72nd Plenary Agenda: Comments Due December 5 (ACUS Update)
The Administrative Conference will host its 72nd Plenary Session on Thursday, December 12th at the George Washington University Law School, in the Jacob Burns Moot Court Room at 2000 H Street NW, Washington, DC 20052. The Assembly will consider five proposed recommendations. From the Federal Register notice announcing the meeting, the proposed recommendations address the following subjects:
Agency Economists. This proposed recommendation addresses the placement of economists within rule-writing agencies (e.g., centralized v. dispersed throughout the agency) and explores methods for promoting high-quality economic analysis within each of the possible organizational structures. Each possible structure has strengths and weaknesses that can affect the flow of information between economists and decision-makers. The proposed recommendation does not endorse any one organizational structure over another but identifies steps agencies can take to remove structural barriers that can impede the communication of objective, consistent, and high-quality economic analysis during the rulemaking process.
Internet Evidence in Agency Adjudication. This proposed recommendation addresses agency adjudicators’ increasing reliance on their own factual research—especially internet research—when conducting hearings and deciding cases. Though such independent research can be an efficient means to acquire facts, it can also raise concerns regarding the accuracy of information uncovered and fairness to the litigants. The proposed recommendation urges agencies to develop publicly available policies on independent research that, among other things, identify sources of information that are reliable in all cases, set forth standards for adjudicators to apply when assessing the reliability of other sources, and ensure that litigants have ready access to all sources.
Acting Agency Officials and Delegations of Authority. This proposed recommendation offers agencies best practices for promoting greater transparency and compliance with the Federal Vacancies Reform Act of 1998 when a Senate-confirmed position sits vacant. It also addresses the use of delegations of authority in the face of staffing vacancies. It urges agencies to determine whether the agency is subject to the Vacancies Act and, if so, establish compliance processes; improve transparency by disclosing on their websites information about acting officials and delegations of authority; and provide additional support and training to agency officials responsible for Vacancies Act compliance.
Listing Agency Officials. This proposed recommendation promotes the public availability of real-time information about high-level officials leading federal agencies. It encourages agencies to publish on their websites basic information about high-level agency leaders and identify vacant leadership positions and acting officials. It also recommends that the Office of Personnel Management publish on its website a monthly list of high-level agency leaders, as well as an archival list of former Senate-confirmed presidential appointees.
Recruiting and Hiring Agency Attorneys. This proposed recommendation offers best practices for agencies to recruit and hire attorneys. First, it notes that agencies are not bound by certain procedural requirements that apply to the hiring of other kinds of employees. Then, among other suggestions, it advises agencies to post and disseminate announcements widely when they seek broad applicant pools; write announcements clearly and concisely; communicate to applicants any limitations on the number of applicants the agency will consider; establish policies for reviewing applications and interviewing candidates; and decide, in the period before an attorney’s adverse action rights accrue, whether to retain the attorney after the period elapses.
The proposed recommendations, supporting research reports, and other key documents related to each project can be found at the links above. Public participation and comments are welcome. Again, from the Federal Register notice:
Persons who wish to comment on any of the proposed recommendations may do so by submitting a written statement either online by clicking “Submit a comment” on the 72nd Plenary Session web page . . . or by mail addressed to: December 2019 Plenary Session Comments, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW, Washington, DC 20036. Written submissions must be received no later than 10:00 a.m. (EDT), Thursday, December 5, 2019, to ensure consideration by the Assembly.