ACUS rulemaking committee keeps key congressional recommendation, narrows council edits to consultation draft

The Administrative Conference of the United States’ Committee on Rulemaking reviewed council-proposed revisions to its draft recommendation on consultation with state, local, and tribal governments and on Feb. 27 voted to retain several committee-origin recommendations aimed at Congress while adopting many of the council’s stylistic and structural edits.

The committee’s chair, Bertrall Ross, opened the virtual meeting by outlining voting rules and the session’s focus on whether to accept the council’s proposed changes rather than reopen prior deliberations. Ronald Katz, a council member, told committee members the council’s edits were intended primarily to "compress" and clarify the preamble and to reduce detailed reliance on executive orders — which the council regarded as changeable over time — while urging sensitivity to agencies’ and governments’ resource constraints.

Seth Davis, a project consultant from UC Berkeley School of Law, pressed the committee to ensure that several proposed edits reflect the council’s stated objective: to consider costs as they relate to consultation methods, not to question whether consultation should occur. Committee members then reviewed the draft line by line. The group accepted numerous stylistic changes and streamlining edits, including rewordings that shifted emphasis away from citations to particular executive orders and that tightened the preamble.

Debate centered on three substantive clusters: whether certain recommendations should be directed to Congress or to the President/executive offices; the future of a paragraph addressing Freedom of Information Act (FOIA) implications for tribal information; and how the draft should treat tribal perspectives and resource constraints.

On the question of audience for some congressional-facing recommendations, committee members disagreed about the appropriate addressee. A staff hand-tally recorded an initial procedural count (5 for Congress, 2 opposed) on whether to keep language directed to Congress rather than the President; subsequent hand votes produced a recorded result summarized by staff as "7–4–2," and the committee voted to keep the recommendation addressed to Congress.

The committee also debated a council proposal to delete a FOIA-related paragraph. A committee member identified as Bill objected to deletion on the grounds that the technical point was useful to raise; members negotiated a softened formula. The committee ultimately retained the paragraph in amended form, adding language that frames the matter as one for Congress to consider in future FOIA amendments and calling out protection for certain sensitive tribal information.

Members urged precision on wording that describes consultation versus informal outreach. Some members argued that the draft should preserve the idea that consultation can be a distinct, legally relevant category of interaction (not merely a more effective type of information-gathering). The committee agreed to preserve language that distinguishes consultation from informal engagement while also accepting some of the council’s streamlining suggestions.

On tribal considerations, the committee replaced an earlier reference to "indigenous knowledge" with calibrated language directing agencies to "consider tribal laws, traditions, and practices" and to incorporate them in decisionmaking only when appropriate and permitted by law. Consultants said that formulation remains consistent with the underlying report’s findings and preserves agency discretion while acknowledging tribal contributions.

The committee also resolved placement and scope questions about resource- and timing-related language. Members agreed to move text about consistency with available resources and the need for agencies to act expeditiously from the "whether" decisions into the procedures section (the "how"), framing resource matters as a procedural consideration rather than a threshold test for whether to consult.

The committee closed by noting that the council will decide how to proceed with any amendments the committee did not accept and that unresolved items will be discussed at the plenary in early January. The chair thanked the consultants and participants for their work.

Votes at a glance

- Recommendation addressing Congress (recommendation 14): committee voted to keep the paragraph addressed to Congress; staff recorded a hand-tally summarized as "7–4–2" after discussion. (Hand-raise counts recorded by staff.) - FOIA-related language (recommendation 15): committee voted to keep the paragraph after adopting revised, more circumscribed language suggesting Congress consider protections for certain sensitive tribal information in future FOIA amendments. - Numerous stylistic and streamlining edits across the preamble and body: accepted by unanimous or no-objection voice/hand raises as the committee proceeded through line-by-line review.

What’s next

The committee referred remaining contested edits to the plenary for feedback and invited the council to respond on a timetable that will culminate in the plenary session in early January. The council and consultants will coordinate any further refinements before the recommendation is finalized.

Quotes

"By and large, what the council was doing with this recommendation was saying, that we thought it could be compressed some to make it a little bit clearer," Ronald Katz, council member, said when introducing the council’s edits. "The council thought that to the extent we could truncate some of the discussion of the executive orders and focus the recommendation more on the thrust of the orders...would be beneficial."

"The council's focus was on costs related to the method of consultation, not whether consultation should occur," Seth Davis, project consultant, said in the discussion asking the committee to ensure edits reflected that distinction.

"I object to its deletion," a committee member identified as Bill said in opposing the council’s proposed removal of the FOIA paragraph, arguing the technical point was appropriate to raise to Congress.

Reporting note: Counts above reflect hand-raise tallies and on-the-record voice counts recorded during the meeting; the committee did many line-by-line acceptances by unanimous/no-objection voice or hand-raise and reserved unresolved items for the plenary.