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: 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...

  • 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: 2019-5
  • Adopted on: December 12, 2019
  • Committee: Regulation

Federal regulatory agencies are subject to various requirements to conduct economic analysis when they prepare new regulations. Executive Order 12,866[1] requires that agencies (other than what it designates as “independent regulatory agencies”)[2] conduct a “regulatory impact analysis” (RIA) for their “significant regulatory actions,” which include regulations likely to have an annual economic impact exceeding $100 million.[3] The...

  • Recommendation number: 2019-6
  • Adopted on: December 13, 2019
  • Committee: Adjudication

A fundamental characteristic of agency adjudications that incorporate a legally required evidentiary hearing is the existence of an exclusive record for decision making.[1] The exclusive record in adjudications regulated by the formal-hearing provisions of the Administrative Procedure Act (APA) consists of the “transcript of testimony and exhibits, together with all papers and requests filed in the proceeding.”[2] Many other...

The federal government relies on both political appointees and career civil servants to operate effectively. Federal law provides for over 1,200 agency positions whose occupants must be appointed by the President with the advice and consent of the Senate (PAS positions).[1] But there are often numerous vacancies in these positions—not only at the start of every administration, but also at other times, including after initial...

Presidential appointees and the members of the Senior Executive Service (SES) who perform significant leadership responsibilities sit at the highest levels of federal agencies.[1] In December 2016, the federal government included 1,242 Senate-confirmed, presidentially appointed positions (PAS positions) and 472 other presidentially appointed positions (PA positions).[2] The SES included 8,156 individuals in 2016 (7,321 career SES,...

  • Recommendation number: 2019-9
  • Adopted on: December 12, 2019

Attorneys serve crucial roles within federal agencies. They defend agencies in litigation, draft regulations, investigate complaints, and resolve legal issues surrounding information disclosure, among their many functions. Attorneys support nearly all the operations of agencies, helping to ensure their fair and lawful functioning. Therefore, it is critical that agencies hire a corps of highly qualified attorneys.[1]

This...