Standards for protection against radiation--Nuclear Regulatory Commission. Final rule

The Nuclear Regulatory Commission (NRC) is revising its standards for protection against ionizing radiation. This action is necessary to incorporate updated scientific information and to reflect changes in the basic philosophy of radiation protection. The revision conforms the Commission's regulations to the Presidential Radiation Protection Guidance to Federal Agencies for Occupational Exposure and to recommendations of national and international radiation protection organizations.     

Regulatory Conversations

The article proposes a new site of analysis for the study of regulation: regulatory conversations, and a new theoretical approach: discourse analysis. Regulatory conversations, the communicative interactions that occur between all involved in the regulatory 'space', are an important part of most regulatory systems. Discourse analysis, the study of the use of language and communication, suggests that such interactions are constitutive of the regulatory process, that they serve important functions, that they can be the basis of co-ordinated action, and that they are important sites of conflict and contestation. The article explores five key contentions of discourse analysis, considering how each may shed light on aspects of regulatory processes. These are, first as to the meaning of language and co-ordination of social practices; second, as to the construction of identities; third, the relationship of language, thought, and knowledge; fourth, the relationship of language and power, and finally, that meaning, thought, knowledge, and power are open to contestation and change.     

‘Netting nano’: Regulatory challenges of the Internet and nanotechnologies

The rapid progression of the Internet has impacted dramatically on contemporary society, transforming communications, business and trade. The global nature of the Internet has challenged traditional models of regulation. What has emerged is a new international framework, governed by an increasing number of actors and regulatory processes. By drawing upon the regulatory experience of the Internet, including an examination of the forces and dynamics that have shaped the regulatory framework, this paper considers the regulatory developments of another emerging and ubiquitous technology, nanotechnologies. It examines the rapid advancement and promise of nanotechnology-based products and processes, and the policy and regulatory challenges facing government, regulators, and industry alike. The paper argues that while the regulatory future for nanotechnologies appears to be uncertain, and highly contested, regulatory regimes will most likely reflect the commodities and services that the technology helps to produce. Anything other than this is unlikely because the ‘nanotechnology genie’ is already out of the bottle, and regulatory issues will evolve as the nature of the technology itself evolves.     

规范性文件的法律效力问题研究

我国有关法律将规范性文件与行政法规、规章相区别 ,将前者不作为法律规范看待 ,但又未提出区分二者的明确标准。事实上 ,行政法规、规章与创制性规范性文件的内容、规范效果及制定程序界限模糊 ,规范性文件还往往是法院在行政诉讼中的审查基准。从德、日、美等国的有关制度可以看出 ,法律规范与非法律规范的界限是是否规定公民的权利义务 ,是否具有外部规范性。就此而言 ,我国的创制性规范性文件是法律规范     

The Denial of Procedural Safeguards in Trials for Regulatory Offences: A Justification

Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered as important constituents of trial fairness. Relying on a new conceptualisation of regulatory offences, this paper advances a theory that justifies these exceptional rulings.     

Voice Over IP services: Regulatory perspectives from the developed and the developing worlds

As the technology for Internet telephone service (“Voice Over IP” or “VOIP”) matures, and the quality of service improves, regulators in developed and developing countries are encountering significant and very different regulatory challenges. This article looks at the issues faced by regulators in developed country markets with a history of extensive service competition. A follow-up article will contrast the issues faced in developing country markets, particularly those where service competition is limited.     

Overview of: “Crime Place and Pollution: Expanding Crime Reduction Options Through a Regulatory Approach”

Research Summary Crime reduction policy has focused almost exclusively on offenders. Recent studies and evaluations show that expanding our policy portfolio to include places may be highly productive. We show that there is considerable research showing that crime is concentrated at a relatively few locations, that high-crime places are stable, that changing places can reduce crime, that displacement is not only far from inevitable but also less likely than the diffusion of crime prevention benefits, and that owners of high-crime places can be held accountable for the criminogenic conditions of their locations. We link these findings to environmental policy, where environmental scientists, economists, and regulators have developed a broad set of regulatory options. The core of this article describes a portfolio of environmental policy instruments directly applicable to crime places. We also discuss major decisions local governments will need to make to implement various forms of regulation, and we list challenges that governments must anticipate in planning for such implementation. We argue that a regulatory approach to crime places has the potential to lower the cost to taxpayers of reducing crime by shifting costs from governments to the relatively few place owners whose actions create crime-facilitating conditions. Policy Implications Taking a regulatory approach to crime places substantially expands the crime policy options under consideration. Regulatory options may increase local governments’ effectiveness at reducing crime while reducing governments’ costs. This is because regulatory approaches have the potential to shift some portion of the financial burden for crime fighting to owners of criminogenic locations. Policy makers can select between means-based anticrime regulations that focus on how place owners manage their locations and ends-based regulations that focus on the number of crimes allowed at places. Both of these approaches contain several alternative regulatory instruments, each with its own set of advantages and disadvantages. Experimenting with various regulatory instruments could lead to the development of a range of new crime reduction policies. In addition, a regulatory approach has implications for the funding of policy research. Means-based regulatory instruments require governments to develop evidence that the means they regulate have the desired impact on crime. Ends-based regulatory instruments shift this burden to the regulated places.     

Regulatory beneficiaries and informal agency policymaking

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to- consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise low-level employees and supply valuable information to regulated entities regarding how an agency will implement a program. Thus far, however, the debate has largely ignored the distinct and substantial interests of regulatory beneficiaries--those who expect to benefit from government regulation of others. Regulatory beneficiaries include, among others, pharmaceutical consumers, environmental users, and workers seeking safe workplaces. When agencies make policy informally, regulatory beneficiaries suffer distinctive losses to their ability to participate in the agency's decision and to invoke judicial review. This Article argues that considering the interests of regulatory beneficiaries strengthens the case for procedural reform. The Article then assesses some possible solutions.     

Regulatory Analysis in Corporate Law

Drawing on recent experiences in the US, UK, and EU, this article suggests that regulatory analysis of corporate law policies, as currently understood and applied, suffers from severe weaknesses. The effects of proposed corporate law policies are often difficult to predict and even more difficult to quantify, which negatively impacts analytical reliability. Moreover, given its nature and strong intersections with economic, societal and political issues, corporate law is less amenable to technocratic assessments than other areas of law. Based on three case studies, the article explores these problems. It outlines a revised ‘procedural’ view, suggesting that regulatory analysis in corporate law should be understood as a process for enhancing information, transparency, and monitoring, independently of specific normative criteria. This leads to several implications. In short, regulatory analysis should combine quantified analysis with leeway for regulatory judgment and focus on increased consultation, critical engagement, review, and transparency as the dominant guiding factors.     

Displaced agendas: current regulatory strategies for germline gene therapy

Recent developments in biotechnology are radically affecting the nature of reproduction and the manner in which we approach disease. In particular, germline gene therapy, or the insertion of genetic material into cells while they are developing and dividing, offers the promise of eradicating genetic defects in humans during embryonic development. In this article, the authors argue that the social and ethical implications of the developments in the field of germline gene therapy have not yet received adequate consideration. Unlike previous technologies which targeted already-developed cells, germline gene therapy can potentially correct and eliminate genetic deficiencies at the developmental stages of a cell. This raises issues of genetic enhancement beyond the therapeutic applications of this technology. However, the authors submit that an established pattern of subordinating social and ethical issues to technical and scientific debate in the regulatory arena is repeating itself in the case of discussions over germline gene therapy. The authors suggest that the American scientific regulatory process fails to fully meet the challenges of this technology, particularly because social and ethical issues are not formally considered in the existing process. They therefore suggest that American regulatory agencies should look to the approach taken by Europe with regard to germline gene therapy as an emerging technology, and that it may be necessary to incorporate effective public debate over social and ethical concerns into a regulatory process which is primarily concerned only with the efficacy of new technologies.     

其他规范性文件在司法审查中的地位及效力探析

对行政机关依据其他规范性文件作出的具体行政行为适用法律法规是否正确进行司法审查时 ,应当注意以下几点 :承认其作为法源的地位 ,像对待规章那样来对待其他规范性文件 ;与上位法不抵触是人民法院承认其效力的前提 ;在以其内容是负担性抑或授益性为基本标准认定其效力的同时 ,以公共利益作为补充标准 ;规定“国家标准”之类的其他规范性文件一般具有较高效力 ;法院不宜直接对之进行审查并作出评价。     

Performance-Based Regulation and Regulatory Regimes: The Saga of Leaky Buildings

Regulatory reformers have widely endorsed greater use of a performance-based approach to regulation that defines objectives in terms of desired outcomes. The appeal of the performance-based approach is as much about introducing a regime that overcomes problems of overly rigid rules and inflexible enforcement as it is about regulating for results. The case of leaky buildings in New Zealand provides a cautionary tale of a flawed performance-based regulatory regime. It allowed for flexibility without sufficient accountability and in so doing showed the Achilles' heel of performance-based regulation.     

The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict

Regulatory analyses often assume that compliance is desirable, with literature focusing on strategies to encourage "excellence" in adherence to regulatory goals. Yet, it is not unusual for disparate regulatory goals to exist that are based on competing values of what constitutes the "good society." It is this conflict that forms the substance of this paper. In cases of competing regulatory goals, techniques that encourage exemplary compliance in one area can create incentives to breach regulatory provisions of a competing regime. In such cases, generic regulatory techniques are unable to provide a useful means for resolving regulatory conflict but do allow a political delegation of conflict resolution to the "scientific" strategies of the regulator. In turn, the regulator places responsibility on companies for resolving competing regulatory demands. Successive delegation leads to juridification as well as regulators vying to retain primacy for their regime. This problem is examined through analysis of responsibilities for subcontractor safety under Australian health and safety law and sections of the Australian Trade Practices Act 1974 aimed at protecting competition.     

The Malawi Communications Regulatory Authority: Issues of De Jure and De Facto Independence

As independent regulatory agencies have been instituted to regulate disparate economic sectors in countries around the world, some research has focused on their independence vis-à-vis the governments in the countries, respectively, and vis-à-vis the various operators in the sectors they regulate in the countries. This article considers the formal and informal independence of the Malawi Communications Regulatory Authority from the government of Malawi, specifically focusing on the executive branch of government. It shows that the respective provisions in the Communications Act, 1998, that authorize the president to appoint members to serve on the Authority and authorize the roles that members of the executive branch of government have to play in the internal organization, administration, financial affairs, and regulatory activities of the Authority, cumulatively, undermine both the formal and informal independence of the authority. Further, the article contends that even the recent attempts to amend the law so as to enhance the independence of the Authority fall short. Moreover, the analysis herein has wider implications because this lack of independence is not unique to the Authority in Malawi but affects the respective communications regulators instituted by other countries in sub-Saharan Africa. Ultimately, the article offers possible ways to enhance the independence of the Authority and, by extension, these other regulators.     

Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures

The recent decisions of the panel and Appellate Body in Brazil– Measures Affecting Imports of Retreaded Tyres touchedupon a number of issues of ongoing significance to the applicationof necessity tests, such as those in Article XX of the GeneralAgreement on Tariffs and Trade. This article argues that thedispute represents a mixed outcome for the application of necessitytests. The express recognition that some regulatory measuresare complementary to one another rather than reasonably availablealternatives constitutes a welcome step forward. On the otherhand, the panel's characterization of Brazil's regulatory goalhighlights an approach common to a number of panel reports thatcould justify a perception of arbitrariness in application ofnecessity tests. Similarly, comments made by the Appellate Bodyto the effect that a panel is obliged to consider the importanceof a state's regulatory goal extend the role of a panel in anunjustifiable manner.     

银监会法律性质研究

2003年中国银监会的成立是我国金融监管机制步向专业化与法治化的一个重要举措。但银监会＂国务院直属正部级事业单位＂的现有定位广受诟病。＂事业单位＂的定性使国务院组成部门、直属机构和事业单位的界限变得模糊不清;＂正部级＂的冠名使得行政级别的设置进一步强化;＂国务院直属＂的设置模式无法保证银监会监管的独立性。从银监会的专业性、独立性、权力混合性及其履行职责的性质来看,其应当定性为国家经济调制机关。     

国际经济管制法的范围、体系和内容

本文将国际经济法界定为管制法,由此时我国国际经济法教科书的范围、体系和内容等问题进行技术层面的探讨。在范围上可以从广义国际经济法中剥离出国际商法;在体系安排上突出WTO法的核心地位,注重逻辑性和论题性;在内容上可以加大判例和立法阐述的比例。     

Regulatory Disclosure of Offending Companies in the Dutch Financial Market: Consumer Protection or Enforcement Publicity?

Regulatory disclosure of names of offending companies is increasingly popular as an alternative to traditional command and control regulation. The goals and intended effects of disclosure are not always clear, however. Do regulators wish to increase their transparency, or do they intend to name and shame? This article aims to contribute to a better understanding of the underlying working mechanism of regulatory disclosure of offenders' names through a case study of the Dutch Authority for Financial Markets' disclosure policy. It distinguishes two types of disclosure strategies: consumer oriented and firm oriented. The case study shows that although informing consumers was the primary purpose of disclosure as intended by the Dutch legislature, the purpose in practice has shifted to informing companies about the regulators' enforcement policy. The nature of the disclosed information makes it unlikely that disclosure adequately prevents financial risk taking by consumers. Instead of empowering consumers, disclosure has been incorporated in a traditional deterrence logic, turning out not to be an example of new governance but instead a modern version of command and control enforcement publicity.     

Interjurisdictional Competition and Regulatory Advantage

As formal trade and investment barriers fall, government regulations– what once were domestic policy matters – becomeissues of international concern. International commerce createsthe potential for competition among regulatory jurisdictions.This article explains why there is variation in these regulatorytrends. Three general ‘trajectories’ are: (a) convergenceamong countries toward less stringent regulations in some cases,(b) convergence toward more stringent regulations in others,while in still other cases (c) differences persist among countries.I offer three (related) propositions which explain the differentregulatory trajectories: #1) Regulations on production processestend toward laxity; whereas product market-access regulationstend toward stringency. #2) Industrial structure affects thestrength of the process/market-access distinction. Powerfulfirms in concentrated markets facilitate collective action andregulatory capture. Dominant producers push for process andmarket-access regulations which reflect their interests, givingthem a competitive regulatory advantage in world markets. #3)The asset specificity of investments affects regulatory convergence.Low asset specificity leads to a competition-in-laxity; highmultinational asset specificity leads to convergence among jurisdictions(as firms seek to lower their transaction costs); and domesticasset specificity leads to differences among jurisdictions.Detailed case studies (on offshore banking, capital requirements,and infant formula) suggest the propositions are necessary tounderstand general outcomes, although not sufficient to fullyexplain individual cases.     

Common Misconceptions Regarding the Environmental Regulatory System

To deal effectively with environmental regulatory agencies and to better defend environmental claims requires a clear understanding of the regulatory agencies. This article examines some popularly held views about the environmental regulatory agencies that have little or no basis in fact and that can lead to greater costs and greater difficulty in dealing effectively with environmental issues.