Congressional Review Act

 Politico has a piece on the Democrats use of the CRA, finally, with a discussion of why they're using it less than the Trump administration did.  If you can get the courts to kill the Trump rules, you don't need the CRA, and you don't run the risk involved in applying it--the provision that prohibits the agency from future rules to the same effect.

The Return of Plain English Regulations

 Not sure what this tells me, except I'm old, as if the mirror doesn't remind me daily.

Back in my ASCS Directives Management days, my branch was responsible for processing ASCS and CCC regulations to the Office of Federal Regulations.  We had to ensure proper format, conformed (carbon) copies, official signatures, the correct set of documents (i.e., the regulation itself, the transmittal memo, and others). The regulation package would circulate among the offices in a special folder, with the routing sheet stapled to the front, ending up with the Administrator, ASCS or Executive VP, CCC as applicable.

Among the many goals of President Carter  were several aiming to improve the federal government (notably Senior Executive Service and the sunset law). Theoretically of similar importance was the "plain English" initiative.  Regulation writers got some classes in how to write, and agencies got instructions for their heads to certify that regulations were written in "plain English".  In reality, all that meant after the first few months was the addition of another document with multiple copies to be included in the regulation folder.  The document just read something like": "I certify the enclosed regulation is written in plain English".

I think the Reagan administration may have continued the requirement, at least for a whole, but it didn't last much longer than that.

But it's back!! Govtrack.us has an article with a title which tells us all: 

Providing Accountability Through Transparency Act would require 100-word plain English summaries of each new federal rule or regulation

 It's been introduced in both House and Senate, but no co-sponsors as yet.  Cynically I want to note that where Carter wanted the whole regulation to be in plain English, so far this effort is just to have a short summary in plain English, leaving the actual regulation to be inscrutable, or not, depending on the ability of the regulation writer and the environment in which she is working.

Update on Congressional Review Act

 I've posted before on the use of the Congressional Review Act to kill regulations. The last time I posted it seemed as if the administration was hesitant to use it, partly because of uncertainty over its effects down the road. CRA has a provision if Congress votes to kill a reg, the agency cannot do new regulations substantially the same without new legislation.

It now appears that maybe Democrats will try to apply it to six regulations. Because the Trump administration used their control of Congress to kill several regulations from the Obama administration, I also looking to see if any agencies try to revive them and test how much flexibility SCOTUS will allow in interpreting the act.

Congressional Review Act Not Used

 Apparently the Biden administration is opting for slow and possibly sure over fast and challengeable.  That is, rather than using the Congressional Review Act to undo last minute Trump regulations they're using the Administrative Procedure Act process--notice of proposed rulemaking, etc. The CRA could be done, but it has a kicker that when used, the agency can not later issue new regulations the same or reasonably similar to those which were killed.  

In a sense, a CRA kill is a permanent veto unless a future Congress enacts a new authority.

Maybe Trump Was Right?

Right about unnecessary government regulations, that is. 

My wife and I had to set up a new account with our bank this week. The number of questions one has to answer has gone up (like are you closely related to any corrupt foreign leader?) and the number of pages of legalese which one has to ignore has expanded.  No doubt this keeps a number of lawyers in full employment, but it seems foolish. It seems as though there should be an easier way.

Having vented my frustration, I realize what we have here is an arms war between competing sets of attorneys--both sets aiming to obtain the most money they can for themselves and their clients, with one set on the side of right and the public interest and the other set on the side of enterprise. 

And no, Trump wasn't right. He represents the extreme of one side of the arms war.

The Role of Government Regulation

 Over the last year or so the role of government regulation has been in the headlines:

• Boeing's 737-Max suffered two fatal crashes. The conventional wisdom now is that FAA failed to exert enough oversight of the process of redoing the 737 into the Max.
• The development of vaccines for Covid-19 has been controversial.  Alex Tabarrok and Tyler Cowen  at Marginal Revolution in particular have pushed for faster approval and looser regulation of the various vaccines. The FDA's process has been contrasted against the process in other countries.  Alex, I think, has come out for reciprocal approval--approval by the regulatory authority in any (big, developed) country should be enough for FDA.
• The Trump administration pulled back on various regulations.  Today's Post  says the changes in inspection of pork processing plants have lead to more contamination in the ultimate products.

I always remember the thalidomide problem when the Republicans start pushing looser regulations.

Having said that, I wonder whether in the process of redoing the regulations which were undone in the last 4 years the Biden administration will find some things which should be changed.  I think anything a group does is going to have some flaws. In the usual course of events it's often easier to work around the flaws than to change them. But since the Biden people will have to go through the regulation process anyway, there's no added cost to fix problems.

IMO there's often a fine line between not enough regulation and too much, so a feasible solution can be an alternation between the two.

Improving Rural Life--Butchers and Regulations

Posted earlier on the need for Democrats to address rural issues.  

Here's another one, which fits with the liberal position about favoring small farmers, etc..  (Yes, you can take the "etc." as indicating I've some reservations about the food movement.) Better yet, it's an opportunity for a bipartisan play, as deregulation will appeal to the Republicans.

I've mentioned Walt Jeffries in this blog before. He used to post regularly at Sugar Mountain blog.  It may be now that he's switched to Facebook.  He and his family built their own butcher shop over a period of years, which was documented at the blog.  Had to go through the Vermont and USDA inspection and licensing process, which took a while but, somewhat surprisingly since he tends to the libertarian, which seemed to go relatively smoothly.

Meanwhile the Foothill Agrarian, a California sheepgrower, has lost the butcher  which used to process his lambs (as opposed to buying the lambs--the distinction is important).  His post here describes the problem.

I commented on the post with some questions, but it seems to me both Democrats and Republicans could agree on carving out exceptions to national or state regulations to ease the problem for local butchers.

On Regulatory Approvals

 The UK has approved the Pfizer vaccine for use; the FDA hasn't yet.  Some, like the Marginal Revolution blog, are critical. 

The FAA grounded Boeing's 737-Max for 20 months, before approving it this month. 

These are judgment calls, or actually likely a nested series of judgment calls in each case. 

There are some of us alive who remember thalidomide, and the British Comet.

I'm not one to second guess bureaucrats who have to make judgment calls with life and death consequences. 

Laws Aren't Self-Executing

My title is, I think, obviously true.  But just to recap:

• some laws are enforced by a bureaucracy, the police or an executive agency which can invoke legal sanctions, fines or imprisonment after due process.
• some laws are enforced by opposing parties which can file civil suits accusing their opposition of violating a legal provision.
• some "laws" are applied by one part of a bureaucracy against the bureaucrats within it

Most laws rely on voluntary compliance; people incorporate their understanding of law and justice into their consciences and abide by it, until it becomes too inconvenient or their understanding of the situation or of law changes.  That means that the bureaucracies and the civil lawsuits mostly serve as backups, at least in most "advanced" countries.

But that leaves a hole--it's difficult to enforce laws on heads of bureaucracies, the top level who set policy and who therefore supervise those who are charged with enforcing the laws.  

We deal with that hole in two ways in the US: 

1. each agency (i.e. cabinet department) has an inspector general who's independent of the heads of the subordinate units  
2. each agency has Congressional committees and the GAO (which works for Congress) with oversight responsibility.  

That still leaves the big hole at the top of the government: enforcing the President's compliance with laws.  This Just Security article discusses a big one--the Presidentiall Records Act.  The Act is part of the overall structure of rules on government records, none of which get much respect.  NARA can try to enforce the rules on the agencies, but as the article discusses there's no way, outside of politics, to ensure the President follows the rules. 

Trump and the Administrative Procedure Act

I've posted before about the Administrative Procedure Act and the Trump administration, most recently here.  Yesterday's article in the Post provides an overview of the extent of their problems, although still not pointing to the role of Judge Rao (she's been confirmed) in failing to do things in the right way.

Rules and Regulations: Ms Rao

The Times had an article on the Trump administration problems with the Administrative Procedure Act.  It seems the courts have dinged the administration a number of times for not following the act, not providing for notice and opportunities for public comment on policy changes and not doing good enough analysis of policy alternatives to support the decision.

I didn't have a great regard for the act during my bureaucratic days--it was a pain.  A pain in particular because mostly there was no one to present an opposing view.  Most "regulatory" agencies have two or more sides interested in their decisions: should the agency be strict or lenient in writing regulations.  But ASCS/FSA was giving out money.  While there were groups like CATO or AEI who disputed the whole basis of many/most of the farm programs, they didn't usually involve themselves in the regulations, just trying to make their case to Congress and the administration.  There were issues: most notably payment limitation and sodbuster/swampbuster/conservation compliance where you'd find significant interest, but even those didn't compare to the hot issues before the regulatory agencies.

One thing the article misses is the role of OMB.  Basically the writer says Trump administration appointees to agencies were either ignorant of the requirements of the APA or rushed their process.  That's true enough, but OMB does review regulations through its OIRA. Who is the head of the office? Neomi Rao  Who is Ms Rao--the Trump nominee to sit on the DC Circuit Court, the court which reviews challenges to agency actions.

MFP Notice of Funds Availability

As usual, I'm fast and sloppy.  OFR has the NOFA for MFP here.

OMB gave FSA a 6-month emergency approval for the paperwork.  (Why didn't they do that for ASCS back in the day when I was handling them.)

The NOFA does have the Catalog of Federal Domestic Assistance number for MFP--10.123.

I have to carp at this paragraph: "If supporting documentation is required for the amount of actual production and for ownership share, it needs to be verifiable records that substantiate the reported amounts. The participant’s production for the commodity is based on verifiable or reliable production records. Examples of reliable production records include evidence provided by the participant that is used to substantiate the amount of production reported when verifiable records are not available, including copies of receipts, ledgers of income, income statements of [? shouldn't it be "or,"]deposit slips, register tapes, invoices for custom harvesting, and records to verify production costs, contemporaneous measurements, truck scale tickets, or contemporaneous diaries that are determined acceptable by the county committee."

The first sentence and second sentences seem to be at odds--my guess is the intention is clarified by the definitions of "verifiable" and "reliable" (but not verifiable) evidence in the next paragraphs, but that isn't what the first sentence says.

Where Are the Regulations and the Forms?

USDA has officially announced Sept. 4 as the beginning date to sign up for the Market Facilitation Program. That's the press release.

What I, as an old FSA bureaucrat, am wondering is:

1. when will FSA issue a directive, presumably a notice, on the MFP?
2. when will the regulations (presumably an interim final reg) be published by the Office of the Federal Register.  Note: I typed the previous sentence, then did a search on the OFR site.  The regulation was filed with OFR this morning.  It has this notation:  "This document is scheduled to be published in the Federal Register on 08/30/2018 and available online at https://federalregister.gov/d/2018-18842, and on govinfo.gov"
3. when will the signup form(s) be available?  They have to be cleared by OMB. 

Some comments on the regulations, written as I scan it.

• USDA OGC and OMB have come up with a dodge which is new to me--a "Notice of Funds Availability".  I've not seen such a document before, but Googling shows it's been used by other departments.  My guess is the lawyers approved (lawyers can approve anything if the pressure is on) this as a measure to work around existing rules in the Administrative Procedure Act and Trump's EEO--I'd bet a fair amount that NOFA's aren't considered "regulations" for those purposes.  Note: There's some logic to the step--the "regulations" which get conservatives upset usually shape behavior: OSHA and EPA type regs.  The regulations for farm program payments used to be considered "regulations", but no body was forced to take the payments--the regulations were really the conditions for receiving the payment.  
• I'm waiting with bated breath to see whether the applications for payment get OMB clearance.  Seems to me they have to, but the MFP regs say the form will be specified in the NOFA.
• Turns out OMB has a category of "transfer rules" which are not covered by the two for one Trump rule (doing away with two old regulations for each new regulation).  That dates back to April 2017.
• I see one glitch here: "The title and number of the Federal Domestic Assistance Program found in the Catalog of Federal Domestic Assistance to which this rule applies is TBD – Market Facilitation Program and number".  The number wasn't assigned.
• I think it's fair to assume that eligibility and payments are on a farm basis, rather than an operator.  

I never was an expert on the price support side of FSA; they are the people who dealt with production evidence.  With that said, where could a dishonest producer game the program?  The incentive for fraud would be to exaggerate one's production, by duplicating evidence to multiple county offices, forging evidence, or having different producers claiming ownership of the same production.  FSA has long experience with production evidence, so existing validation checks and spotchecks will likely work. However, as a cynic, I'm sure a few farmers will try to get more than they should.

Regulatory Costs and Benefits

I'm a little confused here. Something called E&ENews noted: "The White House Office of Management and Budget on Friday evening released its annual report on the costs and benefits of federal regulations, showing that the benefits of major Obama-era rules far exceeded the costs."

Vox caught the release, and went on to do an extensive analysis here. It's all good and heart-warming for a retired bureaucrat who believes that regulations can do good. They do.

But--when Vox links to the report, the link goes to the E&ENews site and brings up the : "2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act".  I briefly looked and didn't find it on the OMB/whitehouse site, but it may be there, well-buried.

Googling for the title of the report brings up a Forbes piece, combating the Vox analysis in part.  I disagree with the thrust of the writer's analysis, which says that "final rules" should be considered in the analysis, as opposed to "major" rules.  It's a sad fact that the threshold for the major rule is obsolete, when one looks at its history (which I've done but don't remember writing up--someday maybe).  I seriously doubt that considering final rules would change the overall picture. He's on somewhat better ground to doubt how concrete the cost-benefit analyses submitted to OMB are.

Towards the end of the Forbes article there's a little discussion of the process of submitting this report to Congress--interesting for a nerd like me, but disconcerting for anyone who believes in simplistic pictures of how the government operates.

Good Thinking by Congressional Republicans?

Govexec reports on the resignation of a Treasury tax expert, who apparently struggled with the job of writing regs to implement Trump's tax cut law.

But some parts of the law as drafted “were not well thought out,” Trier, a Treasury veteran from the 1980s and later a New York lawyer who consulted to congressional committees, was quoted as saying. Trier revealed that people looking at pieces of the new law sometimes asked him whether lawmakers could have reasonably meant to write it the way they did. “We’re going to have trouble with about half the legislation if we apply that standard,” he said, according to the Journal. 

Implementing a big bill is always difficult, but it sounds as if the GOP gave the bureaucrats a more difficult job than usual, a job likely to be complicated if Congress can't agree on passing a technical corrections bill to fix some of the problems. 

I wonder whether Treasury will be able to live with the 2 for 1 regulation mandate of the administration when implementing this?

Eleven Hoops for Regulations

Back in the day I once had responsibility for processing ASCS regulations to the Office of the Federal Register.  My memory fades, but I believe in the Nixon administration the text of a regulation moved directly from the preamble to the table of contents or other text.  Beginning perhaps with Ford's requirements on clearing big regs for their inflation impact, successive Presidents have added more and more hoops for the poor reg writer to jump through.

A recent FSA rule caught my eye.  There are eleven different sections citing requirements (EO 13771 is the Trump one.) 

 

Executive Orders 12866, 13563, and 13771

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule. The rule is not subject to Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.”

Paperwork Reduction Act of 1995

Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, subchapter I), the collections of information in this rule have been approved by OMB under control number 0563-0053.

E-Government Act Compliance

USDA is committed to complying with the E-Government Act of 2002, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
USDA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, USDA will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

Regulatory Flexibility Act

USDA certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation is a conforming amendment to a final rule published by FCIC that states the Federal crop insurance program is the same for all producers regardless of the size of their farming operation. For instance, all producers are required to file an AD-1026 with FSA to be eligible for premium subsidy. Whether a producer has 10 acres or 1,000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act (FCIA) authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have a significant impact on a substantial number of small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

Federal Assistance Program

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

Executive Order 12372

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See 2 CFR part 415, subpart C.

Executive Order 12988

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith.

Environmental Evaluation

This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

Economic Creativity: New Occupations

How many words do you need to discuss an Amish farmer, deer farms, the production of deer urine, bowhunters and the need to disguise their scent, the problem of chronic wasting disease, and good/bad government regulation?

See this short New Yorker piece.

I'm more impressed by our the market economy and human desires endlessly create new jobs, particularly in a context of fearing the loss of jobs to AI.

Bad Logic in the Fifth Circuit

For some reason, this decision voiding a fine on Exxon-Mobil for a pipeline spill gets my goat.

Imagine a similar decision on airline accidents:

"“The fact that the [accident] occurred, while regrettable, does not necessarily mean that [Boeing/United Airlines/the pilot] failed to abide by the [rules for building and operating airplanes] pipeline integrity regulations in considering the appropriate risk factors,” the court wrote. “The unfortunate fact of the matter is that, despite adherence to safety guidelines and regulations, [airplanes] still do occur.” [brackets indicate where I've changed the terms]

Because we have a zero tolerance for planes falling out of the sky they don't.  Why not the same zero tolerance for pipeline spills?

Administrative Procedures and Trump

This ThinkProgress post represents one of the hurdles for the Trump revolution:  simply put, once a regulation is in place, the bureaucracy has to use the Administrative Procedure Act to revise/change/revoke it, including cost/benefit analysis and consideration of public comment.  (There are exceptions to this, of course, and I'm specifying "the bureaucracy" since Congress can change the game, but it's a good general rule.)  In the case of the Clean Water Rule, a judge has found EPA and Corps of Engineers to be rushing too fast (because it's not a simple case, other court cases involved) in their analysis.

Administrative Procedure Act Pros and Cons

EPA has run into an APA problem as interpreted by a court:

The ruling serves as a signal to Pruitt and other Trump administrations that delaying a rule's effective date may be viewed by courts as tantamount to revoking or amending a rule. In their ruling, Judges David Tatel and Robert Wilkins said that the agency could change the methane regulations but would need to create a new rule to undo the old one, and couldn't delay the effective date of the old law while seeking to rewrite it. 

Unless a higher court overrules, EPA must follow rulemaking procedures under APA to create the new rule, meaning a delay of months if not years.  As the Rural Blog notes, this is a problem because the Trump administration has used the same approach elsewhere as well.  But we liberals should not applaud too hardily; the strict application of APA could kill Obama's process for the children of undocumented immigrants (the "Dreamers").  And once liberals retake the presidency, we'll be stuck following the same process to revive those Obama rules which Trump's administration is eventually able to kill using the APA procedure