Spring 2019 Projects (ACUS Update)

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

by Emily Bremer

The Administrative Conference of the United States kicks off its spring committee meetings schedule this week, with new projects on: (1) Agency Guidance Through Interpretive Rules; (2) Public Availability of Agency Guidance; (3) Selection of Administrative Law Judges; and (4) Revisions to the Model Rules for Implementation of the Equal Access to Justice Act. These projects are targeted for completion at the 71st Plenary Session, which is scheduled for June 13, 2019.



Will Trump’s deregulation agenda survive?

From: The Agenda



Third, the general counsels at federal agencies need to work hard to ensure that each procedural requirement for deregulation has been honored; the easiest way for a federal judge to block deregulation is to point to a procedural box that has not been checked. Reviewing how and why prior legal challenges succeeded or failed will be helpful for administration officials to chart legal strategy.


A free-market agenda Maxine Waters can support

Editor’s Note: See also  Unwarranted Deputization: Increased Delegation of Law Enforcement Duties to Financial Institutions Undermines American Competitiveness.

From: Politico | The Agenda



Next, Waters’ committee should review the 1970 Bank Secrecy Act. The BSA was aimed at curbing money laundering, the process of turning funds earned through illegal activities into legitimate-looking assets such as real estate. Banks are required to file reports on every cash transaction over $10,000 and some above $5,000 — a compliance nightmare for small banks, accounting for nearly a quarter of their regulatory costs.


White House Emphasizes Data Quality, Consensus Standards, OIRA Review in Regulating Artificial Intelligence

Editor’s Note: See also An Updated Look at the Federal Policies Governing How Agencies Use Voluntary Consensus Standards in Regulatory, Procurement, and Science Documents.

From: Lawfare and White House

Document: Executive Order on Artificial Intelligence

By Matthew Kahn

On Monday, President Trump issued the following executive order on artificial intelligence. The White House provided a summary of the order, and the full order is below.

Executive Order on Maintaining American Leadership in Artificial Intelligence

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:


New Recommendations and Two (!) Separate Statements (ACUS Update)

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

by Emily Bremer

The Administrative Conference recently published its newest slate of recommendations, which the Assembly adopted at its 70th Plenary session, held in December 2018. Two of the recommendations drew separate statements from members of the Assembly.  As I have previously explained, separate statements are permitted by the Administrative Conference Act (5 U.S.C. 595(a)(1)) and the agency’s bylaws, but they are rare.  For one Plenary to draw two separate statements is unusual indeed!



Administrative Procedure Act Limitations: Process and Oversight Shortcomings

From: Competitive Enterprise Institute

Clyde Wayne Crews


Costs of A Regulatory Bell That Tolls for All. While the lucky may dodge direct regulation for a time, every company has business suppliers and business customers, and effects propagate sooner or later. Fixed, difficult-to-change regulations bind all of society—not just the target firm(s) and the market wealth-creating process—to suboptimal conditions. Eventually, given the interconnectedness of business (supply chains, business customer networks) the regulatory bell tolls for all, apart from other indirect effects of specific rules. Airline regulation affects companies other than airlines; pulling strings in one sector can entangle partners and other sectors, sideline entrepreneurship, and impoverish. At unpredictable times, it may become apparent that regulation affecting rivals will eventually boomerang, and that may be the impetus for reform.


Administrative Procedure Act Limitations: Cost Measurement and Disclosure

From: Competitive Enterprise Institute

Clyde Wayne Crews


It is important to oversee the process. The Administrative Procedure Act of 1946 (APA) set up the foundation of the public consultation rulemaking procedure.  Beyond it, there are tools like the central White House review process historically rooted in President Ronald Reagan’s 1981 Executive Order 12291 on “Federal Regulation,” and guidance to agencies like Office and Management and Budget’s Circular A-4.



The Coming Digitization of the Regulatory Environment

From: Nextgov

By Mark Forman

Here’s what the U.S. can learn about digitizing regulations from two of the largest economies.


Government CIOs around the world should take note. If the World Bank and key reformers have it right, digital government strategies need to include digitization of regulatory approaches, removing barriers to economic growth and focusing efforts on violators rather placing equal burdens on all companies in an industry.


Reining in regulatory dark matter

From: The Hill | Opinion


Agencies are already required to contribute to transparency reporting through the twice yearly “unified agenda of federal regulatory and deregulatory actions” for recent and upcoming regulations. The agenda lists rules that go through the standard rulemaking process, but not guidance documents. An executive order should require the agenda to include guidance and other agency subregulatory directives. Each guidance document should also be classified as either “regulatory” or “deregulatory” to make their individual impacts easier to determine.


Financial Stability Oversight Council Calls for Regulatory Reform

Editor’s Note: The following is a brief excerpt from the FSOC 2018 Report. The complete report is available here.

From: Financial Stability Oversight Council

2018 Annual Report

3.12 Regulatory Efficiency and Effectiveness

While the regulatory environment has contributed
to improvements in financial stability and the
resiliency of financial institutions since the financial
crisis, new regulations have also raised concerns
about increased compliance costs and regulatory
burdens for financial institutions, especially for
smaller institutions.


The Council recommends that federal and state
financial regulators continue to work together
to evaluate regulatory overlap and duplication,
modernize outdated regulations, and, where
authority exists, tailor regulations based on the size
and complexity of financial institutions.

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