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: 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...

In contrast to federal court records, which are available for download from the judiciary’s Public Access to Court Electronic Records (PACER) program (for a fee), or records produced during notice-and-comment rulemaking, which are publicly disseminated on the rulemaking website www.regulations.gov, there exists no single, comprehensive online clearinghouse for the public hosting of decisions and other materials generated throughout...

  • Recommendation number: 2017-2
  • Adopted on: June 16, 2017
  • Committee: Rulemaking

Since the enactment of the Administrative Procedure Act (APA) in 1946, public input has been an integral component of informal rulemaking.  The public comment process gives agencies access to information that supports the development of quality rules and arguably enhances the democratic accountability of federal agency rulemaking.  As early as the 1960s, however, many agencies reported that notice-and-comment rulemaking “had become...

  • Recommendation number: 2017-3
  • Adopted on: December 14, 2017
  • Committee: Regulation

For decades, agencies have worked to make regulatory requirements more comprehensible to regulatory stakeholders and the public at large, including by using “plain language” or “plain writing.”[1] Clearly drafting and explaining regulations facilitates the core administrative law goals of public participation, efficient compliance, judicial review, and the protection of rights. Numerous statutory and executive requirements direct...

  • Recommendation number: 2017-4
  • Adopted on: December 14, 2017
  • Committee: Regulation

Marketable permits are a type of government-created license that regulates the level of a particular activity.[1]  Often, they ration the use of a resource (for instance, clean air by limiting pollution, fisheries by limiting fish catch, or the electromagnetic spectrum by allocating it among various uses), but they may also be used to satisfy affirmative obligations to engage in an activity (such as requirements to produce renewable...

  • Recommendation number: 2017-5
  • Adopted on: December 14, 2017
  • Committee: Judicial Review

General statements of policy under the Administrative Procedure Act (hereinafter policy statements) are agency statements of general applicability, not binding on members of the public,  “issued . . . to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”[1]  Interpretive rules are defined as rules or “statements issued by an agency to advise the public of the agency’s...

  • Recommendation number: 2017-6
  • Adopted on: December 15, 2017
  • Committee: Rulemaking

Making sound regulatory decisions demands information and analysis.  Several Administrative Conference recommendations encourage agencies to gather data when making new rules and when reviewing existing rules.[1]  These recommendations reinforce analytic demands imposed on agencies by legislation,[2] executive orders,[3] and judicial decisions.[4]

Agencies need information about the problems that new rules will address, such...

Individuals and entities regulated by federal agencies must adhere to program-specific requirements prescribed by statute or regulation.  Sometimes, however, agencies prospectively excuse individuals or entities from statutory or regulatory requirements through waivers or exemptions.[1]  The authority to waive or exempt regulated parties from specific legal requirements affords agencies much-needed flexibility to respond to...