FEDERAL REGULATIONS: Opportunities to Improve the Effectiveness and Transparency of Regulatory and Guidance Practices

Editor’s Note: See also, FEDERAL RULEMAKING: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents’ Terms.

From: US General Accountability Office

Statement of Kris Nguyen, Acting Director Strategic Issues


What GAO Recommends

In the April 2015 report on regulatory guidance, GAO made eleven recommendations to USDA, Education, HHS, and DOL to ensure adherence to OMB requirements and applicable elements of internal controls. Three of these recommendations to HHS remain open: 1) to develop written procedures for the approval of significant guidance, 2) strengthen application of internal controls over guidance processes, and 3) improve its website.


FEDERAL RULEMAKING: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents’ Terms

From: US General Accountability Office

Economically Significant Regulations Determined to be Noncompliant with the Congressional Review Act


Fixing NAFTA’s institutional deficit

For more information about the US-Canada RCC, see here and here (page 3).

From: The E15 Initiative

by Simon Lester, Inu Manak

The renegotiation of the North American Free Trade Agreement (NAFTA) provides a path for institutional innovation. This post argues that the institutions that were created by NAFTA have either not functioned well, or been insufficiently used, and that the opportunity to improve the institutions that exist and to create new avenues for continental cooperation should not be missed.



Understanding and Addressing Controversies About Agency Guidance

From: The Regulatory Review



The new ACUS recommendation—which covers policy statements and may also be helpful for interpretive rules—sets forth a series of measures to foster flexibility in the face of these challenges. Some of the measures are low-cost and should be adopted universally, like making sure that policy statements include a disclaimer of binding status on the public, and ensuring that, if some agency employees are bound to follow a policy statement, other higher-level employees are authorized to depart from it.


Using Plain Language to Draft Regulations

From: The Regulatory Review

At its recent meeting, the Administrative Conference of the United States (ACUS) approved a recommendation entitled Plain Language in Regulatory Drafting. The recommendation offers a number of procedural suggestions to help agencies write their regulations and other public-facing documents in a way that relevant stakeholders can easily understand.

The overarching goal of these suggestions is not merely to simplify complex requirements, or eliminate unnecessarily technical jargon. More than this, plain language can advance core administrative law values, such as public participation in policymaking and the effective implementation of statutory goals.


The Increasingly Greater Use of the Data Quality Act by NGOs

From: Regulatory Pacesetters

The publication of the landmark treatise on the Data Quality Act (aka IQA) is timely because there is a substantial increase in its use by NGOs.

Future litigants, whether a plaintiff or a defendant, now have an arsenal previously unavailable to them.

One petitioner states the following:

The IQA has not been frequently litigated, but some courts have hinted at the possibility that judicial intervention may be appropriate to compel agencies to comply with its requirements. If any administration is likely to convince the courts that judicial enforcement of basic information quality standards is necessary, it is this one.


Infrastructure could benefit from Trump’s regulatory reforms

From: The Oklahoman

by The Oklahoman Editorial Board

DEREGULATION has been a major focus of the Trump administration, and those efforts have paid off in increased economic activity. So Americans should welcome news that President Trump has included regulatory streamlining in his infrastructure proposal.

Trump calls for creating a “one agency, one decision” environmental review structure. The proposal notes that under current law, “project sponsors of infrastructure projects must navigate environmental reviews under the National Environmental Policy Act (NEPA) and permitting processes with multiple Federal agencies with separate decision-making authority and often counter-viewpoints. These many hoops affect the ability of project sponsors to construct projects in a timely and cost effective manner.”

Read Complete Editorial


Regulatory reform to be a topic of next National Space Council meeting

From: Space News



At the previous Council meeting in October, Vice President Mike Pence, chairman of the Council, directed the Secretaries of Commerce and Transportation, as well as the Office of Management and Budget, to carry out a “full review of our regulatory framework for commercial space” to identify potential reforms, and provide a report in 45 days.

The head of the FAA’s Office of Commercial Space Transportation (AST) embraced that effort. “The great thing for us about tackling that assignment is that we are totally on board: no arm-twisting required,” George Nield, FAA associate administrator for commercial space transportation, said at the conference Feb. 7. “Regulatory streamlining is something that is good for industry and good for the government.”


ACUS Adopts Five Recommendations That Improve Government Efficiency, Promote Transparency, and Enhance Public Participation in the Regulatory Process

From: Administrative Conference of the United States

Washington, December 15, 2017 – At its 68th Plenary Session, the Administrative Conference of the United States (ACUS) Assembly formally adopted the five following recommendations.


Agency Guidance, which was adopted as Recommendation 2017-5, provides best practices to agencies on the formulation and use of guidance documents.

Regulatory Experimentation, which was adopted as Recommendation 2017-6, offers advice to agencies on learning from different regulatory approaches. It encourages agencies to collect data, conduct analysis at all stages of the rulemaking lifecycle (from pre-rule analysis to retrospective review), and solicit public input at appropriate points in the process.


Millions of People Post Comments on Federal Regulations. Many Are Fake.

From: The Wall Street Journal

A Wall Street Journal investigation uncovered thousands of fraudulent posts on agencies’ dockets, in hot-button areas such as net neutrality and payday lending

By James V. Grimaldi and Paul Overberg

Read Complete Article [paywall]

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