I’m delighted to join Notice & Comment to highlight new and continuing projects from the Administrative Conference of the United States (ACUS), as well as other news about ACUS initiatives and recommendations. Many thanks to Emily Bremer for her stewardship of the series. With that, dear reader, here is an all-things-ACUS update.

Forum on Underserved Communities and the Regulatory Process

First, ACUS is currently mid-way through a multi-day, virtual forum addressing participation by underserved communities and their members in the administrative processes (including rulemaking and adjudication) by which agencies make regulatory policies. This forum addresses Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which requires that federal agencies “pursue a comprehensive approach to advancing equity for all,” including communities “that have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” (See also OMB’s recent report titled Study to Identify Methods to Assess Equity: Report to the President.)

The next panel examines state and local governments’ past and ongoing efforts to make their regulatory policymaking initiatives more accessible. For more information, please visit www.acus.gov/underserved-communities-and-the-regulatory-process-forum.

Committee Meetings

ACUS committee meetings are in full swing this month in advance of the December 16, 2021 plenary session. See below and here for more information about the projects under consideration, as well as links to their associated reports and draft recommendations. Projects include:

• Quality Assurance Systems in Agency Adjudication
  • Status: The Joint Committee on Adjudication and Administration and Management, chaired by ACUS Public Member Aaron Nielson, recently concluded its discussion and approved the draft recommendation.
  • See here for the updated draft recommendation and report.  

• Public Availability of Inoperative Agency Guidance Documents
  • Status: The Committee on Regulation, chaired by ACUS Government Member Connor N. Raso, recently concluded its discussion and approved the draft recommendation.
  • See here for the updated draft recommendation and report. 

• Regulation of Representatives in Agency Proceedings
  • Status: An Ad Hoc Committee, jointly chaired by ACUS Government Member Carrie F. Ricci and ACUS Public Member Allyson N. Ho, recently concluded its discussion and approved the draft recommendation.
  • See here for the updated draft recommendation and report.

• Public Access to Adjudicative Proceedings
  • Status: The Committee on Adjudication, chaired by ACUS Government Member Nadine Mancini, will continue to discuss the draft recommendation.
  • See here for the updated draft recommendation and report. 

• Technical Reform of the Congressional Review Act
  • Status: The Committee on Rulemaking, chaired in an acting capacity by ACUS Public Member Kevin Stack, recently concluded its discussion and approved the draft recommendation.
  • See here for the updated draft recommendation and report.

If you are interested in observing the committee meetings for these projects or attending the December 2021 plenary session, please contact info@acus.gov.

Ongoing Projects

ACUS is currently pursuing a number of ongoing projects. There are too many to include here. But I’ve highlighted several below and will continue to highlight others in future updates. We anticipate that the report associated with a project designated as an “Assembly Project” will be placed before an ACUS committee to formulate a proposed recommendation.

• Contractors in Rulemakings explores the legal and practical considerations agencies face in contracting out certain aspects of the rulemaking process. Consultants Bridget Dooling and Rachel Potter are conducting interviews and drafting their initial findings.

• Improving Notice of Regulatory Changes  studies the extent to which agencies’ current practices for providing public notice of relevant changes in law or policy (“regulatory changes”) might not provide some interested persons with actual notice of those changes. Consultants E. Donald Elliot and Joshua Ulan Galperin are currently drafting their report on the subject.

• Automated Legal Guidance (Assembly Project) identifies best practices for agencies to use when implementing automated tools—like interactive chatbots and virtual assistants—to provide legal guidance to members of the public. Consultants Josh Blank and Leigh Osofsky are beginning their research and conducting interviews. ACUS will consider this project in advance of the June 2022 plenary.

Working Group on Compiling Administrative Records

The last meeting of the Working Group on Compiling Administrative Records took place last week. The Working Group will soon release its Handbook on Compiling Administrative Records in Informal Rulemaking. This Handbook provides practical advice that agencies can use to draft guidelines that explain applicable legal requirements, policies, and best practices to agency personnel. It will also help agencies explain these complicated requirements, policies, and practices in a manner that is clear, accessible, and directed toward the personnel charged with implementing them.

Recent Publications & Reports

White House Legal Aid Interagency Roundtable

ACUS has joined the White House and Department of Justice in announcing the release of the 2021 Legal Aid Interagency Roundtable Report, Access to Justice in the Age of COVID-19. The report describes the adverse impact of the pandemic on access to government programs, identifies key lessons learned since March 2020, and highlights innovation strategies adopted to advance access to government programs including expanding virtual services. Among the creative innovations the report highlights is ACUS Recommendation 2021-4, Virtual Hearings in Agency Adjudication, which provides “access-to-justice recommendations for all virtual Federal agency adjudications.”

ACUS is one of 28 member agencies of the Legal Aid Interagency Roundtable named in President Biden’s May 18, 2021 Memorandum on Restoring the Department of Justice’s Access-to-Justice Function and Reinvigorating the White House Legal Aid Interagency Roundtable. Chaired by White House Counsel Dana Remus and Attorney General Merrick Garland, the Roundtable develops policy recommendations and best practices to improve access to justice and facilitate coordination among federal programs on access-to-justice issues.

Adjudication Updates

ACUS now issues monthly updates to share adjudication-related developments with agencies, Congress, and the public. The October 2021 issue of ACUS Adjudication Updates provides updates on agency adjudication related to access to justice, administrative review, due process, procedural rules, public access, and representation.

ACUS is Hiring!

ACUS is currently accepting applications for one Attorney Advisor position. The deadline to apply is Friday, December 3.

If you’re interested in administrative law or government service, this is a great opportunity. Please don’t hesitate to reach out to me if you have any questions. You can find more information, including a job description and further information about desired qualifications and the application process, here.

That’s all, folks! See you next time for the next ACUS Update.

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.

Danielle Schulkin is an Attorney Advisor at the Administrative Conference of the United States. The views expressed are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.