Notice & Comment

Recommendations, Recommitted Actions, and Revised Rules (ACUS Update)

If you’re looking for a little light poolside reading, check out the three new recommendations and other actions taken by ACUS at its 69th Plenary session last month.  The recommendations address the Paperwork Reduction Act, severability in judicial review of agency rulemaking, and electronic case management in adjudication.  In addition to adopting these recommendations, the Assembly recommitted a project on administrative judges to committee for further consideration in light of the Supreme Court’s then-pending decision in Lucia v. SEC.  Finally, the Assembly considered a revision of ACUS’s 1993 Model Adjudication Rules.

ACUS’s Federal Register notice summarizes each of the three adopted recommendations:

Recommendation 2018-1Paperwork Reduction Act Efficiencies. This recommendation encourages collaboration between the Office of Information and Regulatory Affairs and federal agencies to maximize opportunities for making the information collection clearance process under the Paperwork Reduction Act more efficient, while still maintaining its integrity. The recommendation also encourages using generic clearances and common forms more frequently, providing more training to agencies, and improving several other aspects of the information-collection clearance process.

Recommendation 2018-2Severability in Agency Rulemaking (formerly titled Minimizing the Cost of Judicial Review). This recommendation encourages federal agencies that anticipate litigation over their rules to consider early in the rulemaking process whether a rule is severable—that is, divisible into portions that can and should function independently. It also identifies steps agencies should take if they intend that portions of a rule should continue in effect even though other portions have been held unlawful on judicial review. In addition, it encourages courts reviewing an agency rule to solicit the parties’ views on the issue of severability in appropriate circumstances.

Recommendation 2018-3Electronic Case Management in Federal Administrative Adjudication. This recommendation offers guidance for agencies considering whether and how to implement an electronic case management system. It provides factors for agencies to consider in weighing the costs and benefits of an electronic case management system; sets forth measures an agency should take to ensure privacy, transparency, and security; and describes ways an electronic case management system may improve adjudicatory processes.

The recommendations are printed in full in the Federal Register.  Supporting materials, such as the underlying research reports, draft recommendations, and member and public comments, are available on ACUS’s website, at the links provided above.

Finally, the revised Model Adjudication Rules that the Assembly considered were prepared by a working group convened by the Office of the Chairman.  As explained in the Federal Register notice, the “Rules offer agencies a complete set of model procedural rules—governing prehearing proceedings, hearings, and appellate review—to improve the fairness and efficiency of their adjudication programs.”  ACUS previously sought public comment on the revised Rules.  Once the Rules are completed, ACUS will publish them on its website and in the Federal Register.

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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