Making formal recommendations is one of the primary activities of the Administrative Conference. The Conference’s research and the resulting recommendations are conducted through our Project Process. The process includes: gathering and selecting ideas for a project, getting Council approval, selecting the researcher, having the researcher’s report considered by a committee, having the selected committee formulate a recommendation, having a committee’s recommendation considered by the Council and then the full Conference membership, and then implementation activities. Recommendations are adopted by the voting members of the Conference at semi-annual plenary sessions.

On occasion, the Conference membership has acted to adopt a “Statement” to express its views on a particular matter without making a formal recommendation on the subject.  Conference statements are typically the product of the same process that leads to recommendations, but may set forth issues, conclusions from a study, or comments, rather than recommendations.  During the Conference’s prior history, from 1968 through 1995, it adopted 17 such statements, which are included in the searchable database of recommendations.

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Resolving FOIA Disputes Through Targeted ADR Strategies


The Freedom of Information Act (FOIA)[1] makes available to any person, upon request, any reasonably described agency record that is not exempt under nine specified categories.  Congress has stated: “disclosure, not secrecy, is the dominant objective of the Act.”[2]  FOIA provides a two-level agency process for decisions on requests for access to agency records: (1) an initial determination that is ordinarily made by the component...

Government in the Sunshine Act


In the late 1960s and 1970s, in the wake of increasing public vigilance concerning the activities of government sparked by the Vietnam War and Watergate, Congress passed and the President signed a series of transparency laws designed to promote greater accountability and transparency in government decisionmaking.  The Government in the Sunshine Act, enacted in 1976, focused specifically on the transparency of meetings of multi-...

Guidance in the Rulemaking Process


Over the past two decades, the use of guidance—nonbinding statements of interpretation, policy, and advice about implementation—by administrative agencies has prompted significant interest from Congress, executive branch officials, agency officials, and commentators. Most of this attention has been directed to “guidance documents,” freestanding, nonbinding statements of policy and interpretation issued by agencies. While such...

"Ex Parte" Communications in Informal Rulemaking


Informal communications between agency personnel and individual members of the public have traditionally been an important and valuable aspect of informal rulemaking proceedings conducted under section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553.  Borrowing terminology from the judicial context, these communications are often referred to as “ex parte” contacts.[1]  Although the APA prohibits ex parte contacts in...

Retrospective Review of Agency Rules

  • Recommendation number: 2014-5
  • Adopted on: December 4, 2014
  • Committees: Regulation
  • Tags: Regulation

Recommendation 2014-5, Retrospective Review of Agency Rules, examines agencies’ procedures for reanalyzing and amending existing regulations and offers recommendations designed to promote a culture of retrospective review at agencies.  Among other things, it urges agencies to plan for retrospective review when drafting new regulations; highlights considerations germane to selecting regulations for reevaluation; identifies factors...

Petitions for Rulemaking


This recommendation identifies agency procedures and best practices for accepting, processing, and responding to petitions for rulemaking. It seeks to ensure that the public's right to petition is a meaningful one, while still respecting the need for agencies to retain decisional autonomy. Building upon ACUS's previous work on the subject, it provides additional guidance that may make the petitioning process more useful for agencies...

Best Practices for Using Video Teleconferencing for Hearings


This recommendation offers practical guidance regarding how best to conduct video hearings, and addresses the following subjects: Equipment and environment, training, financial considerations, procedural practices, fairness and satisfaction, and collaboration among agencies. It also provides for the development of a video hearings handbook by ACUS's Office of the Chairman.

Improving Consistency in Social Security Disability Adjudications


The Administrative Conference of the United States (Conference) has undertaken many studies over the years relating to the Social Security disability benefits system.[1]  It has issued a number of recommendations specifically directed at improving the Social Security Administration’s (SSA’s) initial application and appeals processes,[2] as well as other recommendations more generally designed to improve agency adjudicatory...

Benefit-Cost Analysis at Independent Regulatory Agencies


Benefit-cost analysis (also known as cost-benefit analysis) is one of the primary tools used in regulatory analysis to anticipate and evaluate the likely consequences of rules.[1]  Although some regulatory benefits and costs are difficult to quantify or monetize, those preparing such analyses generally attempt to estimate the overall benefits that a proposed or final rule would create as well as the aggregate costs that it would...

Science in the Administrative Process

  • Recommendation number: 2013-3
  • Adopted on: June 14, 2013
  • Committees: Regulation
  • Tags: Science

Over the last three decades, several authorities made recommendations for improving transparency in the use of science[1] in the administrative process.[2]  Partially in response to these recommendations, the executive branch and Congress have made a number of reforms to the scientific process undergirding agency decisionmaking.  In 2009, President Obama issued a memorandum directing that, “[t]o the extent permitted by law, there...