Notice & Comment

New Slate of Spring Projects (ACUS Update)

Spring committee meetings are underway at Administrative Conference of the United States! The new slate includes five projects targeted for completion at the 74th Plenary Session, which is scheduled to be held on June 17, 2021. All meetings this spring will be held virtually, including the Plenary. Project descriptions, meeting details and links are all below. You can RSVP for a meeting and attend in real time by emailing the staff counsel, but the meetings are also recorded and available on the web after the fact.

Procedural Fairness in Judicial Review: This project considers whether Congress should enact a cross-cutting statute that addresses certain recurring technical problems in statutory provisions governing judicial review of agency action that may cause unfairness, inefficiency, or unnecessary litigation. It will also consider how any such statute should be drafted. The project draws in large part upon ACUS’s forthcoming Sourcebook of Federal Judicial Review Statutes, which analyzes the provisions in the U.S. Code governing judicial review of rules and adjudicative orders and identifies recurring drafting problems in them.

Early Input on Regulatory Alternatives: This project addresses whether, when, and how, before issuing notices of proposed rulemaking, agencies should solicit public input on alternatives to rules under consideration. It seeks to identify targeted measures for obtaining public input, such as small meetings with groups of experts or regulated parties, that provide valuable information to agencies as they weigh alternatives, while minimizing the associated procedural burden.

Virtual Hearings in Agency Adjudication: This project explores the use of virtual hearings, in which one or more participants attend remotely using a personal computer or mobile device, in agency adjudications. Virtual hearings have become increasingly common in agency adjudications, especially during the COVID-19 pandemic, but they can pose unique logistical challenges and raise questions of accessibility, transparency, privacy, and data security. Recommendations will identify best practices for improving existing virtual-hearing programs and establishing new ones when appropriate.

Periodic Retrospective Review: This project seeks to identify best practices for agencies in undertaking periodic review of their existing regulations. Whereas past Conference studies on retrospective review have addressed the topic in the broad sense, this project focuses on the special hurdles agencies confront when they attempt to implement regulatory review on a periodic and more regularized basis. The project seeks to identify the types of rules that lend themselves well to periodic retrospective review and offer best practices to agencies for designing programs to periodically reassess those rules.

Mass, Computer-Generated, and Fraudulent Comments: This project seeks to identify agency best practices for handling mass, computer-generated, and fraudulent comments in rulemakings. Treating each type of comment separately, it examines both the legal and practical issues associated with processing and responding to such comments. It also considers whether there are certain types of rulemaking proceedings where such comments are especially likely to pose particular problems; what remedies are available to agencies in handling such comments; and how agencies might promote transparency, integrity, and consistency in their procedures for addressing such comments.

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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