Fall 2017 Projects (ACUS Update)

by Emily Bremer — Monday, Sept. 11, 2017@emilysbremer

The Administrative Conference of the United States will soon begin fall committee meetings on a slate of projects targeted for completion at the 68th annual plenary session, to be held in December.  These projects include: (1) Plain Language in Regulatory Drafting; (2) Agency Guidance; (3) Regulatory Waivers and Exemptions; and (4) Regulatory Experimentation.  A description (taken from the ACUS website) and summary of all information currently available about each of these projects is provided below.

If you would like to attend a committee meeting in person, you can do so by RSVPing through the agency’s website, at the link provided below for the relevant meeting.  If you cannot attend in person, you can watch the meeting, in real time or after-the-fact, on the Administrative Conference’s Livestream Channel.  Written comments are also welcome and can be submitted online through the appropriate project page, each of which is linked below, or via email to the listed Staff Counsel.

Plain Language in Regulatory Drafting:  This project examines the use of plain language in drafting and implementing regulations. Agencies operate under statutory obligations and executive directives to use plain language in various regulatory documents. Plain language can promote regulatory objectives such as efficient compliance, transparency, public trust, meaningful public comment, and survival under judicial review. This project explores agencies’ current plain language practices and obstacles to plain regulatory drafting. It generates proposals to enhance plain writing in the drafting and implementation of rules.

Agency GuidanceThis project seeks to better understand how agencies formulate and use guidance documents and how those documents affect agency personnel and outside stakeholders.  The project considers a range of agency programs and offers recommended best practices.

Regulatory Waivers and ExemptionsFederal agencies sometimes grant to regulated parties temporary or permanent “waivers” or “exemptions” (also sometimes referred to as “exceptions”) from regulatory requirements.  Legally and theoretically distinct from prosecutorial discretion, waivers and exemptions may be a useful tool for agencies and offer benefits to regulated parties.  At the same time, they may also come at the cost of fairness, predictability, and accountability.   This project draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and makes concrete procedural recommendations for implementing agency best practices.

Regulatory Experimentation: Agencies often confront high levels of uncertainty about the effects of various regulatory alternatives, which cannot be fully resolved prior to implementation. Experimental methods of regulation, such as rules that sunset after a defined period, may help agencies to gather data on the consequences of regulation before settling on a long-term strategy. This project therefore explores experimental best practices, current experimental efforts, and legal and practical obstacles to regulatory experiments. It generates proposals to expand the use of experimental methods in the regulatory process.


This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.

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About Emily Bremer

Emily S. Bremer is an Assistant Professor at the University of Wyoming College of Law. Before joining the faculty, Professor Bremer served as the Research Chief of the Administrative Conference of the United States, worked as an associate in the telecommunications and appellate practice of Wiley Rein LLP, and clerked for Judge Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. Her research focuses on the intersection of public and private governance, with a particular focus on the use of privately developed technical standards in government regulation.

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