Spring 2019 Projects (ACUS Update)

by Emily Bremer — Tuesday, Apr. 2, 2019@emilysbremer

The Administrative Conference of the United States kicks off its spring committee meetings schedule this week, with new projects on: (1) Agency Guidance Through Interpretive Rules; (2) Public Availability of Agency Guidance; (3) Selection of Administrative Law Judges; and (4) Revisions to the Model Rules for Implementation of the Equal Access to Justice Act. These projects are targeted for completion at the 71st Plenary Session, which is scheduled for June 13, 2019.

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.

Agency Guidance Through Interpretive Rules: This project addresses the extent to which the best practices for policy statements adopted in Recommendation 2017-5, Agency Guidance Through Policy Statements, should extend to interpretive rules. The project examines the legal differences, if any, between policy statements and interpretive rules and the extent to which agencies treat the two instruments as distinct. It explores whether and how Recommendation 2017-5’s best practices for policy statements (including enhanced transparency, increased public participation, and explicit identification of guidance as non-binding) should apply to interpretive rules and, if not, what best practices should agencies follow in the case of interpretive rules.

Public Availability of Agency GuidanceThis project catalogs legal requirements governing when and where federal agency guidance documents must be published. It also offers best practices for how agencies can comply with publication requirements and make guidance documents most accessible to the public, especially by placing them on agency websites.

Selection of Administrative Law JudgesThis project addresses the processes and procedures agency heads should consider establishing for exercising their authority under Executive Order 13843 (July 13, 2018) to hire administrative law judges (ALJs). Topics include the procedures governing recruitment, examination, and evaluation. (The project does not address selection criteria.) The project proceeds from the recognition that it may not be suitable for all agencies to adopt uniform hiring procedures.

Revisions to the Model Rules for Implementation of Equal Access to Justice Act: This project will reexamine and update the Conference’s Model Rules for Implementation of the Equal Access to Justice Act (EAJA). EAJA provides for the award of attorney’s fees and other expenses to parties who prevail over the federal government in certain agency adjudicative and court proceedings. In 1981, the Conference issued Model Rules addressing procedures related to the award of fees and expenses under EAJA in agency adjudicative proceedings. The rules cover matters such as eligibility, allowable fees and expenses, information required of applicants, procedures for considering applications, and agency and judicial review of award decisions. The Conference issued a revised set of Model Rules in 1986.

The project will reexamine the 1986 Model Rules and make appropriate revisions to reflect changes in law and practice, drawing in part upon the EAJA rules agencies have issued over the years. The project will be considered by an ad hoc committee that includes all Conference members who wish to participate. The committee will produce a recommendation presenting a revised set of Model Rules for consideration by the full Conference Assembly (unlike the prior versions of the Model Rules, which were promulgated by the Office of the Chairman).

Further updates will be provided as additional materials (i.e., draft reports and recommendations) become available.


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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