OIRA@2050

Editor’s Note: The use of guidance documents as backdoor regulations is a long standing concern of business communities around the world. See also, for example, SEC Guidance on Social Media and Business Disclosures Stirs Controversy (2013),  The Fragile State of the Term “Guidance” (Regulatory Pacesetters 2017), Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices (GAO 2015), and OMB To Give Agencies New Guidelines for Guidance Docs (Bloomberg (2018).

From: The Regulatory Review

Jamie P. Horsley

Editor’s Note: GAO is substantially bolstering its analytic capabilities by creating a new Science, Technology Assessment, and Analytics (STAA) team. The agency explains that STAA’s activities will include conducting “peer reviews and other expert reviews.” The question is open as to whether STAA will voluntarily adhere to the Office of Management and Budget’s Final Information Quality Bulletin for Peer Review, Updated Principles for Risk Analysis, and Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies.

From: US GAO Watchblog

Building Capacity in Science & Technology

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From: Federalist Society

The Seventh Annual Executive Branch Review Conference will take place on Wednesday, May 8 at the Mayflower Hotel in Washington, D.C. This day-long conference will feature plenary panels, addresses, and breakout panels that will examine a Regulatory Reform “Report Card.”

SCHEDULE AT-A-GLANCE 

Opening Address

9:00 a.m. – 9:30 a.m.

Grand Ballroom

Plenary Roundtable: Regulatory Reform Report Card: Agency GC Perspective

9:30 a.m. – 10:30 a.m.

Grand Ballroom

Read Complete Conference Page

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.

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From: The Agenda

By JOHN GRAHAM and KEITH BELTON

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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.

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

From: Politico | The Agenda

By DIEGO ZULUAGA

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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.

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:

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!

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From: Competitive Enterprise Institute

Clyde Wayne Crews

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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.

From: Competitive Enterprise Institute

Clyde Wayne Crews

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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.

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