Notice & Comment

The Role of ACUS in Improving the Administrative Process under the New Administration, by Cheryl Blake

Cheryl BlakeProposals for regulatory reform featured prominently in the run-up to the 2016 election and will likely continue to receive very close attention in the new administration. As Emily Bremer highlighted in her introduction to this symposium, the American Bar Association’s Section of Administrative Law and Regulatory Practice prepared a report for both presidential candidates in advance of the election. In it, the Section offers several recommendations for how the incoming administration could work to improve important aspects of the administrative process.

Many of these recommendations draw directly from the work of the Administrative Conference of the United States (ACUS). In particular, the Section recommended that the incoming administration:

  • Require that private citizens who work on the presidential transition adhere to the Conference’s Workers’ Code of Ethical Conduct;
  • Review so-called midnight regulations using the notice-and-comment process in accordance with ACUS Recommendation 2012-2, Midnight Rules;
  • Provide for transparency in the rulemaking process by keeping the Unified Agenda up-to-date in accordance with ACUS Recommendation 2015-1, Promoting Accuracy and Transparency in the Unified Agenda;
  • Ensure that all agencies post guidance materials (including guidelines, manuals, opinion letters, and press releases) on their website in accordance with ACUS Recommendation 2014-3, Guidance in the Rulemaking Process; and,
  • Promote international regulatory cooperation, as provided for in Executive Order 13609, which is based largely on ACUS Recommendation 2011-6, International Regulatory Cooperation.

The Section also cited ACUS recommendations in several of its other suggestions, including those on retrospective review (ACUS Recommendation 2014-5, Retrospective Review of Agency Rules) and cost-benefit analysis for independent agencies (ACUS Recommendation 2013-2, Cost-Benefit Analysis).

These examples demonstrate the extraordinary value of the recommendations ACUS has developed for the benefit of both federal agencies and Congress. Through five committees devoted to adjudication, administration and management, judicial review, regulation, and rulemaking, the Conference leverages the expertise of its 101 members to promote fairness, efficiency, and transparency in administrative procedure. This wide range of stakeholders— drawn from government, the private sector, and academia—further ensures that ACUS recommends solutions that enjoy broad support and, as such, are likely to improve the efficiency and effectiveness of agency operations.

In addition to its recommendations, ACUS offers a host of other resources that are likely to prove enormously valuable during the transition period. One such resource is the ACUS Sourcebook on United States Executive Agencies—an invaluable source of organizational information on federal agencies, independent agencies, and other executive organizational entities—which is currently featured on the Presidential Transition Directory. Further, while the resources described below do not represent an exhaustive list, we hope to highlight a few of ACUS’s most significant programs:

First, ACUS plans to continue its newly-developed training programs for agencies as well as Congressional staffers. Trainings for agencies support implementation of ACUS recommendations, while trainings for Congressional staffers deepen the understanding of fundamental principles of administrative law, and the role of administrative agencies, that may be implicated in draft legislation.

Second, ACUS regularly provides in-depth assistance in the form of nonpartisan, technical advice. For agencies, this may take the form of short memoranda, or more extensive reports on complex questions of law or administrative practice. For Congress, ACUS offers technical comments on draft legislation that deals with administrative and regulatory reform. ACUS does not take positions on the substantive aims of legislative proposals. Rather, we can advise on how draft legislation should take into account the requirements of the Administrative Procedure Act (APA), existing case law, and other relevant legal provisions.

Third, ACUS has hosted a number of working groups, forums, and additional spaces for dialogue that can help identify and prioritize pressing problems and brainstorm solutions. The Conference is uniquely positioned to draw on its government and public members—whose expertise spans diverse areas of agency practive, as well as numerous substantive areas of law and policy—to advance the conversation on improving the administrative process.

Ultimately, the continual evaluation and improvement of how agencies operate is essential to promoting an efficient and cost-effective government. The Conference looks forward to working with the Trump Administration, Congress, and federal agencies to implement these important recommendations and serve as an ongoing resource for advancing best practices in administrative procedure.

Cheryl Blake is an Attorney Advisor with the Administrative Conference of the United States.

This is post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.

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