OIRA@2050

Editor’s Note: The Request for Correction is attached here.

Skewed geographic distribution of star ratings demonstrates program’s flaws, says Dialysis Patient Citizens

WASHINGTON, Dec. 16, 2014 /PRNewswire-USNewswire/ — Dialysis Patient Citizens has filed the first challenge to a CMS quality program under the Data Quality Act, contending that the agency’s Dialysis Facility Compare (DFC) star ratings methodology fails to satisfy federal requirements for objectivity and utility in presenting information to the public. The day after being served with the complaint, CMS conceded it should have conducted cognitive testing of this system on consumers, reversing a position the agency had defended for nearly four months.

From: Harvard Magazine

Cass Sunstein and the modern regulatory state

by Lincoln Caplan

Cass Sunstein ’75, J.D. ’78, has been regarded as one of the country’s most influential and adventurous legal scholars for a generation. His scholarly articles have been cited more often than those of any of his peers ever since he was a young professor. At 60, now Walmsley University Professor at Harvard Law School, he publishes significant books as often as many productive academics publish scholarly articles—three of them last year. In each, Sunstein comes across as a brainy and cheerful technocrat, practiced at thinking about the consequences of rules, regulations, and policies, with attention to the linkages between particular means and ends. Drawing on insights from cognitive psychology as well as behavioral economics, he is especially focused on mastering how people make significant choices that promote or undercut their own well-being and that of society, so government and other institutions can reinforce the good and correct for the bad in shaping policy.

From: The Hill

By Jerry Ellig and Richard Williams

When the 114th Congress assembles in January, members will have a plethora of proposed regulatory reforms on their plate. These plans range from required congressional approval for major regulations to stronger judicial review standards. Setting priorities will be a challenge, but one reform can lay a crucial cornerstone—statutory regulatory analysis standards for all regulators.

Regulatory expertise requires the discipline to conduct quality economic analysis. In order to get a good result from regulations, it’s important to use good inputs before writing them. Unfortunately, federal regulatory analysis is poor at best. If it were better, agencies could solve more problems at lower costs with fewer regulations.

From: CircleID

By Bruce Levinson

Two quick facts about American industry’s resilience against cyber-attack, (1) our critical infrastructure is inadequately protected and (2) federal regulation will be required to fix the problem, reliance on market forces alone will not be sufficient irrespective of whether or not Sony Pictures survives. Although regulation is needed, it needs to be coordinated and, above all, cost-effective.

Which agency is charge of regulating cybersecurity? Right now, it’s a free for all with agencies staking out turf and claims of authority. The Federal Trade Commission (FTC) which does not have specific critical infrastructure protection responsibilities under either Presidential Policy Directive 21 (PPD-21) or the President’s Executive Order 13636 on improving cybersecurity, is among the most aggressive of agencies in asserting regulatory authority.

Editor’s Note: For information about OIRA setting federal policy on the use of consensus and market-driven standards, please see here.

From: ANSI

On October 29-30, 2014, the Standards Alliance, a public-private partnership between the American National Standards Institute (ANSI) and the U.S. Agency for International Development (USAID), co-hosted a workshop in Lima, Peru, with the Peruvian Ministry of Foreign Commerce and Tourism (MINCETUR). The event focused on analytical tools for regulatory decision-making and regulatory impact assessment (RIA), among other related topics.

From: RegBlog | Penn Program on Regulation

Omar Al-Ubaydli  and Patrick McLaughlin

How much should governments regulate? Economists attach huge significance to this question because the difference between rich and poor countries can be affected by variation in government quality, especially the extent to which the legal system protects property and encourages innovation and investment. But answering this question has been difficult due to limitations both in economic theory and available data. We have created a new dataset that can help overcome the limits in available data.

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From: Bloomberg via Chicago Tribune

By Cass Sunstein

Last week, the Environmental Protection Agency proposed, after White House review, an ozone regulation very similar to one that President Barack Obama personally blocked some three years earlier. On both the right and the left, and in news stories as well, the new proposal is being portrayed as an intensely political reversal: Unburdened by the prospect of reelection, the president is said to be following his instincts, appealing to his base and ignoring the complaints of the business community, to which he capitulated in 2011.

Editor’s Note: The following article was named by RegBlog as one of their Fall 2014 Highlights.

From: RegBlog | Penn Program on Regulation

Adrian Vermeule

Fear of the abuse of official power is and always has been a central thread in American constitutional discourse and political psychology. From the Antifederalists, to the Liberty League of the 1930s, to the American Civil Liberties Union, to the Tea Party Constitutionalism championed by Richard Epstein and Randy Barnett, libertarian constitutional movements and their theorists have urged that constitutional arrangements should build in strict precautions against the risk of abuse of power. That impulse cuts across the left-right divide and has no systematic or general political valence; the politics of precautionary constitutionalism varies over time and across issues. Today, libertarians of the left tend to urge recautions against executive powers of surveillance and detention, whereas libertarians of the right urge precautions against administrative regulation and putative takings of property rights; but the rhetoric and structure of argumentation is nterestingly similar across these cases.

From: Mondaq

Article by Ellyn L. Sternfield | Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

With all due credit to the Coroner from the Wizard of Oz, like the Wicked Witch of the East crushed by Dorothy’s house, the 340B Drug Discount Program mega-reg is “not only merely dead, it’s really most sincerely dead.”  And to quote one of my favorite sports commentators, Tony Kornheiser, “I believe I had that.”

Editor’s Note: For information on the purpose and value of the PRA process, see here. For Commissioner Clyburn’s remarks on the FCC being hampered by adherence to OMB’s PRA requirements, see here.

From: CommLawBlog

A recent notice about DTV construction permit applications got us thinking about our old friend, the PRA.

Has the FCC changed the process for applying for DTV construction permits? Probably not, but a recent notice in the Federal Register seemed to suggest otherwise. It turns out, though, that the real story here is the hypnotic effect of the Paperwork Reduction Act (PRA).