ACUS Implementation Developments

After the ACUS Assembly adopts a recommendation, ACUS’s work does not end. Instead, ACUS continues working to promote and encourage federal administrative agencies, the President, Congress, and the Judicial Conference to adopt its recommendations. In recent months, ACUS has seen many successes in these areas with agencies promulgating final rules and Congress introducing legislation that follow ACUS’s recommendations. In this post, we highlight recent developments in the implementation and advancement of ACUS’s recommendations.

Recommendation 2016-3, Special Procedures for Social Security Litigation in District Court
In 2016, ACUS recommended that the Judicial Conference develop for the Supreme Court’s consideration a uniform set of procedural rules for federal court review of Social Security disability appeals. The Judicial Conference’s Advisory Committee on Civil Rules convened a subcommittee to evaluate whether developing special rules for Social Security litigation would be appropriate and recommend the form that those rules might take. At a Committee meeting in April 2018, the subcommittee reported on its efforts and presented draft “bare bones” rules to identify issues that the rules may address. The subcommittee has not yet determined whether to recommend development of formal rules and continues to evaluate these issues.

Recommendation 2015-1, Promoting Accuracy and Transparency in the Unified Agenda
In fall 2017, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions. The Unified Agenda included certain rules under agency consideration that had been dormant for some time. Earlier Unified Agendas did not make those proposed rules visible to the public. While this practice allowed agencies to retain regulation identification numbers (RIN) for their proposed rules, it did not provide a complete picture of each agency’s regulatory agenda. This change is consistent with Recommendation 2015-1, which encouraged agencies to include “pending” actions in the Unified Agenda. The Spring 2018 Unified Agenda continues these practices.

Recommendation 2014-4, “Ex Parte” Communications in Informal Rulemaking
In March 2018, the Surface Transportation Board issued a final rule updating its practices regarding ex parte communications in informal rulemaking proceedings. The final rule permits ex parte communications before the issuance of a notice of proposed rulemaking and requires disclosure of summaries of ex parte communications received after issuance of a notice of proposed rulemaking, consistent with Recommendation 2014-4.

Recommendation 2011-5, Incorporation by Reference
In October 2017, the Office of the Federal Register published the IBR Handbook. The Handbook recognizes Recommendation 2011-5 as useful guidance on incorporation by reference.

SSA Representative Payee Program
In December 2014, the Office of the Chairman issued a study on state guardianship laws and court practices. The report observed that data collection efforts varied from state to state and that no nationwide database related to guardianships exists, which complicates identification of an appropriate representative payee, especially when an individual already has a legal guardian. In January 2018, the Social Security Advisory Board published a report on Improving Social Security’s Representative Payee Program, discussing ACUS’s Representative Payee report and Vice Chair Matthew Lee Wiener’s remarks at a panel on “Working Interdisciplinary Networks of Guardianship Stakeholders.” In addition, the Strengthening Protections for Social Security Beneficiaries Act of 2018, enacted in April 2018, requires ACUS to continue this work by conducting a study on information sharing between the Social Security Administration and state courts and agencies.

Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking
When agencies issue rules that are not likely to result in significant adverse comment, Recommendation 95-4 encourages them to issue direct final rules—rules issued without a notice of proposed rulemaking that become effective unless an adverse comment is filed. In 2017 and 2018, the Consumer Product Safety Commission issued several direct final rules, relying on Recommendation 95-4 (e.g., Safety Standard for Non-Full-Size Baby Cribs).

Proposed Legislation
Members of Congress have introduced legislation that would implement many of ACUS’s recommendations.

The Federal Advisory Act Amendments of 2017, passed by the House of Representatives, seeks to address issues identified in Recommendation 2011-7, The Federal Advisory Committee Act—Issues and Proposed Reforms, by improving transparency and increasing diversity in committee membership.

The Taxpayers Right-to-Know Act, passed by the House of Representatives, would require agencies to provide links to any evaluation or program performance review on their websites, consistent with Recommendation 2013-7, GPRA Modernization Act of 2010: Examining Constraints To, and Providing Tools For, Cross-Agency Collaboration.

The ALERT Act of 2017 seeks to promote real-time updates concerning pending rules in the Unified Agenda. A Committee report on an earlier version of the bill highlighted many of the findings contained in the ACUS report for Recommendation 2015-1, Promoting Accuracy and Transparency in the Unified Agenda.