Notice & Comment

A Very Productive 72nd Plenary! (ACUS Update)

I’ve been remiss in updating you, dear reader, on what was a very productive ACUS Plenary session in December 2019. The Assembly adopted five new recommendations, on a host of timely subjects. From ACUS’s promptly published Federal Register notice:

Recommendation 2019-5, Agency Economists, addresses the placement of economists within rule-writing agencies (e.g., centralized versus dispersed throughout the agency) and describes methods for promoting high-quality economic analysis within each of the potential organizational structures. Each potential structure has strengths and weaknesses that can affect the flow of information between economists and decision-makers. The recommendation does not endorse any one organizational structure over another, but rather identifies steps agencies can take to remove structural barriers that can impede the communication of objective, consistent, and high-quality economic analysis to decision-makers during the rulemaking process.

Recommendation 2019-6, Independent Research by Agency Adjudicators in the Internet Age, 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 recommendation encourages agencies to develop publicly available policies on independent research that 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.

Recommendation 2019-7, Acting Agency Officials and Delegations of Authority, 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 response to staffing vacancies. It urges agencies to determine whether they are 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.

Recommendation 2019-8, Public Identification of Agency Officials, 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 regularly publish on its website a list of high-level agency leaders, as well as an archival list of former Senate-confirmed presidential appointees.Recommendation 2019-9, Recruiting and Hiring Agency Attorneys, urges agencies to avail themselves of the flexibilities available to them when hiring attorneys and offers best practices for structuring their hiring processes. First, it suggests that the Office of Personnel Management offer training for agencies on the alternative processes and flexibilities available to them when they hire attorneys. Then, among other suggestions, it advises agencies to post and disseminate vacancy announcements widely when seeking broad applicant pools; draft announcements clearly and concisely; communicate to applicants any limitations on the number of applicants they will consider; and establish policies for reviewing applications and interviewing candidates.

The full text of the recommendations and all project documents, including research reports and public comments, are available via the links above. Some of my prior coverage of these projects is available here and here.

This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.

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