Recommendations

Making formal recommendations is one of the primary activities of the Administrative Conference. The Conference’s research and the resulting recommendations are conducted through our Project Process. The process includes: gathering and selecting ideas for a project, getting Council approval, selecting the researcher, having the researcher’s report considered by a committee, having the selected committee formulate a recommendation, having a committee’s recommendation considered by the Council and then the full Conference membership, and then implementation activities. Recommendations are adopted by the voting members of the Conference at semi-annual plenary sessions.

On occasion, the Conference membership has acted to adopt a “Statement” to express its views on a particular matter without making a formal recommendation on the subject.  Conference statements are typically the product of the same process that leads to recommendations, but may set forth issues, conclusions from a study, or comments, rather than recommendations.  During the Conference’s history, it has adopted 18 such statements, which are included in the searchable database of recommendations.

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Promoting Accuracy and Transparency in the Unified Agenda

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The Unified Agenda of Federal Regulatory and Deregulatory Actions (typically known simply as the “Unified Regulatory Agenda” or “Unified Agenda”) is an important mechanism by which federal agencies inform the public of upcoming rules.  Required to be published on a semiannual basis, the Unified Agenda represents a joint enterprise of the Office of Information and Regulatory Affairs (OIRA), the Regulatory Information Service Center (...

Technical Assistance by Federal Agencies in the Legislative Process

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Federal agencies play a significant role in the legislative process.[1]  While agencies can be the primary drafters of the statutes they administer, it is more common for agencies to respond to Congressional requests to provide technical assistance in statutory drafting.  Despite the extent of agency involvement in drafting legislation, the precise nature of the interactions between agencies and Congress in the drafting process...

Declaratory Orders

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Providing clarity and certainty is an enduring challenge of administrative governance, particularly in the regulatory context.  Sometimes statutes and regulations fail to provide sufficient clarity with regard to their applicability to a particular project or transaction.  In such instances, businesses and individuals may be unable or unwilling to act, and the consequences for the economy, society, and technological progress can be...

Federal Licensing and Permitting

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  • Recommendation number: 2015-4
  • Adopted on: December 4, 2015
  • Committees: Regulation
  • Tags: Licensing

Regulatory permits are ubiquitous in modern society, and each year dozens of federal agencies administering their regulatory permit authority issue tens of thousands of permits covering a broad and diverse range of actions.[1] The APA includes the term “permit” in its definition of “license.” In addition to agency permits, the APA defines licenses to include “the whole or part of an agency…certificate, approval, registration,...

Statement # 19: Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking

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The doctrine of issue exhaustion generally bars a litigant challenging agency action from raising issues in court that were not raised first with the agency.  Although the doctrine originated in the context of agency adjudication, it has been extended to judicial review of challenges to agency rulemakings.  Scholars have observed that issue exhaustion cases “conspicuously lack discussion of whether, when, why, or how [the issue]...

Resolving FOIA Disputes Through Targeted ADR Strategies

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The Freedom of Information Act (FOIA)[1] makes available to any person, upon request, any reasonably described agency record that is not exempt under nine specified categories.  Congress has stated: “disclosure, not secrecy, is the dominant objective of the Act.”[2]  FOIA provides a two-level agency process for decisions on requests for access to agency records: (1) an initial determination that is ordinarily made by the component...

Government in the Sunshine Act

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In the late 1960s and 1970s, in the wake of increasing public vigilance concerning the activities of government sparked by the Vietnam War and Watergate, Congress passed and the President signed a series of transparency laws designed to promote greater accountability and transparency in government decisionmaking.  The Government in the Sunshine Act, enacted in 1976, focused specifically on the transparency of meetings of multi-...

Guidance in the Rulemaking Process

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Over the past two decades, the use of guidance—nonbinding statements of interpretation, policy, and advice about implementation—by administrative agencies has prompted significant interest from Congress, executive branch officials, agency officials, and commentators. Most of this attention has been directed to “guidance documents,” freestanding, nonbinding statements of policy and interpretation issued by agencies. While such...

"Ex Parte" Communications in Informal Rulemaking

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Informal communications between agency personnel and individual members of the public have traditionally been an important and valuable aspect of informal rulemaking proceedings conducted under section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553.  Borrowing terminology from the judicial context, these communications are often referred to as “ex parte” contacts.[1]  Although the APA prohibits ex parte contacts in...

Retrospective Review of Agency Rules

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  • Recommendation number: 2014-5
  • Adopted on: December 4, 2014
  • Committees: Regulation
  • Tags: Regulation

Executive Summary

The following recommendation is intended to provide a framework for cultivating a “culture of retrospective review” within regulatory agencies.  It urges agencies to remain mindful of their existing body of regulations and the ever-present possibility that those regulations may need to be modified, strengthened, or eliminated in order to achieve statutory goals while minimizing regulatory burdens.  It...

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