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    Transforming E-Rulemaking To Promote Public Participation and Efficiency

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    Scott Rafferty
    This document summarizes a public forum held by the Administrative Conference of the United States (ACUS) and the Brookings Institution on transforming e-rulemaking to promote public participation and efficiency. The ACUS is a federal agency that studies administrative procedures and makes recommendations for improvement. The forum discussed ways that online rulemaking (e-rulemaking) could be improved to increase public input and the efficiency of the regulatory process.

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    Transforming E-Rulemaking To Promote Public Participation and Efficiency

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    This document summarizes a public forum held by the Administrative Conference of the United States (ACUS) and the Brookings Institution on transforming e-rulemaking to promote public participation and efficiency. The ACUS is a federal agency that studies administrative procedures and makes recommendations for improvement. The forum discussed ways that online rulemaking (e-rulemaking) could be improved to increase public input and the efficiency of the regulatory process.

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    This document summarizes a public forum held by the Administrative Conference of the United States (ACUS) and the Brookings Institution on transforming e-rulemaking to promote public participation and efficiency. The ACUS is a federal agency that studies administrative procedures and makes recommendations for improvement. The forum discussed ways that online rulemaking (e-rulemaking) could be improved to increase public input and the efficiency of the regulatory process.

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    29 views15 pages

    Transforming E-Rulemaking To Promote Public Participation and Efficiency

    Uploaded by

    Scott Rafferty
    This document summarizes a public forum held by the Administrative Conference of the United States (ACUS) and the Brookings Institution on transforming e-rulemaking to promote public participation and efficiency. The ACUS is a federal agency that studies administrative procedures and makes recommendations for improvement. The forum discussed ways that online rulemaking (e-rulemaking) could be improved to increase public input and the efficiency of the regulatory process.

    Copyright:

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    of 15

    Transforming E-rulemaking to Promote Public

    Participation and Efficiency


    A joint public forum of the Administrative Conference and the Brookings Institution

    Paul R. Verkuil
    Chairman, Administrative Conference of the United States
    November 30, 2010

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    1
    The Administrative Conference “is a public-private
    partnership designed to make government work
    better.”

    President Barack Obama


    July 8, 2010

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


    Live Tweet: #erulemaking

    acusgov

    brookingsinst

    americaspeaks

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    3
    Our Mandate
    Arrange for federal agencies, assisted by outside experts, cooperatively [to] study
    mutual problems, exchange information, and develop recommendations for action [so
    that] private rights may be fully protected and federal responsibilities may be carried
    out expeditiously in the public interest (1964).

    Added in 2004
    • Promote public participation and efficiency in rulemaking
    and with regard to rulemaking, adjudication, licensing, and investigation:
    • Reduce unnecessary litigation
    • Improve the use of science
    • Improve the effectiveness of applicable laws
    See 5 U.S.C. 591

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    4
    Our Council

    Preeta D. Bansal Ronald A. Cass Michael A. Fitzpatrick Mariano-Florentino Julius Genachowski


    (Vice Chair) (Member) (Member) Cuellar (Member)
    General Counsel, OMB Chair, Center for the Associate (Member) Chairman, FCC
    Rule of Law Administrator, OIRA Professor, Stanford
    Law
    Patricia McGowan Theodore B. Olson Thomas E. Perez Thomasina V. Rogers Jane C. Sherburne
    Wald (Member) (Member) (Member) (Member)
    (Member) Former Solicitor Assistant Attorney Chair, OSHRC General Counsel
    D.C. Circuit Judge General General, Civil Rights BNY Mellon
    (ret.) DOJ

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    5
    Our Conference
    The membership of the Conference, also known as the Assembly, includes the
    Chairman, the Council, members from approximately 50 federal executive departments
    and agencies and independent regulatory boards and commissions, and 40 members of
    the public representing diverse views and backgrounds.

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    6
    Public Members
    Fred W. Alvarez Walter Dellinger Jody Freeman James E. Johnson
    Partner, Wilson Sonsini Goodrich & Rosati Partner, O’Melveny & Myers LLP Archibald Cox Professor of Law Partner, Debevoise & Plimpton
    San Francisco, CA Washington, DC Harvard Law School New York, NY
    Assistant Secretary of Labor (1987-89) Acting Solicitor General (1996-97); Assistant White House Counselor for Energy and Climate Under Secretary of the Treasury for Enforcement
    EEOC Commissioner (1984-87) Attorney General, Office of Legal Counsel Change (2009-10) (1998-2001)
    (1993-96)

    Jodie Z. Bernstein Susan E. Dudley H. Russell Frisby, Jr. John M. Kamensky


    Of Counsel, Kelley Drye & Warren LLP Research Professor, Trachtenberg School of Partner, Stinson Morrison Hecker LLP Senior Fellow, IBM Center for the Business of
    Washington, DC Public Policy and Public Administration Washington, DC Government
    Director, FTC Bureau of Consumer Protection The George Washington University Former Chair, ABA Section of Administrative Former Deputy Director, National Partnership for
    (1995-2001) Administrator, OMB Office of Information and Law and Regulatory Practice Reinventing Government
    General Counsel, EPA (1977-79) and Regulatory Affairs (2007-09)
    Department of Health and Human Services
    (1979-80)

    Lisa Schultz Bressman Christopher Edley, Jr. Patti Goldman Peter D. Keisler
    Associate Dean for Academic Affairs and William H. Orrick Jr. Distinguished Chair and Vice President for Litigation, Earthjustice Partner, Sidley Austin
    Professor of Law Dean, UC Berkeley School of Law Washington, DC
    Vanderbilt University Law School Associate Director Acting Attorney General (2007); Assistant
    Office of Management and Budget (1993-95) Attorney General, Civil Division (2003-07)

    James Ming Chen Cynthia R. Farina Philip J. Harter Simon Lazarus


    Dean and Professor of Law, Louis D. Brandeis Professor, Cornell Law School Professor of Law Emeritus, University of Public Policy Counsel
    School of Law, University of Louisville Principal Researcher, e-Rulemaking Initiative Missouri National Senior Citizens Law Center
    Former Chair, ABA Section of Administrative Associate Director, White House Domestic
    Law and Regulatory Practice Policy Staff (1977-81)
    Senior Staff Attorney, Administrative
    Conference of the United States (1975-77)

     John F. Cooney David C. Frederick Michael E. Herz Ronald M. Levin


    Partner, Venable LLP, Washington, DC Partner, Kellogg, Huber, Hansen, Todd, Evans & Professor of Law Henry Hitchcock Professor of Law
    Assistant and Deputy General Counsel for Figel Benjamin N. Cardozo School of Law Washington University School of Law
    Litigation and Regulatory Affairs, OMB (1982- Washington, DC Chair Elect, ABA Section of Administrative Law Former Chair, ABA Section of Administrative
    87) Assistant to the Solicitor General (1996-2001) and Regulatory Practice Law and Regulatory Practice
     

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    7
    Public Members
    Carl Malamud Gillian E. Metzger Saikrishna B. Prakash Larry D. Thompson
    President and Founder, Public.Resource.Org Professor of Law, Columbia Law School Sullivan & Cromwell Professor of Law Senior Vice President and General Counsel,
    University of Virginia Law School Pepsico
    Deputy Attorney General (2001-03)

    Jerry L. Mashaw David W. Ogden Richard L. Revesz James J. Tozzi


    Sterling Professor of Law, Yale Law School Partner, Wilmer Cutler Pickering Hale and Dorr Dean and Lawrence King Professor of Law Member, Board of Directors
    Deputy Attorney General (2009-10); Assistant New York University School of Law Center for Regulatory Effectiveness
    Attorney General, Civil Division (1999-2001) Assistant Director, Office of Management and
    Budget (1977-80)
    Deputy Administrator, OMB Office of
    Information and Regulatory Affairs (1980-83)

    Randolph J. May John A. Payton Alasdair S. Roberts John Vittone


    President, Free State Foundation President and Director-Counsel, NAACP Legal Rappaport Professor of Law and Public Policy, Chief Administrative Law Judge
    Former Chair Defense and Educational Fund, Inc. Suffolk University Law School Department of Labor (Retired)
    ABA Section of Administrative Law and Former President, D.C. Bar Fellow, National Academy of Public Administrative Law Section Delegate, ABA Board
    Regulatory Practice Administration of Governors

    Doris Meissner Richard J. Pierce, Jr. Teresa Wynn Roseborough Helgi C. Walker
    Senior Fellow and Director, US Immigration Lyle T. Alverson Professor of Law, The George Deputy General Counsel Partner, Wiley Rein
    Policy Program, Migration Policy Institute Washington University Law School Metropolitan Life Insurance Company Washington, DC
    Commissioner, Immigration and Naturalization Deputy Assistant Attorney General, Office of Associate Counsel to the President (2001-03)
    Service (1993-2000) Legal Counsel (1994-96)

    Nina Mendelson Michael K. Powell Max Stier Allison M. Zieve


    Professor of Law Senior Advisor, Providence Equity Partners President and CEO, Partnership for Public Service Director, Public Citizen Litigation Group
    University of Michigan Law School Commissioner and Chairman, Federal Deputy General Counsel, Department of Housing
    Communications Commission (1997-2005) and Urban Development (1999-2001)
    Fellow, National Academy of Public
    Administration

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    8
    Senior Fellows
    William H. Allen Betty Jo Christian Sally Katzen Sallyanne Payton Edward L. Weidenfeld
    Retired Partner, Partner, Steptoe & Johnson LLP Consultant and Visiting Professor New William W. Cook Professor of Law Founder
    Covington & Burling LLP Senior Fellow (1989-95) York University School of Law University of Michigan Law School The Weidenfeld Law Firm, P.C.
    Senior Fellow (1982-95) Public Member (1988-93), Vice Senior Fellow (1988-95) Senior Fellow (1992-95)
    Chairman (1993), Acting Chairman
    (1993-94)

    Robert A. Anthony Neil R. Eisner Richard J. Leighton The Honorable Antonin G. Scalia Richard E. Wiley
    George Mason University Foundation Assistant General Counsel, United Partner, Keller and Heckman LLP Associate Justice, United States Partner, Wiley Rein LLP
    Professor Emeritus, George Mason States Department of Transportation Senior Fellow (1991-95) Supreme Court Senior Fellow (1984-95)
    University School of Law Government Member (1982-95) Chairman (1972-74), Public Member
    Chairman (1974-79), Senior Fellow (1978-82), Senior Fellow (1982-95)
    (1982-95)

    Warren Belmar Brian C. Griffin Malcolm S. Mason The Honorable Loren A. Smith
    Chairman of the Board, Clean Chairman of the Board, Clean Energy Senior Fellow (1984-95) Senior Judge, United States Court of
    Economy Network Education Fund Systems Inc. Federal Claims
    Public Member (1986-95), Senior Chairman (1992-93), Senior Fellow Chairman (1981-85), Senior Fellow
    Fellow (1995) (1993-95) (1985-95)

    Marshall J. Breger Paul D. Kamenar Alan B. Morrison Peter L. Strauss  


    Professor of Law, Catholic University Senior Fellow (1990-95) Lerner Family Associate Dean for Betts Professor of Law, Columbia Law
    Columbus School of Law Public Interest & Public Service Law School    
    Chairman (1985-91), Senior Fellow The George Washington University Senior Fellow (1991-95)  
    (1991-95) Law School
    Senior Fellow (1989-95)

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    9
    Council of Independent Regulatory
    Agencies
    • Commodity Futures Trading Commission • Federal Trade Commission
    • Consumer Product Safety Commission • National Labor Relations Board
    • Federal Communications Commission • Nuclear Regulatory Commission
    • Federal Election Commission • Occupational Safety & Health
    • Federal Energy Regulatory Commission Review Commission
    • Federal Maritime Commission • Postal Regulatory Commission
    • Federal Mine and Safety & Health Review • Securities and Exchange Commission
    Commission • Surface Transportation Board
    • Federal Reserve Board • U.S. International Trade Commission

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    10
    Staff

    Reeve T. Bull Tenille Davis Gabrielle Guy Kathy Kyle Jeffrey Lubbers
    Attorney Advisor Administrative Assistant Paralegal Communications Director Special Counsel

    Paul R. Verkuil Michael T. McCarthy Shawne C. McGibbon Funmi E. Olorunnipa Sherland Peterson David M. Pritzker
    Executive Director General Counsel Attorney Advisor EA to the Chairman Deputy General Counsel
    Chairman
    Scott J. Rafferty William R. Richardson Emily F. Schleicher Harry M. Seidman Jonathan R. Siegel

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


    Senior Counsel Senior Counsel Attorney Advisor Administrative Director Director of Research &
    Policy

    11
    Pending Projects
    In progress -
    • Federal Agency Preemption of State Law
    • Ethics for Government Contractor Employees
    Approved -
    • e-Rulemaking
    • FACA in the 21st Century
    • Government in the Sunshine Act
    • Immigration Adjudication
    • Methods of Collaborative Governance
    • Rulemaking Comments
    • Science in the Administrative Process
    • Midnight Regulations

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    12
    Next Steps
    53rd Plenary of the
    Administrative Conference of the United States
    December 9-10, 2010

    Direct inquiries to ACUS Plenary Designated Federal Official,


    Scott Rafferty, at srafferty@acus.gov.

    For media inquiries, contact Kathy Kyle at


    202.480.2091 or kkyle@acus.gov.

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    13
    E-Rulemaking and the Courts
    • Ossification issues

    • What will record on review look like (74-4 redux)

    • Consequences of on line collaboration for rulemaking review—will there be a duty


    to participate (logical outgrowth test, etc.)

    • How are the values of transparency, collaboration, efficiency and public


    participation to be measured

    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    14
    Connect with us…
    Join our Mailing List at info@acus.gov ONLINE

    www.acus.gov

    info@acus.gov

    www.facebook.com/ACUSgov

    www.twitter.com/ACUSgov

    www.youtube.com/ACUSgov

    www.dipity.com/ACUSgov

    www.flickr.com/ACUSgov

    www.livestream.com/administrativeconferenceoftheus

    www.Linkedin.com/administrative-conference-of-the-united-states
    ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

    15

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