STATEMENT OF PAUL R. VERKUIL
CHAIRMAN
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
HEARING
BEFORE THE
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ON
MAY 20, 2010
Mr. Chairman and Members of the Subcommittee:
I am very pleased to be here today as the Chairman of the revived Administrative Conference of
the United States (“ACUS” or “Conference”). I first want to thank the Subcommittee for its
leadership in this bipartisan and persistent effort to reauthorize the Conference after a 14½-year
hiatus. Without your support, and that of many other key proponents such as Justices Scalia and
Breyer, it would not have been possible to have this hearing today.
I have studied and taught Administrative Law for almost 40 years and had the opportunity to
work closely with ACUS during its previous incarnation. My first consultant project for the
Conference involved judicial review of informal rulemaking,1 completed when Justice Scalia
was Chairman. I found ACUS to be a remarkable forum for developing thoughtful and broadly
based consensus solutions. Its recommendations produced real improvements in both the fairness
and efficiency of federal agency operations. It was a blow to good government when ACUS lost
its funding in 1995.
When President Obama offered me the opportunity to lead ACUS back, I readily agreed. I’m
honored to have the chance to develop a full program of applied research to improve federal
administrative processes.
Between 1968 and 1995, when ACUS was in operation, the Conference adopted a wide range of
recommendations for improving procedures and reducing the costs by which federal agencies
administer regulatory, benefit, and other government programs. In addition, the Conference
facilitated the interchange of information among federal administrative agencies potentially
useful in improving their procedures. These activities included publications, colloquia, training
1See ACUS Rec. 74-4; Verkuil, Judicial Review of Informal Rulemaking, 60 Va. L. Rev. 185 (l974).
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programs, and the establishment of interagency working groups to help achieve the
implementation of Conference recommendations. The Conference also collected information
and statistics from administrative agencies and published reports evaluating various
administrative procedures.
ACUS’s work received consistent support from a broad range of knowledgeable sources. At a
hearing in 2007 to reauthorize ACUS, the Congressional Research Service (CRS) concluded:
“ACUS’s past accomplishments in providing nonpartisan, nonbiased,
comprehensive, and practical assessments and guidance with respect to a wide
range of agency processes, procedures, and practices are well documented. . . .
ACUS evolved a structure to develop objective, nonpartisan analyses and advice,
and a meticulous vetting process, which gave its recommendations credence.”2
Perhaps most notably, the ACUS members who voted on Conference recommendations were
drawn from a wide variety of backgrounds and interests in government and the private sector. It
was heartening to see public members who are normally strong opponents in politics and practice
come together to achieve consensus on ways to improve agency performance and effectiveness.
At similar hearings in 2004, both Justice Scalia (a former Chairman of ACUS) and Justice
Breyer (a former liaison representative from the Judicial Conference) provided strong support for
restoring ACUS. Justice Scalia viewed the agency as “a unique combination of talents from the
academic world, from within the Executive Branch . . . and . . . from the private bar, especially
lawyers particularly familiar with administrative law.”3 He further observed: “I did not know
another organization that so effectively combined the best talent from each of those areas.”4
Justice Breyer described ACUS as “a unique organization, carrying out work that is important
and beneficial to the average American, at low cost.” He noted that: “in practice [ACUS
recommendations] can make it easier for citizens to understand what government agencies are
doing to prevent arbitrary government actions that could cause harm.”5
I thank the Justices for their continued support here today.
Of course, it is a challenge to revive an agency that has not operated for over 14 years.
Fortunately, the Administrative Conference Act provides us with an excellent foundation, and
given the support of Congress and the White House, and the advice and guidance I am receiving
2 Regulatory Improvement Act: Hearing on H.R. 3564 Before the Subcomm. on Commercial and Administrative
Law of the House Comm. on the Judiciary, 110th Cong. (2007) (prepared statement of Mort Rosenberg, Specialist in
American Public Law, Congressional Research Service).
3 Reauthorization of the Administrative Conference of the United States: Hearing Before the Subcomm. on
Commercial and Administrative Law of the House Comm. on the Judiciary, 108th Cong. 10 (2004).
4 Id. at 21.
5 Reauthorization of the Administrative Conference of the United States: Hearing Before the Subcomm. on
Commercial and Administrative Law of the House Comm. on the Judiciary, 108th Cong. (2004). For more on
Justice Breyer’s participation in Conference activities while he serving as a liaison representative from the Judicial
Conference, see Jeffrey Lubbers, Justice Breyer: Purveyor of Common Sense in Many Forums, 9 ADMIN. L. J. AM.
U. 775 (1995).
4
from many former Chairmen, members, and others who are enthusiastic about helping, I think
ACUS can be fully functioning soon.
But restarting an agency is no instant proposition. I was confirmed on March 4, 2010 and sworn
in by Vice President Biden on April 6, 2010. Since then, I have been working to set up shop and
hire staff. The General Services Administration is overseeing our lease arrangements,
purchasing furniture and equipment, creating IT solutions and dealing with organizational issues.
Working in coordination with OMB and GSA, FTC has provided us with a small amount of
temporary space under an interagency agreement. Several job descriptions have been posted by
the Office of Personnel Management. We have secured the domain name “acus.gov” and have
email. Our website should be activated soon.
Once the members of the Council are fully cleared and appointed by the President, which I
understand is imminent, we can re-establish the membership. With any luck, we will be ready
for our first plenary session by the fall.
Let me take this opportunity to provide some background on ACUS before discussing my plans
and hopes as Chairman.
Mission of the Administrative Conference
Under the Administrative Conference Act (“the Act”), 5 U.S.C. §§591-596, the agency’s
statutory responsibilities are:
(1) to provide suitable arrangements through which federal agencies, assisted by
outside experts, may cooperatively study mutual problems, exchange information,
and develop recommendations for action by proper authorities to the end that
private rights may be fully protected and regulatory activities and other Federal
responsibilities may be carried out expeditiously in the public interest;
(2) to promote more effective public participation and efficiency in the
rulemaking process;
(3) to reduce unnecessary litigation in the regulatory process;
(4) to improve the use of science in the regulatory process; and
(5) to improve the effectiveness of laws applicable to the regulatory process.
(5 U.S.C. §591)
The Conference develops recommendations for improving the fairness and effectiveness of the
rulemaking, adjudication, licensing, investigative, and other functions by which federal agencies
administer government programs. Conference members include federal officials from Executive
branch departments and agencies, as well as from independent regulatory boards and
commissions; private lawyers; professors; and other experts in administrative and regulatory law
and government. The membership, which reflects diverse points of view, meets to consider
studies of, and to recommend solutions to, selected problems involving administrative law and
the regulatory process. As an agency subject to the Federal Advisory Committee Act, as well as
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the Freedom of Information Act, ACUS provides public access to Conference meetings, minutes,
and reports.
ACUS’s Organization
By statute, the Conference has no fewer than 75 and no more than 101 members, a majority of
whom are federal government officials. It is composed of a Chairman, a 10-member Council
that functions as an executive board, representatives from “each independent regulatory board or
commission,” and from “each Executive department or other administrative agency which is
designated by the President," [see 5 U.S.C. 593(b)(3)] and non-governmental members who may
not constitute less than one-third nor more than two-fifths of the total number of members.
The Chairman is appointed by the President with the advice and consent of the Senate for a fiveyear
term, and is the only full-time compensated member. The other ten members of the
Council, which acts as an executive board, are appointed by the President for three-year terms.
Federal officials named to the Council may constitute no more than one-half of the ten Council
members.
Apart from the Council members, who are appointed by the President, the government members
of the Conference as a whole serve by virtue of their positions in executive departments or
independent agencies and compose more than half of total Conference membership. Nongovernmental
members of the Conference are appointed by the Chairman, with the approval of
the Council, for two-year terms. The Act (5 U.S.C. §593(b)(6)) specifies that these members
“shall be members of the practicing bar, scholars in the field of administrative law or
government, or others specially informed by knowledge and experience with respect to federal
administrative procedure.” They are to be selected “in a manner which will provide broad
representation of the views of private citizens and utilize diverse experience.” As noted, these
non-government members may not constitute less than one-third nor more than two-fifths of the
total number of members.
In addition to the overall membership (capped at 101), ACUS’s bylaws have permitted the
Chairman with the approval of the Council to appoint non-voting liaison “representatives of the
Congress, the judiciary, federal agencies that are not represented on the Conference, and
professional associations.”6 This has permitted ACUS to have the thoughtful participation of
federal judges (like Justice Breyer), the GAO, and the Federal Administrative Law Judges
Association, just to name a few.
For many years, the entire membership of ACUS (including the liaison representatives) was
divided into committees, each assigned a broad area of interest. When ACUS closed in 1995,
these included the following standing committees:
• Adjudication (agency adjudicatory processes);
• Administration (alternative dispute resolution and other procedures utilized by federal
agencies to implement assistance, procurement, and other administrative programs);
• Government Processes (techniques used by federal agencies to implement federal
6 ACUS Bylaws, 1 C.F.R. §302.4 (1995).
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programs);
• Regulation (administrative procedures applicable to oversight of private economic
activities);
• Rulemaking (processes used by federal agencies to issue rules and regulations);
• Judicial Review (aspects of administrative law or practice relating to the availability and
effectiveness of judicial review of agency decisions).
Under the Act, the ACUS membership (the “Assembly”) meets in plenary session at least once
each year to consider adoption of recommendations that have been developed through the
committee process and to take such other actions as may further the mission of the Conference.
The deliberations of the committees and the plenary sessions are all public.
In my experience as a public member, the way in which the Conference formulated its
recommendations proved to be a very effective one. Subjects for inquiry were identified by the
Chairman and approved by the Council. The committees, with the aid of expert consultants who
prepared supporting reports, conducted thorough studies of these subjects, and proposed
recommendations. Recommendations were evaluated by the Council and, if ready for Assembly
consideration, were distributed to the membership with the supporting reports and placed on the
agenda of the next plenary session.
The Chairman is authorized to encourage the departments and agencies to adopt the
recommendations of the Conference and is required to transmit to the President and to Congress
an annual report and such interim reports as he or she considers desirable concerning the
activities of the Conference, including reports on the implementation of its recommendations.
Upon the request of the head of a department or agency, the Chairman is authorized to furnish
advice and assistance on matters of administrative procedure. The Conference may collect
information and statistics from departments and agencies and publish such reports as it considers
useful for evaluating and improving administrative processes. In addition, consultants often
publish their reports as books or articles. The Conference also serves as a forum for the
interchange of information among departments and agencies that may be useful in improving
administrative practices and procedures.
History of the Administrative Conference
ACUS can trace its antecedents7 to a prominent list of non-partisan special committees
established to study and make recommendations on improvements in federal government
procedures, beginning with President Franklin Roosevelt’s Committee on Administrative
Management (the “Brownlow Commission”) in 1936 and his 1939 Attorney General’s
Committee on Administrative Procedure that led to enactment, after World War II, of the
Administrative Procedure Act in 1946. This was followed by President Truman’s Commission
on Organization of the Executive Branch of the Government (known as the “Hoover
Commission” after its Chair, President Herbert Hoover) in 1947-50, and a congressionally
7 The following summary was gleaned from DAVID B. H. MARTIN, THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES: AN HISTORICAL EVOLUTION 17 (Draft March 21, 1978). Mr. Martin was ACUS Research Director
when he drafted this report.
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requested study by the Judicial Conference to study “time-saving” procedures on agency
adjudications completed in 1951. Each of these reports suggested establishment of something
along the lines of a federal office of administrative procedure.
President Eisenhower responded to the Judicial Conference recommendation by organizing a
temporary “Conference on Administrative Procedure” in 1953-54, and this was followed by a
second temporary “Administrative Conference of the United States” during the Kennedy
Administration in 1961-62.8 Each of these Conferences recommended the establishment of a
permanent agency to study federal administrative procedures and develop recommendations for
improvement.9 As the report of the Eisenhower Conference stated: “This is not a new idea. It
has been advocated by every group which has made a careful study of administrative
procedure.”10
These recommendations were consistent with those set forth in a report to President-elect
Kennedy by James M. Landis, former Dean of the Harvard Law School and former Chairman of
both the Securities and Exchange Commission and the Civil Aeronautics Board.11 The
Administrative Conference Act was enacted in 1964 for such purposes.12
ACUS began operations with the appointment and confirmation of its first Chairman, Jerre
Williams, in 1968.13 Over the next 27 years, through October 1995, the Conference brought
together experts from both public and private sectors to review and critique basic research
leading to specific and practical ways to improve regulatory and administrative processes.
ACUS adopted approximately 200 such recommendations. A complete list of these
recommendations was published at 60 Fed. Reg. 56,312 (1995). I am pleased to report that they
will be republished by the Office of the Federal Register in the near future, and made available
on our upcoming website.
Funding for the Conference was eliminated in 1995, but the statutory provisions establishing
ACUS were not repealed. The agency was reauthorized twice since then, in 2004 and 2008. The
2004 legislation expanded the responsibilities of ACUS to include specific attention to achieving
more effective public participation and efficiency in rulemaking, reducing unnecessary litigation,
and improving the use of science in the regulatory process.
8 See Memorandum Convening the President's Commission on Administrative Procedure, Pub. Papers 219-22 (Apr.
29, 1953); Exec. Order No. 10,934, 26 Fed. Reg. 3233 (April 13, 1961).
9 See REPORT OF THE CONFERENCE ON ADMINISTRATIVE PROCEDURE CALLED BY THE PRESIDENT OF THE UNITED
STATES ON APRIL 29, 1953 46 (1954); Report of the Administrative Conference of the U.S. (Dec. 17, 1962), quoted
in Statement of E. Barrett Prettyman, Chairman, in Hearings Before the Subcomm. of Admin. Practice & Procedure,
House Comm. on the Judiciary on S.1664, 88th Cong, 1st Sess. 15, 22 (1963).
10 See REPORT OF THE CONFERENCE ON ADMINISTRATIVE PROCEDURE CALLED BY THE PRESIDENT OF THE UNITED
STATES ON APRIL 29, 1953 46 (1954).
11 JAMES M. LANDIS, REPORT ON REGULATORY AGENCIES TO THE PRESIDENT-ELECT (Dec. 21, 1960).
12 Pub. L. No. 88-499, 5 U.S.C.A. §§591-96 (2006).
13 Pub. L. 108-401, §2(a), Oct. 30, 2004, 118 Stat. 2255; and Pub. L. 110-290, §2, July 30, 2008, 122 Stat. 2914.
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Past Successes of the Administrative Conference
Some of ACUS’s recommendations resulted in major changes in the federal administrative
process generally; others led to significant improvements in the procedures of individual
agencies. Still others made important recommendations to Congress and the Judiciary.
Early recommendations (68-7, 69-1, and 70-1) led to significant amendments to the
Administrative Procedure Act’s judicial review provisions—removing several technical hurdles
to lawsuits challenging agency actions.
Another judicial review recommendation that directly saved the government millions of dollars
was Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse” in Appeals
from Agency Action. Enactment of Public Law 100-236 in 1988 was directly based on this
recommendation, and it has ever since prevented a large number of expensive and costly court
battles over which court should hear an appeal.
In the mid-1970s, ACUS undertook a comprehensive study of the procedures of the IRS. ACUS
produced seventy-two separate proposals in six principal areas of IRS activity, including the
confidentiality of taxpayer information, the IRS’s settlement procedures, the handling of citizen
complaints, methods to ensure fair and consistent treatment in selecting returns for audit, and the
availability of information to the public. The IRS adopted fifty-eight of the recommendations
entirely, endorsed another five partially, and disagreed with only nine.
ACUS’s 1988 recommendation (88-9), Presidential Review of Agency Rulemaking, based in part
on a study I conducted for the Conference,14 was influential in validating (and in removing much
of the controversy concerning) the practice of presidential review of agency rules that had begun
in the Nixon Administration. The recommendation suggested ways to increase the openness and
timeliness of that review, and also suggested adding a requirement for the review of existing
rules. The Clinton Administration, in Executive Order No. 12866 (1993), took account of these
proposals and these provisions remain in effect today.
The Conference also produced several recommendations advocating a more streamlined way of
enforcing statutes with flexible civil money penalties. These recommendations (72-6 and 79-3)
led to numerous statutory provisions that not only increased enforcement of important health,
safety and environmental laws, but also produced millions of additional dollars for the federal
treasury.
Because of ACUS’s expertise in this area, Congress, in the early 1990’s, asked ACUS to study
the Federal Aviation Administration’s civil money penalty demonstration program. The
resulting study and recommendation resolved a jurisdictional dispute between the FAA and the
National Transportation Safety Board. In 1992, Congress passed, and the President signed,
Public Law 102-345, which expressly adopted the ACUS recommendations and made permanent
14 See Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943
(1980).
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the transfer of authority over adjudication of civil penalty cases affecting pilots and flight
engineers from the FAA to the NTSB.
In the 1980’s and 1990’s ACUS led the way to widespread adoption of alternative dispute
resolution (ADR) principles and practices in federal agencies. In this arena, ACUS produced
more than a dozen separate recommendations. ACUS worked closely with the American Bar
Association in an effort that led to enactment in 1990 of the Administrative Dispute Resolution
Act and the Negotiated Rulemaking Act, which established a statutory framework for the use of
a variety of ADR techniques for resolving or managing conflicts. Both statutes also included
major oversight and coordination roles for the Conference. ACUS subsequently assisted
agencies in creating and implementing their ADR policies and provided support for interagency
working groups to help ensure uniform compliance with the statute throughout government. The
president of the American Arbitration Association cited the importance of ACUS in our national
effort to encourage the use of alternative dispute resolution by federal government agencies,
“thereby saving millions of dollars that would otherwise be frittered away in litigation costs.” 15
Congress also gave ACUS statutory responsibilities for studying aspects of the Equal Access to
Justice Act, the Congressional Accountability Act, the Magnuson-Moss Warranty-Federal Trade
Commission Improvement Act, the Government in the Sunshine Act of 1976, and the Railroad
Revitalization and Regulatory Reform Act of 1976, just to name a few.
The Conference provided low-cost training programs for independent agency commissioners and
agency general counsels. It also produced useful publications such as sourcebooks, guides, and
hundreds of specific subject-matter studies.
What Has Changed in the Last 15 Years?
Obviously, the work of federal agencies assigned to them by Congress changes dramatically over
time. Thus, as President Kennedy advised Congress in April 1961, “The process of modernizing
and reforming administrative procedures is not an easy one. It requires both research and
understanding. Moreover, it must be a continuing process, critical of its own achievements and
striving always for improvement.”16
Since October 31, 1995, when ACUS shut its doors, there have been many changes in the
administrative law landscape. New issues and concerns have emerged, and old ones remain but
may have been neglected. Without committing the Conference to firm directions before the
Council has been installed, I see the following developments deserving of attention from a
reconstituted ACUS:
15 Letter from Robert Coulson, President, American Arbitration Association, to Rep. Steny Hoyer (Sept. 3, 1993)
(on file with ACUS).
16 See Administrative Conference of the United States: Hearings Before the Subcomm. on Administrative Practice
and Procedure of the Senate Comm. on the Judiciary, 88th Cong., 1st Sess. 12 (1963) (quoted in statement of Judge
Prettyman).
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1. Assistance to Newly Reorganized Agencies. During the time the Conference was out of
operation, several new agencies were created that might request ACUS’s advice and
counsel on organization and procedural effectiveness. The Department of Homeland
Security (DHS) is one such agency, formed from 22 existing agencies, that has within it
agencies such as FEMA, ICE, and USCIS, which might benefit from our guidance and
support. With the creation of the Council of the Inspectors General on Integrity and
Efficiency (CIGIE) in the Inspector General Reform Act of 2008, we also now have a
new entity devoted to development of policies, standards, and approaches by Inspectors
General, and it may be useful for ACUS to consult with CIGIE in identifying best
practices for agencies in this field of growing importance.
2. E-Rulemaking. The Information Age clearly is having a great impact on the ability to
“promote more effective public participation and efficiency in the rulemaking process” (5
U.S.C. §591). The use of Internet platforms in rulemaking has transformed the
rulemaking process. The changes ushered in by the E-Government Act of 2002,
including the federal government’s central portal for public participation in rulemaking,
www.regulations.gov, have great potential for democratizing the rulemaking process, but
they also carried risks and special legal problems that did not exist when rulemaking
dockets were paper files in agency basements. A recent ABA report specifically
recognized that ACUS could play a pivotal role in this regard.17 The White House’s open
government initiative, which emphasized transparency and participation, should also be a
central player in our rulemaking efforts.
3. Increased Reliance on Contracting Out. The number of federal contractor employees
reportedly now far exceeds the number of federal employees. One question is whether
legal limitations on this sort of outsourcing are being respected sufficiently. Another is
the extent to which existing government-wide laws (ethics, FOIA, privacy, etc.) do and
should apply to such activities. The Office of Federal Procurement Policy is preparing
government-wide rules concerning agency use of contractors that could benefit from
ACUS study.
4. Federal Preemption of State Regulation. In recent years there have been increasing
controversy and litigation over whether and when state regulation or state tort law is
preempted by federal law or regulation. A study of the procedures, practices, and
policies of executive departments and agencies in making determinations regarding
preemption of state law would be helpful. This would include consideration of (a) the
legal and policy considerations in making such determinations and (b) the process for
making such determinations, including the process of consulting with state and local
officials in making them.
17 See COMMITTEE ON THE STATUS AND FUTURE OF FEDERAL E-RULEMAKING, ACHIEVING THE POTENTIAL: THE
FUTURE OF FEDERAL E-RULEMAKING 59 (2008), http://resource.org/change.gov/ceri-report-web-version.fixed.pdf.
(“Historically, the Administrative Conference of the United States (ACUS) provided agencies with data, assessment
and recommendations about their processes that were difficult for them otherwise to obtain. Current progress
towards reviving ACUS represents an opportunity for e-rulemaking to benefit from this same type of expert
evaluation and advice.”)
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5. Cooperative Federalism. On the other hand, many health, safety, and environmental
regulatory programs rely on optional state implementation. How has that been working?
What are the implications when states “opt out”? These seem to be ACUS-type research
questions worthy of study.
6. FOIA and Other Developments in Government Transparency. The Office of Government
Information Services (OGIS), created by the 2007 FOIA amendments as the “FOIA
Ombudsman,” began operations in 2009. OGIS will be mediating and resolving agencyrequester
disputes to avoid litigation. Meanwhile the Justice Department’s Office of
Information Policy continues to coordinate overall FOIA policy within the Executive
Branch. We could study how OGIS has worked and its mission jibes with GSA’s
coordination of Federal Advisory Committee Act implementation and with the current
lack of coordination of Government-in-the-Sunshine Act implementation.
7. Sunshine Act Review. ACUS had a commitment to the Sunshine Act that can now be
revived. For many years, both members of and practitioners before multi-member boards
and commissions have pointed to problems posed by the limits on the exchange of policy
views among members of these boards and commissions other than at open meetings. A
special committee established by ACUS concluded in 1995 that the result had been less
rather than more open decisionmaking. Decisions were often announced at open
meetings that had already been made in advance. Agencies had also begun to rely more
on “notation” or “circulation” voting, which avoided meetings completely. The
committee proposed a pilot program permitting some flexibility to deliberate in private,
subject to disclosure of the substance of the deliberations, and open meetings to record
votes. The closure of ACUS prevented the Conference from concluding this proposal,
which may now warrant revisiting if the same problems have continued since 1995.
8. Collaborative Regulation. Federal regulators have increased their use of collaborative
programs by which industry groups or other private organizations undertake selfregulation,
receive dispensation for self-reporting of violations, and “certify” best
industry practices (e.g., in environmentally sustainable building or operations). Some of
these programs have proven to be controversial (e.g., post-Enron and post-Gulf of
Mexico oil spill). It would be timely for ACUS to evaluate these programs to see how
they have performed and how they could be improved.
9. Dispersal of ACUS’s role in Government ADR Programs. When ACUS ended its
operations, some of its ADR activities were reassigned by Executive Order and seemed to
have received less attention. One apparent by-product is a significant decrease in the use
of negotiated rulemaking. With ACUS poised to reassert its leadership role in this area, it
is time to reassess opportunities to “reduce unnecessary litigation in the regulatory
process” as the 2004 amendment to our Act suggests.18
10. Increased Complexity of Rulemaking. The streamlined APA model of notice-andcomment
rulemaking has become much more complex and time-consuming. In response,
18 5 U.S.C. §591, quoted at p.3 supra.
12
agencies have appeared to have increased their reliance on other less open and
transparent ways of making policies—through use of letters, interpretations and other
“guidance” documents; consent decrees; and contractual provisions to effect regulatory
change. What if anything can and should be done about this? In addition, what effect
has “hard look” review of the courts had on the so-called “ossification” of the rulemaking
process?
11. Reviewing Decisionmaking by Executive Office for Immigration Review (EOIR). In
recent years, immigration decisionmaking by immigration judges and the Bureau of
Immigration Appeals has been confronted with an increasingly high case load.
Analyzing reversal rates and studying the causes of delay have long been analyzed by
ACUS in the Social Security disability and Veterans Administration disability contexts.
There may well be comparable opportunities to apply these lessons to the immigration
context.
12. Information Quality, Peer Review, and Risk Assessment. A significant trend in
regulation has been the increasing use of peer review of scientific and economic analyses,
risk assessment, and legislation and OMB guidelines requiring resolution of disputes
concerning the integrity and accuracy of regulatory information disseminated by federal
agencies under the Data Quality Act. Agencies have devoted increased resources to these
activities, and there are questions about how well they are being carried out, the role of
public participation in doing so, how strict these requirements should be, and who should
be enforcing them.
13. Midnight Regulations. The last few times an incumbent Administration left office
knowing that the other party would soon be taking charge, a flurry of activities and legal
issues have arisen concerning the departing Administration’s so-called “midnight rules.”
What can and should a departing Administration be able to do to insulate its late-term
rules from reversal by an incoming Administration, and what can and should the
incoming Administration be able to do? Given the unpredictability of future elections,
there should be principles on which both parties should be able to agree before the
situation arises again.
14. Congressional Review Act. Enacted since ACUS’s closure, the Congressional Review
Act provides a process by which Congress may review and possibly disapprove agency
regulations. Since 1996, although agencies have transmitted tens of thousands of rules,
Congress has invoked this procedure sparingly and has in fact disapproved of only one
rule. ACUS could lead a review of this Act and determine how its effectiveness can be
improved.
15. Agency Authority to Issue Waivers. The Katrina and Rita hurricane disasters focused
attention on agency authorities and procedures for issuing waivers from existing statutes
and regulations. What process is required for waivers? How should third-party
beneficiaries of existing laws and regulations be heard in such proceedings? Are granting
and denying waivers and exceptions rulemaking or adjudication, and what should follow
from the appropriate characterization?
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These developments provide fertile areas for Conference study. The Council will also have ideas
for research projects. In addition, we have the benefit of receiving many suggestions in the
several hearings this Subcommittee has held during the authorizations process, including from
researchers at the CRS. Other suggestions were examined and distilled by the ABA Section of
Administrative Law and Regulatory Practice into a letter sent to OMB last August, shortly before
I was nominated.19
The ABA letter also makes several intriguing suggestions that we will consider seriously: First,
that ACUS could serve as a “Best Practice Forum” for agencies’ administrative procedures—a
sort of “innovation clearinghouse”—and second, that ACUS could attempt a comprehensive
review of recommendations made in the last 15 years by other organizations within and outside
of government (e.g., the Government Accountability Office, the National Academy of Public
Administration, and the ABA) to improve the efficiency and effectiveness of federal operations.
Of course, we will be very attentive to suggestions from the Congress and the President as well.
This stockpile of topics after 15 years is only suggestive and will have to be prioritized carefully.
There are of course a myriad of other start-up tasks, including hiring a professional staff, filling
out the government and private membership, re-establishing and updating the bylaws, and
evaluating which of the nearly 200 ACUS recommendations from 1968-95 still need to be
implemented.
Current Status of Start-up Activities
Currently, I am the only employee of ACUS, but I have been assisted by some effective
consultants and a former ACUS senior staff attorney who has been detailed from GSA. I have
undertaken the following activities to get ACUS started again:
• OMB has re-established an account for ACUS from which appropriations can be drawn
and we have established the budget mechanisms and authorities necessary for
commencing operations.
• Prospective members of the Council have been approved and are in final stages of being
announced for appointment by the President.
• Steps have been taken to reclaim old ACUS archives and to hire staff with the help of
OPM and GSA’s Agency Liaison Division. Until we can occupy our designated office
space, we have been using office space made available by the Federal Trade Commission
under an interagency agreement.
• I have started the process of filling out the membership by determining the independent
regulatory agencies that are statutorily entitled to membership, consulted with the White
House on the departments and agencies that require presidential designations, identified
departmental sub-agencies that might deserve their own members, and begun the process
19 See letter from Section Chair William V. Luneburg on behalf of the ABA Section of Administrative Law and
Regulatory Practice, dated August 18, 2009.
14
of identifying a diverse group of non-government members and liaison representatives
whose appointment will be subject to approval by the Council.
• I have met with GSA to discuss the requirements of the Federal Advisory Committee Act
(FACA) as they apply to ACUS. We are working together to finalize a charter, which
under FACA must be filed before any meetings of a federal advisory committee may take
place. A copy of that charter will be filed with the standing committees of the Senate and
House of Representatives with jurisdiction over ACUS.
• I met with DOJ’s Office of Legal Counsel to request review of a prior OLC opinion
concerning the application of the Emoluments Clause of the Constitution to the ACUS
Council and membership.
• I met with the U.S. Office of Government Ethics to review, update and simplify our prior
procedures for monitoring potential conflicts of interest, particularly among
nongovernmental members of the Conference.
• I have been reviewing and considering updates to ACUS’s bylaws to conform to changes
in law and reestablish our committee structure.
• I am working to reconnect with federal agencies, the bar, public interest groups, and the
academic community to discuss membership issues and solicit their input on issues that
make the most sense to address first. In order to gain momentum, I have met with several
academic researchers to undertake specific studies in the areas mentioned earlier.
• I am engaged in planning for a website that will be easily accessible to the public and the
agencies alike in helping us provide a useful forum for best practices.
As soon as possible, I hope we will be able to hold a Council meeting, get the broader
Conference membership named, and then convene an opening plenary session. I will work as
hard as I can to make this Subcommittee proud that it has been the driving force to re-establish
ACUS.
I would be pleased to answer any questions you may have.
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