Recommendations

The main statutory function of ACUS is to bring together the public and private sectors to recommend improvements to administrative and regulatory processes.

ACUS’s Office of the Chairman, with the approval of the Council, engages consultants to study administrative processes or procedures that may need improvement. Consultants or in-house staff then prepare a comprehensive research report proposing recommendations.  An ACUS committee discusses this report, preparing a draft Recommendation to submit to the Council and, with approval, to the Assembly.  Following a debate the Assembly adopts the final Recommendation, which ACUS undertakes to implement.

                                                                               ACUS Recommendation Process

On occasion, the ACUS membership has acted to adopt a “Statement” to express its views on a particular matter without making a formal recommendation on the subject.  ACUS 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.  ACUS has adopted 19 such statements, which are included in the searchable database of recommendations.

  • Recommendation number: 2019-1
  • Adopted on: June 13, 2019
  • Committee: Judicial Review

The Administrative Procedure Act (APA) exempts policy statements and interpretive[1] rules from its requirements for the issuance of legislative rules, including notice and comment.[2] The Attorney General’s Manual on the Administrative Procedure Act defines “general statements of policy” as agency statements “issued . . . to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power...

The Administrative Procedure Act (APA) requires that hearings conducted under its main adjudication provisions[1] (sometimes known as “formal” hearings) be presided over by the agency itself, by “one or more members of the body which comprises the agency,” or by “one or more administrative law judges [(ALJs)] appointed under” 5 U.S.C. § 3105.[2] Section 3105, in turn, authorizes “[e]ach agency” to “appoint as many [ALJs] as are...

  • Recommendation number: 2019-3
  • Adopted on: June 13, 2019
  • Committee: Regulation

Among their many activities, government agencies issue guidance documents that help explain their programs and policies or communicate other important information to regulated entities and the public. Members of the public should have ready access to these guidance documents so that they can understand how their government works and how their government relates to them. Agencies should manage their guidance documents consistent with...

  • Recommendation number: 2019-4
  • Adopted on: June 13, 2019

The Equal Access to Justice Act (EAJA), first enacted in 1980, authorizes the award of attorney fees and other expenses to certain individuals, small businesses, and other entities who prevail against the federal government in judicial proceedings and certain adversarial agency adjudicative proceedings, when the position of the government is not substantially justified.[1] The stated purpose of EAJA is to, among other things, “...

  • Recommendation number: 2018-1
  • Adopted on: June 14, 2018
  • Committee: Regulation

The Paperwork Reduction Act (PRA) created the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget to oversee information policy in the executive branch.[1] OIRA’s oversight responsibilities include the review and approval of federal agencies’ information collections from the public. Information collections are government requests for structured information, such as those requests for...

  • Recommendation number: 2018-2
  • Adopted on: June 15, 2018
  • Committee: Judicial Review

If a court holds portions of a rule unlawful, and the agency has been silent about severability, then the default remedy is to vacate the entire rule, including those portions that the court did not hold unlawful.[1] This outcome can impose unnecessary costs on the agency, if it chooses to re-promulgate the portions of the rule that the court did not hold unlawful but nonetheless set aside, and on the public, which would forgo any...

Courts and adjudicative agencies have increasingly come to rely on technology to manage various aspects of their adjudicative activities. Some of these federal agencies have adopted and implemented a form of electronic management for their casework, but others have not done so. Although practical considerations or resource constraints may sometimes weigh against the use of an electronic case management system (eCMS), agencies can...

  • Recommendation number: 2018-4
  • Adopted on: December 13, 2018
  • Committee: Adjudication

Recusal, the voluntary or involuntary withdrawal of an adjudicator from a particular proceeding, is an important tool for maintaining the integrity of adjudication. Recusal serves two important purposes. First, it helps ensure that parties to an adjudicative proceeding have their claims resolved by an impartial decisionmaker. This aspect of recusal is reflected in the Due Process Clause, as well as statutory, regulatory, and other...

Every year, federal agencies conduct hundreds of thousands of adjudications.[1] In order to participate meaningfully in adjudications, persons appearing before federal agencies must have ready online access both to the key materials associated with these adjudications (including prior decisions) and the procedural rules governing them. Administrative Conference Recommendation 2017-1 addresses the former set of materials, urging...

  • Recommendation number: 2018-6
  • Adopted on: December 13, 2018
  • Committee: Regulation

As agencies develop regulations, they often seek input from the public. In order to submit an informed comment, a member of the public needs to be able to at least: (1) access the proposed rule and the agency’s justification for it, and (2) access materials upon which the agency substantially relied to develop the proposed rule. Commenters should also be able to access other comments that may have been submitted on the proposed rule...