First federal reg czar opposes EPA ‘secret science’ plan

From: E&E News | Greenwire

Maxine Joselow, E&E News reporter
Jim Tozzi, head of the Center for Regulatory Effectiveness, is known for helping to create the Office of Information and Regulatory Affairs. Administrative Conference of the United States



“I’m not behind it,” Tozzi said in an interview about the Pruitt proposal. “When I looked at that, it looked like they were putting in a new regulatory regime. Before you put in a new regulatory regime, you should see what the existing regulatory regime does.”

Headless Agency Adjudication at the Patent Office

From: The Regulatory Review



To borrow from Dan Farber and Anne Joseph O’Connell, Justice Kagan’s reference to administrative law judges (ALJs) indicates the “lost world” of agency adjudication—the formal adjudication set forth in the Administrative Procedure Act (APA) that then-Professor Kagan no doubt taught in her administrative law classes. Today, however, most formal-like agency adjudication occurs outside of the APA’s provisions for formal adjudication—not before ALJs but under the auspices of a variety of other administrative judges, hearing officers, and other agency personnel. This is the new world of agency adjudication.

New Developments in Regulatory Benefit-Cost Analysis

Editor’s Note: For the history of White House regulatory review from its origins in the Nixon Administration through the founding of OIRA, see here.

From: The Regulatory Review

Scholars and industry representatives highlight takeaways from conference on new regulatory developments.

Since the Nixon Administration, some half a century ago, the U.S. government has made concerted efforts to understand the impact of regulations on society through systematic and comprehensive analysis.

A Regulatory Budget Is the Linchpin for the Creation of a National Constituency for OIRA

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

by Jim Tozzi

IWP News has published a thought-provoking series of articles dealing with “the deregulatory efforts of the Trump administration.” One such article reports on the views from third parties on the regulatory budget:

White House efforts to establish a first-time “regulatory budget” would be assisted by the development of a cross-sector, “national constituency” in support of regulatory reviews conducted by the Office of Management and Budget.

A Tribute to Allan Schmid

Editor’s Note: Also see The Evolution of Benefit-Cost Analysis into Federal Rulemaking and the former Director of the Systems Analysis Group’s Commentary on Dr. Schmid’s paper, “Effective Public Policy and the Government Budget: a Uniform Treatment of Public Expenditures and Public Rules.” 

From: Regulatory Pacesettters and Economic Thought

Allan Schmid, the economist who first recommended that benefit-cost analysis be applied to regulations, received a tribute in a paper written by Professor Rumen Brussarski of Bulgaria.

Professor Brussarski writes:

In memory of Alfred Allan Schmid

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China Implements More Participatory Rulemaking Under Communist Party

Editor’s Note: The following presented as part of CRE’s occasional series of articles discussing regulatory review processes around the world. See also, The Need for Centralized Regulatory Review in Brazil and Centralized Regulatory Review in the UK.

From: The Regulatory Review | Penn Program on Regulation

China’s central government, the State Council, recently mandated a 30-day public notice-and-comment process for most government rulemakings and institutionalized other mechanisms that increase public participation and transparency in the rulemaking process throughout the country more generally.

The Curious Bipartisan Push for Evidence-Based Policymaking

From: The Regulatory Review

Despite its popularity, “evidence-based” policymaking is often less rational than it sounds.


We typically think of evidence-based policymaking as an instruction to agencies to make a particular decision on the basis of the best available evidence. But many provisions are much more general. For example, the much ballyhooed evidence provisions in the Every Student Succeeds Act are not addressed to the U.S. Department of Education at all. Instead, the provisions give state grantees tremendous leeway in addressing low-performing schools; these provisions just say that when states decide how they want to intervene, they should use some sort of evidence-based practices. Such an instruction barely constrains government actors from selecting the policy interventions they prefer.

How Agencies Should Use Waivers and Exemptions

From: The Regulatory Review



The second part states that agencies should establish standards and internal procedures, to the extent practicable, for seeking and approving waiver and exemptions. Equal treatment of parties, absent extenuating circumstances, is also important. So is clearly announcing the duration of waivers or exemptions in advance.

Finally, the last part encourages agencies to consider soliciting public comments to inform its decisions and decision-making procedures. It also encourages explanations for decisions and representative examples to the extent practicable and consistent with legal or policy concerns, such as privacy.

Five Recommendations for Improving Administrative Government

From: The Regulatory Review

The search for ways to improve how government works may have become a little easier lately, thanks to five recommendations recently issued by a distinctive public–private partnership known as the Administrative Conference of the United States (ACUS).

ACUS—which operates as an independent federal agency—brings together more than 100 experts from the public and private sectors to identify solutions to problems facing government agencies. At least twice each year, ACUS publishes recommendations on how officials should design and implement administrative processes and regulations to improve their ability to achieve desired outcomes.

NGOs’ Increasing Use of the Data Quality Act

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

by Jim Tozzi

The publication of a landmark treatise on the Data Quality Act (DQA, aka the Information Quality Act or IQA) is timely because there is a substantial increase in its use by NGOs. Future litigants, whether plaintifs or a defendants, now have an arsenal previously unavailable to them to use as a reference guide when they take an action under the DQA.

One petitioner states the following: