced Notice of Proposed Rulemaking: Tobacco Product Standard for Nicotine Level of Combusted Cigarettes
By: David Zorn, Ph.D.
In a comment filed on the "Advance Notice of Proposed Rulemaking, Tobacco Product Standard for Nicotine Level of Combusted Cigarettes," Zorn observes that the FDA's plan to develop a maximum nicotine level for cigarettes is a novel and creative approach to promote public health. He also examines some drawbacks of the FDA's plan, including the speculative and unproven nature of the underlying hypothesis, as well as the limitations of removing access to only combustible sources of nicotine.
Public Interest Comment on The Food Safety and Inspection Service’s proposed rule: Egg Products Inspection Regulations
By: Richard B. Belzer, Independent Consultant
This public interest comment provides an overview of the Food Safety Inspection Service’s (FSIS) proposed rule requiring official plants that process egg products to develop and implement Hazard Analysis and Critical Control Point Systems and Sanitation Standard Operating Procedures. FSIS would eliminate certain existing requirements, and add new labeling requirements. The comment reviews the justifications for the rulemaking change, and provides answers to how it would affect previous rules, industry growth, and foodborne illness rates.
A Taxonomy of Regulatory Forms
By: Zhoudan Xie & Daniel R. Pérez
This Regulatory Insight addresses the information gap in how regulations are measured when determining their effect on economic growth and other macroeconomic measures by developing a taxonomy of regulatory forms. In partnership with the U.S. Department of Agriculture, this framework allows regulations to be classified by the form they employ to achieve the stated regulatory outcomes. We expect this taxonomy to also be applicable to industries outside of agriculture, and to be utilized by researchers and analysts in a wide range of fields as a framework for informing research on the relative effectiveness of different regulatory forms to address market and social problems.
Public Interest Comment on The Environmental Protection Agency’s Proposed Rule Strengthening Transparency in Regulatory Science
By: Susan E. Dudley
The EPA’s “Strengthening Transparency in Regulatory Science” proposed rule seeks to improve the data and models that underlie the rulemaking process by making them publicly available for further analysis and validation. This public interest comment examines the merits of the proposed rule and how it relates to existing practices. These remarks conclude with a case for why clearer explanations of rulemaking rationale would encourage more openness and constructive discussion, ultimately improve policy decisions, and engender greater acceptance of policy choices.
FY 2019 Regulators' Budget: More for Homeland Security, Less for Environmental Regulation
By: Susan E. Dudley and Melinda Warren
This year's annual report finds that overall spending on regulatory agencies will be maintained at 2018 levels. The total request of $71 billion in regulatory outlays is a 0.1% increase year-to-year when adjusted for inflation. The report also finds that the number of regulators would fall slightly from 280,872 to 280,269 - a 0.2% reduction compared to 2018. Despite the small changes across agencies overall there are substantial changes within particular agencies. The Dept. of Homeland Security, Food & Drug Administration, and Housing & Urban Development will see 4.8%, 5%, and 11% increases in federal outlays, respectively. On the other hand, the Consumer Financial Protection Bureau will receive 10.4% less, and the Environmental Protection Agency will be spending 24.9% less than in 2018.
Public Comment on the EPA's Proposed Rule Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units
By: Brian F. Mannix
The EPA has proposed to repeal the greenhouse gas (GHG) emissions guidelines for electric generating units issued on October 23, 2015—better known as the Clean Power Plan (CPP). The Agency has also sought comment separately on what, if anything, ought to replace it. This comment, often drawing on earlier comments, will focus on the Regulatory Impact Analysis (RIA) that supported EPA’s 2015 CPP final rule, and outlines those areas where the agency made major errors in the 2015 RIA, and where it could go further to improve the analysis.
Public Comment on OMB's 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations
By: Brian F. Mannix, Sofie E. Miller, & Susan E. Dudley
The George Washington University Regulatory Studies Center improves regulatory policy through research, education, and outreach. As part of its mission, the GW Regulatory Studies Center conducts careful and independent analyses to assess rulemaking proposals from the perspective of the public interest. This comment on the Office of Management and Budget’s 2017 Draft Report to Congress offers suggestions for improving the information value of the Report, as well as the evidence on which regulatory policies depend, and does not represent the views of any particular affected party or special interest.
Where's the Spam? Mass Comment Campaigns in Agency Rulemaking
By: Steven J. Balla, Alexander R. Beck, William C. Cubbison, & Aryamala Prasad
This article examines the occurrence and nature of mass comment campaigns in rulemaking at the Environmental Protection Agency (EPA) between 2012 and 2016. The analysis demonstrates that campaigns of more duplicate or near-duplicate comments occur across issue areas under EPA jurisdictions, and that broad societal constituencies—such as environmentalists—are more active in sponsoring campaigns than specific interests negatively affected by stringent regulations. These findings in some respects confirm and in other respects challenge existing understandings of mass comment campaign participation in administrative rulemaking.
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