New Recommendations and Two (!) Separate Statements (ACUS Update)

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Emily Bremer

The Administrative Conference recently published its newest slate of recommendations, which the Assembly adopted at its 70th Plenary session, held in December 2018. Two of the recommendations drew separate statements from members of the Assembly.  As I have previously explained, separate statements are permitted by the Administrative Conference Act (5 U.S.C. 595(a)(1)) and the agency’s bylaws, but they are rare.  For one Plenary to draw two separate statements is unusual indeed!


Recommendation 2018-6, Improving Access to’s Rulemaking Dockets also drew a separate statement.  This statement was filed by a group of members, including Government Member Chai R. Feldblum; Public Members Victoria F. Nourse, Anne Joseph O’Connell, Sidney A. Shapiro, and Kathryn A. Watts; and Senior Fellows Cynthia R. Farina, Ronald M. Levin, Jerry L. Mashaw, Nina A. Mendelson, Richard J. Pierce Jr., Richard L. Revesz, and Peter L. Strauss.  Writing as administrative law teachers, these members “enthusiastically” supported the recommendation’s stated aims of improving public access to comments and other inputs to agency rulemakings.  But the members expressed concern that the recommendation cannot fully satisfy those aims because it fails to address comments and other information that may be submitted in one agency’s rulemaking by other government agencies, including the Office of Information and Regulatory Affairs (OIRA).  The members expressed regret that the Assembly declined an amendment moved at the Plenary that would have extended the recommendation to intra-governmental communications that are both submitted during a rulemaking and would otherwise be subject to disclosure under the Freedom of Information Act (FOIA). The amendment failed on procedural grounds, because the subject was not addressed in earlier stages of the Conference’s recommendation process.

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