ACUS 79^th Plenary Session: Save the Date & Agenda Announced

The Administrative Conference of the United States (ACUS) will convene in its 79^th Plenary Session on Thursday, June 15, 2023, at The George Washington University Law School in Washington, D.C.

On Tuesday, May 23, 2023, the ACUS Council assembled to consider committee-approved draft recommendations and set the agenda for the 79^th Plenary Session. Following opening remarks by OIRA Administrator Richard Revesz, the ACUS Assembly will consider four draft recommendations:

• Artificial Intelligence in Retrospective Review of Agency Rules: This proposed recommendation identifies best practices for agencies to consider when designing or using artificial intelligence or other algorithmic tools to identify rules that are outdated or redundant, contain typographical errors or inaccurate cross-references, or might benefit from elaboration or clarification. It also discusses how agencies can design these tools in a way that promotes transparency, public participation, and accountability. Draft recommendations, favorably reported by the Committee on Regulation, and an accompanying final report by project consultant and ACUS Senior Fellow Catherine Sharkey (New York University Law School) are now available on the ACUS website.
• Virtual Public Engagement in Agency Rulemaking: This proposed recommendation identifies best practices to promote enhanced transparency, accessibility, and accountability when agencies use virtual tools to engage the public in connection with agency rulemaking activities. 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 agency decision makers. Draft recommendations, favorably reported by the Committee on Rulemaking, and an accompanying final report by ACUS Attorney Advisor Kazia Nowacki are now available on the ACUS website.
• Online Processes in Agency Adjudication: This proposed 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. Draft recommendations, favorably reported by the Committee on Adjudication, and an accompanying final report by ACUS Attorney Advisor Matthew Gluth are now available on the ACUS website.
• Disclosure of Agency Legal Materials: This proposed 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 would also account for technological developments and correct certain statutory ambiguities and drafting errors. The objective of these amendments would be to ensure that agencies provide ready public access to important legal materials in the most efficient way possible. Draft recommendations, favorably reported by the Ad Hoc Committee on Disclosure of Agency Legal Materials, and a final report from the project’s consultant team are now available on the ACUS website.

Members of the public are invited to view the Plenary proceedings via livestream, which will be accessible through the 79^th Plenary Session event page on the ACUS website.

Consultants Wanted for Forthcoming ACUS Projects

ACUS is seeking proposals from parties interested in serving as consultants for two forthcoming projects.

Public Participation in Agency Adjudication: Through this project, ACUS will study and, if warranted, offer best practices for improving public participation in agency adjudicative proceedings. Among other relevant topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts.

Additional information on the project—including how to submit a proposal, tentative deadlines, and consultant compensation—can be found in the request for proposals, now available on the ACUS website. Prospective consultants must submit their proposals no later than 5 p.m. ET on Monday, June 5, 2023, to be guaranteed consideration.

Individualized Guidance: ACUS intends to study and identify 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. The project will assess the processes through which members of the public request guidance from agencies; agency practices for drafting responses to such requests (including the personnel involved and quality assurance mechanisms employed); 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.

Additional information on the project—including how to submit a proposal, tentative deadlines, and consultant compensation—can be found in the request for proposals, which is available on the ACUS website. Prospective consultants must submit their proposals no later than 5 p.m. ET on Monday, June 5, 2023, to be guaranteed consideration.

ACUS and LSC Announce Additional Panels for Public Forum Series on “Assisting Parties in Federal Administrative Adjudication”

ACUS and the Legal Services Corporation (LSC) continue to plan additional panels as part of their virtual public forum series, Assisting Parties in Federal Administrative Adjudication.

The third panel in this series, Creating and Improving Resources for Self-Represented Parties, will take place on Thursday, June 27 (1:00–2:00 p.m. ET). Government leaders and legal aid attorneys will discuss ways that agencies can assist self-represented parties through tools such as technology resources and how-to guides. Members of the public that would like to attend may register here.

A recording of the first panel discussion in this series, Expanding Access to Representation, is available online here. A recording of the second panel discussion, entitled Promoting Effective Representation, is available online here.

ACUS Seeks Williams Fellow to Help Grow Its Artificial Intelligence Program

Federal agencies are increasingly considering how they can use artificial intelligence (AI) and related technologies to support administrative processes such as rulemaking, regulation, adjudication, investigation, and enforcement. Agencies are also considering how private-sector use of AI and other emerging technologies intersects with the statutes they administer.

Over the past five years, ACUS has worked with leading policymakers and scholars to study these and other related questions, publishing major reports, hosting public forums, convening interagency meetings, and adopting recommendations that set forth key principles and best practices for agencies to consider when adopting AI technologies. To learn more about ACUS’s work in the AI space, please visit acus.gov/ai.

In recognition of the growing importance of AI technologies, ACUS is seeking a Williams Fellow to support the further development and implementation of a robust research agenda focused on the intersection of AI and administrative law.

Interested applicants should submit a cover letter, résumé, law school transcript, and writing sample to info@acus.gov. Applications must be received by Monday, July 3, 2023 (11:59 p.m. ET) to be guaranteed consideration. For more information on the Williams Fellowship, applicant evaluation criteria, and fellow compensation, please click here.

ACUS Submits Final Report on Feasibility of Patent Small Claims Tribunal

On April 4, 2023, ACUS published its final report examining issues associated with and options for designing a small claims patent court.

The report, prepared as part of an independent study conducted by ACUS’s Office of the Chair at the request of the U.S. Patent and Trademark Office (USPTO) and a bipartisan group of six members of the Senate Judiciary Committee’s Intellectual Property Subcommittee, addresses topics including whether there is need for a small claims patent court, the feasibility and potential structure of such a court, and relevant legal, policy, and practical considerations associated with establishing a patent small claims tribunal.

The Office of the Chair conducted the study with the participation of three consultants, Kali N. Murray (Marquette University Law School), Arti K. Rai (Duke Law School), and Melissa F. Wasserman (UT Austin Law School), all recognized scholars working at the intersection of patent law and administrative law.

As part of its study, the Office of the Chair engaged with a wide range of stakeholders and solicited public input on key questions related to the establishment and design of a small claims patent report (receiving more than 130 public comments in response to a request for information).

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 prior posts in the series can be found here.

Conrad Dryland is an Attorney Advisor & Special Counsel to the Chair at the Administrative Conference of the United States. Any views expressed belong to the author and do not necessarily represent the views of the Administrative Conference or the federal government.