Revived Administrative Conference Publishes First Recommendation in Fifteen Years

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Revived Administrative Conference Publishes First Recommendation in Fifteen Years New Guidance For Agency Rulemaking That May Preempt State Law

Washington, D.C., January 4, 2011 – The Administrative Conference of the United States has published Recommendation 2010-1, Agency Procedures for Considering Preemption of State Law, which was adopted at its Fifty-third Plenary Session on December 9-10, 2010.  This is the first recommendation adopted since the Administrative Conference was reestablished in 2010, and joins the approximately 200 recommendations approved by the Administrative Conference between 1968 and 1995.  The recommendation provides guidance to federal agencies regarding consultation with state and local governments and consideration of state interests in rulemakings that may result in the preemption of state law.  “Adopting our first recommendation in the first months of operation is a significant accomplishment, that speaks to the power of collaborative governance the Conference espouses.” said Paul R. Verkuil, Chairman.  “Our staff and consultant conducted an empirical study, used technology to engage citizens and members to solicit input, and ultimately achieved consensus at the December Plenary.” The goal of the Recommendation 2010-1 is not to favor or disfavor preemption, but to improve agency procedures in potentially preemptive rulemakings.  By recommending procedures for consulting with state and local officials and resolving preemption questions during the rulemaking process, the Recommendation aims to improve efficiency, by avoiding future unnecessary and costly litigation over preemption issues, and fairness, by providing a systematic method of input from state and local sources.  The Recommendation also seeks to increase transparency regarding internal agency policies and identifies ways to improve external mechanisms for enforcing the applicable federal requirements.    The research report supporting Recommendation 2010-1 and a complete listing of past recommendations and statements are available at  The Administrative Conference has commenced studies of other important regulatory and administrative issues, which also appear on the website. The next plenary session is scheduled for June 16-17, 2011. About ACUS The Administrative Conference of the United States is an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures.  Its membership is composed of senior federal officials and experts from both the private sector and academia.  The Conference is committed to promoting effective public participation and efficiency in the rulemaking process as well as making improvements to the regulatory and adjudicatory process by reducing unnecessary litigation, and improving the effectiveness and fairness of applicable laws.  Learn more at