Recommendations (2010 - Present)

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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 (...

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...

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-...

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...

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...

  • 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...

Under the Administrative Procedure Act (APA), federal agencies are required to “give . . . interested person[s] the right to petition for the issuance, amendment, or repeal of a rule.”[1]  The statute generally does not establish procedures agencies must observe in connection with petitions for rulemaking.  It does, however, require agencies to respond to petitions for rulemaking “within a reasonable time,”[2] and to give...

Agencies conduct thousands of adjudicative hearings every day, but the format of the hearing, whether face-to-face or by video, has not been analyzed in any systematic way.  Some agencies have provided hearings by video teleconferencing technology (VTC) for decades and have robust VTC programs.  These programs strive consistently to provide the best hearing experience, even as technology changes.  Other agencies have been reluctant...

The Administrative Conference of the United States (Conference) has undertaken many studies over the years relating to the Social Security disability benefits system.[1]  It has issued a number of recommendations specifically directed at improving the Social Security Administration’s (SSA’s) initial application and appeals processes,[2] as well as other recommendations more generally designed to improve agency adjudicatory...

Benefit-cost analysis (also known as cost-benefit analysis) is one of the primary tools used in regulatory analysis to anticipate and evaluate the likely consequences of rules.[1]  Although some regulatory benefits and costs are difficult to quantify or monetize, those preparing such analyses generally attempt to estimate the overall benefits that a proposed or final rule would create as well as the aggregate costs that it would...

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