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:

The Unexpected Consequences of Private Regulatory Standards

Editor’s Note: Private standards are going to be essential for protecting both public health and economic growth. See, An Updated Look at the Federal Policies Governing How Agencies Use Voluntary Consensus Standards in Regulatory, Procurement, and Science Documents.

From: The Regulatory Review


When people decide to buy or sell a product, they need to agree on its price. To make that decision, they have to assess the quality and utility of the product, depending on its features. This is where product standards or product specifications come in. They describe the product’s technical features, its physical appearance, and how it was produced.

GAO: The Regulatory Flexibility Act and Retrospective Review Policies & Analyses of Six Financial Regulators Need Improvement

From: US GAO | GAO-18-404T

Analyzing Regulatory Burden: Policies and Analyses under the Regulatory Flexibility Act and Retrospective Reviews Could Be Improved


Many RFA-Required Analyses Had Weaknesses


  • The evaluations for some rules of economic impact on small entities did not describe or estimate compliance costs. Analyses we reviewed also generally did not evaluate differences in estimated compliance costs for identified alternatives.
  • Five of six regulators did not consistently disclose the data sources or methodologies used for estimating the number of subject small entities or compliance costs.


Centralizing Congressional Oversight

From: SSRN | Journal of Law and Politics, Vol. XXXII, No. 261

Virginia Public Law and Legal Theory Research Paper No. 2018-05

Matthew Brooker

Kirkland & Ellis – Washington, D.C. Office

Michael A. Livermore

University of Virginia School of Law


The shared presidential and congressional responsibility to oversee administrative agencies creates an opportunity for productive public consideration of administrative policy making. It also creates a forum for hostile grandstanding that can, when taken to an extreme, gridlock the federal government. During periods of divided government, when party differences enhance inter-branch tension, there is greater risk that the constitutional system of shared powers will be thwarted by partisan incentives to compete rather than cooperate.Indeed, the later years of the Obama administration serve as a kind of case study in the consequences of dysfunctional party relations for agency oversight.

Genesis and development of the evaluation of regulatory impact

Editor’s Note: Translated from the Bulgarian original.

From: Central & Eastern European Online Library

Economic Thought | Institute for Economic Research at the Bulgarian Academy of Sciences

Prof. Dr. Rumen Brussarski (Проф. д-р Румен Брусарски)


During the 70s of the twentieth century economists realized that public expenditures and rulemaking have similar effects on resource allocation and equity. Thus, the process of creating regulations entered the orbit of the economic cost-benefit analysis. This article is dedicated to the genesis and development of impact assessment in the United States, the European Union and Bulgaria.

Shining the Light on Regulatory Dark Matter: Due Process and Management for Agency Guidance Documents

From: American Forest and Paper Association

By Paul Noe, Vice President for Public Policy


When I served as Counselor to the Administrator in the Office of Information and Regulatory Affairs at the White House Office of Management and Budget (OMB) during the George W. Bush Administration, we issued a Bulletin for Agency Good Guidance Practices3  that required, among other things, agency procedures for the approval and use of guidance, standard elements in guidance, including avoiding inappropriate mandatory language, and public access and feedback procedures. Unfortunately, oversight by Congress and the Government Accountability Office has shown the agencies too often have failed to comply with the OMB Bulletin.4  Thus, much work remains to be done.

Resurrecting a Relic of the Past: The Harvard Law Review on the Congressional Review Act

From: Regulatory Pacesetters

Publisher’s Note: Former Senator Nickels and former Congressman McIntosh were instrumental in the establishment of CRE a number of years prior the first successful use of the CRA.


The above demonstrates that the implementation of the CRA from its inception was a creature of the Congress with little Executive Branch participation in overturning regulations; recent actions under the CRA might reinforce this view. The CRA is an excellent example of a frequently maligned Congress performing its constitutional duty to oversee the administrative state. When CRA actions are initiated in the Senate the statute provides a mechanism for the Congress to swiftly address the criticism that it delegates too much authority to Executive Branch agencies.

GAO Criticizes the Regulatory Flexibility Act Analyses of Financial Regulators

From: US GAO

Financial Services Regulations:

Procedures for Reviews under Regulatory Flexibility Act Need to Be Enhanced

GAO-18-256: Published: Jan 30, 2018. Publicly Released: Jan 30, 2018.

What GAO Found

To comply with the Regulatory Flexibility Act (RFA), agencies generally must assess the rule’s potential impact on small entities and consider alternatives that may minimize any significant economic impact of the rule (regulatory flexibility analyses). Alternatively, agencies may certify that a rule would not have a significant economic impact on a substantial number of small entities. GAO found several weaknesses with the analyses of six financial regulators (Board of Governors of the Federal Reserve System, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, Securities and Exchange Commission, Commodity Futures Trading Commission, and Consumer Financial Protection Bureau) that could undermine the goal of RFA and limit transparency and public accountability, as shown in the following examples.