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  1. Article

    Administrative Conference Forum: Regulatory Capture in the 21st Century

    … derogating from the public interest.  Although the traditional definitions of the term required capture to generate more regulation, largely to erect barriers to entry, this definition of capture includes deregulation without benefit to public interest, termed “corrosive capture.” The first panel, “Agency Enforcement and Evidence … excessive influence over agencies. Sidney Shapiro of Wake Forest University School of Law argued that capture can spur deregulation in addition to steering regulations in a direction that is favorable to industry.  Daniel Carpenter of Harvard …
  2. Article

    Interpretive Rules in Practice

    … to have the force of law. When agencies treat guidance documents as though they have the same binding force as legislative regulations, the effect may be to undermine the procedural protections established in the APA. Administrative law has thus … Officials at several agencies said that when their interpretive rules construe mandatory language in a statute or regulation, the rules may also use mandatory language. Some officials said that they do not rely on an interpretive rule to …
  3. Document

    Eliminating or Simplifying the "Race to the Courthouse" in Appeals from Agency Action

    … stamping machines in clerks’ offices are not synchronized.) Moreover, races will be even harder to judge as agencies adopt regulations, designed to make the races fairer and more civilized, specifying the date and time at which agency orders are … are to be deemed issued or their actions are otherwise ripe for judicial review. Such agencies should do this by generic regulation if possible and, if that is not possible, by specifying times of issuance or ripeness case by case. Part …
  4. Article

    Answering TTIP's Critics: Regulatory Cooperation in Risk Assessment and Risk Management

    … groups have maligned TTIP as the brainchild of a cabal of multi-national corporations designed to overturn public-spirited regulations on both sides of the Atlantic. So long as the prevailing public narrative is dominated by skeptical voices, the … the two sides seem to be talking past one another: opponents insist that the average consumer would strongly support regulations designed to prohibit (or at least label) stomach-churning "Frankenfoods" (i.e., risk management) while … debate seems to similarly conflate technical questions with the conceptually distinct issue of the appropriate level of regulation. If such confusion prevails in the popular rhetoric, the public is not chiefly to blame, for U.S. and EU …
  6. Document

    Use of Federal Rules of Evidence in Federal Agency Adjudications

    … the discretion of presiding officers to admit evidence in formal adjudications. 1 2. Agencies should adopt evidentiary regulations applicable to formal adversarial adjudications that clearly confer on presiding officers discretion to exclude … accordance with the Administrative Procedure Act, U.S.C. 554, 556 and 557, and also includes agency adjudications which by regulation or by agency practice are conducted in conformance with these provisions. The recommendation does not apply to …
  7. Article

    Recusal Rules for Administrative Adjudicators

    … of administrative adjudications, the study revealed a broad range of sources—from constitutional provisions to statutes, regulations, and model codes—that could affect administrative recusal. Two themes, however, became clear. First, parties to … in federal and state courts. A combination of the Due Process Clause , Office of Government Ethics (OGE) statutes and regulations, and the Administrative Procedure Act (APA) require recusal in most instances where bias against a party could … adjudicators but is limited to disqualification for financial conflicts of interest. The applicable OGE ethics regulation only addresses conflicts that are either financial or are based on the adjudicator’s personal relationships. …
  8. Basic page

    Judicial Developments

    … closure. The court held: (1) it is not an abuse of agency discretion when the agency relies on “an interpretation of its regulations that is controlling at the time of its decision – even if the agency subsequently revises that interpretation – as long as it reflects a reasonable interpretation of the regulations;” (2) the regulations are ambiguous regarding “the availability of administrative closure” and the Matter of Castro-Tum was entitled …
  9. Document

    Use of APA Formal Procedures In Civil Money Penalty Proceedings

    … in section 554(d), the Conference is recommending agencies with such programs provide for this important protection by regulation. Agencies should ensure that non-ALJ presiding officers and presiding officers in non-APA hearings will not … available to parties whenever money penalties may be imposed by administrative agencies. 2. Agencies should ensure in their regulations that non-administrative law judge presiding officers in civil money penalty adjudication proceedings not covered …
  10. Document

    Negotiated Rulemaking and Other Options for Public Engagement

    … of negotiated rulemaking in appropriate circumstances.  The first, Recommendation 82-4, Procedures for Negotiating Proposed Regulations , represented an early effort to articulate the steps agencies should take to use the process successfully. [6] … by subsequent presidents, directs agencies to “explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.” [11]   In addition, Congress has occasionally mandated the use of negotiated … process.   [1] Administrative Conference of the United States, Recommendation 85-5, Procedures for Negotiating Proposed Regulations , 50 Fed. Reg. 52,893, 52,895 (Dec. 27, 1985). [2] Negotiated rulemaking committees are advisory committees that …
  11. Basic page

    About ACUS

    … the Assembly, which has authority to adopt recommendations for improving administrative procedure and adopt bylaws and regulations to carry out ACUS functions. Plenary sessions ordinarily take place twice a year, in June and December. Except … the consideration and development of proposed recommendations: Adjudication Administration and Management Judicial Review Regulation Rulemaking The Chair may also, with the approval of the Council, establish and assign projects to special ad hoc …
  12. Document

    The Federal Reserve Board's Handling of Applications Under the Bank Holding Company Act

    … but otherwise must adhere to a short deadline in accepting the application and forwarding it to the FED). The FED’s regulations specifically provide that, in every case in which an application has not been considered by the FED within 60 days of acceptance, the applicant will be notified and provided a written explanation for the delay. In its regulations, the FED defines when the record on a particular application is complete for purposes of determining when the statutory 91-day period has begun. Under the FED’s regulations, the 91-day period begins on the latest of four dates: (1) The date of acceptance of the application; (2) the …
  13. Document

    Alternatives for Resolving Government Contract Disputes

    … the Civilian Agency Acquisition Council and the Defense Acquisition Regulatory Council should amend the Federal Acquisition Regulation, 5  to encourage COs, before issuing a decision likely to be unacceptable to a claimant, to recommend to the … in specified kinds of disputes (e.g., those involving less than a stated maximum amount). e. Agencies should adopt regulations that (1) authorize agency officers to make use of ADR in contract disputes; (2) make provisions for … and similar innovations to decide certain kinds of disputes more effectively. E.g.,  Procedures for Negotiating Proposed Regulations , 1 CFR 305.82-4, 85-5;  Negotiated Cleanup of Hazardous Waste Sites Under CERCLA , 1 CFR 305.84-4; Resolving …
  14. Document

    Preinduction Review of Selective Service Classification Orders and Related Procedural Matters

    … of discretionary determinations made by Selective Service officials. Those same amendments and consequent amendments of regulations have established new procedural protections for registrants that reduce the pressure for judicial review of … board or the appeal board. C. Further Procedural Reforms The Selective Service System is encouraged to amend its procedural regulations in the following respects: (1) To allow registrants to be accompanied, represented and advised by counsel or … Congress to reconsider important and sound recent judgments and urges the Director of Selective Service to accomplish by regulation that which the Congress has repeatedly and wisely declined to do by legislation.  A majority of the members of …
  16. Article

    Administrative Severability Clauses

    … Agency Share on Facebook Share on Twitter Share on Linkedin Tags 50th Anniversary Judicial Review Legislative Rulemaking Regulation …
  17. Article

    Progress in the Dialogue Provoked by Recommendation 2011-5, Incorporation by Reference

    … Member Esa L. Sferra-Bonistalli , a Senior Attorney and Team Leader for the United States Coast Guard’s Office of Regulations & Administrative Law, provided crucial agency perspective on the issues. The discussion was candid and … on the revenues their work brings in. For example, the Occupational Safety and Health Administration references in its regulations standards from such organizations as ANSI and the National Fire Protection Association on a wide range of safety … current state of affairs—in which any privately developed, copyrighted standard incorporated by reference into a federal regulation cannot be printed in the Federal Register and must be purchased by the end user—is inevitably going to change. …
  18. Article

    Improving Agency Litigation Pages

    … for example,  sets  various criteria for website search and filtering options—including topic, date, the statute or regulation at issue, and so on—that contextualize the posted litigation materials. Likewise, the recommendation’s  …
  19. Document

    Agency Guidance Through Policy Statements

    … course, because the costs and risks associated with doing so are simply too high.  This is often the case if statutes or regulations (a) require a regulated party to obtain prior approval from an agency to obtain essential permissions or … the public.  You can use an alternative approach if the approach satisfies the requirements of the applicable statutes and regulations.”). [12] Some agencies have adopted procedural rules requiring solicitation of written input from the public for … law.  But that is a non-sequitur.  An agency should, of course, be free to state and act on its position that a statute or regulation, as construed in an interpretive rule, is binding.  However, the very purpose of issuing such a rule is to …
  20. Document

    The Federal Administrative Judiciary

    … and prosecutors. ALJs are selected through a special process overseen by OPM. Their pay is set by statute and OPM regulations. Any attempt by an agency to discipline or remove an ALJ requires a formal hearing at the Merit Systems … divisions (such as health and benefits; safety and environment; and communications, public utility and transportation regulation). [14] The Conference discussed these recent legislative proposals to establish a centralized ALJ corps as a … d. Determination of discrimination under civil rights or other analogous laws. 2. The procedures established by statute or regulation for the cases heard and decided are, or would be, the functional equivalent of APA formal hearings. 3. The …