Notice & Comment

Fall 2021 Recommendation Projects Are Underway! (ACUS Update)

ACUS has recently begun committee meetings on a slate of new recommendation projects targeted for completion at the 76th Plenary Session, scheduled for December 16, 2021. Descriptions and basic information about the projects (pulled from ACUS) appear below. Further information, including draft documents, are (or will become) available via the included links.

Public Access to Agency Adjudicative Proceedings

This project seeks to identify best practices regarding when and how federal agencies provide public access to adjudicative proceedings. It examines factors, including constitutional and statutory requirements, that agencies should consider when determining whether to open or close particular proceedings; logistical considerations relevant to facilitating public access to proceedings that agencies open to the public; and the form and public availability of agency policies governing public access to adjudicative proceedings.

Public Availability of Inoperative Agency Guidance

This project identifies for agencies best practices for maintaining public access to agency guidance documents that are no longer in effect, which the project refers to as inoperative guidance documents. It addresses factors agencies should consider in deciding whether to include certain types of inoperative guidance documents on their websites; steps agencies can take to make it easier for people to find the inoperative guidance documents in which they are interested; and what labels and explanations agencies should use to ensure the public can readily understand the context and significance of particular inoperative guidance documents. 

Quality Assurance Systems in Agency Adjudication

This project identifies best practices for agencies when devising and implementing systems to assess and improve the quality of decisions in high-volume adjudicative programs. It emphasizes cutting-edge techniques (including artificial intelligence) to structure the capture and analysis of data; the selection, role, and institutional placement of personnel; the use of performance metrics; efforts to ensure fairness, impartiality, efficiency, and other important institutional objectives; and the relationship between quality-assurance review and conventional appellate review.

Regulation of Representatives in Agency Proceedings

This project explores how agencies regulate the conduct of attorneys and non-attorneys who represent parties and other interested persons in administrative proceedings. It addresses, among other things, why different agencies adopt different rules governing representatives’ conduct; the ways in which different agencies’ rules operate; how different rules, and inter-agency variation in those rules, affect agencies, representatives, and persons affected by agency actions; whether agencies should consider adopting rules on certain subjects and what those rules should provide; how agencies should formulate such rules; and where agencies should publish them. With respect to those subjects, the project seeks to identify best practices for agencies in developing and modifying their rules regulating representatives.

  • Committee: Ad Hoc
  • Chairs: Allyson Ho (Gibson Dunn) & Carrie Ricci (USDA)
  • Consultant: George Cohen (UVA)
  • Staff Counsel: Gavin Young
  • Committee Meeting Dates: October 29, November 8, November 16

Technical Reform of the Congressional Review Act

This project considers potential technical reforms of the Congressional Review Act (CRA) that could clarify certain procedural aspects of the CRA while reducing administrative burdens on executive-branch agencies and congressional offices. Specifically, the project will consider: (1) phasing out the requirement that agencies submit paper copies of certain rulemaking materials to Congress in favor of an electronic process; (2) making it easier to ascertain key dates and time periods relevant to review of agency rules under the CRA; and (3) formalizing a procedure by which members of Congress can initiate congressional review of rules that agencies conclude are not covered by the CRA.

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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