79th Plenary Session and Project Updates

This column provides brief descriptions of the recommendations adopted at the Administrative Conference of the United States (ACUS) 79th Plenary Session and a summary of ACUS’s current projects in development. Please feel free to contact the listed staff member with any questions or implementation-related suggestions.

June 2023 Plenary Session

At its 79th Plenary Session on June 15, 2023, ACUS adopted four recommendations to improve efficiency, fairness, transparency, and public participation in government programs.

Recommendation 2023-1: Proactive Disclosure of Agency Legal Materials

This recommendation identifies statutory reforms that, if enacted by Congress, would provide clear standards as to what legal materials agencies must publish and where they must publish them (whether in the Federal Register, on their websites, or elsewhere). The amendments also account for technological developments and correct certain statutory ambiguities and drafting errors. The objective of these amendments is to ensure that agencies provide ready public access to important legal materials in the most efficient way possible. (Kazia Nowacki, [email protected])

Recommendation 2023-2: Virtual Public Engagement in Agency Rulemaking

This recommendation identifies best practices to promote enhanced transparency, accessibility, and accountability when agencies use virtual tools to host public engagement meetings during the rulemaking process. It encourages agencies to offer virtual options when it would be beneficial to do so and offers best practices for structuring virtual public engagements in a way that meets public expectations and promotes valuable input for the agency. (Kazia Nowacki, [email protected])

Recommendation 2023-3: Using Algorithmic Tools in Retrospective Review of Agency Rules

This recommendation identifies best practices for agencies to consider when designing or using artificially intelligent or other algorithmic tools to identify rules that are outmoded or redundant, contain typographical errors or inaccurate cross-references, or might benefit from resolving issues with intersecting or overlapping rules or standards. It also discusses how agencies can design these tools in a way that promotes transparency, public participation, and accountability. (Kazia Nowacki, [email protected])

Recommendation 2023-4: Online Processes in Agency Adjudication

This recommendation identifies best practices for developing online processes by which private parties, representatives, and other participants in agency adjudications can file forms, evidence, and briefs; view case materials and status information; receive notices and orders; and perform other common adjudicative tasks. (Matthew A. Gluth, [email protected])

Current Studies

ACUS is currently undertaking other studies, including those listed below. Brief descriptions of these projects follow, including contact information for the ACUS attorney serving as staff counsel for the project. Projects marked with an asterisk are directed toward the development of recommendations for consideration and adoption by the Assembly.

*Best Practices for Adjudication Not Involving an Evidentiary Hearing

This project examines the wide range of procedures
that agencies use when adjudicating cases in programs in which there is no legally required opportunity for an evidentiary hearing. It will offer a set of broadly applicable best practices that account for the diversity of matters that agencies decide through truly informal adjudication and promote fairness, accuracy, and efficiency. (Matthew A. Gluth, [email protected])

*Congressional Constituent Service Inquiries

The provision of constituent services has long been a cornerstone representational activity for members of Congress. Today, every member of Congress employs staff dedicated to assisting constituents in accessing federal programs or navigating administrative processes. There is, however, significant variation among agency practices for receiving, processing, and responding to congressional constituent service inquiries. This project will identify best practices to promote quality, efficiency, and timeliness in agency responses to such inquires. Among other topics, the project will address legal requirements governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to congressional constituent service inquires; the scope, content, and internal dissemination of agency procedures; and the public availability of such procedures. (Conrad M.H. Dryland, [email protected])

*Identifying and Reducing Burdens in Administrative Processes

Members of the public can face burdens that make engaging with federal administrative programs or participating in administrative processes unnecessarily complicated or time-consuming. Recognizing this, agencies use a variety of practices to identify and reduce administrative burdens. This project recommends best practices, such as public engagement and data analysis, that agencies can use to identify unnecessary burdens. It also recommends strategies to reduce burdens in the administrative process. (Matthew A. Gluth, [email protected])

*Improving Timeliness in Agency Adjudication

Federal agencies adjudicate millions of cases each year, including applications for benefits and services, applications for licenses and permits, and enforcement actions against persons suspected of violating the law. Although agencies strive to decide cases in a timely and efficient manner, circumstances sometimes lead to mounting caseloads, resulting in backlogs and delays. This project will survey strategies—including procedural, technological, personnel, and other reforms— that agencies have used or might use to address backlogs or delays in administrative adjudication. Based on this survey, the project will identify best practices to help agencies devise plans to promote timeliness in administrative adjudication, consistent with principles of fairness, accuracy, and efficiency. (Lea Robbins, [email protected])

*Individualized Guidance

This project will study and offer best practices to promote fairness, accuracy, and efficiency in agency processes for providing written guidance in response to requests for advice from members of the public. Among other topics, it will address processes for members of the public to request guidance from agencies; agency practices for drafting responses to guidance requests, including the personnel involved and mechanisms to ensure accuracy and consistency; the public availability of individualized guidance documents; and the extent to which members of the public can rely on legal interpretations and policy statements made in individualized guidance documents. (Benjamin Birkhill, [email protected])

Nationwide Injunctions and Federal Regulatory Programs

This project studies how nationwide injunctions and similar equitable remedies affect the administration of federal regulatory programs. Among other topics, it addresses the use, frequency, and characteristics of nationwide injunctive and similar relief in challenges to agency rules; how agencies understand the scope of judgments vacating and setting aside agency rules under the APA; and how agencies respond to nationwide injunctive and similar relief in carrying out their rulemaking activities. The project draws in part on a 2020 ACUS-sponsored forum of leading experts that examined nationwide injunctions. (Benjamin Birkhill, [email protected])

Timing of Judicial Review of Agency Action

This project studies several issues identified but not addressed in Recommendation 2021-5, Clarifying Statutory Access to Judicial Review of Agency Action. First, it considers various questions related to the event that begins the period during which a litigant can challenge an agency action in federal court. Second, it considers various questions related to the circumstances under which a party should be precluded from seeking judicial review of an agency action because the party failed to seek review within a specified time limit. In both cases, the project will consider what existing law requires and whether Congress should amend existing law to provide greater clarity and particularity regarding the timing of judicial review. (Kazia Nowacki, [email protected])

*User Fees

Federal agencies are funded primarily through appropriated tax revenue, user fees, or some combination of the two. User fees are common across the government, and agencies have had broad statutory authority to make rules prescribing fair and reasonable fees for the services they provide. This project will recommend best practices for agencies—and Congress, if warranted—to consider in designing and implementing user fees in administrative programs. It will examine, among other topics, how Congress and agencies determine when user fees are appropriate; how agencies establish fair and reasonable user fees for specific programs; how agencies engage with the public in determining user fees; and how often agencies review their user fee programs. (Kazia Nowacki, [email protected])

In addition to the projects noted above, ACUS has numerous ongoing working groups, roundtables, and public forums. To learn more, visit www.acus.gov.