The Coincidental and Timely Issuance of Two Publications: One by the Administrative Conference of the US (ACUS) and the other by the Competitive Enterprise Institute (CEI)

The Administrative Conference of the United States has just reported out of committee a report entitled Agency Information and Dissemination in the Internet Era. This landmark report, the first report of its kind issued by a federal agency, identifies the important role that federal databases and associated regulatory information play not only in the proper functioning of a national government but in the daily operation of open-markets.

The report issued by CEI, titled A Preliminary Inventory of Regulatory Dark Matter” identifies the plethora of documents which are not considered to be regulations but can have a similar effect, including press releases, guidance documents, Executive Orders, presidential memoranda, memoranda of understanding between agencies, settlement agreements and directives.

Upon reading the two documents one will note that there is a divergence in the recommendations for addressing the issues related to the dissemination of information by federal regulatory agencies.

In the case of ACUS, the preferred alternative is to use an existing law, the Data Quality Act, to allow aggrieved parties to petition regulators to change the underlying regulatory document; in the case of CEI the recommendation is for Congress to pass additional laws to bring dark matter under the review of the Office of Management and Budget.

CRE shares the views of CEI to give additional credence to the centralized regulatory review function but in its absence a forceful implementation of the Data Quality Act would be a significant step forward. The problem is that many regulators dread the DQA and this fact will present a considerable challenge to ACUS as it completes its report.



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