Chairman Verkuil: [0:00] This plenary session culminates the work that all of you have put in over the past six months, from the consultants and staff conducting research to the government officials who provided their views and materials, to our researchers, to the members of the public and interested parties who have submitted comments on the proposals that we posted, to the government and public conference members who devoted many hours to drafting, amending, and polishing the recommendations you have before you. [0:32] This plenary session is, of course, the capstone event, the moment of truth, but it is also just the tip of the proverbial iceberg. To show you what happened before these recommendations are presented, I present this clever chart behind me, so you recall how much we have done and how much we hope to do today. This is where we are going.[0:59] Now, this session, I want to also say, is unusual in another respect--that three of the four researcher-consultants are in-house attorneys. Usually, as you know, we hire consultants who come in to work from outside.
[1:16] This is the reason of two factors, frankly. One is our tight budget, as a result of the continuing resolution we were under for most of the year, and we couldn't let contracts. Secondly, I think equally important, the talented attorneys we have at ACUS are eager to do research and so it's nice to be able to provide that opportunity.
[1:36] ACUS recommendations, numbering over 200 since 1968, are well regarded and enduring because they are balanced, carefully thought out and supported by evidence.
[1:48] In that tradition, as we debate today, I hope you will resolve any remaining policy issues and reach consensus on the four recommendations before you.
[2:00] Before we start, I have to go over some basic ground rules for debating and voting on matters in the conference.
[2:09] The privilege of debate extends to all members of the conference, including the chairman, the council, government members, the public members, senior fellows, liaison representatives and special councils.
[2:23] The voting members of the conference include me, the council, the government members, and the public members--a total of 101.
[2:33] When any matters come to a vote, only those members may vote. Senior fellows, liaison representatives and special councils have the privilege of debate but may not vote.
[2:46] Members who may vote have a card tucked into their nametags. If you take a look, you have a blue card.
[2:56] Initial votes are taken by voice, by yeas and nays. If the voice vote is inconclusive, a vote can be taken by a show of hands. If this occurs, please raise your voting card so we can see you and ensure we are counting only those members who are eligible to vote.
[3:14] In addition, in the course of debate, only voting members may make or second a motion. If a non-voting member has a suggestion for an amendment to a pending item, that person may ask a voting member to make the motion for the amendment.
[3:32] Let me address the issue of alternates. The term "alternate," I mean anyone who is attending today on behalf of a member of the conference who is unable to attend personally.
[3:43] The bylaws of the conference do not permit the participation of alternates in the plenary session. Alternates may not vote and do not have the privilege of debate. Anyone present today as an alternate is welcome to attend and to observe, but may not vote or engage in debate without unanimous consent of the assembly, which I would, of course, be pleased to encourage.
[4:07] Finally, members of the general public are welcome to attend and to observe the proceedings, but may not vote or engage in debate without unanimous consent, if there is time after others have spoken.
[4:22] With that understanding, there is some initial procedural business to vote on before we begin consideration of the recommendations. The first item of business is approval of the minutes of the last plenary session. These are included in your packets and have been available on our website.
[4:38] Is there a motion to approve the minutes of the 54th plenary session? Moved and seconded? Any debate? All in favor say "Aye." Opposed, "Nay." The ayes have it. Minutes are approved.
[4:56] The next item of business is adopting the resolution on the order of business of the 55th plenary session.
[5:02] This resolution is similar to what was adopted in the previous sessions. It provides 60 minutes of debate on each recommendation, which can be extended by another 30 minutes by a majority vote of the membership. It provides that amendments that have been provided in advance will receive priority.
[5:21] In your packets is a version of each recommendation that has been annotated with the amendments that were received and were posted before the meeting.
[5:31] Is there a motion to approve the resolution on the order of business? Seconded. Moved and seconded? Any debate on this? All in favor say "Aye." Opposed, "Nay." Ayes have it.
[5:49] We're now prepared to turn to the recommendations.
[5:52] By the way, I didn't see Tom Perez, another member of the council. Tom, would you stand up? The others were introduced. Tom Perez from the Civil Rights Division of the Department of Justice. Jon?
Jonathan Siegel: [6:10] Thank you, Paul. Let me add my own welcome to those you have already received. It's a pleasure to see you all. It's been a pleasure to work with you all as well. [6:21] Since the last plenary, I have, once again, just been so impressed with the energy and diligence that members are bringing to their conference work.[6:30] We know, of course, that you have other jobs and it is really a tribute to your public spirit that you are willing to take so much time to work on conference business.
[6:39] Thank you for all you have done, and I would like to give a particular thanks to those who are serving as committee chairs. The committee chairs did a lot of work moving the recommendations that you will consider through committee.
[6:52] Let me also thank the staff of the conference for their work. Not least, in the run-up to this plenary session, there's a lot of behind the scenes work that goes into this, and just one detail I would like to mention is the handling of public comments that we received on the recommendations.
[7:07] We got more public comments than we have before. I guess we're becoming a little better known. Most of these were posted on our website the same day they were received. Many of them were up within an hour of being received, so thank you to the staff.
[7:21] As you know, the conference will be considering four recommendations at this plenary session. The recommendations cover a wide range of topics.
[7:29] We will begin today with a recommendation on the practice of incorporation by reference, which shines a light on a little known but important detail of the way in which agencies formulate regulations.
[7:42] Second today will be a recommendation about international regulatory cooperation. As we chose our topics, one thing we did was go back through old conference recommendations to see which are in need of updating. This one stood out, in light of the ever-increasing internationalization of markets and regulatory issues.
[8:01] Tomorrow, we will begin with a recommendation about the Federal Advisory Committee Act. You will recall that, at the December 2010 plenary, we asked you, the membership, what topics would should consider and one thing that came up in basically all of the breakout sessions was FACA. "Do something about FACA," you told us, so we did a study on that.
[8:19] Then, finally, tomorrow, we have a study that sought out innovations and best practices with regard to one of the most important trends in rulemaking over the last decade, namely e-rulemaking.
[8:31] That is the substance of what you will consider.
[8:33] Now, a quick word about process. Actually, I see Paul already said most of what I was going to say, so just quickly, you know, of course, that the recommendations have been already considered extensively in committee.
[8:45] Let me just mention in addition, the recommendations after leaving committee go to the ACUS Council, which transmits them to the membership, along with the Council's views under our statute.
[8:56] All four of the recommendations to be considered this plenary, the views expressed by the Council were that they come to you "with the approval of the Council."
[9:06] The final step is for the recommendations to be debated and voted on in plenary session. A couple of small changes from last time.
[9:13] In an effort to get to the debate more quickly, we are going to shorten the initial presentations. I will not speak in the initial presentation for each recommendation as I did last time. You will just hear from the committee chair and from the researcher. We've asked them each to limit their remarks to about five minutes, so as to preserve time for debate.
[9:35] As each recommendation is opened for discussion, it will be opened to amendment. We circulated the recommendations to you about three weeks ago and asked for amendments to come in in advance in writing. Earlier this week, we circulated all the amendments that were received. We posted them on our website. You also have copies of them in your packets.
[9:55] As was true last time, we designated some of the proposed amendments as manager's amendments. These are stylistic or other minor details that we expect would be uncontroversially approved. As we begin the discussion on each recommendation, Paul will ask whether there is any objection to the manager's amendments. If not, they will be approved by unanimous consent.
[10:16] After that, other amendments will be considered. As Paul mentioned, amendments received in advance will have priority, so Paul will call those up first. If there is time left after those amendments, the floor will be opened for other amendments that members might have or for further discussion.
[10:32] Finally, we hope at the conclusion of each discussion there will be a vote to adopt the proposed recommendation.
[10:39] As Paul mentioned, the other changes, the voting cards. We had a little trouble counting the votes on things that were by show of hands last time, so if you are voting member, you will find this voting card in your badge. If things come to a show of hands, please hold up your voting card.
[10:52] Here's an important detail. Remember to bring it tomorrow. If at the moment of a vote, you find that you have mislaid your voting cards, we have some extras that the staff can give you. Call them over if you're a voting member and you can't find your voting card. But we don't have 101 extras, so remember to bring it tomorrow.
[11:10] With that I think we are ready to turn to the first recommendation, which is the incorporation by reference recommendation. If the committee chair, John Cooney, could come forward, and the researcher.
Chairman Verkuil: [11:26] The recommendation on the agenda is incorporation by reference. This was reported from the Committee on Administration and Management. Chairman John Cooney will summarize the committee's work that produced the recommendation and the consultant, Emily Bremmer, will present the research that supports it.[11:43] John is a public member, a partner at Venable, and was formally Deputy General Counsel at OMB. Emily, of course, is a staff attorney. I also want to recognize staff counsel for the project, Scott Rafferty, who is at the table. [11:58] We will now open debate on the recommendation, which is set for one hour and can be extended, as was said, by another 30 minutes.
[12:07] Of course, with these time limits, the resolution adopted for this meeting limits each member to five-minute discussion. By the way, that's a maximum, not a minimum. We appreciate to hear from as many people as we can under the time limits.
[12:25] The first item is a manager's amendment, as John mentioned, which makes a number of technical and stylistic changes to the recommendation. These are not substantive changes. These were accepted by the committee chair on behalf of the committee. These changes are noted in the red line version of the amendment that is in your packets and was posted, of course, on the website.
[12:50] Is there any objection to adopting the manager's amendments? If I don't hear an objection, I'm going to say the manager's amendments are adopted. Hearing no objection, we will have adopted the manager's amendments. Thank you.
[13:08] The next proposed amendment is submitted by Senior Fellow Peter Strauss. [man speaks in background]
Paul: [13:14] Right. Good idea. Sorry. Peter, I'm sorry. Time is fleeting, but not that much. John. I'm sorry. John, go.