70th Plenary Agenda: Comments Due Dec. 7 (ACUS Update)

by Emily Bremer — Wednesday, Nov. 28, 2018@emilysbremer

The Administrative Conference will host its 70th Plenary Session on December 13th and 14th, 2018.  Once again, the meeting will be held at the George Washington University Law School, Jacob Burns Moot Court Room, 2000 H Street NW, Washington, DC 20052.  The Assembly is set to consider five proposed recommendations.  From the Federal Register notice, these recommendations address the following subjects:

Recusal Rules for Administrative Adjudicators. This proposed recommendation urges agencies to adopt procedural regulations governing the recusal of adjudicators—as distinct from the ethics laws and regulations generally applicable to all federal employees—and provides guidance on how such regulations should be promulgated and enforced. The proposed recommendation expands upon ACUS Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act, and revisits parts of the recommendation proposed by the Committee on Adjudication entitled Administrative Judges. Unlike these earlier recommendations, the proposed recommendation covers both administrative law judges (ALJs) and non-ALJ adjudicators.

Public Availability of Adjudication Rules. This proposed recommendation offers best practices to agencies for enhancing the accessibility of the procedural rules that govern the adjudications they conduct. Among other things, it encourages agencies to make procedural rules for adjudications and related guidance documents available on their websites and to organize those materials in a way that allows both parties appearing before the agencies and members of the public to easily access the documents and understand their legal significance.

Regulations.gov and the Federal Docket Management System (FDMS). This proposed recommendation offers suggested improvements to Regulations.gov, the website that allows the public to comment on many federal agencies’ rulemaking proposals. It provides recommendations to the governing body of Regulations.gov, called the eRulemaking Program, and to agencies that participate in Regulations.gov for ensuring that rulemaking materials on Regulations.gov are easily searchable and categorized consistently and clearly.

Public Engagement in Rulemaking. This proposed recommendation offers strategies for agencies to enhance public engagement prior to and during informal rulemaking. It encourages agencies to invest resources in a way that maximizes the probability that rule-writers obtain high quality public information as early in the process as possible. It recommends expanding the use of requests for information and advance notices of proposed rulemaking, targeting outreach to reach individuals who might otherwise be unlikely to participate, and taking advantage of in-person engagement opportunities to solicit stakeholder input and support future informed participation.

Public-Private Partnerships. This proposed recommendation offers agencies guidance on legal and other considerations for participating in public-private partnerships. It commends to agencies a Guide to Legal Issues Encountered in Public-Private Partnerships, published by an interagency working group convened by the Office of the Chairman of the Administrative Conference, and proposes mechanisms that allow agencies to share resources and best practices with one another for purposes of creating and maintaining public-private partnerships.

The proposed recommendations, supporting research reports, and other key documents related to each project can be found at the links above. Public participation and comments are welcome. Again, from the Federal Register notice:

Public Participation: The Conference welcomes the attendance of the public at the meeting, subject to space limitations, and will make every effort to accommodate persons with disabilities or special needs. Members of the public who wish to attend in person are asked to RSVP online at the 70th Plenary Session web page shown above, no later than two days before the meeting, in order to facilitate entry. Members of the public who attend the meeting may be permitted to speak only with the consent of the Chairman and the unanimous approval of the members of the Assembly. If you need special accommodations due to disability, please inform the Designated Federal Officer noted above at least 7 days in advance of the meeting. The public may also view the meeting through a live webcast, which will be available at https://www.youtube.com/​user/​gwlawschool during the course of the event. At the conclusion of the event, the webcast will be archived and available for later viewing on the 70th Plenary Session web page.

Written Comments: Persons who wish to comment on any of the proposed recommendations may do so by submitting a written statement either online by clicking “Submit a Comment” on the 70th Plenary Session web page . . . or by mail addressed to: December 2018 Plenary Session Comments, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW, Washington, DC 20036. Written submissions must be received no later than 10:00 a.m. (EDT), Friday, December 7, 2018, to assure consideration by the Assembly.

My previous coverage of these and other projects that were under committee consideration this fall is available here.


This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Emily Bremer

Emily S. Bremer is an Associate Professor of Law at the University of Notre Dame. Before joining the faculty, Professor Bremer taught at the University of Wyoming College of Law, served as the Research Chief of the Administrative Conference of the United States, worked as an associate in the telecommunications and appellate practice of Wiley Rein LLP, and clerked for Hon. Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. Her research focuses on administrative procedure and issues at the intersection of public and private governance, with a particular focus on the use of privately developed technical standards in government regulation.

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