*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. “The perfect is the enemy of the good,” a wise old saying cautions. That aphorism captures the fundamental human predicament of limited cognitive capacity, an often overlooked point for which my favorite polymath, Herbert Simon, won the Nobel prize […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. The Biden administration’s recent proposed revisions to Circular A-4 — the official instruction manual for agencies on how to perform cost-benefit analysis for their new rules — represent a fundamental rethinking of not only the methodologies and techniques for […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. President Joe Biden’s recent Executive Order on Modernizing Regulatory Review makes explicit mention of the potential for artificial intelligence (AI) to impact the public comment process in agency notice-and-comment rulemaking. But the Biden Administration needs to be careful how […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. As others have discussed throughout this symposium, Executive Order 14094 makes several significant changes to the regulatory process. In addition to reforming the process by which the Office of Information and Regulatory Affairs (OIRA) reviews agency rules, the EO […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. President Biden’s Modernizing Regulatory Review Executive Order (Modernizing E.O) changes the way agencies must think about—and engage in—notice-and-comment rulemaking. The Administrative Procedure Act (APA) imposes no duty on agencies to facilitate participation in rulemaking beyond providing notice of the […]
The D. C. Circuit issued four opinions this week. One involved an employment contract. Two were whistleblower appeals from the Tax Court. The fourth was from FERC. In Wright v. Eugene & Agnes E. Meyer Foundation, No. 22-7004, a divided panel of the D.C. Circuit reversed the district court’s dismissal of claims arising out of […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. This symposium is focused largely on President Biden’s EO 14094 on “Modernizing Regulatory Review” and one of its subjects: OIRA’s contemporaneous redraft of Circular A-4, open for comments till June 6. That’s appropriate. But a concurrent docket is also open for […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. The Office of Management and Budget, and in particular the Office of Information and Regulatory Affairs (OIRA) must be praised for undertaking a long, long overdue update of Circular A-4. Given the progress in techniques and changes […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. Circular A-4 should be revised to recognize the essentially stochastic nature of cost-benefit analysis. This is not just a theoretical concern, but one that has far-reaching policy implications. Agencies often must regulate in the face of deep […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. One of the most contentious aspects of using cost-benefit analysis in the regulatory process involves discounting the value of future harms. Based on updated data from U.S. Treasury notes and Inflation-Protected Securities, the Biden Administration’s new Circular A-4 guidance will […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. I’m going to focus on OMB’s proposed revisions to Circular A-4’s section on “alternative regulatory approaches,” which is housed at what would be section 6 of the revised Circular. First, some background. To do cost-benefit analysis—or any other […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. For almost 30 years, federal regulatory agencies have conducted analysis pursuant to President Clinton’s Executive Order 12866, which each successive president has endorsed and supplemented. Last month, President Biden continued that practice in issuing E.O. 14094, which reaffirms E.O. […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. The Biden Administration’s proposed agency guidance will make agencies more responsive to income inequality, global equity, and the interests of future generations. Inequality is a defining issue of our time. Yet, for the past forty years, the […]
*This is the introduction to a symposium on Modernizing Regulatory Review. For other posts in the series, click here. I’m delighted to introduce Notice & Comment’s symposium on modernizing regulatory review. Over the next two weeks, we’ll feature a wide range of scholar and practitioner reactions to President Biden’s recently issued Executive Order 14,094 and related draft guidance from the Office of […]
Yesterday, in Calcutt v. FDIC, the Supreme Court summarily reversed a Sixth Circuit decision that would have affirmed an FDIC sanction against a banker, even though the agency made two substantive errors in issuing that sanction. In so doing, the Supreme Court reaffirmed the ordinary remand rule and wrote: The Sixth Circuit, for its part, […]