Recommendations (2010 - Present)

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  • Recommendation number: 2013-3
  • Adopted on: June 14, 2013
  • Committees: Regulation
  • Tags: Science

Over the last three decades, several authorities made recommendations for improving transparency in the use of science[1] in the administrative process.[2]  Partially in response to these recommendations, the executive branch and Congress have made a number of reforms to the scientific process undergirding agency decisionmaking.  In 2009, President Obama issued a memorandum directing that, “[t]o the extent permitted by law, there...

The administrative record in informal rulemaking plays an essential role in informing the public of potential agency action and in improving the public’s ability to understand and participate in agency decisionmaking.  As well, the administrative record can be essential to judicial review of agency decisionmaking under the Administrative Procedure Act (APA), which directs courts to “review the whole record or those parts of it...

In the last decade, the notice-and-comment rulemaking process has changed from a paper process to an electronic one.  Many anticipated that this transition to “e-Rulemaking”[1] would precipitate a “revolution,” making rulemaking not just more efficient, but also more broadly participatory, democratic, and dialogic.  But these grand hopes have not yet been realized.  Although notice-and-comment rulemaking is now conducted...

Remand without vacatur is a judicial remedy that permits agency orders or rules to remain in effect after they are remanded by the reviewing court for further agency proceedings.  Traditionally, courts have reversed and set aside agency actions they have found to be arbitrary and capricious, unlawful, unsupported by substantial evidence, or otherwise in violation of an applicable standard of review.  Since 1970, however, the remedy...

The Government Performance and Results Act (GPRA) Modernization Act of 2010 (GPRAMA) became law on January 4, 2011.[1]  Among other things, the Act requires the Executive branch and federal agencies to develop cross-agency performance goals and specifies directives toward the advancement, use, review, and measurement of cross-agency collaboration.[2] Cross-agency collaboration is widely viewed as a powerful means for government...

For more than three decades, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget has conducted centralized review of federal agencies’ draft proposed and final regulations.  The fundamental structures and principles governing the regulatory review process are currently set forth in Executive Order (EO) 12,866,[1] and subsequent EOs have reaffirmed this system of regulatory review.[2]  Among...

  • Recommendation number: 2012-1
  • Adopted on: June 14, 2012
  • Committees: Regulation

Over the past several decades, the United States Congress and various Presidents have imposed numerous regulatory analysis requirements on administrative agencies in connection with 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...

Project: Midnight Rules

There has been a documented increase in the volume of regulatory activity during the last months of presidential terms.[1] This includes an increase in the number of legislative rules (normally issued under the Administrative Procedure Act’s (APA) notice and comment procedures)[2] and non-legislative rules (such as interpretive rules, policy statements, and guidance documents) as compared to other periods.  This spurt in late-term...

The U.S. immigration removal adjudication agencies and processes have been the objects of critiques by the popular press, organizations of various types, legal scholars, advocates, U.S. courts of appeals judges, immigration judges, Board of Immigration Appeals members and the Government Accountability Office. Critics have noted how the current immigration adjudication system fails to meet national expectations of fairness and...

The Paperwork Reduction Act (PRA), enacted in 1980 and revised upon its reauthorization in 1986 and 1995, created the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) to oversee information policy within the executive branch. The Act requires, among other things, that agencies secure OMB approval before collecting information from the public. Since 1995, this has meant that...

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