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: 2016-4
  • Adopted on: December 13, 2016
  • Committee: Adjudication

Federal administrative adjudication can be divided into three categories:

(a) Adjudication that is regulated by the procedural provisions of the Administrative Procedure Act (APA) and usually presided over by an administrative law judge (referred to as Type A in the report that underlies this recommendation and throughout the preamble)[1];

(b) Adjudication that consists of legally required evidentiary hearings that are...

  • Recommendation number: 2016-5
  • Adopted on: December 14, 2016
  • Committee: Rulemaking

This recommendation updates and expands on the Administrative Conference’s earlier Recommendation 90-2, The Ombudsman in Federal Agencies, adopted on June 7, 1990.  That document concentrated on “external ombudsmen,” those who primarily receive and address inquiries and complaints from the public, and was formulated before “use of ombuds” was added to the definition of “means of alternative dispute resolution” in the Administrative...

Federal agencies conduct millions of proceedings each year, making decisions that affect such important matters as disability or veterans’ benefits, immigration status, and home or property loans.  In many of these adjudications, claimants appear unrepresented for part or all of the proceeding and must learn to navigate hearing procedures, which can be quite complex, without expert assistance.  The presence of self-represented...

  • Recommendation number: 2015-1
  • Adopted on: June 4, 2015
  • Committee: Regulation

The Unified Agenda of Federal Regulatory and Deregulatory Actions (typically known simply as the “Unified Regulatory Agenda” or “Unified Agenda”) is an important mechanism by which federal agencies inform the public of upcoming rules.  Required to be published on a semiannual basis, the Unified Agenda represents a joint enterprise of the Office of Information and Regulatory Affairs (OIRA), the Regulatory Information Service Center (...

  • Recommendation number: 2015-2
  • Adopted on: December 4, 2015
  • Committee: Rulemaking

Federal agencies play a significant role in the legislative process.[1]  While agencies can be the primary drafters of the statutes they administer, it is more common for agencies to respond to Congressional requests to provide technical assistance in statutory drafting.  Despite the extent of agency involvement in drafting legislation, the precise nature of the interactions between agencies and Congress in the drafting process...

  • Recommendation number: 2015-3
  • Adopted on: December 4, 2015
  • Committee: Adjudication

Providing clarity and certainty is an enduring challenge of administrative governance, particularly in the regulatory context.  Sometimes statutes and regulations fail to provide sufficient clarity with regard to their applicability to a particular project or transaction.  In such instances, businesses and individuals may be unable or unwilling to act, and the consequences for the economy, society, and technological progress can be...

  • Recommendation number: 2015-4
  • Adopted on: December 4, 2015
  • Committee: Regulation

Regulatory permits are ubiquitous in modern society, and each year dozens of federal agencies administering their regulatory permit authority issue tens of thousands of permits covering a broad and diverse range of actions.[1] The APA includes the term “permit” in its definition of “license.” In addition to agency permits, the APA defines licenses to include “the whole or part of an agency…certificate, approval, registration,...

  • Recommendation number: Statement #19
  • Adopted on: September 25, 2015
  • Committee: Judicial Review

The doctrine of issue exhaustion generally bars a litigant challenging agency action from raising issues in court that were not raised first with the agency.  Although the doctrine originated in the context of agency adjudication, it has been extended to judicial review of challenges to agency rulemakings.  Scholars have observed that issue exhaustion cases “conspicuously lack discussion of whether, when, why, or how [the issue]...

The Freedom of Information Act (FOIA)[1] makes available to any person, upon request, any reasonably described agency record that is not exempt under nine specified categories.  Congress has stated: “disclosure, not secrecy, is the dominant objective of the Act.”[2]  FOIA provides a two-level agency process for decisions on requests for access to agency records: (1) an initial determination that is ordinarily made by the component...

  • Recommendation number: 2014-2
  • Adopted on: June 5, 2014
  • Committee: Regulation

In the late 1960s and 1970s, in the wake of increasing public vigilance concerning the activities of government sparked by the Vietnam War and Watergate, Congress passed and the President signed a series of transparency laws designed to promote greater accountability and transparency in government decisionmaking.  The Government in the Sunshine Act, enacted in 1976, focused specifically on the transparency of meetings of multi-...