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ACUS members press staff for surgical edits across draft recommendations—'consider' versus 'should', evidence and comment responses
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Summary
During detailed review, committee members questioned repeated uses of the word “consider,” raised concerns about singling out specific textual tools (dictionaries), and asked staff to clarify how agencies should treat evidence, predictive judgments, and which public comments warrant a substantive response.
The committee moved from high-level framing into line-by-line discussion of draft recommendations. Several recurring editorial disputes emerged.
'Consider' vs. stronger verbs: Multiple members objected to frequent uses of the softer verb “consider,” arguing it weakens the recommendation. Dan Deacon and others explained that 'consider' was often meant to capture context sensitivity (some recommendations may not apply in straightforward cases). Alan Morrison and others pressed staff to remove some instances of “consider” where the committee's intention is to recommend a practice (e.g., explaining statutory interpretation in the preamble).
Textual tools and dictionaries: Dan Walters warned against singling out dictionaries as a recommended tool for textual analysis, calling the example "problematic" and suggesting the draft keep the guidance more capacious about interpretive tools.
Evidence and record-building: On shifts in position and predictive judgments, members suggested clearer guidance about when agencies should document evidence and when it is appropriate to rely on predictive judgments formed on incomplete evidence. The committee discussed phrasing such as “when an agency relies on predictive judgments formed on the basis of incomplete evidence, it should be forthright” and whether to recommend including material made available for comment in the rulemaking record.
Comments-response scope: Members sought a practicable standard for which public comments “warrant” a formal response, not necessarily a response to every submission. Several suggested a focus on material comments likely to change the agency's approach (e.g., newly presented data or legal arguments that could alter the outcome), and recommended examples and a non-exhaustive list so agencies can triage response obligations.
Outcome: Staff will craft redlines that (1) refine where “consider” remains appropriate and where stronger wording is required; (2) remove or soften potentially divisive examples (like dictionaries) and instead recommend a broader set of interpretive tools; (3) propose phrasing that clarifies when agencies should document information in the rulemaking record and be transparent about predictive judgments; and (4) add illustrative, non-exhaustive examples of comments that warrant a response.
