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: 2020-1
  • Adopted on: December 16, 2020
  • Committee: Regulation

Numerous agencies have promulgated rules setting forth the policies and procedures they will follow when conducting informal rulemakings under 5 U.S.C. § 553.[1] The rules can cover a variety of practices, including processes for initiating and seeking public input on new rules, coordinating with the Office of Management and Budget and other agencies as a rule is being formulated, and obtaining approval from agency leadership before...

  • Recommendation number: 2020-2
  • Adopted on: December 16, 2020
  • Committee: Rulemaking

As part of the rulemaking process, agencies create public rulemaking dockets, which consist of all rulemaking materials agencies have: (1) proactively published online or (2) made available for public inspection in a reading room. Public rulemaking dockets include materials agencies generate themselves and comments agencies receive from the public. Their purpose is to provide the public with the information that informed agencies’...

  • Recommendation number: 2020-3
  • Adopted on: December 16, 2020
  • Committee: Adjudication

In Recommendation 2016-4,[1] the Administrative Conference offered best practices for evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies provide for “higher-level review” (or “agency appellate review”) of the decisions of hearing-level adjudicators.[2] This Recommendation offers best practices for such review. The Administrative Conference intends this Recommendation to cover appellate...

Federal law establishes policies and procedures governing how federal executive agencies procure supplies and services.[1] The primary source of these policies and procedures is the Federal Acquisition Regulation (FAR),[2] which applies to all executive-agency acquisitions of supplies and services with appropriated funds by and for the use of the federal government, unless expressly excluded. Other relevant policies and procedures...

  • Recommendation number: 2020-5
  • Adopted on: December 17, 2020
  • Committee: Adjudication

Federal agency officials throughout the country preside over hundreds of thousands of adjudications each year.[1] As the Administrative Conference has previously observed, litigants, their lawyers, and other members of the public benefit from having ready online access to procedural rules, decisions, and other key materials associated with adjudications.[2] They also benefit from having ready online access to the policies and...

  • Recommendation number: 2020-6
  • Adopted on: December 17, 2020
  • Committee: Judicial Review

Federal agencies and their component units[1] participate in thousands of court cases every year. Most such cases result in “agency litigation materials,” which this Recommendation defines as including agencies’ publicly filed pleadings, briefs, and settlements, as well as court decisions, where such materials bear on agencies’ regulatory or enforcement activities.

Public access to agency litigation materials is desirable for...

  • Recommendation number: Statement # 20
  • Adopted on: December 16, 2020

Artificial intelligence (AI) techniques are changing how government agencies do their work.[1] Advances in AI hold out the promise of lowering the cost of completing government tasks and improving the quality, consistency, and predictability of agencies’ decisions. But agencies’ uses of AI also raise concerns about the full or partial displacement of human decision making and discretion.

Consistent with its statutory mission...

  • 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...