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  1. Document

    Presidential Review of Agency Rulemaking

    … 8, 1988 For the project report click here:  https://www.acus.gov/report/project-report-recommendation-88-9   Federal regulation has grown in both scope and complexity in recent decades. Among its wide variety of national goals are: Ensuring … judicial review.     Citations: 54 FR 5207 (February 2, 1989) 1988 ACUS 42 1 The need for greater coordination of federal regulation was recognized in 1979 by the American Bar Association’s Commission on Law and the Economy. 2 Exec. Orders Nos. …
  2. Document

    Rulemaking Comments

    … Rulemaking Comments Type Recommendation Publication Date June 16, 2011 Committees Committee on Regulation One of the primary innovations associated with the Administrative Procedure Act (“APA”) was its implementation of … of effective comments. Once developed, these documents should be made publicly available by posting on the agency website, Regulations.gov, and any other venue that will promote widespread availability of the information. 2.  Agencies should set … in a given rulemaking and should announce the policy both in publicly accessible forums ( e.g. , the agency’s website, Regulations.gov) and in individual Federal Register notices including requests for comments. The agency may make clear that …
  3. Document

    Scott Rafferty Comments

    … certifications to lower its costs of ensuring compliance with its requirements, whether they relate to procurement or regulation. The recommendation preamble (at 1) suggests that these programs may “shift[] costs … to regulated entities and … is “a form of public-private governance, and that it has the potential to cost-effectively improve the implementation of … regulation.” Yet, the current study ignores private benefits and emphasizes regulatory risks, as if cost-shifting is the … subject. The scope of work fails to ask when and why third-party certification is more appropriate than other forms of self-regulation, or to provide context by describing other alternatives to direct auditing by federal employees.2 It excludes …
  4. Document

    Suspension and Negotiation of Rate Proposals by Federal Regulatory Agencies

    … B. Negotiation Between the Agency and the Regulated Company A rate-making agency should not rely on a pattern of regulation consisting largely or solely of informal negotiation by the members of the agency with regulated companies in … agency in passing on protests and complaints against negotiated rates, delay the development of an adequate methodology of regulation, and result in a failure to formulate visible and predictable standards. The development of such standards is …
  5. Document

    Recusal Rules for Administrative Adjudicators

    … as well as adjudications not governed by the APA but nonetheless consisting of evidentiary hearings required by statute, regulation, or executive order. [4] It also covers appeals from those adjudications. Although this Recommendation does not … as those not governed by the APA but administered by federal agencies through evidentiary hearings required by statute, regulation, or executive order. The recusal rules should also apply to adjudicators who conduct internal agency appellate … that their recusal rules do not apply to statements or positions regarding policy or the interpretation of statutes or regulations.  I especially urge agencies not to extend the Recommendation’s provisions to agency heads.  The Recommendation …
  6. Article

    Overview of the Application of Machine-Learning in Administrative Law

    … the context of administrative law, machine-learning can be split into two categories: 1) adjudication by algorithm and 2) regulation by robot. Adjudication by algorithm can be appropriate when quantifiable data determines an outcome, such as eligibility for benefits. The City of Los Angeles uses regulation by robot to improve traffic flow and reduce delays. The algorithm synthesizes large quantities of data and adapts …
  7. Article

    Stakeholder Participation and Regulatory Policymaking in the United States

    … or its Members, or the United States. In a recent working paper for the OECD, we examine the processes through which U.S. regulations are developed, implemented, and evaluated, highlighting the instruments through which stakeholders participate.  Our review finds that in many respects, the process of developing regulations in the United States is a model of transparency, as it institutionalizes a wide array of opportunities for … taken under authority initially delegated to executive branch agencies by legislatively-enacted statutes.  The content of regulations is constrained by the language of authorizing statutes, executive principles for regulatory analysis, and …
  8. Document

    A New Role for the Social Security Appeals Council

    … and final, level of administrative review is to the Social Security Appeals Council. This twenty-member body, created by regulation, and chaired by the Associate Commissioner for Hearings and Appeals, disposes of a staggering 50,000 cases … (2) Upgrading the salary level of members so that it is one level above SSA ALJs; (3) Providing the members, by regulation, with the same civil service protections as accorded to career service personnel and by providing ALJs who agree …
  9. Document

    Statement #1: Views of the Administrative Conference on the "Report on Selected Independent Regulatory Agencies" of the President's Advisory Council on Executive Organization

    … functions, is required before it may be concluded that either form is generally the more desirable. 2. The deficiencies of regulation by collegial bodies cannot be attributed solely or primarily to faulty structure; the same deficiencies may be … responsible to the President—is generally superior to the collegial form, it may offer advantages in specific areas of regulation, particularly where vigorous departures from existing regulatory techniques are called for. Whether an existing …
  10. Document

    Agency Appellate Systems

    … Procedure Act (APA) and (2) evidentiary hearings that are not governed by those provisions but are required by statute, regulation, or executive order. Agencies may also decide to apply this Recommendation to appellate review of decisions … Appellate Review 1. Agencies should identify the objective(s) of appellate review; disclose those objectives in procedural regulations; and design rules and processes, especially for scope and standard of review, to serve them. Procedures for Appellate Review 2. Agencies should promulgate and publish procedural regulations governing agency appellate review in the Federal Register and codify them in the Code of Federal Regulations . …
  11. Document

    Statement #18: Improving the Timeliness of OIRA Regulatory Review

    … Type Recommendation Publication Date December 6, 2013 Committees Committee on Administration and Management Committee on Regulation For more than three decades, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget has conducted centralized review of federal agencies’ draft proposed and final regulations.  The fundamental structures and principles governing the regulatory review process are currently set forth in … contributing factor.  In addition, the executive review process has become more complicated for all parties involved as regulations have grown increasingly complex, interagency coordination has become more important, and various transparency …
  12. Document

    Disclosure of Confidential Information Under Protective Order in International Trade Commission Proceedings

    … the security of confidential business information which is submitted to it or is gathered in its investigations. Agency regulations provide procedures for requesting confidential treatment of proffered information, and the staff in practice … party (except a United States importer which is an interested party within 19 U.S. Code 1677(9)(A)). 3. The Commission by regulation or policy statement should define and specify the kinds of data which are disclosable as “information concerning … inquiries to make specific request that the information submitted be treated as confidential by the Commission, its regulations (19 C.F.R. 201.6) do require such a specific request. The regulations should be modified to reflect the …
  13. Basic page

    Full time Opportunities: Attorney Advisor

    … Conference is especially interested in candidates who have significant prior experience with federal agency rulemaking and regulation, for example:   The development and issuance of regulations or guidance documents;  Preparing or reviewing regulatory analyses;  Planning or conducting retrospective review … or  Advising an agency, judge, member of Congress, or organization on matters related to federal agency rulemaking and regulation.  The Conference is also especially interested in hiring attorneys who have supervisory experience and who have …
  14. Basic page

    Adjudication

    … Adjudication of Civil Penalties Under the Federal Aviation Act (1991) Richard H. Fallon, Jr., Enforcing Aviation Safety Regulations: The Case for a Split-Enforcement Model of Agency Adjudication , 4 Admin. L.J. 389 (1991) George Robert Johnson, … IIB-004, Recusal Rules for Agency Adjudicators  (Mar. 2020) Representation Assembly Recommendations Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings Recommendation 2016-6, Self-Represented Parties in … Conference on Discipline of Attorneys Practicing Before Federal Agencies (1982) Publications and Reports George M. Cohen, Regulation of Representatives in Agency Adjudicative Proceedings  (Dec. 3, 2021) Connie Vogelmann, Self-Represented Parties …
  15. Article

    This Month at ACUS: December 2022

    … Before embarking upon her academic career, Dr. Selin practiced administrative law and specialized in federal energy market regulation and alternative energy development, licensing, and regulation. A proud graduate of Lebanon Valley College, Dr. Selin earned her J.D. from Wake Forest University and her Ph.D. …
  16. Article

    This Month at ACUS: November 2021

    … and conventional appellate review. You can find the most recent draft recommendation and report here. The Committee on Regulation, chaired by ACUS Government Member Connor N. Raso, will continue to discuss Public Availability of Inoperative … jointly chaired by ACUS Government Member Carrie F. Ricci and ACUS Public Member Allyson N. Ho, will continue to discuss Regulation of Representatives in Agency Proceedings . The second committee meeting will take place on November 8, 2021, and …
  17. Document

    Acquiring the Services of "Neutrals" for Alternative Means of Dispute Resolution

    … involving private neutrals should, as part of their acquisition planning process pursuant to the Federal Acquisition Regulation (“FAR”) part 7, 4 periodically give notice in the Commerce Business Daily and in professional publications of … less than $25,000, agencies should use the streamlined small purchase procedures of Subpart 13.1 of the Federal Acquisition Regulation 6 in acquiring the services of outside neutrals, particularly minitrial neutral advisors, mediators and … convening potentially interested parties to negotiate the details of a proposed rule. Procedures for NegotiatingProposed Regulations, 1 CFR §§ 305.82-4 and 85-5. See also Negotiated Cleanup of Hazardous Waste Sites Under CERCLA, 1 CFR 305.84-4; …
  18. Document

    Processing and Review of Visa Denials

    … important program of mass adjudication should be more fully reviewable than at present. Federal law and State Department regulations give consular officers substantial discretion in adjudicating visa applications. For example, consular officials … an attorney or other qualified representative at the visa application interview. Furthermore, although current Department regulations, at 22 CFR 41.121(c), require that a denial of a visa application be reviewed by a more senior officer, the high … be implemented as quickly as is feasible under the circumstances.   Recommendation   1. The State Department should adopt a regulation ensuring that applicants may be accompanied by an attorney or other authorized representative during the course …
  19. Article

    Administrative Conference Initiates Project on Federal Permitting and Licensing

    … for permitting decisions.  In this respect, they closely resemble Administrative Conference Recommendation 84-1, Public Regulation of Siting of Industrial Development Projects , which similarly promoted the use of “coordinating agencies” in … are usually less burdensome on regulated entities and are therefore more politically viable in contexts in which heavy regulation may prove unpopular.  Specific permits allow agencies to tailor the legal requirements in light of the …
  20. Document

    Federal Protection of Private Sector Health and Safety Whistleblowers

    … adjudicative responsibilities should where feasible be assigned to the DOL. The Conference study also discussed areas of regulation where gaps in whistleblower protection exist. These include the aviation and aeronautics industries, vessel … on whether Federal statutes do or should preempt state law in this field. (ACUS Recommendation 84-5, Preemption of State Regulation by Federal Agencies, recommends that Congress address foreseeable preemption issues, and advises regulatory …