Five New Recommendations! (ACUS Update)

by Emily Bremer — Tuesday, Jan. 2, 2018@emilysbremer

Start 2018 off right by reading the five new recommendations adopted by the Administrative Conference at its 68th Plenary session!  Although this was my first plenary session as an ACUS Public Member, it was my eleventh (!!) plenary session overall.  (I attended the other ten when I was on the ACUS staff.)  It was a genuine pleasure to participate in this new capacity in such a lively, engaging, and productive discussion.

From the Federal Register notice, the new recommendations include:

Recommendation 2017-3Plain Language in Regulatory Drafting. This recommendation identifies tools and techniques agencies have used successfully to write regulatory documents (including rulemaking preambles and guidance documents) using plain language, proposes best practices for agencies in structuring their internal drafting processes, and suggests ways agencies can best use trainings and other informational resources.

Recommendation 2017-4Marketable Permits. This recommendation provides best practices for structuring, administering, and overseeing marketable permitting programs for any agency that has decided to implement such a program.

Recommendation 2017-5Agency Guidance Through Policy Statements. This recommendation, formerly titled Agency Guidance, provides best practices to agencies on the formulation and use of policy statements. It lists steps that agencies can take to remain flexible in their use of policy statements and to encourage, when appropriate, public participation in the adoption or modification of policy statements.

Recommendation 2017-6Learning from Regulatory Experience. This recommendation, formerly titled Regulatory Experimentation, offers advice to agencies on learning from different regulatory approaches. It encourages agencies to collect data, conduct analysis at all stages of the rulemaking lifecycle (from pre-rule analysis to retrospective review), and solicit public input at appropriate points in the process.

Recommendation 2017-7Regulatory Waivers and Exemptions. This recommendation provides best practices to agencies in structuring their waiver and exemption procedures for regulatory requirements. It encourages transparency and public input by asking agencies to consider establishing standards and procedures for approval of waivers and exemptions and to seek public comments in developing standards and procedures and in approving individual waivers and exemptions.

The recommendations are printed in full in the Federal Register.  Supporting materials, such as the underlying research reports, draft recommendations, and member and public comments, are available on ACUS’s website, at the links provided above.

For those of you who will be attending the upcoming AALS Annual Meeting in San Diego, I hope you’ll attend the ABA AdLaw Section’s annual New Voices in Administrative Law program.  It’s scheduled for Thursday, January 4 from 3:30 pm to 4:45 pm.  New scholars (including me!) will be giving short presentations of works-in-progress, with comments provided by more established scholars.  As an added bonus, Matt Wiener and Reeve Bull, ACUS’s Executive Director and Research Director, respectively, will be giving some remarks about the stellar opportunities that ACUS provides for junior scholars.  Be sure to stop by!

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.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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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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