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Legal Issues in E-Rulemaking
No full textSince the enactment of the Administrative Procedure Act (APA) in 1946, the technological landscape has changed dramatically while the basic framework for notice-and-comment rulemaking has largely gone unchanged. Federal regulators, looking to embrace the benefits of electronic rulemaking, face considerable ambiguity about how established, procedural legal requirements apply to the web. For example, does the APA permit agencies to require comments to be submitted online? Are agencies required to screen the content of public comments before they are placed on Regulations.gov? Are electronic dockets a legally sufficient means of preserving the rulemaking record? Many of these issues and others have been swirling around electronic rulemaking (e-Rulemaking) since its inception, and exist whether rulemaking is accomplished entirely on paper or using more electronic means. This Article focuses on the legal issues that present themselves entirely, or more prominently, when agencies engage in e-Rulemaking.
Following a short background section on e-Rulemaking, Part I explains why updating the APA to address e-Rulemaking is unnecessary. Part II explores whether and how agencies should screen public comments before sharing them online and suggests a fundamental change to the way comments are posted on the biggest online rulemaking website, Regulations.gov. Part III analyzes the legal issues associated with using an electronic docket to compile the rulemaking record, finding that well-designed electronic dockets pose no significant legal risks but that the courts could probably do more to embrace electronic filing. Part IV shows that the most basic of federal requirements, the recordkeeping requirements of the Federal Records Act, apply to e-Rulemaking and suggests ways to ensure compliance. The Article concludes with a recap of the Article’s recommendations
OIRA’s Expanded Review of Tax Regulations and Its Surprising Implications
Get PDFExecutive Order 12866 describes U.S. policy on regulatory planning and review. It directs agencies to identify the nature and significance of the problem they are trying to solve with regulation, to identify alternative solutions, to assess the quantifiable and non-quantifiable costs and benefits of each alternative, and then to choose the option that maximizes net benefits to society, taking into account distributional effects and other considerations. That policy, which has governed U.S. regulation for several decades, is managed by the Office of Information and Regulatory Affairs (“OIRA”). It is also subject to several exemptions. In April 2018, the U.S. Department of Treasury and the Office of Management and Budget signed a historic memorandum of agreement narrowing one of those exemptions. The memorandum expands the number of Internal Revenue Service regulatory actions for which the Service must comply with Executive Order 12866. This action moved tax rules out of the “presidential tax-policy blind spot.” This article offers a close study of that memorandum of agreement and reveals six striking features that not only affect tax regulation, but also offer intriguing possibilities for (1) scholarly understanding of OIRA as an institution and (2) the future of regulatory review of independent regulatory agencies, which are currently exempt from OIRA review
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Regulatory Body Shops
No full textAgencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.
This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies and function like staff. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to staff their rulemakings and turn to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops
Regulatory Body Shops
No full textAgencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.
This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies and function like staff. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to staff their rulemakings and turn to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops
Regulatory Body Shops
Get PDFAgencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.
This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies and function like staff. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to staff their rulemakings and turn to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
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