When It Rains, It Pours! (ACUS Update)
The Administrative Conference is busy! In this post, I’ll give you the full run-down, which includes a request for proposals for a new project, recently announced Plenary dates, upcoming committee meetings, and details on the seven (7!) projects slated for completion this fall.
First, ACUS has issued Request for Proposals from persons interested in serving as the research consultant on a project examining Virtual Hearings in Agency Adjudication. As described in the RFP:
ACUS is now undertaking a project to study the use in agency adjudications of hearings in which one or more participants attend remotely using a personal computer or mobile device, often from their home or office. These “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.
If you are interested in serving as the agency’s research consultant on this subject, further details are provided in the RFP. To be guaranteed consideration, you “must submit a proposal by 5:00 p.m. Eastern Time on October 30, 2020.”
Second, ACUS has announced that it will hold its 73rd Plenary Session on December 16-17, 2020. The event will be held virtually this year.
Finally, it is expected that seven projects will be on deck for completion at the 73rd Plenary. The unusually large slate of projects is a consequence of the pandemic’s disruption to ACUS’s ordinary meeting schedule. As you may recall, ACUS had to cancel a number of committee meetings in the spring and did not hold its usual June Plenary Session. Since that time, some projects have been completed through virtual committee meetings. For other projects, virtual committee meetings will soon be held.
Below is a preview of the seven projects slated for completion in December, beginning with the two that will soon be the subject of committee consideration and ending with an Office of Chairman project that is not going through the ordinary committee process. All committee meeting times listed below are in Eastern time, and descriptions of the projects are taken from the ACUS website.
Rules on Rulemakings: This project addresses whether and when agencies should adopt rules setting forth the procedures the agencies follow when engaging in informal rulemaking. These procedures can include internal approval requirements for proposed rules, minimum comment periods, requirements for ex ante and ex post review, and protocols for submitting sensitive information, among other subjects. The project will not seek to dictate the precise types of rulemaking procedures agencies should adopt, but it will explore the potential costs and benefits of a single rule or set of rules that sets forth an agency’s informal rulemaking practices.
- Committee: Regulation
- Staff Counsel and In-House Researcher: Todd Rubin
- Committee Meeting Schedule: October 15 at 2:00 pm; October 27 at 2:00 pm; November 5 at 2:00 pm.
Public Availability of Information About Agency Adjudicators: This project addresses agency disclosure of policies that will allow the public to ascertain, among other things, the constitutional status and relative impartiality of adjudicators. Policies include those relating to selection, appointment, supervision, evaluation, discipline, and removal. It will not address the content of agency policies or disclosure of policies governing agency heads. Resulting recommendations will address what policies should be disclosed and how.
- Committee: Adjudication
- Staff Counsel and In-House Researcher: Leigh Anne Schriever
- Committee Meeting Schedule: October 26 at 12:00 pm; November 6 at 2:00 pm; November 13 at 2:00 pm.
Agency Appellate Systems: This project studies agencies’ appellate review of hearing-level adjudicative decisions. Topics include the structure, composition, functions, procedures, and authority of agency appellate bodies. Resulting recommendations will focus on the ways in which agencies can enhance both the efficiency and fairness of appellate review.
- Committee: Adjudication
- Staff Counsel: Gavin Young
- Committee Meeting Schedule: November 6 at 2:00 pm; November 13 at 2:00 pm; November 23 at 12:00 pm.
- Consultants: Matthew Lee Wiener (ACUS) & Christopher J. Walker (The Ohio State University Moritz College of Law)
Agency Litigation Pages: This project studies whether and how agencies should make their federal court filings and relevant court opinions available to the public on their websites. Particular emphasis will be placed on litigation dealing with agency regulatory programs. The project will look at ways agencies can post documents to maximize their accessibility to interested members of the public while minimizing the resource burden imposed on the agencies.
- Committee: Judicial Review
- Staff Counsel and In-House Researcher: Mark Thomson
Government Contract Bid Protests Before Agencies: This project studies the procedures governing agency-level, procurement contract disputes — which are commonly called bid protests — under the Federal Acquisition Regulation and agency-specific regulations. It analyzes the rules governing a variety of bid protest procedures, including higher-level agency review and discovery and exchange of information during protests. The project will offer a series of options for improving agency-level bid protest processes and recommendations regarding when specific procedures may be appropriate for adoption.
- Committee: Administration and Management
- Staff Counsel: Mark Thomson
- Consultant: Professor Christopher R. Yukins (George Washington University Law School)
Protected Materials in Public Rulemaking Dockets: This project examines how agencies protect confidential business information, such as trade secrets and financial regulatory information, and personally identifiable information, such as medical information, within their public rulemaking dockets, while achieving an appropriate level of disclosure. Recommendation 2013-4, Administrative Record in Informal Rulemaking, urged agencies to seek “maximum disclosure” in the public rulemaking docket but did not address precisely how agencies should safeguard protected materials that underlie proposed rules. This project builds on Recommendation 2013-4 by studying practices agencies use to balance transparency and confidentiality in rulemaking, such as disclosing aggregate data without compromising the underlying information’s confidentiality and redacting protected information.
- Committee: Rulemaking
- Staff Counsel: Todd Rubin
- Consultant: Professor Christopher S. Yoo (University of Pennsylvania Carey Law School)
Agency Use of Artificial Intelligence. The Office of the Chairman of the Administrative Conference is exploring the growing role that artificial intelligence (AI), such as machine learning and related techniques, is playing in federal agency adjudication, rulemaking, and other regulatory activities.
- Staff Counsel: Todd Rubin
- Research Report: Available here
- Research Consultants: Professor David Freeman Engstrom (Stanford Law School), Professor Daniel E. Ho (Stanford Law School), Justice Mariano-Florentino Cuéllar (Supreme Court of California and Stanford Law School), and Professor Catherine M. Sharkey (New York University School of Law)
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.