November 21 | October
24 | October
13 | September
13 | August
19 | August
1 | July 18
| July 14
| June 30
| June 21
15 | February
25 | February
9 | February
November 21, 2000
- The Mercatus Center at George Mason University
has launched http://www.regradar.org/,
a web site that monitors federal regulatory activity. The site
is interactive, featuring links to relevant websites and detailed
regulatory data. Information from government sources is supplemented
with input from practitioners and individuals regarding the latest
regulatory news, and the site also compiles the latest media coverage
of regulatory activity. Its initial focus is on midnight regulations
every step of the way – from their initial rumored stage (“Unconfirmed
Federal Operations,” or “UFOs”), through the proposal stage, to
their final implementation.
- The Supreme Court heard oral arguments
November 7 in Browner v. American Trucking Associations Inc. and
American Trucking Associations Inc. v. Browner. The two cases
call into question the structure of federal regulation under the
1970 Clean Air Act. See: http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZAAVUAAFC&live=true&cst=1&pc=0&pa=0&s=
October 24, 2000
- Randolph J. May argues in
his October 9 column in Legal Times that Al Gore's Reinventing
Government program had limited success. For all its grandiose
rhetoric, it failed to eliminate any significant government program
or restructure any major government program. And Al Gore's
claims concerning cost savings and reductions in agency personnel
are hotly disputed. May also points out that Governor Bush,
in his major speech on government reform, avoided making specific
recommendations concerning his own reinvention program.
For the entire column, see http://www5.law.com/dc-shl/display.cfm?id=3936&query=Randolph%20AND%20J%20AN
- The Truth in Regulating Act
On Tuesday, October 17th, President Clinton signed "The Truth
in Regulating Act," which gives the General Accounting Office
(GAO) the authority to provide Congress with in-depth, independent
assessments of major regulations. The assessments can include
review of potential costs and benefits, available alternatives,
and small business and federalism impacts. The law will
help foster implementation of the Congressional Review Act and
enhance congressional responsibility for federal regulations.
- Regulatory Right to Know: Reports on
Regulatory Costs and Benefits
As part of the Legislative/Treasury/Postal
appropriations bill approved by both the House and Senate, Congress
made permanent an annual requirement that the Office of Management
and Budget (OMB) prepare annual regulatory accounting reports
on costs and benefits of regulations. These regulatory accounting
reports have greatly improved the transparency of regulatory costs
and benefits. These reports highlight regulations whose
costs are out of proportion to their benefits and promote better,
more uniform regulations and use of the best available data.
President Clinton is expected to sign the legislation.
October 13, 2000
- HOUSE PASSES KELLY-McINTOSH
REGULATORY REFORM BILL, HOUSE COMMITTEE OKs REPORT ON GUIDANCE
On Tuesday, October 3rd, the
House of Representatives passed the "Truth in Regulating Act of
2000." Rep. David McIntosh, Chairman of the House Government Reform
Subcommittee on Regulatory Affairs, led this successful enactment
from 1998 until today. His Subcommittee held two hearings
and issued two reports on this initiative. (This bill previously
passed the Senate and thus now goes to President Clinton for approval).
Also, October 5th, the House Government Reform Committee approved
a landmark McIntosh Subcommittee Report, entitled "Non-Binding
Legal Effect of Agency Guidance Documents."
Link to Chairman David McIntosh's
press release today on both regulatory reform initiatives:
Link to the Subcommittee's
Proposed Legislation webpage, which includes Vice Chairman Paul
Ryan's floor statement & Chairman McIntosh's statement the
next day on S. 1198:
For further information, contact:
Deputy Staff Director
Subcommittee on Regulatory
Legislation has already passed
in the Senate, and President Clinton is expected to sign the bill
- List of Future EPA Regulations
In response to a request
from House Government Reform Subcommittee on Regulatory Affairs
Chairman David McIntosh's (R-IN) office, the Environmental Protection
Agency (EPA) provided a list of 88 upcoming regulatory decisions
expected before President Clinton leaves office. A copy
of the list is available in PDF under the breaking news section
of the National Manufacturers Association website at: http://www.nam.org/
September 13, 2000
- To read a brief for the
cross-petitioners in American Trucking Associations, Inc. Chamber
of Commerce of the United States, Et. Al, (Cross-Petitioners)
v. Carol M. Browner, Administrator of the Environmental Protection
Agency, et. al. visit the Chamber’s Web site at http://www.uschamber.org/NCLC/Briefs/default.htm.
August 19, 2000
- The Heritage Foundation
has a Social Security Calculator on its Web page to calculate
what an American worker at your same age and gender could expect
to receive from Social Security. See http://www.heritage.org/socialsecurity/
to generate your estimate.
- Randy May argues the Eleventh
Circuit misconstrued the Chevron test in denying Elian Gonzalez
an asylum hearing and also ignored the importance of the Supreme
Court's recent decision in Christensen v. Harris County in deferring
to the INS's newly-developed policy position, which was really
more akin to a litigating position. See his column at: http://www5.law.com/dc-shl/display.cfm?id=3633
- Elian Gonzalez an asylum
hearing and also ignored the importance of the Supreme Court's
recent decision in Christensen v. Harris County in deferring to
the INS's newly-developed policy position, which was really more
akin to a litigating position. See his column at: http://www5.law.com/dc-shl/display.cfm?id=3633
August 1, 2000
On July 25th, the Truth in
Regulating Act (H.R. 4924) passed the House of Representatives
under suspension of the rules by a voice vote. A similar bill
passed the Senate earlier in the year by unanimous consent. The
bill is reprinted below.
H. R. 4924
To establish a 3-year pilot
project for the General Accounting Office to report to Congress
on economically significant rules of Federal agencies, and for
IN THE HOUSE OF REPRESENTATIVES - July 24,
Mrs. KELLY (for herself, Mr.
CONDIT, Mr. MCINTOSH, and Mr. TURNER) introduced the following bill;
which was referred to the Committee on Government Reform
To establish a 3-year pilot
project for the General Accounting Office to report to Congress
on economically significant rules of Federal agencies, and for other
Be it enacted by the Senate
and House of Representatives of the United States of America in
Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited
as the `Truth in Regulating Act of 2000'.
SEC. 2. PURPOSES.
The purposes of this Act are
(1) increase the transparency
of important regulatory decisions;
(2) promote effective congressional
oversight to ensure that agency rules fulfill statutory requirements
in an efficient, effective, and fair manner; and
(3) increase the accountability
of Congress and the agencies to the people they serve.
SEC. 3. DEFINITIONS.
In this Act, the term--
(1) `agency' has the meaning
given such term under section 3502(1) of title 44, United States
Code, except that such term shall not include an independent regulatory
agency, as that term is defined in section 3502(5) of such title;
(2) `economically significant
rule' means any proposed or final rule, including an interim or
direct final rule, that may have an annual effect on the economy
of $100,000,000 or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities, or for which an agency has prepared
an initial or final regulatory flexibility analysis pursuant to
section 603 or 604 of title 5, United States Code; and
(3) `independent evaluation'
means a substantive evaluation of the agency's data, methodology,
and assumptions used in developing the economically significant
(A) an explanation of how any
strengths or weaknesses in those data, methodology, and assumptions
support or detract from conclusions reached by the agency; and
(B) the implications, if any,
of those strengths or weaknesses for the rulemaking.
SEC. 4. PILOT PROJECT FOR REPORT
(a) IN GENERAL-
(1) REQUEST FOR REVIEW- When
an agency publishes an economically significant
rule, a chairman or ranking
member of a committee of jurisdiction of either House of Congress
may request the Comptroller General of the United States to review
(2) REPORT- The Comptroller
General shall submit a report on each economically significant rule
selected under paragraph (4) to the committees of jurisdiction in
each House of Congress not later than 180 calendar days after a
committee request is received, or in the case of a committee request
for review of a notice of proposed rulemaking or an interim final
rulemaking, by the end of the period for submission of comment regarding
the rulemaking, if practicable. The report shall include an independent
evaluation of the economically significant rule by the Comptroller
(3) INDEPENDENT EVALUATION-
The independent evaluation of the economically significant rule
by the Comptroller General under paragraph (2) shall include--
- an evaluation of an agency's
analysis of the potential benefits of the rule, including any
beneficial effects that cannot be quantified in monetary terms
and the identification of the persons or entities likely to receive
- an evaluation of an agency's
analysis of the potential costs of the rule, including any adverse
effects that cannot be quantified in monetary terms and the identification
of the persons or entities likely to bear the costs;
- an evaluation of an agency's
analysis of alternative approaches set forth in the notice of
proposed rulemaking and in the rulemaking record, as well as of
any regulatory impact analysis, federalism assessment, or other
analysis or assessment prepared by the agency or required for
the economically significant rule; and
(D) a summary of the results
of the evaluation of the Comptroller General and
the implications of those results.
(4) PROCEDURES FOR PRIORITIES
OF REQUESTS- The Comptroller General shall have discretion to develop
procedures for determining the priority and number of requests for
review under paragraph (1) for which a report will be submitted
under paragraph (2).
(b) AUTHORITY OF COMPTROLLER
GENERAL- Each agency shall promptly cooperate with the Comptroller
General in carrying out this Act. Nothing in this Act is intended
to expand or limit the authority of the General Accounting Office.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be
appropriated to the General Accounting Office to carry out this
Act $5,200,000 for each of fiscal years 2001 through 2003.
SEC. 6. EFFECTIVE DATE AND
DURATION OF PILOT PROJECT.
(a) EFFECTIVE DATE- This Act
shall take effect 90 days after the date of enactment of this Act.
(b) DURATION OF PILOT PROJECT-
The pilot project under this Act shall continue for a period of
3 years, if in each fiscal year, or portion thereof included in
that period, a specific annual appropriation not less than $5,200,000
or the pro-rated equivalent thereof shall have been made for the
(c) REPORT- Before the conclusion
of the 3-year period, the Comptroller General shall submit to Congress
a report reviewing the effectiveness of the pilot project and recommending
whether or not Congress should permanently authorize the pilot project.
July 18, 2000
- Restoring Government Integrity Through
Performance, Results, and Accountability
by: Virginia Thomas
Over the past decade, the principle of
accountability has permeated almost every Washington debate,
but perhaps no more strongly than in responses to the call to
"reinvent government." Well-publicized hearings on the Internal
Revenue Service, for example, demonstrated to Congress and federal
bureaucrats what recent polls have shown—Americans deeply distrust
the government and want real reform.For
more on this article, see http://www.heritage.org/library/backgrounder/bg1380.html
July 14, 2000
June 30, 2000
Interpretive Rules and
Statements of Policy Do Not Qualify for Chevron Deference: (click
APA Project Reaches Critical
Panels on rulemaking and availability of judicial review at the
2000 Spring Meeting in Williamsburg, VA, April 29-30, marked the
latest additions to the sections Statement of Administrative
Law Project (ABA Project). The panelists drafts may be accessed
through the sections website at http://www.abanet.org/adminlaw/apa/index.htmll.These
were the fourth and fifth panels devoted to the project. The first
panel was held at the sections 1999 Annual Meeting in Atlanta
last summer and addressed administrative adjudication. The second
was held at the sections 1999 Administrative Law Conference
in Washington, DC last fall and covered judicial review and governmental
management. The third panel was held at the sections 2000
Midyear Meeting in Dallas, TX last winter and addressed the Freedom
of Information Act. Drafts presented at the earlier panels may
be viewed through the website listed above.Comments may be transmitted
to the project reporters by using the sections Listserv,
from Administrative & Regulatory Law News, Section
of Administrative Law & Regulatory Practice, American Bar
Association, Vol. 25, No. 4, Summer 2000)
Supreme Court Refuses
to Defer to Informal Department of Labor letter in Christiansen
v. Harris County. For further information.
In Christiansen v. Harris County, 120 S. Ct. 1655 (May
1, 2000), the Supreme Court held that a public agency governed
by the Fair Labor Standards Act of 1938 may require its employees
to use the time they have been given in lieu of overtime payments.
The Court held that nothing in the FLSA prohibited an employer
from requiring workers to use their accrued time. The Court held
that an informal Department of Labor letter to the contrary was
not entitled to Chevron deference. (Under Chevron
a court must defer to an agencys reasonable interpretation
of an ambiguous statute.) The Court cited an earlier case stating
that similar informal pronouncements are entitled only to "some
deference." And citing Skidmore v. Swift, 323 U.S.
134 (1944), the Court held that the letters are entitled to "respect,"
but only to the extent that the letters have the power to persuade.
Eleventh Circuit Upholds
Rejection of Elian’s Asylum Application.
The Eleventh Circuit Court of Appeals issued a final decision
in the Elian Gonzalez case on June 1 upholding the
INSs decision to reject Elians application for political
asylum.The Court of Appeals held that it was clear that Elian
could apply for asylum under 8 U.S.C. § 1158(a)(1),
which provides that any "alien . . . may apply for asylum."
However, the court held that the statute was silent as to how
an alien applies for asylum. Because of this gap in the statute,
the court held that the Congress had intended to leave the details
of the application procedure to the INS. The court held that it
was the INSs prerogative to require six-year old children
-- who arrive unaccompanied in the United States from Cuba to
act in immigration matters only through their parents in Cuba.
The court held that under Chevron, the INSs policy
was "reasonable."The court then considered whether the
INSs policy was a litigating position which is entitled
to no deference by courts. The court concluded that the policy
was not a litigating position. It was developed after Elian had
applied for asylum but before he sued to force the INS to allow
him to apply for asylum.The Court considered whether the INS policy,
as an informal policy, should be entitled to deference. The court
stated that the fact that a rule is informal means affects the
level of deference it should be accorded, but does not require
that the rule be accorded no deference. The court did not expressly
consider the Supreme Court decision in Christiansen, decided
a month before, which held that an informal Department of Labor
letter was not entitled to Chevron deference.
June 21, 2000
May 15, 2000
- Cato Institute's Project
on Social Security Privatization releases report on "Property
Rights: The Hidden Issue of Social Security Reform" by Professor
Charles E. Rounds Jr. of Suffolk University Law School. Read the
- In March, 2000, the Staff
of the Joint Committee on Taxation issued a report on political
bias in the IRS's handling of tax-exempt organizations (JCS-3-00).
The report found no credible evidence that the IRS had improperly
dealt with tax-exempt organizations.
- Tax Proposals of the Presidential
Candidates. Here is a basic list of the tax proposals put forward
by each presidential candidate:
- Make the R&D tax credit permanent.
- Create a tax-deductible "Life-Long
Learning Account." This would be similar to the current education
IRA but could be used to pay for the education of people over
- Make modifications to the standard
deduction and Earned Income Tax Credit to reduce the marriage
- Create a tax-deductible "USA Account"
for retirement savings, which would be available to people
who do not have access to an IRA or 401(k) plan.
George W. Bush
- Repeal the estate tax.
- Replace the current five tax rates
for individuals of 15, 28, 31, 36, and 39.6 percent with four
lower rates: 10, 15, 25, 33.
- Double the $500 child tax credit
- Make the charitable donation deduction
a non-itemized deduction.
- Increase the annual contribution
limit on Educational Savings Accounts from $500 to $5,000. Expand
the accounts to cover primary and secondary schools, not just
- Corporate Tax Shelters: February
28, 2000, the Treasury Department issued regulations that requires
taxpayers to disclose to the IRS whether they have entered into
corporate tax shelters. 65 Fed. Reg. 11205 to 11222.
- In its Decision Regarding a Preliminary
Injunction, the Eleventh Circuit, Relying on Chevron, Holds
That Elian Gonzalez Had Made a "Substantial Case" That He Was
Entitled to Apply for Political Asylum.
- Using the Chevron test of whether
courts should defer to administrative agencies, the Eleventh Circuit
on April 19 held that Elian Gonzalez had made a "substantial case"
that he was entitled to apply for political asylum.
The statute regarding applications
for asylum, 8 U.S.C. § 1159(a)(1), provides that: "Any
alien who is physically present in the United States ... irrespective
of such alien’s status, may apply for asylum ..."
The Eleventh Circuit court read 8
U.S.C. § 1159(a)(1) statute broadly, and refused to defer
to the INS’s interpretation of the statute--that minors such
as Elian could not apply for asylum without their parent’s permission.
The court held that the language of the statute was clear that
such minors could apply, and therefore the INS had no authority
to interpret the statute any other way. The court cited the
case of Chevron v. Natural Resources Defense Council, Inc.,
104 S. Ct. 2778 (1994), in which the court held that agencies
such as the INS must give effect to the clear language of statutes.
Chevron says that agencies have the authority to interpret statutes
only when the statute is unclear or silent on the issue at hand.
The Eleventh Circuit issued a preliminary
injunction pending its final decision on the matter. The injunction
barred Elian from leaving the country until the Eleventh Circuit
reviewed the decision of the District Court for the Southern
District of Florida, which had held that Elian was not entitled
to apply for asylum.
The district court had taken a different
approach than that taken by the court of appeals. The district
court deferred to the executive branch’s narrow interpretation
of the political asylum statute, believing it was required to
do so by 8 U.S.C. § 1003(a), a statute providing that determinations
by the Attorney General on all questions of immigration law
are controlling. (The Attorney General had agreed with the INS).
As an alternative basis for its holding
that Elian could not apply for asylum, the district court had
also considered Chevron. But unlike the court of appeals, the
district court thought essentially that the asylum application
statute, 8 U.S.C. § 1158(a), was "silent" (not "clear")
on whether minors could apply for asylum. Therefore the court
believed that it was required to accept the INS’s interpretation
of this "silent" statute. The Eleventh Circuit is now reviewing
the district court decision.
February 25, 2000
- Hunt-Wesson case.
On February 22, 2000, the Supreme Court unanimously voted to shut
down a California rule that attempted to increase taxation of
out of state income.If upheld, the rule would have avoided the
effects of the Court's previous decisions holding that a state
may not tax any income of a nondomiciliary corporation that is
attributable to an out of state business activity that is unrelated
to the business conducted in the state. The California rule provided
that interest expenses were generally deductible, but only to
the extent that they exceeded so-called "nonunitary income
from an unrelated business"--i.e., the income that is unconstitutional
for the state to tax under the Court's earlier rulings.
Reasoning that "a tax on sleeping measured by the number
of pairs of shoes you have in your closet is a tax on shoes,"
(citations omitted), the Court had no trouble finding that the
deduction limitation amounted to a tax. The Court then went on
to consider California's justification that the rule was simply
one method of allocating interest expenses between taxable and
nontaxable income. Because "money is fungible," it is
necessary for jurisdictions to come up with a way to allocate
expenses, and the Court recognized that reasonable allocation
schemes have been consistently upheld, such as in First National
Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U.S.
583 (1985). However, California's rule, which does not exist in
any other jurisdiction, "pushes this concept past all reasonable
bounds" by assuming that all money borrowed by a business
is always deemed to first help the nontaxable business. In short,
the Court left the door open for states to adopt other deduction
limitation schemes, so long as "it is reasonable to expect
that, over some period of time, the ratios used will reflect approximately
the amount of borrowing that firms have actually devoted to generating
each type of income."
February 9, 2000
- For further details on last
month’s issuance and subsequent withdrawal of the Occupational
Safety and Health Administration's advisory opinion on work-at-home
employees, see Randolph May’s recent Fourth Branch column in the
Legal Times at: http://www.legaltimes.com/expcfm/display.cfm?id=2701&query=fourth%20branch
- On January 27, 2000, David
M. McIntosh, Chairman of the House Government Reform Subcommittee
on Regulatory Affairs introduced H.R. 3521 entitled the Congressional
Accountability for Regulatory Information Act of 2000. This bill
aids Congress in analyzing Federal regulations and ensuring the
public's understanding of the legal effect of agency guidance
documents. To accomplish the former, the bill requires an analytic
report to Congress by the General Accounting Office (GAO) on selected
important agency proposed and final rules. To accomplish the latter,
the bill requires the agencies to include a notice of nonbinding
effect on each agency guidance document without any general applicability
or future effect.
Chairman McIntosh is holding
the following hearing on Labor's nonregulatory guidance:
February 15, 2000 - "Is the
Department of Labor Regulating the Public Through the Backdoor?"
in 2154 Rayburn House Office Building, 1:00 PM.
A copy of H.R. 3521 and additional
information on the hearing may be obtained at the Subcommittee
If you have any questions
on the bill or hearing, please call Barbara Kahlow at (202) 226-3058.
February 2, 2000
- Hunt-Wesson Case.
On January 12, 2000, the Supreme Court heard arguments in the
case of Hunt-Wesson, Inc. v. California Franchise Tax Board, U.S.
No. 98-2043. The issue is the constitutionality of a California
tax law provision which reduces an out-of-state company's interest
expense deduction by an amount equal to dividends it received
from foreign subsidiaries.
- Corporate Tax Shelters.
On November 10, 1999, the House Ways and Means Committee heard
testimony on proposals to combat corporate tax shelters. http://www.house.gov/ways_means/fullcomm/106cong/fc-14wit.htm
- Politically Motivated Audits.
The Joint Committee on Taxation is drafting a study on allegations
that the IRS conducts politically motivated audits of tax-exempt
- Testimony of Economists and Accountants
Must be Reliable.
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Mar. 23, 1999),
the Supreme Court held that testimony by nonscientific experts,
which would include economists, appraisers, accountants, and actuaries,
must pass the Daubert test for reliability. Before Kumho Tire,
some courts had held that the Daubert test for reliability applied
only to scientific experts. See Administrative Law & Regulatory
News, vol. 3, no. 3, Fall 1999, page 8.
- Multidisciplinery Service Providers.
The Professional Responsibility Section has published a number
of articles on the question of multidisciplinery service providers
in its newsletter, vol. 3, no. 2, Summer 1999.
- Accountant-Client Privilege.
A new "accountant-client privilege"
is now available, under very limited circumstances, due to changes
in the law implemented by the IRS Restructuring And Reform Act
of 1998. See Administrative Law & Regulation News, vol. 3,
no. 3, Fall 1999, page 8.
- Shifting of burden of proof to IRS.
Under very limited circumstances, the burden of proof now rests
with the IRS in tax cases, as provided for by the IRS Restructuring
And Reform Act of 1998. See Administrative Law & Regulation
News, vol. 3, no. 3, Fall 1999, page 9.
- The House Government Reform Committee Subcommittee
on National Economic Growth, Natural Resources, and Regulatory
Affairs, chaired by Congressman David McIntosh, will be holding
the following hearing on February 15, 2000 - "Is the Department
of Labor Regulating the Public Through the Backdoor?" in 2154
Rayburn House Office Building, at 1:00 PM.