ACUS Model Adjudication Rules Can Help Agencies Develop Procedural Rules

After two years of extensive deliberations and public input, ACUS recently released substantial revisions to its Model Adjudication Rules (MARs).

The MARs are designed for use by federal agencies to amend or develop their procedural rules for all stages of agency adjudication—from general and prehearing provisions through hearings and administrative review. The revised MARs are available on ACUS’s website at https://www.acus.gov/model-rules/model-adjudication-rules.

Why Were the MARs Revised?

An ACUS working group released the first version of the MARs in 1993. However, the last 25 years have seen significant changes in adjudicative practices and procedures. ACUS has studied many of the most important developments, including the rise of electronic case management and best practices for video hearings.

These changes necessitated a careful review and revision of the MARs. A new ACUS working group relied on ACUS’s extensive empirical research of adjudicative practices in the Federal Administrative Adjudication Database; amendments to the Federal Rules of Civil Procedure (FRCP); and input from agency officials, academics, practitioners, and other stakeholders.

The dozen-member working group was chaired by Thomas McCarthy, an administrative law judge with the Federal Mine Safety and Health Review Commission and former president of the Federal Administrative Law Judges Conference. Professor Kent Barnett of the University of Georgia School of Law served as the group’s reporter.

What’s New in the 2018 Revisions?

Most significantly, the 2018 revisions:

  • Apply to most trial-type proceedings that offer an opportunity for fact-finding before an adjudicator, whether conducted pursuant to the Administrative Procedure Act or other authority.

  • Are more consistent with the FRCP as to the filing and service of records and discovery protective orders.

  • Include new rules on foreign-language interpretations and translations and sequestration of witnesses.

  • Recognize advances in technology in matters such as hearings and discovery.

  • Provide significant revisions to the rules on closing and reopening the record.

  • Incorporate certain revisions to the Federal Rules of Appellate Procedure.

The revised MARs “offer an invaluable and much-needed guide to agencies for how to draft new rules and, more importantly, how to review and revise their existing rules,” said Matthew L. Wiener, ACUS’s Vice Chairman and Executive Director and a working group member.

Who Uses the MARs?

Numerous agencies have relied on the Model Rules since they were first released in 1993. In 2011-12, the new Consumer Financial Protection Bureau consulted the Model Rules in designing its rules of practice for adjudication proceedings.

Many other agencies across the government have cited to the Model Rules over the years, including the Federal Motor Carrier Safety Administration, the Nuclear Regulatory Commission, the Securities and Exchange Commission, the National Credit Union Administration, the Federal Highway Administration, the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, and the Federal Reserve System.

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