BOOK REVIEW: Federal Rulemaking

In the 1979 Annual Report on the State of the Judiciary\u27Chief Justice Burger called for a fresh look at the entire federal rule making process. Following the Chief Justice\u27s lead, the Federal Judicial Center\u27 responded with a report by Winifred R. Brown entitled Federal Rulemaking: Problems and Possibilities. In a foreward to that report Professor A. Leo Levin, the Federal Judicial Center\u27s director, discouraged any attempt to intiate a thorough review of the strengths and weaknesses of the process, and advised the author instead to focus on those aspects of the process that had been singled out for criticism and that might benefit from change. \u27 Thus, the stated purpose of this catalog of criticism was to ensure that all views of even potential merit are brought to the attention of policymakers. \u27Unfortunately, the ensuing report only partially completes its defined mission. Nonetheless, policymakers are likely to give the report serious consideration despite several crucial omissions in the report\u27s discussion of federal rule making. Moreover, because improvements, or at least changes, in federal rule making are likely to be forthcoming, this Review outlines some of the deficiencies in the Judicial Center\u27s report in the hope of prompting policymakers to consider a wider catalog of criticisms

Congressional Influences on Rulemaking Through Appropriations Provisions

This report examines the Consolidated Appropriations Act for 2008 and identifies four types of provisions that prevent or restrain federal rule making or regulatory activities

Minimum Retroreflectivity of Traffic Signs and Pavement Markings, HR-562, 1995

This final report contains two separate reports which describe the retroreflectivity levels of various traffic signs and pavement markings on the Iowa primary road system. The data was collected in the fall/winter of 1994 and given to the Federal Highway Administration in March of 1995. This information is currently being combined with similar information from other jurisdictions across the country for the purpose of determining the impact of mandated minimum retroreflectivity levels. The FHWA will be releasing their report sometime in 1996. In October 1992, Congress mandated (Public Law 102-388) the Secretary of Transportation to revise the Manual of Uniform Traffic Control Devices to include a minimum level of retroreflectivity for pavement markings and traffic signs which shall apply to all roads open to public travel. In 1994, the FHWA initiated research studies to determine the retroreflectivity levels which currently exist for signs and markings in an attempt to develop standards which are reasonable to implement. The Iowa Department of Transportation participated in both of the studies and the final reports are included. After compilation and analysis of the collected retroreflectivity data, the FHWA will propose the new MUTCD standards through the federal rule making process. It is estimated that the actual MUTCD change will occur sometime in late 1997 or early 1998

The Impact of Every Student Succeeds Act (ESSA) on Equitable Title I Services for Nonpublic School Students

Sec. 1120 of the Elementary and Secondary Education Act (ESEA) of 1965 requires local education agencies (LEAs) to provide equitable education services to eligible public and nonpublic school students, teachers and parents using Title I, Part A funds. Title I, Part A is designed to equalize educational opportunities and resources for disadvantaged children. President Obama reauthorized ESEA by signing the bipartisan Every Student Succeeds Act (ESSA), into law December 10, 2015 and stated, “This bill upholds the core value that animated the original Elementary and Secondary Education Act signed by President Lyndon Johnson, the value that says education, the key to economic opportunity, is a civil right for all” (White House, 2015). While there has been a 14 year wait on reauthorization, ESSA could have significant financial and regulatory impact to the equitable services provision of Title I, Part A, pending the transition from NCLB of 2001 to ESSA of 2015. The Consolidated Appropriations Act of 2016 will delay the ESSA implementation until the 2017-2018 school year to allow feedback and careful considerations to the regulations for this new law. During the 2016-2017 school year, LEAs will continue to follow NCLB guidance. This policy paper provides a review of current NCLB equitable service provisions which remain in effect until August, 2017. It identifies the new ESSA provisions related to equitable services, examines the compliance and financial impact to local education agencies, and offers regulatory recommendations to local, state and federal rule making committees

Medicaid: Overview and Impact of New Regulations

Focuses on six new rules aimed at cutting federal spending that could reduce services for vulnerable beneficiaries, slash reimbursement for safety-net providers, and affect states' budgets. Explains current policy, the proposed changes, and their impact

The New Role of the Courts in Developing Public Welfare Law

Three years ago it could be said that the federal courts played virtually no role in shaping the rules which determine whether an individual is eligible for public assistance under federally financed programs. The intervening period has seen a dramatic change. Whereas until January 1967 the federal courts had finally adjudicated but one action on welfare grants under 42 U.S.C. § 1983, the provision most readily invoked for such action, the Commerce Clearing House today publishes the Poverty Law Reporter to inform practicing attorneys of pending litigation and court decisions in this rapidly developing field. This article will attempt to examine both the reasons for and the significance of this burst of welfare litigation activity. Before doing so, however, it is necessary to outline briefly the statutory structure of public welfare in the United States and the mechanisms by which welfare rules were developed before the courts were projected onto the scene

Judicialization of Administrative Law: The Trial-Type Hearing and the Changing Status of the Hearing Officer

The judicialization of the administrative process, a phenomenon largely taken for granted by both lawyers and the general public in contemporary America, is probably one of the most mysterious, yet significant, features of American government. It is significant because of its increasingly recognized cost and because of the dominant role which it assigns to lawyers. It is mysterious because of the fragile constitutional underpinnings upon which the judicialization was originally based, and because of its remarkable endurance and growth

MEASURING THE PERFORMANCE OF FEDERAL AGENCIES AND PROGRAMS IN THE USA: AN OVERVIEW AND SOME REFLECTIONS

In this paper, I provide an overview of some of the issues surrounding the measurement of government performance, focusing on the case of the U.S. federal government. After defining government performance and introducing the challenge of measuring it, I examine how this challenge is being addressed at the federal level in the United States. I argue that performance measurement is particularly difficult in this context because under the American constitution, agencies respond to multiple principals, in particular the president and Congress, which often have diverging preferences. I introduce congressional and presidential performance measurement initiatives, especially the Government Performance and Results Act including its recent reform, the Obama administration’s high priority performance goals, and the George W. Bush administration’s Program Assessment Rating Tool. I conclude with a brief review of potential undesired agency response to targets (such as the high priority performance goals), drawing on Christopher Hood’s research on gaming. I thank the Academy of Economic Studies, Faculty of Administration and Public Management for inviting me to present this paper as keynote speaker at its conference held in Bucharest, Romania, on June 21-22, 2011, and I thank Rob Greer for helpful research assistance.performance target, measuring performance, federal government.

An Analysis of the Fifth Government Report on the Costs and Benefits of Federal Regulation

This paper critically reviews the draft of the Office of Management and Budget's fifth report on the benefits and costs of federal regulation. The draft report is a significant improvement over previous reports in terms of the responsiveness to the congressional mandate, and the information it provides on recent improvements at OMB. We think the changes that OMB has made to increase transparency and efficiency are significant. These include making greater use of the Internet to communicate information, sending letters to agencies encouraging specific regulations with net benefits, and providing information on turnaround time for reviewing rules. There is still room for substantial improvement, however. We offer six recommendations, one for Congress and five for OMB, that we believe would be helpful in holding regulators and lawmakers more accountable for the regulations they produce. Our recommendations focus on getting the regulatory agencies to produce better analysis, making that analysis more transparent and readily available, and making the regulatory process itself more transparent. We recommend that Congress require agencies to comply with OMB's economic guidelines. We also suggest that OMB improve its report by including a scorecard on the extent to which regulatory analyses comply with their guidelines; providing more information on regulations aimed at reducing terrorism; and making greater use of its in-house expertise to improve estimates of benefits and costs for individual regulations.

State Mineral Production Taxes and Mining Law Reform

Fuel and leasable minerals mined in the United States have historically been subject to federal royalties while locatable minerals have not. In recent years there have been multiple attempts to alter this policy and subject locatable minerals to federal royalties as well; most recently the preliminary 2011 Obama budget included a gross royalty on hard-rock mining on public lands. This paper analyzes the issue of imposing such federal royalties from both a legal and economic perspective. From a legal perspective, it is argued that the state of western property rights precludes royalties on currently extant claims so revenues from a royalty would not be realized for many years. From an economic perspective, it is argued that the effect on revenue would be smaller than one might anticipate due to such a royalty crowding out state levies or encouraging vertical disintegration on the part of mining firms to avoid much of the burden of the royalty.mining, taxation, royalties