In Case You (Like Everyone) Missed It – The Administrative Conference of the United States is Back

By Joseph W. Cormier –

Last week, the Administrative Conference of the United States ("ACUS") made four recommendations to the Executive Branch and independent agencies, three of which may be of interest to readers of this blog.

Among its first recommendations this year, the ACUS discusses transparency with respect to scientific decision-making, best practices with respect to administrative records and informal rulemaking, and best practices for the use of benefit-cost analysis in rulemaking by independent agencies (including, for example, the FTC). 

Before we get to the substance of the recommendations, if the first thought in your mind when reading this post was “The Administrative Conference of what??”, you would be forgiven.  The ACUS, an oft-forgotten corner of the government, is an independent federal agency tasked with providing nonpartisan advice and recommendations for the improvement of federal agency procedures.  Although formally established by statute in 1964, the ACUS was defunded in 1995, only to be resurrected nine years later in 2004.  ACUS 2.0 made its first recommendation in 2010 (wading into the turbid waters of state law preemption), and has issued eight recommendations in each of 2011 and 2012.  Three of the first four for 2013 are discussed below.

Transparency and Scientific Decisions

From the beginning of the Obama administration (see here), the Executive Branch has placed a focus on “transparency in the preparation, identification, and use of scientific and technological information in policymaking.”  Ostensibly, such means will serve the purpose of providing “a bulwark against misuse of science for political ends.”  78 Fed. Reg. 41,357. 

The ACUS recommends that federal agencies:

1. explain in documents accompanying proposed and final decisions how a rigorous review of the scientific information underlying decisions is ensured;
2. describe their scientific review in a manner that is clear to the public;
3. to the extent permitted by law, disclose the underlying data used in the decision-making process;
4. explain decisions to initiate, stop, or reopen consideration of research or scientific debate;
5. identify research opportunities to reduce or eliminate uncertainty in future decisions;
6. give appropriate attribution to agency personnel involved in research and policy decisions;
7. encourage the publication of agency data in peer-reviewed journals and protect dissenting opinions from reprisal;
8. share best practices with other agencies;
9. attempt to eliminate obstacles to public access to agency decisions the their underlying scientific data;
10. review policies regarding disclosure of information to avoid over inclusion of information as confidential business information; and
11. require conflict-of-interest disclosures for all submitted data and information.

Administrative Records for Informal Rulemaking

With respect to its recommendations regarding the extent of records agencies should keep and maintain when engaging in informal rulemaking, the ACUS first defines a few phrases.  These provide that a document is not “considered” until an individual with substantive responsibilities reviews a document in order to evaluate its possible significance for the rulemaking unless the document is considered not germane to the rule’s subject.  The “public rulemaking docket” should include any document that the agency considered and determined was a key document for the establishment of the policy.

The ACUS supposes that the agency administrative record will take one of three forms: the Rulemaking Record; the Public Rulemaking Docket, and the records prepared for judicial review.  The Rulemaking Record would include many of the types of information one would expect: copies of proposed and final rules, comments on proposed rules, transcripts of recordings, and any other materials required by statute.  The Public Rulemaking Docket will cover similar territory, though it should include all data and information considered for the rulemaking.  As one might expect, ACUS recommends that agencies make public the information pertaining to those types of issues detailed above, but takes care to allow agencies to avoid disclosure of privileged or other information where there is a legal basis for withholding the information.

The ACUS also recommends that agencies designate custodians of the various records and that agencies work with the National Archives and Records Administration ("NARA") to ensure that records are properly kept.  Agencies should also develop their own guidance document that implements the detailed recommendations in the ACUS notice. 

Here, although the ACUS recommendations are broad in application, they are expressly limited to informal rulemaking; the ACUS states that they do not apply to formal rulemaking, adjudications, or guidance documents. 

Benefit-Cost Analyses for Independent Agency Rulemaking

Finally, ACUS provides a number of recommendations regarding the use of benefit-cost analyses.  These recommendations apply only to independent agencies, as they are exempt from the various Executive Orders requiring such analysis of pure Executive Branch agencies. 

Although the CPSC is already required to conduct such analysis by statute (15 U.S.C. § 2068(f)), other independent agencies do not have such requirements.  Of note for our readers, the FTC is one such agency. 

For these entities, ACUS recommends that agencies, among other things:

1. develop written guidance regarding the preparation of benefit-cost analyses;
2. engage in such analysis early on in the decision-making process, and revisit the analysis over time;
3. consult with other agencies, as needed;
4. make their analyses as transparent and reproducible as possible; and
5. concisely summarize the agency’s overall estimates for cost and benefit in the preamble to the final rule.

Because ACUS recommendations are simply that – recommendations – it is difficult to know which, if any, agencies are likely to follow.  Although these recommendations are not binding, when submitting comments to FDA, DEA, FTC, CPSC, or other agencies, or when submitting briefs or other pleadings to courts or to the DOJ, entities may find the ACUS documents useful if specific agencies are not following the ACUS-identified best practices and recommendations. 

Stay tuned as we continue to monitor agency actions in response to the ACUS recommendations.