Administrative Conference Publishes Four New Recommendations (ACUS Update)

by Emily Bremer — Saturday, Aug. 10, 2019@emilysbremer

At its 71st Plenary Session held June 13, 2019, the Administrative Conference adopted four new recommendations, addressing: (1) Agency Guidance Through Interpretive Rules; (2) Agency Recruitment and Selection of Administrative Law Judges; (3) Public Availability of Agency Guidance Documents; and (4) Revised Model Rules for Implementation of the Equal Access to Justice Act.  The complete text of the recommendations was published in the Federal Register on August 8, along with the following summaries:

Recommendation 2019-1, Agency Guidance Through Interpretive Rules identifies ways agencies can offer the public the opportunity to propose alternative approaches to those presented in an interpretive rule and to encourage, when appropriate, public participation in the adoption or modification of interpretive rules. It largely extends the best practices for statements of policy adopted in Recommendation 2017-5, Agency Guidance Through Policy Statements, to interpretive rules, with appropriate modifications to account for differences between interpretive rules and policy statements.

Recommendation 2019-2, Agency Recruitment and Selection of Administrative Law Judges addresses the processes and procedures agencies should establish for exercising their authority under Executive Order 13,843 (2018) to hire administrative law judges (ALJs). It encourages agencies to advertise ALJ positions in order to reach a wide pool of applicants, to publish minimum qualifications and selection criteria for ALJ hiring, and to develop policies for the review of ALJ applications.

Recommendation 2019-3, Public Availability of Agency Guidance Documents offers best practices for promoting widespread availability of guidance documents on agency websites. It urges agencies to develop and disseminate internal policies for publishing, tracking, and obtaining input on guidance documents; post guidance documents online in a manner that facilitates public access; and undertake affirmative outreach to notify members of the public of new or updated guidance documents.

Recommendation 2019-4, Revised Model Rules for Implementation of the Equal Access to Justice Act revises the Conference’s 1986 model agency procedural rules for addressing claims under the Act, which provides for the award of attorney fees to individuals and small businesses that prevail against the government in certain agency adjudications. The revisions reflect, among other things, changes in law and agency practice since 1986.

Documents related to the Conference’s work on these recommendations (e.g., research reports, draft recommendations, member and public comments) are available at the links above.  My previous coverage of these projects is available here and 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.

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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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