Fall 2018 Projects (ACUS Update)

by Emily Bremer — Wednesday, Sept. 5, 2018@emilysbremer

Tomorrow, the Administrative Conference of the United States begins fall committee meetings on a slate of projects, including: (1) Regulations.gov and the Federal Document Management System; (2) Public Engagement in Rulemaking; (3) Recusal Rules for Administrative Adjudicators; (4) Public-Private Partnerships; and (5) Public Availability of Adjudication Rules. These projects are targeted for completion at the 70th Plenary Session, which will be held in December 2018 (precise date TBA).

All information that is currently available on these projects is provided below.  Additional information, particularly concerning the recently announced project on Public Availability of Adjudication Rules, will be provided as it becomes available.

Regulations.gov and the Federal Document Management System (FDMS): This project explores agency practices related to docket management and data quality on the Federal Docket Management System (FDMS) and Regulations.gov. It proposes changes to improve the way rulemaking materials are organized and displayed on Regulations.gov, thereby enhancing the public’s ability to participate in rulemaking in an informed manner.

Public Engagement in RulemakingThis project explores agency strategies to enhance public engagement prior to and during informal rulemaking.  It seeks to ensure that agencies invest resources in a way that maximizes the probability that rulewriters obtain high quality public information as early in the process as possible.  Among other things, the project considers efforts to promote public education through print or web-based media, use plain writing and clear visual formatting for rule text and supporting material, and take advantage of in-person engagement opportunities to solicit stakeholder input and support future informed participation.

Recusal Rules for Administrative AdjudicatorsThis project addresses whether agencies should issue procedural regulations—as distinct from the ethics laws and regulations generally applicable to all federal employees—governing the recusal of adjudicators, to what sources of law agencies should look in formulating such regulations, how such regulations should be promulgated and enforced, and related questions. The project 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 projects, this project covers both administrative law judges (ALJs) and non-ALJ adjudicators alike.

Public-Private Partnerships: Federal agencies, to assist in carrying out their missions, have long participated in public-private partnerships (P3s). An interagency working group has defined “public-private partnerships” as “collaborative working relationships between the U.S. government and non-federal actors in which the goals, structures, and roles and responsibilities of each partner, are mutually determined.” This project identifies examples of P3s at the federal level, the major legal issues that arise as agencies initiate and participate in P3s, and offers recommendations to facilitate the exchange of information among agencies that participate in P3s.

The Committee on Regulation met to discuss this project in the fall of 2016. The then-Committee Chair suggested that the Office of the Chairman prepare a guide to legal issues encountered in P3s. The Office of the Chairman convened a group of federal officials from various agencies who work on P3s, and the group collaboratively drafted a guide. The Committee on Regulation is now, once again, discussing this project.

  • Committee: Regulation
  • Staff Counsel: Todd Rubin
  • Researcher: Todd Rubin
  • Meeting Schedule: The committee previously met to discuss this project on July 31, 2018.  The materials that were before the committee at that time are available here.

If you would like to attend a committee meeting in person, you can do so by RSVPing through the agency’s website, at the link provided below for the relevant meeting.  All listed meeting times are in Eastern time.  If you cannot attend in person, you can watch the meeting, in real time or after-the-fact, on the Administrative Conference’s Livestream Channel.  Written comments are also welcome and can be submitted online through the appropriate project page, each of which is linked below, or via email to the listed Staff Counsel.


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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