Four New Administrative Conference Recommendations

The Assembly of the Administrative Conference held its 55^th Plenary session on December 8-9, 2011, adopting four new recommendations:

• Recommendation 2011-5: Incorporation by Reference
• Recommendation 2011-6: International Regulatory Cooperation
• Recommendation 2011-7: Federal Advisory Committee Act - Issues and Proposed Reforms
• Recommendation 2011-8: Agency Innovations in e-Rulemaking

An archive video of the 55^th Plenary session proceedings is available on the ACUS homepage.

The recommendations and additional background materials are also available on the plenary session web page.

Rulemaking: D.C. Circuit Decision in ATA v. National Mediation Board

Here's a post from Jeffrey Lubbers, Professor of Practice in Administrative Law at American University's Washington College of Law:

Friends—The D.C. Circuit affirmed the district court’s upholding of the National Mediation Board’s election ballot counting rule today.  Judge Tatel wrote for himself and Judge Griffin.  Judge Henderson dissented.

The court ruled, using Chevron, that the statute was ambiguous and that the Board’s rule was permissible.  It also ruled that its change from a longstanding rule was not arbitrary and capricious, citing Fox TV Stations, and affirmed Judge Friedman’s denial of a discovery request by ATA seeking evidence of bias on the part of the Board majority, citing the ANA case.  It is a rare rulemaking bias case in that regard. 

http://www.cadc.uscourts.gov/internet/opinions.nsf

10-5253, Air Transp. Assoc. of America v. National Mediation Board

REINS Act Passes House

The REINS (Regulations from the Executive in Need of Scrutiny) Act, H.R. 10, passed the House on December 7.  The vote was 241-to-184; all Republicans present and four Democrats voted for the bill.  Politically, the bill is generally lumped together with the Regulatory Accountability Act, H.R. 3010, on which see here and here.  Thus, the Wall Street Journal likes it; the New York Times does not.  Substantively, however, it would do something quite different.  In a nutshell, it would take the existing Congressional Review Act's almost-entirely-ignored provisions for congressional disapproval of significant regulations and makes one fundamental change: Instead of permitting passage of a joint resolution of disapproval before a major regulation (i.e. one with an annual impact on the economy over $100 million) becomes effective, it would require passage of a joint resolution of approval before the regulation becomes effective. The bill would create a special fast-track mechanism for considering such a resolution within the required time period; delaying tactics such as filibusters and holds would not be permitted.

As with the Regulatory Accountability Act, the legislation's prospects in the Senate are much dimmer than in the House, and the White House has issued a Statement of Administration Policy threatening a veto.

The Section has not taken a position or submitted comments on the REINS Act.  Useful discussion in the blogosphere includes Jonathan Adler's generally supportive posts at the Volokh Conspiracy, former Section Chair Sally Katzen's testimony opposing the bill, and extensive coverage at RegBlog.

Law Community on Data.gov

A key piece of the current administration's efforts to make more government-held information available on-line, in usable form, is the data.gov website.  Readers of this blog might be particularly interested in the "Law Data Community" on that site.  This is a portal to material that is not "data" in the usual sense, but rather a wide range of agency legal materials other than regulations: adjudicatory decisions, case filings from DOJ, OLC and agency general counsel opinions, and various agency directives.

Although the available agency material is for now somewhat haphazard -- including some that will be of broad interest and some that almost no one will care about -- and incomplete, there's a lot of good stuff here which is not in every case easy to find otherwise.  Material is steadily accumulating, to the point where the site is now a useful resource, and likely to be come more so in the future.  It's worth a look.

Regulatory Accountability Act Passes House

Today the House of Representatives passed the Regulatory Accountability Act, H.R. 3010, by a vote of 253-167.  No Republicans voted against it; 19 Democrats voted for it.  The general expectation is that the bill will not advance in the Senate, and the White House has threatened a veto if it does, so the ultimate fate of the legislation will likely turn on the results of the 2012 elections.

Press coverage of the vote can be found here and here.  The Section's comments on the bill are here.

Regulatory Accountability Act to House Floor; White House Threatens Veto

The Regulatory Accountability Act, H.R. 3010, is scheduled to be considered on the floor of the House on Thursday, December 1, 2011.  The controversial bill would make sweeping changes to the APA, particularly with regard to its rulemaking provisions.  Today the White House released a Statement of Administration Policy stating that the President's senior advisors would recommend a veto were the bill to reach his desk.

The Section's extensive comments on the bill can be found here; an executive summary of those comments is contained in this post.

Robert A. Anthony (1931-2011)

The Section of Administrative Law and Regulatory Practice, and the larger administrative law community, lost a great friend when Robert Anthony passed away on November 17. Bob, who was GMU Foundation Professor emeritus at the George Mason University School of Law, was a leading administrative law scholar and former chair of the Administrative Conference of the United States.  He was especially well known for his work on "spurious rules," a term he coined. The law school's news release is here.

The Section Council has approved the following resolution in his memory:

RESOLUTION IN MEMORY OF ROBERT A. ANTHONY

WHEREAS our colleague and friend Robert A. Anthony, GMU Foundation Professor Emeritus at the George Mason University School of Law, passed away on November 17, 2011;

WHEREAS Professor Anthony was a long-time and active member of the Section of Administrative Law and Regulatory Practice -- serving with distinction as Secretary, a Member of the Council, and as Chair and Vice Chair of several Section Committees -- and an enduringly faithful supporter of Section activities;

WHEREAS Professor Anthony was among the nation's most distinguished and prolific Administrative Law scholars of his generation, especially as one of the foremost authorities on agency rulemaking and the use and misuse by agencies of policy statements and guidance documents;

WHEREAS Professor Anthony was a dedicated teacher, beloved by his students at the George Mason University and Cornell University Law Schools;

WHEREAS Professor Anthony served with distinction as Chairman of the Administrative Conference of the United States from 1974 to1979, during ACUS's formative years, then as Senior Fellow from 1982 to 1995, and again as Senior Fellow from 2010 until the time of his passing; and

WHEREAS Professor Anthony, in all his dealings with the Section and its members, was a generous and kind colleague, a willing contributor to all manner of activities, a ready mentor, and a devoted and loyal friend --

NOW, BE IT THEREFORE RESOLVED that the Section expresses its sorrow at Bob Anthony’s passing and honors his memory for his many contributions to the Section, the legal profession, legal education, and legal scholarship and, above all, for the friendship he shared with us all.

Unanimously adopted by the Council of the Section of Administrative Law and Regulatory Practice of the American Bar Association this 28th day of November, 2011.