Administrative Law Prof Blog

Information Security Oversight Office (ISOO)

From the National Archives and Records Administration:

ISOO Notices

On September 30, 2008, the Director of the Information Security Oversight Office advised Federal agencies that ISOO would begin to issue ISOO Notices covering aspects of the classification, safeguarding, and declassification programs administered under Executive Order 12958, as amended and its implementing directive, 32 C.F.R. 2001. These ISOO Notices will seek to improve the classified national security information programs of Federal agencies by disseminating and providing consistent guidance to Federal agencies.

Each ISOO Notice will focus on a single topic related to classification, safeguarding, or declassification.

• Announcement memo of September 30, 2008
• ISOO Notice 2009-01:  Use of the Standard Form 715, "Declassification Review Tab"
• ISOO Notice 2009-02ISOO Notice 2009-02:  Initial Instructions on the Use of the SF 715, "Declassification Review Tab"
• ISOO Notice 2009-03:  Notification, Coordination, and Documentation Related to Subsequent Reviews Conducted by Primary Reviewing Agencies [Related to Automatic Declassification]
• ISOO Notice 2009-04:  “Best Practices” for Declassification Review Record Keeping
• ISOO Notice 2009-05: Agencies Ineligible to Receive Referrals Identified by Primary Reviewing Agencies Amongst Records Subject to Automatic Declassification on December 31st of 2006, 2007, and 2008

Did you know?

On October 13, 1995, President Clinton signed an Order designating original classification authority to various Government officials. More information about original classification can be found in Executive Order 12958, as amended.

Thanks to beSpacific.  EMM

Transparency and Public Participation in the Rulemaking Process

New in the NELLCO Legal Scholarship Repository (bepress):  Cary Coglianese, Heather Kilmartin, and Evan Mendelson (Penn), " Transparency and Public Participation in the Rulemaking Process: A Nonpartisan Presidential Transition Task Force Report".  Abstract:

Each year, federal regulatory agencies create thousands of new rules that affect the economy. When these agencies insulate themselves too much from the public, they are more likely to make suboptimal decisions and decrease public acceptance of their resulting rules. A nonpartisan Task Force on Transparency and Public Participation met in 2008 to identify current deficiencies in agency rulemaking procedures and develop recommendations for the next presidential administration to improve the quality of regulations and the legitimacy of regulatory proceedings. This report summarizes the Task Force's deliberations, indicating ways that federal agencies could do a better job of seeking citizen comment earlier in the rulemaking process and of reaching out to all affected groups in an evenhanded manner. The report includes not only targeted recommendations on transparency and public participation, but also strategic-management recommendations which, if adopted, should help ensure that agencies continue to improve their transparency and public participation practices over time.

Timely.  EMM

New resource: Lexis Legislative and Regulatory Impact

Law school Lexis users may now access Legislative Impact® and Regulatory Impact®. From the Lexis description:

FILE-NAME: XPOTMC

FREQUENCY: Daily

...

CONTENT-SUMMARY:

The Potomac Publishing Company Gateway provides enhanced federal legislation and regulatory reporting and current awareness including the exclusive Legislative Impact® system.  The first online system offering real-time analysis of how proposed federal legislation impacts existing law.  Legislative Impact® details the law's impact when enacted, how the law has been amended since it was enacted and which Bills currently pending in Congress could further amend the law in question and organizes complex results into a logical tabular form.

From the moment a bill is introduced, you can immediately tell how it will impact all aspects of existing law.  The parties supporting a new law obviously understand their proposal. The opposition, however, is often faced with the huge challenge of determining where the 'land mines' are hidden.  For anyone who needs to keep an eye on changes in the law this is something you can't afford to miss.

Comprehensive databases:

• US Statutes at Large, from 1789 forward
• All Bill and Resolutions for the current Congress
• The United States Code

Features and Functions designed for ease of use:

• Intuitive Interface
• Search or Browse data
• Hyperlinked References and Citations

From Sue Altmeyer (Electronic Services Librarian, Cleveland-Marshall) on the CM Law Library Blog:

Legislative Impact allows you to see what sections of the U.S. Code a pending bill will change. For bills that have passed, it shows (1) the changes to the U.S. Code made by the bill, (2) amendments made by subsequent legislation and (3) pending bills which will make changes. This information previously was very time consuming to gather, but Lexis (via Potomac Publishing Company) offers it all in one easy-to-read report. Also, for a particular U.S. Code section, this service lists pending bills that will make changes to that section.

There are similar databases for twenty state legislatures, and all fifty states will be available early next year.

To access: from the Legal tab, click on "Federal Legal-U.S.", scroll down to "Find Statutes, Regulations..." and you will see a link for Legislative Impact & Regulatory Impact. Also, if you pull up a pending bill, Public Law (federal) or state session law , there will be a link to retrieve the legislative impact in the top left hand corner.

Similarly, Regulatory Impact tells you what administrative code sections are affected by final and proposed rules.

You can browse by agency or search for a specific administrative code section. On the federal level, for example, you can browse by agency to find proposed and final rules in the Federal Register and what CFR sections are affected. You may also search for a CFR section and see final and proposed rules from the last 12 months of the Federal Register. Regulatory Impact is available for 31 states, and all 50 states will be available early next year.

EMM

"Firms Anticipate Regulatory Push After Election"

From Law.com:  "Firms Anticipate Regulatory Push After Election" by Zack Needles of The Legal Intelligencer.  Opening paragraph:

Just as many of the state's largest firms are setting their sights on the Washington, D.C., market in anticipation of increased regulation post-election, many midsize firms in Pennsylvania are looking inward at practice areas that could potentially benefit from a regulatory push.

Should we prepare for larger Admin Law class sizes?  EMM

More on the Bush Administration's Push to Regulate

A couple of weeks ago I posted an article on the current administration's almost frantic efforts to promulgate regulations before Bush leaves office.  Monday's New York Times includes a passionate op-ed piece on the possible impact of these potential regulations on civil liberties, environmental law, and abortion rights.

KP

Comparative administrative law

Randall Peerenboom (UCLA) has published "Regulating Enterprise: The Regulatory Impact on Doing Business" on SSRN.  Abstract:    

This is the introduction to a special volume that examines the regulatory impact of doing business in China. The introduction summarizes the results of conferences sponsored by the Oxford Foundation for Law, Justice and Society, and held in Hong Kong and Beijing. The participants addressed a wide range of subjects, including recently issued and yet to be promulgated draft laws and regulations in the areas of bankruptcy, anti-monopoly, real estate and labor; as well as developments in mergers and acquisitions, telecommunications, corporate social responsibility, dispute resolution, intellectual property, banking and financial governance, and the impact of China's accession to the WTO on legal and economic reforms.

Major themes and topics include the methodology of reform and the suitability of different approaches to regulation; the impact of political, social and economic factors on legal reforms and vice versa; the influence of bureaucratic rivalries on implementation; the increasing diversity of economic actors and the rise of interest groups with clearly defined and oftentimes competing agendas; and the impact of economic globalization on the domestic regulatory system and the pushback from domestic actors, including foreign businesses, when it comes to international policies and practices that are not in their interests.

With the recent melamine mess in China, we can see the impact of inadequate regulation as well.  EMM

Taylor reviews Ramji-Nogales et al. empirical study on asylum adjudication

Margaret H. Taylor (Wake Forest) published "Refugee Roulette in an Administrative Law Context: The Deja Vu of Decisional Disparities in Agency Adjudication" in June on SSRN, and updated it in September.  Abstract:    

In Refugee Roulette: Disparities in Asylum Adjudication (the Asylum Study), Professors Ramji-Nogales, Schoenholtz, and Schrag provide a comprehensive analysis of new data to document decisional disparities that undermine the fairness of asylum adjudication. The Asylum Study is an empirical project of remarkable scope. It examines patterns of asylum decisions at four different adjudication levels: at the asylum office interview, in immigration court, on administrative appeal to the Board of Immigration Appeals (BIA), and on petition for review to the federal courts of appeals. At each level, the Asylum Study generates empirical findings to support what we knew mostly by anecdote - that there are eye-popping disparities in the grant rates of asylum adjudicators that cannot be explained by the underlying merits of the cases.

What are we to make of these findings? One could derive an answer from a variety of perspectives; my response to the Asylum Study will employ two. First, I will situate the study within a territory that is noted but not explored by its authors: the work of political scientists who conduct empirical studies of judicial decision making. Second, I will examine the Asylum Study through the lens of administrative law, where we find a deja vu component to its findings. This essay has a dual purpose: to open a multidisciplinary window onto the Asylum Study, and to delve into the broader administrative law context of the intractable problem of decisional disparities in agency adjudication.

EMM

International bypass

One way a federal agency can bypass statutory rulemaking requirements is to place the rules in an executive agreement with a foreign nation.  For example, see "DHS: TSA Reaches Agreement with European Union on Cargo Screening Standards for Commercial Passenger Aircraft".  While I suspect that political concerns and the honesty of the working-level officials involved in this process have mitigated any major problems that might have been pointed out through public comment, these rules will go into effect without the "notice and opportunity to be heard" that the law usually requires.  This means that regulated parties will need to voice any objections to Congress, relief will be uncertain and slow, and expenses will be incurred in implementing the new rules by both the regulated parties and the taxpayers.

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Barr, Sarah Koteen.  Comment.  C is for confusion:  the tortuous path of section 212(c) relief in the deportation context.  12 Lewis & Clark L. Rev. 725-762 (2008). [L]|[W]
• Bullard, Robert D. and Beverly Wright.  Disastrous response to natural and man-made disasters:  an environmental  justice analysis twenty-five years after Warren County.  26 UCLA J. Envtl. L. & Pol'y 217-253 (2008). [L ]|[W]
• Colburn, Jamison E.  Habitat and humanity:  public lands law in the age of ecology.  39 Ariz. St. L.J. 145-207 (2007). [L]|[W]
• Driesen, David M.  Firing U.S. Attorneys:  an essay.  60 Admin. L. Rev. 707-727 (2008). [L]|[W]
• Eyer, Katie R.  Administrative adjudication and the rule of law.  60 Admin. L. Rev. 647-706 (2008). [L]|[W]
• Green, A. Christine.  Comment.  The cost of low-price organics:  how corporate organics have weakened organic food production standards.  59 Ala. L. Rev. 799-830 (2008). [L]|[W]
• Heverly, Amy.  Note.  Abigail Alliance is not the end:  a legislative solution to a human problem.  (Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 445 F.3d 470, 2006 and Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 2007.)  12 Lewis & Clark L. Rev. 825-852 (2008). [L]|[W]
• Kane, John S.  Refining Chevron--restoring judicial review to protect religious refugees.  60 Admin. L. Rev. 513-591 (2008). [L]|[W]
• Lanzkron, Joseph.  Note.  The hedge fund holdup:  the SEC's repeated unnecessary attacks on the hedge fund industry.  73 Brook. L. Rev. 1509- 1547 (2008). [L]|[W]
• London, Jonathan K., Julie Sze and Raoul S. Lievanos.  Problems, promise, progress, and perils:  critical reflections on environmental justice policy implementation in California.  26 UCLA J. Envtl. L. & Pol'y 255-289 (2008). [L ]|[W]
• Mack, David J.  Comment.  iTax:  an analysis of the laws and policies behind the taxation of property transactions in a virtual world.  60 Admin. L. Rev. 749-765 (2008). [L]|[W]
• Moncrieff, Abigail R.  Reincarnating the "major questions" exception to Chevron deference as a doctrine of noninterference (or why Massachusetts v. EPA got it wrong).  60 Admin. L. Rev. 593-645 (2008). [L]|[W]
• Neeley, Steven.  Comment.  Immigration detention:  the inaction of the Bureau of Immigration and Customs Enforcement.  60 Admin. L. Rev. 729-748 (2008). [L]|[W]
• Stempler, Laurie N.  Note.  Point and click to protect public health: taking charge of information dissemination over the Internet during a public health emergency.  73 Brook. L. Rev. 1591-1623 (2008). [L]|[W]
• Underwood, Jessica R.  What the EU has that the U.S. wants:  an analysis of potential regulatory systems for follow-on biologics in the United States.  10 DePaul J. Health Care L. 419-455 (2007). [L]|[W]
• Wang, Mingyuan.  Comment.  Supervision of clean development mechanism projects in China--illusory rules of law and real government intervention. 11 Asia Pac. J. Envtl. L. 121-130 (2008). [L]|[W]
• Special Issue:  Australia's Climate Change Law and Diplomacy.  Editorial by Shirley Scott and Rosemary Rayfuse; articles by Peter Christoff, Peter Lawrence, Andrew Macintosh, Iain MacGill and Aynsley Kellow.  11 Asia Pac. J. Envtl. L. 1-120 (2008). [L]|[W]
  • Scott, Shirley and Rosemary Rayfuse.  Editorial.  Australia's Climate Change Law and Diplomacy.  11 Asia Pac. J. Envtl. L. 1-11 (2008). [L]|[W]
  • Christoff, Peter.  A South Seas carbon bubble Australia and a near- Pacific regional climate pact.  11 Asia Pac. J. Envtl. L. 13-27 (2008). [L]|[W]
  • Lawrence, Peter.  APEC promises a roar and delivers a whimper:  the Sydney Declaration on Climate and Energy.  11 Asia Pac. J. Envtl. L. 29- 49 (2008). [L]|[W]
  • Macintosh, Andrew.  Domestic influences on the Howard Government's climate policy:  using a past as a guide to the future.  11 Asia Pac. J. Envtl. L. 51-84 (2008). [L]|[W]
  • MacGill, Iain.  Assessing Australia's sustainable energy technology options:  key issues, uncertainties, priorities and potential choices. 11 Asia Pac. J. Envtl. L. 85-100 (2008). [L]|[W]
  • Kellow, Aynsley.  Lessons not learned in environmental governance: international climate policy beyond Kyoto.  11 Asia Pac. J. Envtl. L. 101-120 (2008). [L] |[W]
• Symposium:  Infrastructure Commons and the Environment.  Articles by Brett M. Frischmann, Marc R. Poirier, Gregory N. Mandel and David M. Driesen. 35 Ecology L.Q. 151-222 (2008). [L]|[W]
  • Frischmann, Brett M.  Environmental infrastructure.  35 Ecology L.Q. 151- 178 (2008). [L]|[W]
  • Poirier, Marc R.  Natural resources, congestion, and the feminist future:  aspects of Frischmann's theory of infrastructure resources.  35 Ecology L.Q. 179-203 (2008). [L]|[W]
  • Mandel, Gregory N.  When to open infrastructure access.  35 Ecology L.Q. 205-214 (2008). [L]|[W]
  • Driesen, David M.  An economic dynamic approach to the infrastructure commons.  35 Ecology L.Q. 215-222 (2008). [L]|[W]

EMM

Case Western Reserve Professors Use Scholarship to Advocate for Regulation of Electronic Health Records

Professor of law and bioethics Sharona Hoffman and her huband professor of engineering Andy Podgurski are using their scholarship to assess the need for federal oversight of the maintenance of electronic health records (EHR).  Currently EHR's are maintained by a private company; Hoffman and Podgurski assert that the risks of software and hardware failure and the potential outcomes for patients merit federal regulation.

Science Daily reports here.

KP

Authority of NY Attorney General to establish "code of ethics" for an industry

"NY Attorney General Establishes Code of Conduct for Wind Energy Companies" per Patty Salkin (Albany) in her Law of the Land blog:

The NY Attorney General has announced a new code of ethics for the wind industry along with the establishment of an oversight task force.  Although the Code does not appear to be available on-line yet, according to the Attorney General’s press release the Wind Industry Ethics Code prohibits conflicts of interest between municipal officials and wind companies and establishes certain public disclosure requirements.

For more details, see Prof. Salkin's post.  My questions for admin law profs familiar with New York:  What is the Attorney General's authority for this?  Absent some sort of legislative delegation, how binding is this on the industry?  Did the industry ask for this, as an anti-competitive or cost saving measure?  Just curious.  EMM

What They Lack In Judgment The Make Up For In Effectiveness

The Washington Post is reporting that the Bush administration is scrambling to pass nearly 100 new regulatory rules before the end of Bush's term in office.  According to the article:

The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo. Some would ease or lift constraints on private industry, including power plants, mines and farms.

Those and other regulations would help clear obstacles to some commercial ocean-fishing activities, ease controls on emissions of pollutants that contribute to global warming, relax drinking-water standards and lift a key restriction on mountaintop coal mining.

Although Bush leaves office on January 20, 2009, the Bush administration has set a November 1, 2008, deadline to to pass the new rules.  Why such an early deadline?  Because the Bush administration does not want to make the same mistake made by Bill Clinton. Federal regulations passed within 60 days of the swearing in of a new president can be easily rescinded because they do not become law until the expiration of a 60 day Congressional comment period.  On the afternoon of Bush's inauguration, he issued an order withdrawing more than 250 regulations passed in the waning days of Clinton's term.  Bush doesn't want the next president undermining his last gasp at deregulation.

LT 

Theory: Kitrosser articles

Here are the two articles by Heidi Kitrosser (Minnesota - Twin Cities) mentioned in our October 21, 2008, post "Theory: Accountability and the Unitary Executive":

"The Accountable Executive".  Minnesota Law Review, 2009.  Abstract:

This Article was written for the 2008 Minnesota Law Review Symposium, Law & Politics in the 21st Century. The Article examines the core functionalist argument typically made to support unitary executive theory: that the theory advances the constitutional principle of accountability by demanding that all executive branch decisions be placed in the hands of a single, nationally elected official. This Article argues that a unitary executive undermines, rather than bolsters, government accountability. The Article also explains that one need not agree with that proposition to conclude that the accountability justification for unitary executive theory is flawed. Rather, one need only deem the point reasonably arguable - and hence within Congress' discretion to judge, subject to functional boundaries - to determine that accountability principles do not demand a unitary executive. The argument that unity reasonably can be deemed to undermine accountability rests on two prongs!

First, it turns on the meaning of constitutional accountability. The Constitution reflects different forms of accountability that correspond to different constitutional actors who check and balance one another. Underlying all forms of accountability is the need for transparency and procedural regularity sufficient to enable public and inter-branch assessment of - and responses to - government actions. Second, unity helps the White House both to secretly intervene in administrative state decisions and to manipulate the very "facts" upon which such decisions purport to rest. The problem is compounded by the capacity of the White House politically to distance itself - and thus to create public confusion over who to blame - regarding decisions over which it legally has full authority (and in which conditions of unity thus exist). The Article is intended as a companion piece to another article to be published roughly contemporaneously with it in a symposium issue of the Willamette Law Review: Accountability and Administrative Structure.

"Accountability & Administrative Structure".  Willamette Law Review, forthcoming.  Abstract:    

This Article was written for a symposium held by the Willamette College of Law entitled Presidential Power in the 21st Century. The Article is intended as a companion piece to The Accountable Executive, which will be published roughly contemporaneously in a symposium issue of the Minnesota Law Review. This Article begins by summarizing the major argument of The Accountable Executive: that a unitary executive is as likely (if not more likely) to diminish government accountability as to increase it. This is due in large part to the enhanced ability, under conditions of unity, of the President or his proxies to secretly influence decision-making and to manipulate data. Accountability and Administrative Structure expands on this argument in three respects. First, it situates the concern over unity's impact on information control and accountability within a broader discussion of accountability and administrative structure. Second, it supplements the functional constitutional analysis of The Accountable Executive with formal constitutional analysis and explains the link between the formalist and functionalist points. Specifically, the Article explains that unity proponents' core formalist point - that the Constitution's founders clearly understood the vesting of executive power in the President to entail exclusive power to implement legislative directives and to control others who engage in such tasks - not only is wrong, but is wrong partly because the founders were wary of the accountability risks posed by centralized presidential control. Third, this Article focuses on two recent examples to demonstrate how unity can undermine accountability.

EMM

Political Cycles of Rulemaking

New on SSRN from Anne Joseph O'Connell (Berkeley):  "Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State".  Abstract:    

Despite the administrative state's extensive scope, we know little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. Using a large new dataset constructed from twenty years' (1983-2003) worth of federal agencies' semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions, this Article analyzes variation in agency rulemaking activities with an emphasis on rulemaking at the beginning and end of presidential administrations and around shifts in party control of Congress -- midnight and crack-of-dawn regulatory activity -- while also assessing some patterns outside those periods.

The empirical results offer new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each presidential administration, but cabinet departments (as a group), finished slightly more actions after the 1994 election changed control of Congress than in President Clinton's last quarter. And although the press highlighted President Clinton's spate of midnight regulatory activity, President George H.W. Bush began nearly 50 percent more notice-and-comment rulemakings in the final quarter of his term than did President Clinton and nearly 40 percent more than President Reagan.

The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice-and-comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, binding rulemaking without prior comment has increased across a wide range of agencies. Focusing on politics, these patterns of regulatory activity during political transitions undermine theories of judicial deference based entirely on agency expertise. But, at the same time, they do not support a political accountability theory based solely on the President. Rather, the regulatory trends call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.

Thanks to Joe Hodnicki at the Law Librarian Blog.  EMM

More outsourced regulation

From Wikipedia:

The Public Company Accounting Oversight Board (or PCAOB) (sometimes called "Peekaboo") is a private-sector, non-profit corporation created by the Sarbanes-Oxley Act, a 2002 United States federal law, to oversee the auditors of public companies. Its stated purpose is to 'protect the interests of investors and further the public interest in the preparation of informative, fair, and independent audit reports'. Although a private entity, the PCAOB has many government-like regulatory functions, making it in some ways similar to the private Self Regulatory Organizations (SROs) that regulate stock markets and other aspects of the financial markets in the United States.

For example, Jim Hamilton’s World of Securities Regulation reviews a PCAOB enforcement action.  Opening paragraph:

The PCAOB has suspended the registration of an audit firm for at least five years for conducting deficient audits replete with numerous violations of auditing standards and violations of Board audit documentation standards. In conducting the audits of four issuer clients, the audit firm failed to perform the most basic functions and procedures required to evaluate the financial statements. Two audit partners at the firm were barred from the industry for at least five years. The two partners alternated between performing as engagement partner and concurring review partner on the various audits. The firm and its partners settled the action without either admitting or denying the Board’s findings. In the Matter of Jaspers + Hall, PC, Thomas M. Jaspers, CPA, and Patrick A. Hall, CPA., Release No. 105-2008-002.

Organizations like the PCAOB are interesting public-private hybrids.  Rather than the Administrative Procedures Act (APA), they use private corporate governance procedures as modified by their organizing statutes.  The PCAOB provides public comment opportunities for rulemaking and its rules are subject to approval by the Securities and Exchange Commission.  The rules provide for hearings for enforcement actions and appeals to the Governing Board, and contemplate judicial review.  Congress says it is not a government agency, although it has agency-like subpoena powers, inter alia.  The PCAOB might make an interesting exemplar for discussion of just what an administrative agency is.  EMM