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  • CEI's Battered Business Bureau: The Week in Regulation

    May 4, 2015 11:48 AM

    The 1,000th new regulation of 2015 was published in Friday’s Federal Register, which itself hit the 25,000-page mark on the year. Even so, agencies are still well behind their usual rulemaking pace, on pace for slightly less than 3,000 regulations, compared to the usual pace of more than 3,500 rules.

    On to the data:

    • Last week, 65 new final regulations were published in the Federal Register, after 79 new regulations the previous week.
    • That’s the equivalent of a new regulation every two hours and 35 minutes.
    • So far in 2015, precisely 1,000 final regulations have been published in the Federal Register. At that pace, there will be a total of 2,976 new regulations this year, which would be several hundred fewer rules than the usual total.
    • Last week, 1,975 new pages were added to the Federal Register, after 1,589 pages the previous week.
    • Currently at 25,097 pages, the 2015 Federal Register is on pace for 74,694 pages.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Seven such rules have been published so far this year, one in the past week.
    • The total estimated compliance cost of 2015’s economically significant regulations ranges from $793 million to $846 million for the current year.
    • 81 final rules meeting the broader definition of “significant” have been published so far this year.
    • So far in 2015, 183 new rules affect small businesses; 28 of them are classified as significant. 
  • ERAM Deployed Five Years Late, NRC Blasts FAA on NextGen Delays

    May 4, 2015 10:32 AM

    We saw two announcements on air traffic control modernization last week. The first was that the Federal Aviation Administration (FAA) had finally completed its En Route Automation Modernization (ERAM) deployment, a critical component of the Next Generation Air Transportation System (NextGen) update of National Airspace System (NAS) management.

    ERAM greatly improves flight tracking, communications, and controller displays by harnessing new technologies that have been developed in the last several decades. This is all well and good, but ERAM rollout was supposed to have been completed by 2010. Five years late and several hundred million dollars over budget, it is a bit rich for the FAA to be declaring victory. But perhaps this is to be expected from a broken agency culture. Recall that the automated flight tracking computer system ERAM is replacing, the Host, suffered from serious delays when it was implemented… in the 1980s.

    The second big air traffic control announcement was the comprehensive review of NextGen published by the National Research Council. Appropriately described by The Washington Post’s Ashley Halsey as “scathing,” the NRC report, which was ordered by Congress in the FAA Modernization and Reform Act of 2012, calls out FAA’s failings in implementing NextGen. Halsey highlights some quotes:

    • “The original vision for NextGen is not what is being implemented today.”
    • “This shift in focus has not been clear to all stakeholders.”
    • “Airlines are not motivated to spend money on equipment and training for NextGen.”
    • “Not all parts of the original vision will be achieved in the foreseeable future.”
    • “NextGen, as currently executed, is not broadly transformational.”
    • “‘NextGen’ has become a misnomer.”
  • Deceptive Discrimination Laws

    April 29, 2015 9:14 AM

    Discrimination may be bad for business, but that doesn’t mean laws banning discrimination are good for business. Often, these laws are like the proverbial Trojan Horse, applied by the courts in unexpected ways that are harmful to businesses, including employers who harbor no prejudice of any kind. For example, the Supreme Court interpreted a federal race and sex discrimination law (Title VII of the Civil Rights Act) as banning unintentional “disparate impact” (which is when a neutrally applied selection criterion weeds out more black than white applicants) even though that statute explicitly limited relief to cases where there was a showing that the employer had “intentionally engaged in or is intentionally engaging in an unlawful employment practice.” [See Griggs v. Duke Power Co. (1971); 42 U.S.C. 2000e-5(g).] The result of that case was to outlaw a wide array of useful, colorblind standardized tests.

    The Supreme Court also interpreted a statutory attorneys fees provision that was neutral on its face as instead mandating one-way fee-shifting, effectively entitling only prevailing plaintiffs to such fees (except in really extreme cases), not prevailing defendants, and entitling such plaintiffs to fees even if the employer had a reasonable, good-faith belief for taking the position it did. [See Christiansburg Garment Co. v. EEOC (1978).]

    Civil rights agencies and courts also impose emotional distress damages in discrimination cases that seem to be either grossly exaggerated, or insufficiently corroborated by objective evidence. For an example of the former, see the recent ruling by an administrative law judge in the Oregon Bureau of Labor and Industries, recommending “$135,000 in damages against Melissa and Aaron Klein, owners of Sweet Cakes by Melissa in Gresham, Ore., who had declined to cater a gay wedding on grounds of religious scruples [Oregonianearlier].” As is typical in administrative discrimination cases, the same agency is effectively serving as prosecutor, judge, and jury, which the Founding Fathers would have viewed as a violation of the constitutional separation of powers, as law professor Philip Hamburger has explained.

    $135,000 (or even a tenth that amount) is a grossly excessive emotional-distress damage award for a simple refusal to contract with a customer. Being rebuffed by a merchant is much less painful than losing your job, or even losing out on a promotion, and people wrongly fired from their jobs typically get less than $135,000 in emotional distress damages. The award is so ridiculously large that it seems to designed not to compensate, but to punish people for harboring archaic beliefs, with the lion’s share of the award being to punish the small business owners for their thought-crime, rather than make anyone whole.

  • How to Improve the Energy and Water Development Appropriations Bill

    April 28, 2015 4:12 PM

    The Energy and Water Development Appropriations bill for FY 2016 passed by the House Appropriations Committee spends too much, but does move some funding from very bad programs to somewhat less bad programs. 

    The best thing in the bill is the set of riders that prohibit the Army Corps of Engineers from implementing the proposed Waters of the United States rule. That rule if implemented would expand federal jurisdiction far beyond what was intended by Congress in Section 404 of the Clean Water Act, and far beyond the current definition or any reasonable definition of the navigable waters of the United States. The WOTUS rule also ignores and largely contradicts the Supreme Court’s decisions in SWANCC and Rapanos. 

    Here are a few suggestions for improving the Energy and Water Appropriations bill when it comes to the floor of the House this week:

    1. A rider prohibiting funding to use the Social Cost of Carbon guidance document in any rulemaking or any benefit-cost analyses by the DOE and FERC.
    2. The rider offered successfully for the past several years by Rep. Michael Burgess that prohibits funding to enforce the 2007 ban on standard incandescent bulbs.
    3. An amendment to reduce funding below FY 2015 levels. The bill passed by the House Appropriations Committee increases Energy and Water funding by over $1,200,000 above current levels.  The Department of Energy has been a mess for decades. Many, perhaps even most, DOE programs should be eliminated. If eliminating unnecessary and counter-productive programs is beyond what can be done this year, then the House should at least cut the total funding level to below the current level.
    4. A rider prohibiting any funds to be used to develop, propose, or implement new energy efficiency standards for all or some of the following: residential dishwashers, residential clothes washers, residential air conditioners and heat pumps, residential water heaters, portable air conditioners, residential gas furnaces, residential conventional cooking products, residential boilers, residential dehumidifiers, residential furnaces and boilers, central air conditioners and heat pumps, ceiling fans, and small electric motors and other electric motors. 
    5. A rider prohibiting funds to be used to develop, propose, or finalize new energy efficiency standards for some or all of the following: commercial heating, air conditioning and water heating equipment, commercial water heating equipment, manufactured housing, commercial and industrial pumps, fans and blowers, commercial warm air furnaces, and small, large, or very large commercial package air conditioning and heating equipment.
    6. A rider prohibiting funding for the Department of Energy to attend COP-21 in Paris in December or to participate in the negotiations on the forthcoming Paris Accord from October 1 onward. This would be an interesting test vote for other appropriations bills coming up.
  • CEI Statements on the Failed Comcast-Time Warner Merger

    April 27, 2015 3:35 PM

    CEI responded to the news that the Comcast-Time Warner merger failed. You can read more analysis from CEI's Vice President for Policy Wayne Crews here.

    "The deck was stacked against this deal from the beginning: Comcast and Time Warner Cable had to seek permission to merge from not only the Department of Justice, but also the Federal Communications Commission. While the DOJ must win in court before it can block an acquisition, the FCC has unilateral power to send a transaction into regulatory limbo for years before the merging parties get a chance to be heard by an independent federal judge. This process turns the rule of law on its head, and only Congress can fix it." 

    -- Ryan Radia, Associate Director of Technology Studies

    “The collapse of the Comcast-Time Warner merger merely because of the interference of government, not because of actual market rejection, illustrates the overwhelming power of the modern state to undermine the advance of communications technologies and services. These bureaucrats have decided on our behalf to award other communications industry companies a government-granted reprieve from the pressures of competition.”

    -- Wayne Crews, CEI Vice President for Policy

  • CEI's Battered Business Bureau: The Week in Regulation

    April 27, 2015 11:32 AM

    The big news in regulation for the week came from Canada, which made official its one-in, one-out policy for new regulations. New regulations from agencies must be offset by repealing an existing regulation of similar cost. In the United States, new rules hit the books covering everything from crash test dummies to beekeepers.

    On to the data:

    • Last week, 77 new final regulations were published in the Federal Register, after 57 new regulations the previous week.
    • That’s the equivalent of a new regulation every two hours and 11 minutes.
    • So far in 2015, 927 final regulations have been published in the Federal Register. At that pace, there will be a total of 2,934 new regulations this year, which would be several hundred fewer rules than the usual total.
    • Last week, 1,589 new pages were added to the Federal Register, after 2,127 pages the previous week.
    • Currently at 23,122 pages, the 2015 Federal Register is on pace for 73,171 pages.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Six such rules have been published so far this year, none in the past week.
    • The total estimated compliance cost of 2015’s economically significant regulations ranges from $693 million to $746 million for the current year.
    • Seventy-three final rules meeting the broader definition of “significant” have been published so far this year.
    • So far in 2015, 159 new rules affect small businesses; 25 of them are classified as significant. 
  • Why the TPA Is Needed

    April 24, 2015 2:05 PM

    The Trade Promotion Authority (TPA) bill currently moving through Congress is attracting controversy. It is worth explaining the background to why TPA is necessary in complex trade agreements.

    TPA is a temporary power that Congress grants to the president to negotiate international agreements. Even though the U.S. Constitution already gives the president this authority, most trade agreements require implementing bills and thus congressional action to enforce them. While under TPA, Congress retains the authority to decide on whether to approve a particular deal, the final agreements cannot be amended and have to be considered in a timely manner.

    The TPA, formerly known as the “fast-track,” is a result of years of cooperation and concessions between the legislative and executive branches. First introduced as the Trade Act of 1974, it served as a response to the increasing dominance of non-tariff barriers in multilateral trade negotiations. Since the GATT Kennedy Round, the focus of the trade agenda has shifted from tariffs to more complicated issues that require changes in laws in order for the U.S. to abide by the agreements. To address these concerns, in addition to the authority to renegotiate tariffs, Congress introduced expedited treatment, together with limited-time debate and an absence of amendments for trade deals negotiated under TPA.

    The “fast-track” was established to form a consensus on the U.S. trade policy between the two branches, as well as facilitate the development and approval of trade agreements. TPA sends a strong signal to foreign partners of congressional support for an FTA, which is particularly important when negotiation new issues that affect the U.S. global competitiveness. Since it was first introduced, TPA has been renewed numerous times, and played a major role in implementation of various trade agreements.

  • Who Dares Question the Mighty Oz?

    April 24, 2015 11:41 AM

    Yesterday, Dr. Mehmet Oz launched his “counter attack” on several doctors who sent a letter last week to the dean of Columbia University’s medical department complaining about controversial positions and advice that Oz has offered on his show. Oz, who holds faculty and administrative positions at Columbia, exclaimed that he “will not be silenced” by his critics, casting the issue as an attack on his freedom of speech. In an article for Time magazine, Oz stated:

    The dean politely reinforced that the academic tradition of all institutions protects freedom of speech for their faculty, and I assumed the matter was over…. I know I have irritated some potential allies. No matter our disagreements, freedom of speech is the most fundamental right we have as Americans. We will not be silenced. We’re not going anywhere.

    Yet no one is trying to deprive Oz of his right to free speech. The doctors listed on the letter are simply exercising their own right to free speech—and that includes speaking truth to the powerful Oz. They shined a light on Oz’s often questionable, TV-publicized, health advice for good reasons, as many others have done so hereherehereherehereherehere… and the list could go on and on.

    And apparently, shining a light on Oz’s questionable approaches did some good. It prompted eight of Dr. Oz’s colleagues from Columbia University to speak out as well in a USA Today commentary. These doctors note:

    We are members of the Columbia faculty who recognize that the Dr. Oz Show performs a public service by bringing alternative therapies which are generally under-researched and under-regulated into the public forum. However, a 2014 report in The BMJ (formerly the British Medical Journal) reported that less than half of the recommendations on his show are based on at least somewhat believable evidence. This report raises concerns that Dr. Oz's presentations of anecdotal therapies as "miracle cures" occur in the absence of what we see as obligatory discussions of conflicts of interest, possible side-effects and evidence-based medicine (or lack thereof). Many of us are spending a significant amount of our clinical time debunking Ozisms regarding metabolism game changers. Irrespective of the underlying motives, this unsubstantiated medicine sullies the reputation of Columbia University and undermines the trust that is essential to physician-patient relationships.

    And last spring, members of Congress also attempted to reign in Oz when they invited him to testify on Capitol Hill about his claims related to “miracle” weight loss supplements. And apparently, it worked to some degree. On his show yesterday, Oz says that he’s backed away from making claims about miracle supplements. In addition, after the rebuke by his Columbia colleagues, he’s even said he regrets comments he has made about such supplements. That’s progress, but there’s more to do.

    While Oz thanked his colleagues at Columbia for speaking up, he attacked the doctors on the first letter because he says they have an “agenda.” And rather than address their arguments, he attacked them personally on his show. Apparently, it’s inconceivable to Oz and his crew that people can disagree with them based on informed, moral personal views.  

    In particular, he focused on the work of CEI friend and scholar Dr. Henry I. Miller of the Hoover Institution. Dr. Miller’s writings and research on the topic of genetically engineered food are among the most informed and scholarly in the world (he was also the founding director of the FDA’s Office of Biotechnology), and his positions are humanitarian. Rather than attack, it’s time for Oz to take a closer look at this issue and reconsider his position, as he has with supplements.

    Genetic engineering allows researchers to precisely modify plant genes in a process that is far more precise and safer than cross-breeding plants. Using GM, researchers have been able to add vitamin A to rice to reduce vitamin-A deficiency, a major cause of blindness and death, particularly among children, in parts of the world were rice is the staple of the diet, although anti-GM activists have fought this “golden rice.” Scientists also use genetic engineering to make food production easier and more affordable, which is essential to feeding a growing world population.

    Dr. Oz says he’s ambivalent about such foods, although his shows are laced with fear-generating suggestions about these technologies, and his “experts” are mostly anti-biotechnology activists. He did, however, allow one biotech apple farmer to appear on his show last week to offer a little balance in that one segment. 

  • CEI Submits Comments to FAA on Small Drone Certification and Operations Proposed Rules

    April 24, 2015 11:18 AM

    Today, I submitted comments to the Federal Aviation Administration (FAA) on behalf of CEI on its notice of proposed rulemaking for small unmanned aircraft systems (sUAS) certification and operations. We make three main points.

    First, we question why the FAA is using its case-by-case exemption authority as the basis for this rulemaking, as opposed to the actual rulemaking section of the same law that Congress passed in 2012. This was the last FAA reauthorization and Congress included a subtitle on unmanned aircraft systems. Section 332, among other things, ordered the FAA to promulgate final rules integrating sUAS into the National Airspace System. But instead of relying on Section 332, as Congress required, the FAA in this proceeding is relying on Section 333, which granted the FAA authority to approve sUAS operations on a case-by-case basis until it had promulgated the sUAS integration rules mandated by Section 332. There are several potential explanations for why the FAA is relying on Section 333, none of them good, but we ask the FAA to explain its reasoning.

  • Let Amtrak Pay Its Own Way

    April 24, 2015 10:10 AM

    Randal O’Toole of the Cato Institute has a great blog post outlining the various ills besetting America’s government-subsidized passenger rail carrier Amtrak. The gist of O’Toole’s argument is that although both federal and state governments contribute large sums of money to keep Amtrak afloat, potential riders have not been nearly as enthusiastic. A recent National Journal article does cite Amtrak’s ridership as increasing 50 percent in the last fifteen years, but O’Toole points out that the increase was largely driven by a simultaneous increase in gas prices. Amtrak’s new riders aren’t somehow more attuned to taking passenger trains than they were before, they’re simply responding to market pricing and the laws of supply and demand.

    If the federal government revoked its latest $1.4 billion annual subsidy, Amtrak probably would not have even seen that 50 percent increase. O’Toole reports that in 2012, Amtrak fares averaged about 33.9 cents per mile, while travel by air and automobile averaged 13.8 and 25 cents, respectively. Taking into account these factors, as well as user costs and subsidies, O’Toole estimates that Amtrak costs about four times as much as flying and nearly twice as much as taking a car. These figures, along with the fact that Amtrak’s share of total passenger travel in 2012 was around 0.14 percent, demonstrate that demand for passenger rail in America can hardly be called robust.

    Even if greater demand for passenger rail did exist, the federal government would face the odd paradox of running a profitable industry that could probably be better handled by competition among private firms. Passenger trains already have at their disposal all the revenue they should ever need: fares and onboard sales. Why take money from hundreds of millions of people to finance the travel of only a few? Congress would do the nation a favor by phasing out funding for Amtrak, saving us all money in the process.

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