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.

Over the past two decades, the use of guidance—nonbinding statements of interpretation, policy, and advice about implementation—by administrative agencies has prompted significant interest from Congress, executive branch officials, agency officials, and commentators. Most of this attention has been directed to “guidance documents,” freestanding, nonbinding statements of policy and interpretation issued by agencies. While such...

  • Recommendation number: 2014-4
  • Adopted on: June 6, 2014
  • Committee: Rulemaking

Informal communications between agency personnel and individual members of the public have traditionally been an important and valuable aspect of informal rulemaking proceedings conducted under section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553.  Borrowing terminology from the judicial context, these communications are often referred to as “ex parte” contacts.[1]  Although the APA prohibits ex parte contacts in...

  • Recommendation number: 2014-5
  • Adopted on: December 4, 2014
  • Committee: Regulation

Executive Summary

The following recommendation is intended to provide a framework for cultivating a “culture of retrospective review” within regulatory agencies.  It urges agencies to remain mindful of their existing body of regulations and the ever-present possibility that those regulations may need to be modified, strengthened, or eliminated in order to achieve statutory goals while minimizing regulatory burdens.  It...

  • Recommendation number: 2014-6
  • Adopted on: December 5, 2014
  • Committee: Rulemaking

Under the Administrative Procedure Act (APA), federal agencies are required to “give . . . interested person[s] the right to petition for the issuance, amendment, or repeal of a rule.”[1]  The statute generally does not establish procedures agencies must observe in connection with petitions for rulemaking.  It does, however, require agencies to respond to petitions for rulemaking “within a reasonable time,”[2] and to give...

  • Recommendation number: 2014-7
  • Adopted on: December 5, 2014
  • Committee: Adjudication

Agencies conduct thousands of adjudicative hearings every day, but the format of the hearing, whether face-to-face or by video, has not been analyzed in any systematic way.  Some agencies have provided hearings by video teleconferencing technology (VTC) for decades and have robust VTC programs.  These programs strive consistently to provide the best hearing experience, even as technology changes.  Other agencies have been reluctant...

  • Recommendation number: 2013-1
  • Adopted on: June 13, 2013
  • Committee: Adjudication

The Administrative Conference of the United States (Conference) has undertaken many studies over the years relating to the Social Security disability benefits system.[1]  It has issued a number of recommendations specifically directed at improving the Social Security Administration’s (SSA’s) initial application and appeals processes,[2] as well as other recommendations more generally designed to improve agency adjudicatory...

  • Recommendation number: 2013-2
  • Adopted on: June 13, 2013
  • Committee: Regulation

Benefit-cost analysis (also known as cost-benefit analysis) is one of the primary tools used in regulatory analysis to anticipate and evaluate the likely consequences of rules.[1]  Although some regulatory benefits and costs are difficult to quantify or monetize, those preparing such analyses generally attempt to estimate the overall benefits that a proposed or final rule would create as well as the aggregate costs that it would...

  • Recommendation number: 2013-3
  • Adopted on: June 14, 2013
  • Committee: Regulation

Over the last three decades, several authorities made recommendations for improving transparency in the use of science[1] in the administrative process.[2]  Partially in response to these recommendations, the executive branch and Congress have made a number of reforms to the scientific process undergirding agency decisionmaking.  In 2009, President Obama issued a memorandum directing that, “[t]o the extent permitted by law, there...

  • Recommendation number: 2013-4
  • Adopted on: June 14, 2013
  • Committee: Judicial Review

The administrative record in informal rulemaking plays an essential role in informing the public of potential agency action and in improving the public’s ability to understand and participate in agency decisionmaking.  As well, the administrative record can be essential to judicial review of agency decisionmaking under the Administrative Procedure Act (APA), which directs courts to “review the whole record or those parts of it...

  • Recommendation number: 2013-5
  • Adopted on: December 5, 2013
  • Committee: Rulemaking

In the last decade, the notice-and-comment rulemaking process has changed from a paper process to an electronic one.  Many anticipated that this transition to “e-Rulemaking”[1] would precipitate a “revolution,” making rulemaking not just more efficient, but also more broadly participatory, democratic, and dialogic.  But these grand hopes have not yet been realized.  Although notice-and-comment rulemaking is now conducted...