Consultants Wanted for New Sourcebook on Public Participation in Agency Decision Making

The Administrative Conference of the United States (ACUS) is seeking proposals from parties interested in serving as consultants for a forthcoming project that will survey and comprehensively analyze legal requirements and policies related to public participation in agency decision making processes. The project will result in publication of a new ACUS sourcebook (i.e., a book-length reference guide) that will assist agency officials, Congress, and the federal judiciary in performing their work and serve as a valuable resource for the public.

Consultants selected for this project will survey federal statutes, presidential directives, OMB guidance, and agency rules and policies to identify legal requirements and policies governing when and how different agencies engage with the public as part of their decision-making processes. Among other topics, the study will address:

• Whether opportunities for public participation are required by law, discretionary with an agency, or provided upon request by a member of the public;
• Whether during decision-making processes members of the public are afforded an opportunity to share information or provide input;
• Whether agencies must specially engage with specific stakeholders (e.g., state, local, and tribal governments, small entities, low-income and minority populations);
• Whether and how agencies must publicize opportunities for public participation;
• How members of the public participate in agency decision making (e.g., through written submissions or oral presentations);
• When and how agencies must disclose communications with or received from members of the public; and
• How agencies must consider or respond to information and input provided by members of the public.

Based on that survey, consultants will prepare a new sourcebook that provides a comprehensive overview and cross-cutting analysis of federal statutes and executive-branch rules and policies governing public participation in agency decision making. For additional information on the project—including how to submit a proposal, anticipated deadlines, and consultant compensation—please refer to the request for proposals which is available on the ACUS website.

ACUS Committee Season Commences

This spring, four ACUS committees will meet to consider projects directed towards the development of recommendations for consideration and adoption by the ACUS Assembly.

Committee on Regulation

On March 8, 2023, the Committee on Regulation, Chaired by Professor Eloise Pasachoff (Georgetown Law), convened to consider Artificial Intelligence in Retrospective Review of Agency Rules.

This project studies how artificial intelligence (AI) tools can be used to identify rules that are outdated or redundant, contain typographical errors or inaccurate cross-references, and might benefit from elaboration or clarification. It further assesses how agencies can design and use AI tools in a way that promotes transparency, public participation, and accountability and comports with requirements imposed by the Administrative Procedure Act and other relevant laws.

A draft report from ACUS Senior Fellow Catherine Sharkey (NYU Law) and draft recommendations are now available.

The Committee on Regulation will reconvene to resume consideration of the draft recommendations at 2 p.m. on Wednesday, April 12, 2023.

Committee on Adjudication

The Committee on Adjudication, Chaired by Nadine M. Mancini (General Counsel, Occupational Safety and Health Review Commission) will consider Online Processes in Agency Adjudication.

This project will recommend best practices for the development of 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.

ACUS Attorney Advisor Matt Gluth is serving as in-house researcher for this project.

Committee on Rulemaking

The Committee on Rulemaking, Chaired by Professor Bertrall Ross (University of Virginia School of Law), will consider Virtual Public Engagement in Agency Rulemaking.

This project studies and offers recommendations on agencies’ efforts to promote enhanced transparency, accessibility, and accountability by using virtual tools to engage the public in connection with agency rulemaking activities. It explores a variety of practical issues, including when agencies should offer either fully or partially virtual meetings and how to structure those meetings in a way that meets public expectations and promotes valuable input for the agency. It also examines the legal constraints under which agencies conduct virtual public engagement in the rulemaking process.

ACUS Attorney Advisor Kazia Nowacki is serving as in-house researcher for this project.

Ad Hoc Committee on Disclosure of Agency Legal Materials

An Ad Hoc Committee, chaired by ACUS Public Member Aaron Nielson and Government Member Roxanne Rothschild, will consider Disclosure of Agency Legal Materials.

This project assesses whether the main statutes governing disclosure of agencies’ legislative rules, guidance documents, adjudicative decisions, and other important legal materials should be amended to consolidate and harmonize their overlapping requirements, account for technological developments, correct certain statutory ambiguities and drafting errors, and address other potential problems that may be identified. If warranted, the project will recommend statutory reforms to 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).

A draft report is now available from the project’s consultant team: Public Member Bernard Bell (Rutgers Law School), Senior Fellow Cary Coglianese (Penn Carey Law), Public Member Michael Herz (Cardozo School of Law), Professor Margaret Kwoka (The Ohio State University Moritz College of Law), and Professor Orly Lobel (University of San Diego School of Law).

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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.