This column provides a summary of the 80th Plenary Session of the Administrative Conference of the United States (ACUS) and a summary of current ACUS projects in development. For any projects described below, please feel free to contact the listed staff member with any questions or implementation-related suggestions.
ACUS held its 80th Plenary Session on December 14, 2023. This event marked not just the 80th meeting of the ACUS Assembly but also the adoption of the agency’s 300th recommendation since it began operations in 1968. Over the years, numerous ACUS recommendations have been implemented through legislation, executive orders, and agency practice, and many ACUS recommendations have been cited approvingly by courts. Key areas where ACUS recommendations have been implemented or cited include negotiated rulemaking, alternative dispute resolution in administrative programs, civil money penalties, judicial review of agency action, international regulatory cooperation, and public participation in rulemaking.
In addition to a keynote address from Professor Cass Sunstein on the topic of administrative burden, or “sludge,” ACUS Chair Andy Fois moderated a panel discussion with former ACUS chairs and acting chairs to commemorate the agency’s 80th Plenary Session. Panel participants included Sally Katzen (who served as acting chair from 1993 to 1994, while also serving as Administrator of the Office of Information and Regulatory Affairs), Paul Verkuil (who served as chair from 2010 to 2015), and Matt Wiener (who served as acting chair from 2017 to 2022). The panelists discussed ACUS’s early history, its second founding in 2010, and where the agency may be headed in the future.
ACUS also adopted four recommendations to improve efficiency, fairness, transparency, and public participation in government programs.
Recommendation 2023–5: Best Practices for Adjudication Not Involving an Evidentiary Hearing. This recommendation 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 offers 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. This recommendation was informed by a research report completed by Professor Michael Asimow. (Matthew A. Gluth, [email protected]).
Recommendation 2023–6: Identifying and Reducing Burdens on the Public in Administrative Processes. This recommendation examines best practices, such as public engagement, that agencies can use to identify unnecessary burdens that members of the public face when they engage with administrative programs or participate in administrative processes. It also recommends strategies agencies can use to reduce unnecessary burdens, such as simplifying processes, digitizing services, and collaborating with other agencies and nongovernmental organizations. This recommendation was informed by a research report completed by Professors Donald Moynihan, Pamela Herd, and Amy Widman. (Matthew A. Gluth, [email protected]).
Recommendation 2023–7: Improving Timeliness in Agency Adjudication. This recommendation examines strategies—including procedural, technological, personnel, and other reforms—that agencies have used or might use to address backlogs or delays in administrative adjudication. It identifies best practices to help agencies devise plans to promote timeliness in administrative adjudication, in accord with principles of fairness, accuracy, and efficiency. This recommendation was informed by a research report completed by ACUS Research Director Jeremy Graboyes and Attorney Advisor Jennifer Selin. (Lea Robbins, [email protected]).
Recommendation 2023–8: User Fees. This recommendation provides best practices for agencies and Congress to consider in designing and implementing user fees in administrative programs. It addresses how Congress and agencies might determine when user fees are appropriate; how agencies might determine fair and reasonable user fees for specific programs, including whether there are reasons for waivers, exemptions, or reduced rates; when and how agencies should engage with the public in determining or modifying user fees; and how agencies should review their user fee programs. This recommendation was informed by a research report completed by Professor Erika Lietzan. (Kazia Nowacki, [email protected]).
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.
*Choice of Forum for Judicial Review of Agency Rules. This project will study and, as appropriate, make recommendations to guide Congress in determining the appropriate forum and venue for judicial review of agency rules—with respect to both existing programs and programs established in the future. Topics it will address include (1) contexts in which agency rules should be subject to direct review by the courts of appeals rather than the district courts; (2) contexts in which Congress should consider limiting the venue for judicial review of rules beyond what the ordinary rules of venue would permit; (3) contexts in which the courts should consolidate multiple challenges to a single rule in a single case in a single court, and the processes for doing so; and (4) common ambiguities and other drafting problems in the statutes governing the choice of forum for judicial review of agency rules. (Kazia Nowacki, [email protected]).
*Congressional Constituent Service Inquiries. Providing constituent services has long been a cornerstone representational activity for Congress. Today, every member of Congress employs staff that assist constituents with accessing federal programs or navigating administrative processes. There is, however, significant variation in how agencies receive, process, and respond to congressional constituent service inquiries. This project will identify best practices for promoting quality, efficient, and timely constituent service responses. 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 those inquires; the scope, content, and internal dissemination of agency procedures; and the public availability of such procedures. (Conrad M.H. Dryland, [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 research study examines 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]).
*Public Engagement in Agency Rulemaking Under the Good Cause Exemption. This project will study when agencies assert the good cause exemption and recommend best practices for public engagement when agencies find good cause to forgo notice-and-comment rulemaking procedures. Among other relevant topics, this project will recommend best practices for agencies to employ in determining (1) whether to undertake pre- or post-promulgation public engagement efforts with respect to such rules, (2) what types of public engagement to use (including Federal Register notices, targeted outreach, and meetings with affected interests or other interested persons), and (3) how and when to use information obtained through such public engagement efforts to modify or improve rules. (Benjamin Birkhill, [email protected]).
*Public Participation in Agency Adjudication. This project will recommend best practices regarding public participation in agency adjudicative proceedings. Among other topics, it will address circumstances in which public participation may be appropriate, options for public participation (e.g., written comments, oral presentations, intervention, and amicus briefing), methods for facilitating public participation (e.g., notice, managing oral and written comments, and technology), and agencies’ use of information obtained through public engagement efforts. (Lea Robbins, [email protected]).
Timing of Judicial Review of Agency Action. This research study examines 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 they failed to seek review within a specified time limit. In both cases, the project will consider existing requirements and whether Congress should amend existing law to provide greater clarity and particularity regarding the timing of judicial review. (Kazia Nowacki, [email protected]).
*Using Algorithmic Tools in Regulatory Enforcement. This project will study how agencies are using or might use algorithmic tools—including AI and predictive analytics—to detect, investigate, and prosecute current and potential noncompliance with the laws they administer. It will examine the potential benefits and risks of using algorithmic tools to support agencies’ regulatory enforcement efforts and identify policies, practices, and organizational structures agencies can put in place to ensure they enforce the law fairly, accurately, and efficiently. (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.
