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.                                                                              

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 20 such statements, which are included in the searchable database of recommendations.

  • Recommendation number: 2021-1
  • Adopted on: June 17, 2021
  • Committee: Rulemaking

Under the Administrative Procedure Act (APA), agencies must give members of the public notice of proposed rules and the opportunity to offer their “data, views, or arguments” for the agencies’ consideration.[1] For each proposed rule subject to these notice-and-comment procedures, agencies create and maintain an online public rulemaking docket in which they collect and publish the comments they receive along with other publicly...

Retrospective review is the process by which agencies assess existing regulations and decide whether they need to be revisited. Consistent with longstanding executive-branch policy,[1] the Administrative Conference has endorsed the practice of retrospective review of agency regulations[2] and has urged agencies to consider conducting retrospective review under a specific timeframe, which is often known as “periodic retrospective...

  • Recommendation number: 2021-3
  • Adopted on: June 17, 2021
  • Committee: Regulation

Agency development of and outreach concerning regulatory alternatives prior to issuing a notice of proposed rulemaking (NPRM) on important issues often results in a better-informed notice-and-comment process, facilitates decision making, and improves rules. In this context, the term “regulatory alternative” is used broadly and could mean, among other things, a different method of regulating, a different level of stringency in the...

  • Recommendation number: 2021-4
  • Adopted on: June 17, 2021
  • Committee: Adjudication

The use of video teleconferencing (VTC) to conduct administrative hearings and other adjudicative proceedings has become increasingly prevalent over the past few decades due to rapid advances in technology and telecommunications coupled with reduced personnel, increased travel costs, and the challenges of the COVID-19 pandemic. As the Administrative Conference has recognized, “[s]ome applaud the use of VTC by administrative agencies...

  • Recommendation number: 2021-5
  • Adopted on: September 17, 2021
  • Committee: Judicial Review

Judicial review of federal administrative action is governed by numerous statutes, including two general statutes, the Administrative Procedure Act (APA)[1] and the Hobbs Act,[2] and hundreds of agency-specific statutes. Judicial review is also governed by judicially developed doctrines.[3] The APA’s judicial review provisions govern judicial review of agency action generally and provide default rules that apply in the absence of...

  • Recommendation number: 2021-6
  • Adopted on: December 16, 2021
  • Committee: Adjudication

Agencies adjudicate millions of cases each year. The matters they adjudicate are diverse, as are the processes they use to do so. Some processes are trial-like; others are informal. Some are adversarial; others are non-adversarial. Agencies conduct many different types of proceedings in the course of adjudicating cases, such as investigatory hearings, prehearing and scheduling conferences, settlement conferences, evidentiary...

  • Recommendation number: 2021-7
  • Adopted on: December 16, 2021
  • Committee: Regulation

Agencies issue guidance documents to help explain their programs and policies, announce their interpretation of laws, and communicate other important information to regulated entities, regulatory beneficiaries, and the broader public.[1] The Administrative Conference has issued several recent recommendations regarding guidance documents.[2] Among them was Recommendation 2019-3, Public Availability of Agency Guidance Documents, which...

  • Recommendation number: 2021-8
  • Adopted on: December 16, 2021
  • Committee: Rulemaking

The Congressional Review Act (CRA)[1] allows Congress to enact joint resolutions overturning rules issued by federal agencies. It also establishes special, fast-track procedures governing such resolutions. This Recommendation aims to address certain technical flaws in the Act and how it is presently administered.

The Hand-Delivery Requirement

The CRA provides that, before a rule can take effect, an agency must submit a...

  • Recommendation number: 2021-9
  • Adopted on: December 16, 2021

Many agencies have adopted rules governing the participation and conduct of attorneys and non-attorneys who represent parties in adjudicative proceedings. These rules may address a wide array of topics, including who can represent parties in adjudications, how representatives must conduct themselves, and how the agency enforces rules of conduct.[1] Some agencies have drafted their own rules. Others have adopted rules developed by...

A quality assurance system is an internal review mechanism that agencies use to detect and remedy both problems in individual adjudications and systemic problems in agency adjudicative programs. Through well-designed and well-implemented quality assurance systems, agencies can proactively identify both problems in individual cases and systemic problems, including misapplied legal standards, inconsistent applications of the law by...