ACUS Committee Fixer of Regulatory Problems

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By Cheryl Bolen

Feb. 10 — More than a decade ago, H. Russell Frisby could see that problems with administrative processes needed to be fixed, so he gathered up some colleagues and persuaded Congress to resuscitate the Administrative Conference of the U.S.

The ACUS was first established in 1968 as the premier forum for fixing administrative processes, but was disbanded in 1995 over a lack of funding. So when problems started to fester, Frisby, who was then chairman of the American Bar Association’s Section of Administrative Law and Regulatory Practice, took action.

“A group of us got together and decided, if, as Washington lawyers, we couldn’t get this done, it couldn’t be done,” Frisby told Bloomberg BNA.

Frisby, a partner in the Washington law firm Stinson Morrison Hecker LLP, is now nearing the end of his six-year term as chairman of the ACUS's Committee on Regulation, with a long list of accomplishments under his belt.

ACUS Members

Overall, the ACUS has 40 private-sector members, 50 government members, 10 council members and one chairman. Private-sector and government members are not paid for their service.

The council appoints individuals from the private sector to serve as public members, aiming for a mix of scholars, law firm partners and people in the non-governmental office community, said Reeve Bull, staff counsel at the ACUS.

Looking at the roster of committee members, which is posted on the ACUS website https://www.acus.gov/committees/regulation, there are many well-known experts in the field, such as Donald Elliot, Susan Dudley and Lisa Heinzerling, Bull said.

The public members all have six-year terms, Bull said. “And indeed, several of our public members will reach the end of their six-terms imminently, given that we opened our doors in 2010,” he said.

Early Interest in Policy

Frisby said he has been interested in public policy and regulatory issues throughout his career, starting out as a young lawyer at the Federal Communications Commission and as chairman of the Maryland Public Service Commission.

“If you think about it, administrative law touches everyone in this country every day, in some form or another,” Frisby said. “And the purpose of ACUS was to make recommendations toward the improvement of the administrative process.”

Bull said the ACUS reopened its doors in 2010 and established six committees, of which the Committee on Regulation is the largest and most active. It also has the broadest jurisdiction: studying how the government regulates private economic activity, including ways to reduce costs and increase effectiveness of agency programs.

Focus on Rulemaking

A lot of what the committee does is focus on issues of agency rulemaking and presidential review of agency rulemaking through the Office of Information and Regulatory Affairs (OIRA), Bull said.

For example, the committee has looked at retrospective review of agency regulation, or how agencies go about reassessing the regulations they have on the books and identify those that have become outmoded and are need to be changed or eliminated, Bull said.

The committee also has looked at the related issue of international regulatory cooperation, or how agencies go about working with their overseas counterparts to try to eliminate unnecessary regulatory disparities, Bull said.

“So, it’s a pretty diverse set of recommendations that the committee has issued,” Bull said. “I think a major theme has been both improving the rulemaking process and examining presidential review of agency rulemaking, and how to optimize that,” he said.

Strength in Diversity

The committee is exceedingly diverse, with significant government and private-sector members, drawn from the academy and from law firms that are really active in the regulatory space, Frisby said.

“And I think that’s very important in terms of producing strong recommendations that lend themselves to implementation,” Frisby said.

It’s much more likely that a recommendation will proceed smoothly through the ACUS and be implemented if it has been informed by a broad set of perspectives, Frisby said.

“Theory is great, but theory is no good if it can’t be implemented,” Frisby said.

Accomplishments

Bull said the committee's recommendation on international regulatory cooperation, which was issued in late 2011, led several months later to Executive Order 13,609 on international regulatory cooperation.

A recommendation on retrospective review of agency rules is reflected in the Smarter Regs Act (S. 1817) introduced last year by Sen. Heidi Heitkamp (D-N.D.).

And frequently, committee members will see Federal Register notices of instances where agencies have updated their rulemaking procedures and practices in light of the committee's recommendations, Bull said.

Making a Difference

Frisby said his view of administrative law has always been that it should be treated in a nonpartisan fashion. “This isn’t about politics, this is about improving the administrative process,” he said.

And, having run a state public service commission and been a regulatory practitioner, Frisby said he knows the importance of consensus and driving people toward a solution that everybody can agree on.

Under his chairmanship, a number of committee resolutions have come out in executive reports, ABA resolutions and elsewhere, Frisby said. “So we clearly are making a difference,” he said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com