Present: O'Reilly (Chair), Cass (Vice-Chair), Shapiro (Secretary), Patterson (Assistant Secretary), Leo (Assistant Budget Officer), Grenier (Section Delegate), Harter (Last Retiring Chair), and Council Members Holmes, Reiss, Roush, Kaleta, Potter, Ryan, Neet, and Wright

Absent: Belmar, Braden, Franklin, Frisby, Hollis, Theodore and Barbara Olson

1. Call to Order and Approval of 1996 Fall Council Minutes: Cass moved the adoption of the minutes with one correction and Holmes seconded. The motion passed.
   
2. Report of the Chair: O'Reilly stressed the importance of the retention of members and that retention was a function of having active committees. O'Reilly also reported that the Section withdrew Resolution #102 (concerning vacation of a rule after a judicial remand) in response to opposition from the Business Law Section. Representatives of the two sections will discuss the resolution to determine if objections of the Business Law Section can be met. The intention is to submit the resolution at the Annual Meeting.
3. Report of the Chair-Elect: Belmar was required to leave the meeting because of a family emergency.
4. Preliminary Report of the Nominating Committee: The committee announced its intention to nominate Jack Young as Vice-Chair Elect. The committee will announce the remainder of the new council member nominations at the Section's Spring meeting.
5. Report of Delegates to the ABA House of Delegates: Grenier reported on resolutions pending in the House of Delegates.
1. The Council discussed the intractable problem of what principles should the ABA use to guide whether it takes a position on particular issues. Dick Wiley is serving on a presidential commission that is considering the role of the associations' Washington office, and this issue of ABA recommendations will be considered as part of that study. Kaleta moved that the Section seek an updated report on this initiative. The motion, which was seconded by Ryan, passed.

1. Leo moved to instruct Grenier to vote no on Recommendation 107 (which provides that no jurisdiction that imposes capital punishment should carry out a death penalty until it complies with ABA recommendations concerning procedures for this process). Reiss seconded. The motion failed.
2. Leo moves to instruct Grenier concerning Recommendation 116 (which provides Congressional approval of proposed changes to the Rules of Civil Procedural concerning class actions). Reiss seconded. The motion was defeated.
3. The International Law Section asked for this Section's cosponsorship of its resolution proposing that Congress should avoid statutory provisions that disqualify senior executive or judicial appointees on the basis of clients that they have previous represented, and that Congress should instead screen applicants by traditional mechanisms, such as the confirmation process. Cass moved that the Section cosponsor the resolution and Grenier seconded. The motion passed.
6. Current Status and Plans for Membership: Drew reported on recent membership trends. The rate of membership drops has been slowed and there has been a small positive improvement recently. Drew described the Section's ' current membership initiatives.
7. Report of Budget Officer:
1. Leo reported on behalf of Frisby who was unable to attend because of an injury. The Fall meeting cost less than the amount budgeted for it. Leo also reported that the Section finished the year in the black largely because of investment income. He recommended that the Section explore putting some of our reserves in foreign equities. He will return later with a recommendation on this subject.

1. Cass moved and Reiss seconded a motion that the Section approve a contract with Jeff Lubbers and the Section of Government Attorneys regarding the Guide To Rulemaking (3rd Ed.). The motion was approved.
8. Actions
1. Report of Section Response to State ALJ Center Panel Proposal: Holmes moved that the Section become a cosponsor with the National Conference of Law Judges of the State ALJ Center Panel as amended. Grenier seconded the motion and it passed unanimously.

1. Request for Support of Revised Recommendation Supporting Legislation and Programs that Authority Any U.S. or State Court To Utilize Systems of Alternative Dispute Resolution: Young recommended that the Section not take a position on this resolution because its primary impact was on federal court litigation and because there were substantial problems with the way in which the recommendation was formed. No one on the Council objected to this approach.
9. Information Item: Report of the Federal Register, Reports, and Paperwork Committee:

   Leo reported on the committee' interest concerning efforts by the Office of the Federal Register to organize and print regulations in a form that would be easier to read and comprehend. He asked for input from agencies particularly concerning any disadvantages such as increased cost. Council members were interested in having the committee pursue this project although some members were cool to the idea that the ABA recommend that the President issue an Executive Order requiring agencies to use these clarifying techniques. They noted that the Administration had already ordered agencies to use plain English in their regulations. Strauss asked that the committee inform the Rulemaking Committee of further action to permit it to offer its input. Council members expressed interest in other steps that the Office of the Federal Register might take to make regulations clearer such as better indexing. Leo indicated that the Committee would attempt to bring this item back as an action item at a future meeting.

10. Mini-minder -- Public Participation in FDA's Development of Non-Legislative Guidance: Hoffman described the history of FDA reliance on guidance documents and the process used for issuance of these rules. He noted that FDA had proposed new procedural rules and was in the process of considering whether to adopt these or another approach.
11. Strauss noted that the National Highway Traffic Safety Administration has put its interpretations on line and that they are searchable. He asked for input from Section members concerning how other agencies make interpretive rules and policy statements available to the public, and the extent to which other agencies indicate that the public can rely on such advice. Strauss anticipates that the Rulemaking Committee might make general recommendations to agencies concerning the process of issuing nonlegislative rules, making them available to the public, and specifying whether the public can rely on such rules.
12. Updates on 1997 Seasonal Meetings: Kaleta (Spring 1977, Washington), Potter (Annual, 1997, San Francisco) and Holmes (Fall, 1997, Washington) gave brief updates on the topics that the meetings will cover (Spring: ombudsman and lobbying disclosure; Annual: technology and administrative law and redistricting and race; Fall: election law and regulatory reform and devolution and utility law) and other planning.
13. Update on ABA Web site: Roush reported that people have been accessing the Section's Webb site. He also noted that American University intends to establish access to past issue of the Administrative Law Review. There will be a link between that site and the Section's home page.
14. New Business:
1. The Section will cosponsor a program on Scientific Misconduct and how it is policed.

1. The ABA has asked the Section to review old recommendations. O'Reilly will review these recommendations and submit them to the relevant committees for consideration. The intention is to drop recommendations dating from the period 1950 through the mid-1960s unless there is a reason to retain them.
2. Eisner reported on the work of a Task Force on Government Lawyer participation in ABA. The task force reviewed how agency personnel rules can impede the participation by government lawyers in the ABA (and in this Section).

Present: O'Reilly (Chair), Cass (Vice-Chair), Shapiro (Secretary), Patterson (Assistant Secretary), Leo (Assistant Budget Officer), Grenier (Section Delegate), Harter (Last Retiring Chair), and Council Members Holmes, Hollis, Reiss, Roush, Kaleta, Potter, Ryan, Neet, and Wright

Absent: Belmar, Braden, Franklin, Frisby, Theodore and Barbara Olson

1. Coordinating Committee on Legal Education: Rosenblum reported on the committee's efforts to follow up on the recommendations of the McCrate Committee.
   
2. Council Member Reports on Committee Agendas:
   
   

   1. Wright: Leo reported yesterday on the current project of the Federal Register, Reports and Paperwork Committee. The State Administrative Law Committee recently reviewed the model State ALJ Central Panel Proposal recommended by the National Conference of Law Judges. The Education Committee is interested in sponsoring a program on the impact of regulatory negotiation on education administration. There is no report concerning the Tax Procedure Committee
      
   2. Holmes: The Committee on Income Security, chaired by Paterson, met on February 1, 1997 to discuss the Social Security Administration's proposed rules of conduct. The proposed rules are intended to apply to both attorneys and non-attorneys who represent claimants. The committee opposed the application of the rules to attorneys. The Council had no objection to committee indicating the ABA's objection. The committee also discussed sponsoring a possible monograph on adjudication. Strauss and Holmes discussed the implications of Strauss' service on a three person committee formed to make recommendations to fill an ALJ vacancy. Strauss questioned whether such committees should include ALJs, but Holmes and Reiss doubted that there was a problem.
      
   3. Kaleta: The Judicial Review committee produced the recommendation on judicial remands without vacation. The International Trade Regulation Committee sponsored recommendation approved at yesterday's Council meeting. The Committee has monthly meetings attended by 25-30 people. The Committee will next review some issues concerning the Custom's Service which may be source of a recommendation.
   4. Potter: The Communications Committee is sponsoring a major conference in San Francisco on the next Telecommunications Act. Troy described the program for this all day conference. The committee may also sponsor a program on this issue at the Annual Meeting. The Election Law Committee is sponsoring panel discussion on March 21 on campaign finance. It will also undertake a presidential showcase program on election redistricting at the Annual Meeting. The Patents and Copyrights Committee is monitoring efforts of the Intellectual Property Section concerning international agreements.
   5. Roush: There was no contact with Banking and Financial Services or Labor and Employment Law Committees. The Health Committee is sponsoring a panel presentation at Annual Meeting. It is also working on a proposed monograph concerning rulemaking and health care. The Natural Resources and Environmental Law sponsored the program at this meeting of the Section. It is also planning a program for the Chicago meeting concerning the regulatory aspects of the Great Lakes water initiative. The Committee will also establish a list serve for its members.
   6. Neet: The Corporate Counsel Committee is small and inactive. Neet indicated that he may recommend that it be abolished at a future time. He will do a membership survey of the committee to determine the level of interest in maintaining the committee. The Housing and Urban Development Committee is likewise small and inactive. Its primary goal is keeping in contact with HUD. The Ratemaking Committee is large and active. The Transportation Committee has regular luncheon meetings It cosponsors an annual symposium and has a quarterly news letter.
   7. Lubbers: The Coordinating Committee on Immigration Law has filed comments on the INS's propose rules to implement new immigration law.

3. Mini-minder: Federal-State Conflicts in the Regulation of Insurance: Woodward, Franklin (by telephone) and Campbell reported on recent developments concerning conflicts in the federal and state regulation of insurance.
4. Action Item -- Recommendation-- Congressional Rulemaking Review Procedures: Strauss and Cohen presented a recommendation on behalf of the Rulemaking Committee proposing changes in the procedures used by Congress to review rules after they are promulgated by administrative agencies. Strauss lauded the idea of legislative review, but indicated that legislative procedures were flawed in several ways. The Council proceeded to discuss three issues.

First, the Council debated whether it was premature to take up this recommendation in light of Congress' limited experience with rule review. Some members of the Council urged that the recommendation be postponed in its entirety, others argued that a decision on some parts of the recommendation did not require further experience by Congress, and still others were prepared to consider all of the elements of the recommendation. Everyone agreed that the Rulemaking Committee should continue working on the resolution on the assumption that it would be submitted to the House of Delegates at the Annual meeting, and that the Committee should return to the Council with a modified recommendation at the Spring meeting.

Second, the Council discussed whether Congress should somehow limit the number of rules submitted for the review process. The recommendation would limit such review to major rules, but Strauss indicated that the Section might recommend that GAO or some other entity study potential selection criteria. Shapiro noted that this issue might fall within an earlier ABA recommendation that recommended that Congress weigh the costs and benefits of requiring additional analysis of rules by agencies.

Finally, the Council discussed the issue of whether Congress should amend the provision that deprives an agency of jurisdiction to enact a substantially similar rule after the previous rule is overruled. Members of the Council and audience discussed how the courts might interpret this section. Some doubted that the section would be interpreted to deprive an agency of "jurisdiction" to promulgate a rule covering the same subject matter. They thought that the section prohibited adoption of a substantially similar rule. Others thought that the language was clear that an agency could not adopt a rule covering the same subject even if Congress did not disapprove of the second rule.

5. Mini-minder: Watson presented a short review of hot administrative law issues in Natural Resources and Environmental Practice.
6. Mini-minder: Hollis presented a short review of procedural issues concerning the regulation of electrical utilities by the states under devolution.