Regulatory delay across administrations

Editor’s Note: See Management of the Administrative State.

From: Brookings Institution

[Brookings] Editor’s Note: This report is part of the Series on Regulatory Process and Perspective and was produced by the Brookings Center on Regulation and Markets.

Sharece Thrower

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What Does Risk-Based Regulation Mean?

From: The Regulatory Review

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When the U.S. Federal Trade Commission undertook a review of its performance some years ago, its Chairman recommended precisely such a portfolio approach: “The agency should view all of its matters as part of a portfolio that should be balanced across low-, medium-, and high-risk activities.” From an efficiency standpoint, of course, the balancing of risks per se is not what matters; the key is to balance the benefit-to-cost returns of regulating them, so as to maximize overall net benefits across the full suite of the regulator’s actions. The precise balance that will be efficient for any given regulator will vary based on the actual costs and benefits due to the types of problems and economic circumstances the regulator confronts.

User Data as Public Resource: Implications for Social Media Regulation

From: Duke/DeWitt Wallace Center for Media & Democracy

Philip M. Napoli

ABSTRACT

Accessing Agency Procedure

From: The Regulatory Review

The Administrative Conference of the United States recommends greater transparency about agency procedure.

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Last year, the Administrative Conference of the United States (ACUS) took steps to begin simplifying the adjudicatory process. In particular, ACUS issued a recommendation about steps agencies can take to ensure that the procedural requirements governing adjudications are accessible, with a special focus on agency websites. In the Internet age, agencies can and should take steps to make key procedural materials more readily available to the public.

Strengthening Accountability for Aviation Safety

Editor’s Note: Read CRE’s white paper Paperwork Reduction Act Certifications: The Sarbanes-Oxley for the Public Sector.

From: The Regulatory Review

 and 

Requiring airplane manufacturing CEOs to certify airplane safety could prevent tragedies.

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Studies indicate that Sarbanes-Oxley’s certification requirement has achieved its end of preventing fraud. In a 2006 survey of auditors, for example, 68% reported that the requirement improved the integrity of financial reporting. One of the auditors noted that previously “it was very easy for people to say … I wasn’t involved in that, I didn’t know anything about that.”

Which of Trump’s Regulatory Reforms Are Likely to Last?

Editor’s Note: See also OIRA: Past, Present and Future (draft).

From: The Regulatory Review

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OIRA review fulfills a critical function from the perspective of a President. Fairly or not, Presidents get credit and blame for the actions of government agencies. No matter whether they are Democrats or Republicans, liberals or conservatives, Presidents face immense incentives to exercise careful oversight over agencies. Both OIRA review and, to a lesser degree, cost-benefit analysis help satisfy that demand for presidential oversight.

Measuring the Effectiveness of the 340B Program

From: Center for Regulatory Effectiveness via SSRN

Bruce Levinson

Abstract

Virtually every aspect of the 340B drug discount program has been evaluated except its effectiveness at improving healthcare access for medically underserved populations. This paper seeks to fill this information gap by using federal data to measure changes in the ability of impoverished and uninsured patients to afford needed healthcare, relative to the general population. The paper finds that the 340B program is harming the relative affordability of needed prescription drugs, needed medical care, and needed dental care for the most medically underserved communities. The causes of this decline in affordability is traced to a three-fold process that 340B hospitals are using to take maximum advantage of the program’s financial incentives.

Soft Law for Hard Problems: The Governance of Emerging Technologies in an Uncertain Future

From: Colorado Technology Law Journal via SSRN

Ryan Hagemann, Jennifer Skees, Adam D. Thierer

Abstract

For a great many emerging technologies, as well as many existing ones, we are witnessing the twilight of the traditional regulatory system and its gradual replacement by an amorphous and constantly-evolving set of informal “soft law” governance mechanisms. This has profound ramifications for the future of statutory law, administrative regulation, and the evolution of a wide variety of technology sectors.

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

William Funk

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Despite the language of the CRA that clearly includes guidance documents as rules subject to its provisions, many, if not most, agencies did not send guidance documents to the House and Senate as the CRA required. The Government Accountability Office opined in 2017 that guidance documents were subject to the CRA, and at least two district courts have entertained suits claiming that an agency violated the CRA by not submitting guidance documents to Congress. The new OMB memo specifically notes that guidance documents are subject to CRA requirements.

Extraterritoriality in the Public and Private Enforcement of U.S. Regulatory Law

From: Indiana Legal Studies Research Paper No. 408

Forthcoming in The Continuing Relevance of Private International Law and Its Challenges (F. Ferrari & D. Fernandez Arroyo eds., Elgar)

Hannah L. Buxbaum

Indiana University Bloomington Maurer School of Law

Date Written: 2019