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 19 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: 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...