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  1. Article

    This Month at ACUS: October-November 2022

    … To learn more about ongoing projects, subscribe to our mailing list.   Three Proposed Recommendations from Committees The Regulation, Rulemaking, and Adjudication Committees met over the past month to consider projects. All three have developed proposed recommendations for consideration:  Regulation Committee :  Public Availability of Settlement Agreements in Agency Enforcement Proceedings Rulemaking Committee … We are especially interested in candidates who have significant prior experience with federal agency rulemaking and regulation. All applications received through Sunday, November 20 will receive consideration.  Please see the  announcement …
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    Regulatory Analysis Requirements

    … Regulatory Analysis Requirements Type Recommendation Publication Date June 14, 2012 Committees Committee on Regulation Over the past several decades, the United States Congress and various Presidents have imposed numerous regulatory … their rulemaking activities.  Some of these requirements are relatively sweeping measures designed to ensure that agencies’ regulations advance legitimate goals, such as Executive Order (EO) 12,866’s requirement that executive agencies analyze the benefits and costs of proposed regulations. [1]   Other requirements are more specific mandates that agencies take into account certain factors when …
  3. Document

    Best Practices for Adjudication Not Involving an Evidentiary Hearing

    … include many decisions regarding grants, licenses, or permits; immigration and naturalization; national security; the regulation of banks; land-use requests; and a wide variety of other matters. As diverse as these adjudications are, they do … by decision makers who engage in their own investigations or may have prior involvement in the matter; and Specify in their regulations the procedures for each such adjudication the agency conducts. This summary is prepared by the Office of the … factual issues.” [3] In many federal administrative adjudications, however, no constitutional provision, statute, regulation, or executive order grants parties the right to an evidentiary hearing. [4] Proceedings of this type include many …
  4. Document

    Debarment and Suspension from Federal Programs

    … sound. Since then, there has been substantial activity in the debarment and suspension area, as the Federal Acquisition Regulation (FAR) and other regulatory programs have been promulgated to authorize such actions both in the procurement and … recent study focused on the regulatory programs involving procurement debarment coordinated by the Federal Acquisition Regulation Council (FAR Council) 1 and promulgated in the FAR, 2 and a comparable (but not identical) effort involving … in 1994. Across the federal government, almost 6,000 entities were debarred or suspended the same year. A. Procurement The regulations set forth in the FAR provide that each agency should promulgate its own regulations consistent with the FAR …
  5. Article

    Ongoing ACUS Projects in Fall 2020

    … governing agency-level, procurement contract disputes—which are commonly called bid protests—under the Federal Acquisition Regulation and agency-specific regulations. Ad Hoc Committee on Artificial Intelligence As part of ACUS’s ongoing study of federal agencies’ use of … post documents to maximize their accessibility while minimizing the resource burden imposed on the agencies. Committee on Regulation The Committee on Regulation is considering Rules on Rulemakings . This project addresses whether and when …
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    Compliance Standards for Government Contractor Employees-Personal Conflicts of Interest and Use of Certain Non-Public Information

    … that the Federal Acquisition Regulatory Council (“FAR Council”) promulgate model language in the Federal Acquisition Regulation (“FAR”) [1] for agency contracting officers to use when negotiating or administering contracts that pose … regulating government employees and those applicable to government contractor employees.  Whereas an array of statutes and regulations creates an extensive ethics regime for government employees, the rules currently applicable to contractor employees vary significantly by agency. Government employees are subject to various statutes and regulations that create a comprehensive ethics regime governing, among other things, their financial interests, use of …
  7. Document

    Science in the Administrative Process

    … Science in the Administrative Process Type Recommendation Publication Date June 14, 2013 Committees Committee on Regulation Over the last three decades, several authorities made recommendations for improving transparency in the use of … heightened transparency of agencies’ use of science as a central means of ensuring the basic accountability of agency regulation.   If an agency identifies the role that scientific information plays in its ultimate decision and explains how … upon a report that deals with agency research and decisionmaking related to the natural sciences.  Wendy Wagner, Science in Regulation: A Study of Agency Decisionmaking Approaches (Feb. 18, 2013), available at …
  8. Document

    Designing Federal Permitting Programs

    … Designing Federal Permitting Programs Type Recommendation Publication Date December 8, 2015 Committees Committee on Regulation Regulatory permits are ubiquitous in modern society, and each year dozens of federal agencies administering their … of how it is styled by the agency (e.g., “license,” “conditional exemption”). Permits exist on a continuum of agency regulation, falling between exemptions (in which an activity is not regulated at all) and prohibitions. Broadly speaking, … The reforms promoted by EO 13604 are largely in accord with the Administrative Conference’s Recommendation 1984-1, Public Regulation of Siting of Industrial Development Projects , 49 Fed. Reg. 29,938 (July 25, 1984). Specifically, Recommendation …
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    Rulemaking

    … Vehicles for Regulatory Guidance (May 16, 2014) News Releases and Blog Posts Blake Emerson, Using Plain Language to Draft Regulations (Mar. 6, 2018) (originally published on The Regulatory Review ) E-Rulemaking Assembly Recommendations Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets Recommendation 2013-5, Social Media in Rulemaking Recommendation 2011-8, Agency … in E-Rulemaking Publications and Reports Federal Administrative Procedure Sourcebook, E-Government Act of 2002 Todd Rubin, Regulations.gov and the Federal Docket Management System (Dec. 1, 2018) Michael Herz, Using Social Media in Rulemaking: …
  10. Document

    Federal Agency Cooperation with Foreign Government Regulators

    … find that they actually need, or can profitably share, the resources of other governments in addressing common problems of regulation and enforcement. In their continuous efforts at improving their performance, agencies have become increasingly aware that contemporary regulation often entails a powerful research and development burden whose sharing may be in all regulators' best interests. … establishment of common regulatory agendas; b. The systematic exchange of information about present and proposed foreign regulation; c. Concerted efforts to reduce differences between the agency's rules and those adopted by foreign government …
  11. Article

    Remembering Fred Emery

    … to practical administrative law.  He was my first boss out of law school when he was the deputy director of the Office of Regulation that was clearly the leader in the development of rulemaking; Neil Eisner so ably continued that tradition as … of his recent hires, that they “had a short shelf life”; unfortunately over time we “began to understand the commonly used regulation “gobbledygook””. First on his targeted list were Interstate Commerce Commission documents. The ICC was abolished … to public service were meaningful. He was an innovator and stood tall in the now has become the burgeoning field of Regulation." -Martin V. Franks     Share on Facebook Share on Twitter Share on Linkedin …
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    Plain Language in Regulatory Drafting

    … Plain Language in Regulatory Drafting Type Recommendation Publication Date December 29, 2017 Committees Committee on Regulation For decades, agencies have worked to make regulatory requirements more comprehensible to regulatory stakeholders … and the public at large, including by using “plain language” or “plain writing.” [1] Clearly drafting and explaining regulations facilitates the core administrative law goals of public participation, efficient compliance, judicial review, … the Federal Government administers or enforces,” such as guidance documents. [9] Although the PWA does not cover regulations, Executive Order 13,563 requires them to be “accessible, consistent, written in plain language, and easy to …
  13. Document

    Implementation of the Noise Control Act

    … of the Noise Control Act and, after 1978, the Quiet Communities Act. 2 These included identifying sources of noise for regulation, promulgating noise emission standards, coordinating federal noise research and noise abatement, working with … actions without also ending the statutory authorization for that program or addressing the preemptive effect of existing regulations. If this situation does exist in other contexts, there may be procedural problems similar to those associated … should then advise the appropriate congressional committees respecting the preemptive effects of EPA’s possibly outmoded regulations under the Noise Control Act, 5 or any other implications of the cessation of funding respecting the agency’s …
  14. Document

    Remand Without Vacatur

    … collecting fees or processing reimbursements, and ensures continued provision of public benefits (including the benefits of regulation).  Remand without vacatur has also been said to be appropriate because it defers to the institutional competence … part of the challenged rule or order, together with any unique identifiers for the affected agency rule or order (such as a Regulation Identifier Number).  Agencies should additionally work with the Office of the Federal Register to remove vacated regulations from the Code of Federal Regulations. [9] To further public awareness, the Conference also recommends that …
  15. Document

    Agency Guidance Through Interpretive Rules

    … in court under the Auer v. Robbins [15] standard of review, which provides that an agency’s interpretation of its own regulation becomes of “controlling weight” if it is not “plainly erroneous or inconsistent with the regulation.” [16] The question of whether interested persons should be able to ask an agency to modify, rescind, or waive an … They may also include rules that, in setting forth decisional factors that are relevant to the meaning of a statute or regulation, leave open the possibility that other decisional factors might also be relevant. Typically, such rules speak at …
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    Comment from Senior Fellow James J. Tozzi (10 19 2020)

    … from Senior Fellow James J. Tozzi (10 19 2020) Type Comment Publication Date October 20, 2020 Committees Committee on Regulation Meetings Committee on Regulation Second Meeting: Rules on Rulemakings Locations Projects Rules on Rulemakings Download Comment from Senior Fellow …
  17. Document

    OIRA Review Draft Statement

    … Type Recommendation Publication Date November 1, 2013 Committees Committee on Administration and Management Committee on Regulation Revised Draft Statement for Discussion at the November 6, 2013 Joint Meeting of the Committees on Administration & Management and Regulation Meetings November 6, 2013 Committee Meeting Locations Administrative Conference of the United States Projects …
  18. Document

    Combined Comments

    … Combined Comments Type Comment Publication Date April 24, 2013 Committees Committee on Regulation Combined comments on draft recommendation considered at April 29, 2013 Committee on Regulation Meeting. Meetings April 29, 2013 Committee Meeting Locations Administrative Conference of the United States …
  19. Document

    Jim Tozzi Public Comment on Agency Economists Project

    … Jim Tozzi Public Comment on Agency Economists Project Type Comment Committees Committee on Regulation Meetings Committee on Regulation Meeting Locations Administrative Conference of the United States Download Jim Tozzi Public Comment on Agency …