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ACUS rulemaking committee urges clearer agency consultation procedures, tasks staff to develop criteria
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Summary
The Administrative Conference of the United States Committee on Rulemaking reviewed consultants’ report finding uneven consultation with state, local and tribal governments, agreed to wording changes and to develop concrete criteria for effective consultation, and scheduled follow‑up for April 21.
The Committee on Rulemaking of the Administrative Conference of the United States met virtually to consider a consultants’ report on federal consultation with state, local, territorial and tribal governments and agreed on a set of drafting and substantive next steps.
Consultant Dan Rodriguez summarized the study’s central finding: federal agencies’ consultation practices are uneven and often lack publicly available procedures that explain how and when agencies will consult. “This expectation of robust meaningful consultation among federal, state, and local decision makers is uneven at best and can be viewed candidly as insufficiently diligent and efficacious,” Rodriguez said during his presentation.
The committee discussed the report section by section and approved several editorial changes. Members accepted a wording change in Recommendation 1, replacing language about “coordinating” with “coordinating consultation” to clarify the recommendation’s focus on structured consultation processes. The group also agreed to move the procedures for determining whether an agency action has federalism implications to the forefront of the recommendations so that agencies first decide whether a consultation obligation exists before moving to other steps.
Committee members pressed consultants on two recurring issues. Member Jeff asked why the report did not give greater prominence to the Unfunded Mandates Reform Act (UMRA) and noted that the inflation‑adjusted UMRA threshold is higher than the $100 million figure mentioned in an earlier draft — “it would be about $209,000,000 now,” he said — and the consultants agreed to revisit the draft language to avoid implying a fixed monetary cutoff. Several members also asked whether the report should treat U.S. territories in the same way as states and tribal nations; consultants said another ACUS project is addressing territories but agreed to clarify the report’s scope.
On the question of which agencies should be covered, the committee discussed whether recommendations should apply to ‘‘all agencies’’ or be targeted to agencies ‘‘considering actions that implicate state, local, or tribal governments.’’ Members worried that a blanket requirement could create duplication inside large departments and asked staff to propose language that targets agencies whose actions have such implications.
The committee directed ACUS staff and the consultants to draft concrete criteria — including goals and exemplar principles — that agencies could adopt for evaluating when consultation is required and for assessing consultation quality. The consultants said the report already catalogs principles and best practices drawn from agency policies, interviews and public comments, and committee members asked staff to surface those criteria in the recommendations to make adoption easier for agencies.
No formal votes were recorded during the meeting; participants reached several consensus edits and assigned drafting tasks. The committee set a follow‑up session for April 21 to review revised language and the proposed criteria.
Background: the consultants’ report reviews executive‑branch guidance including Executive Order 13132 (federalism) and other authorities that call for agency attention to state, local and tribal interests. The report also assessed agency practices, targeted associations that represent state and local governments, and reviewed tribal consultation policies and public comments to develop recommendations aimed at improving the timing, transparency and effectiveness of intergovernmental consultation.
