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Strategy and analysis consulting
in regulation, risk, economics, and information quality |
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Working Papers
May 15, 2018
On April 29, 2018, Fitzgerald Glider Kits LLC (FGK) hired me to prepare a straw man Regulatory Impact Analysis (RIA) for an EPA regulation that would repeal certain provisions of a major 2016 EPA regulation that would have intentionally driven several companies (including FGK) out of business.
EPA’s 1,116 page RIA for its 2016 regulation includes no incremental analysis of the benefits and costs of these provisions. This omission violated both OMB guidance and EPA guidance, which require incremental analysis of key provisions. It is therefore impossible for a third-party to prepare a fully-informed RIA for a rule repealing the glider provisions; only a strawman is feasible.
Nonetheless, the strawman RIA shows that the glider provisions in the 2016 EPA regulation may result in greater greenhouse gas and pollutant emissions. That’s because if gliders are driven off the market as EPA intended in 2016, truck buyers no longer able to buy them are likely to purchase used trucks or retain existing old trucks in service. Used and existing old trucks emit more greenhouse gases and pollutants than gliders. It’s not known how many would purchase new trucks instead of gliders, but because new trucks are 40% more expensive, that fraction is likely to be small.
Meanwhile, the adverse economic effects of the glider provisions in the 2016 EPA regulation are clear — hundreds of millions of dollars in forced early retirement of capital and thousands of American jobs lost. In its RIA, EPA did not acknowledge either of these predictable effects.
This strawman RIA should be sufficient to justify repealing the glider provisions. EPA has separate authority under the Clean Air Act to regulate rebuilt heavy-duty truck engines if it wants to treat all rebuilt engines fairly instead of discriminating against gliders.
The strawman RIA is #1 on my publications list and is directly accessible here.
EPA’s 1,116 page RIA for its 2016 regulation includes no incremental analysis of the benefits and costs of these provisions. This omission violated both OMB guidance and EPA guidance, which require incremental analysis of key provisions. It is therefore impossible for a third-party to prepare a fully-informed RIA for a rule repealing the glider provisions; only a strawman is feasible.
Nonetheless, the strawman RIA shows that the glider provisions in the 2016 EPA regulation may result in greater greenhouse gas and pollutant emissions. That’s because if gliders are driven off the market as EPA intended in 2016, truck buyers no longer able to buy them are likely to purchase used trucks or retain existing old trucks in service. Used and existing old trucks emit more greenhouse gases and pollutants than gliders. It’s not known how many would purchase new trucks instead of gliders, but because new trucks are 40% more expensive, that fraction is likely to be small.
Meanwhile, the adverse economic effects of the glider provisions in the 2016 EPA regulation are clear — hundreds of millions of dollars in forced early retirement of capital and thousands of American jobs lost. In its RIA, EPA did not acknowledge either of these predictable effects.
This strawman RIA should be sufficient to justify repealing the glider provisions. EPA has separate authority under the Clean Air Act to regulate rebuilt heavy-duty truck engines if it wants to treat all rebuilt engines fairly instead of discriminating against gliders.
The strawman RIA is #1 on my publications list and is directly accessible here.
Paperwork Reduction Act: Does the U.S. Patent and Trademark Office Have Valid OMB Control Numbers for the Informa_tion Collection Requirements in Rules 111, 115, and 116? Updated Based on Recent OMB Action
November 6, 2013
On July 31, 2013, the Office of Management and Budget issued a Notice of Action relevant to this Working Paper. It is now updated to take account of OMB's action.
The following conclusions are drawn:
- OMB’s action is highly nontransparent. Except for the reference to an “updated supporting statement,” the Notice of Action contains no reasoned basis for the determination, as required by the Administrative Procedure Act.
- The “updated supporting statement” supplied by the USPTO is less transparent than the OMB action. Instead of providing an explanation, all information relevant to Rule 111/115/116 submissions was simply deleted. Supporting Statements are revised at OMB’s direction. Therefore, the lack of transparency in the revised Supporting Statement is intentional.
- OMB’s determination that the information collection requirements contained in Rules 111, 115, and 116 are exempt from the Paperwork Reduction Act has no merit. To be exempt, these Rules must be covered by one of the exemptions to the definition of information set forth in 5 C.F.R. §§ 1320.3(h)(1)-(10). A review of these exemptions shows that none of them applies to submissions filed under these rules that gave cause to raise the question in the first place.
- It is possible but highly unlikely that OMB is unaware that Rule 111/115/116 submissions rarely qualify for any of the exemptions in 5 C.F.R. §§ 1320.3(h)(1)-(10). For this to be true, OMB would have to have been profoundly negligent in its inquiry into the facts. A more plausible explanation is that OMB knew that Rule 111/115/116 submissions do not qualify for an exemption, but deemed them exempt anyway to spare the Patent Office the stark consequences of unenforceable regulations due to decades of extensive PRA noncompliance.
- OMB’s action is an abuse of the authority delegated to it by Congress via the Paperwork Reduction Act. The exemptions to the definition of information promulgated by OMB at 5 C.F.R. §§ 1320(h) are not inherently contrary to statute. Indeed, they are narrowly crafted so as to avoid excluding broad swaths of actual paperwork burden. Regardless of OMB’s motivation, however, interpreting a narrow regulatory exemption in a way that is unmoored from its text cannot be defended as a proper exercise of delegated authority.
- OMB’s action is vulnerable to legal challenge. 44 U.S.C. 3507(d)(6) explicitly denies judicial review of OMB decisions “to approve or not act upon a collection of information contained in an agency rule.” However, the law does not exempt OMB from judicial review of other actions it may take, nor is OMB exempt from review for procedural compliance with the “reasoned decision-making” requirement of the Administrative Procedure Act. OMB’s July 31 decision to exempt Rule 111/115/116 submissions is just such an action.
- OMB also exempted Rule 130/131/132 affidavits and declarations from the Paperwork Reduction Act, an action that is similarly without merit and vulnerable to legal challenge. Only one of the 10 exemptions listed in 5 C.F.R. § 1320.3(h) could apply to these submissions. To make it fit the facts, however, requires the text of the exemption to be ignored.
Paperwork Reduction Act: Does the U.S. Patent and Trademark Office Have Valid OMB Control Numbers for the Information Collection Requirements in Rules 111, 115, and 116?
July 29, 2013
Based on the analysis provided here, and pursuant to 44 U.S.C. § 3517(b), affected persons can request that OMB make the following three determinations:
In accordance with 44 U.S.C. § 3517(b), affected persons making such a request should ask OMB to respond within 60 days. If OMB believes that the answers to any of these questions is negative, they should ask that OMB include in its response the specific ICR Reference Number(s) through which OMB approval was granted, along with copies of (or URLs linking to) the relevant 60- and 30-day Notices, ICR submissions, Notices of OMB Action, and Supporting Statements showing where Rules 111, 115, or 116 collections of information are explicitly identified as having been approved.
- Persons who otherwise would have been covered by Rule 111 are not required to have maintained, provided, or disclosed the collections of information contained therein at any time since January 1, 1994 [or other date] because there was no valid OMB control number.
- Persons who otherwise would have been covered by Rule 115 are not required to have maintained, provided, or disclosed the collections of information contained therein at any time since January 1, 1994 [or other date] because there was no valid OMB control number.
- Persons who otherwise would have been covered by Rule 116 are not required to have maintained, provided, or disclosed the collections of information contained therein at any time since January 1, 1994 [or other date] because there was no valid OMB control number.
In accordance with 44 U.S.C. § 3517(b), affected persons making such a request should ask OMB to respond within 60 days. If OMB believes that the answers to any of these questions is negative, they should ask that OMB include in its response the specific ICR Reference Number(s) through which OMB approval was granted, along with copies of (or URLs linking to) the relevant 60- and 30-day Notices, ICR submissions, Notices of OMB Action, and Supporting Statements showing where Rules 111, 115, or 116 collections of information are explicitly identified as having been approved.
The Report on Carcinogens:
What Went Wrong; What Can Be Done to Fix It
FULL TEXT
INTRODUCTION
This paper documents how the Report on Carcinogens (RoC) has failed to live up to what Congress intended. It was supposed to provide an objective reference that could be used widely to inform rational decision-making by individuals, families, and governments alike. It has become a tendentious, unresolvable argument between two competing schools of thought.
Specific recommendations are made for statutory and administrative reforms of the RoC process that would improve both its scientific quality and its practical utility for rational risk-benefit decision-making. Some reforms only Congress can make; others are within the discretion of the NTP Director. Given the NTP’s recent history, it is not clear that the NTP is culturally capable of reform without congressional action.
This paper documents how the Report on Carcinogens (RoC) has failed to live up to what Congress intended. It was supposed to provide an objective reference that could be used widely to inform rational decision-making by individuals, families, and governments alike. It has become a tendentious, unresolvable argument between two competing schools of thought.
Specific recommendations are made for statutory and administrative reforms of the RoC process that would improve both its scientific quality and its practical utility for rational risk-benefit decision-making. Some reforms only Congress can make; others are within the discretion of the NTP Director. Given the NTP’s recent history, it is not clear that the NTP is culturally capable of reform without congressional action.
Workshop on Scientific Methods for Evaluating Endocrine Disruptor Screening Program Data and Estimating Dose-Response
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Society for Risk Analysis
December 6, 2009 |
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