ACUS Publishes New Statement of Principles for Public Participation in Agency Rulemaking

Since its establishment, the Administrative Conference of the United States (ACUS) has issued dozens of recommendations designed to help agencies efficiently, equitably, and effectively provide opportunities for public input and dialogue when they issue, amend, or repeal rules.

To assist agency staff in deploying this substantial but diffuse body of work, ACUS’s Office of the Chair has prepared a Statement of Principles for Public Engagement in Agency Rulemaking that distills and concisely describes the best practices identified in these ACUS recommendations.

This new publication is the second in a series, joining the Statement of Principles for the Disclosure of Federal Administrative Materials, which was released last year. Both resources will be updated, when appropriate, to reflect ACUS’s adoption of new recommendations.

A third statement of principles is now underway that will synthesize all ACUS recommendations on agency guidance documents.

Fall 2023 Committee Schedule

Three ACUS standing committees—and one ad hoc committee—will convene this fall to consider new projects directed towards the development of draft recommendations for consideration by the ACUS Assembly.

Committee on Administration & Management

The Committee on Administration & Management, chaired by ACUS Public Member Eloise Pasachoff (Georgetown University Law Center), will convene on Tuesday, October 17 (1 p.m. ET), and Monday, October 30 (1 p.m. ET), to consider Identifying and Reducing Burdens in Administrative Processes.

This project will recommend best practices, such as public engagement and data analysis, that agencies can use to identify unnecessary burdens that members of the public face when they engage with administrative programs or participate in administrative processes. It will also recommend strategies agencies can use to reduce unnecessary burdens, such as streamlining processes and digitizing services.

A draft report, prepared by project consultants Professor Pamela Herd (Georgetown University McCourt School of Public Policy), Professor Donald Moynihan (Georgetown University McCourt School of Public Policy), and Professor Amy Widman (Rutgers Law School), is now available on the ACUS website.

Please contact ACUS Deputy Research Director and project Staff Counsel Matt Gluth (MGluth@acus.gov) with any questions.

Committee on Adjudication

The Committee on Adjudication, chaired by ACUS Government Member Nadine M. Mancini (General Counsel, Occupational Safety and Health Review Commission), will convene on Wednesday, October 11 (1 p.m. ET), and Wednesday, October 25 (1 p.m. ET), to consider Best Practices for Adjudication Not Involving an Evidentiary Hearing.

This project will examine the wide range of procedures that agencies use when adjudicating cases in programs in which there is no legally required opportunity for an evidentiary hearing. Based on that examination, it will offer a set of broadly applicable best practices that account for the diversity of matters that agencies decide through truly informal adjudication and promote fairness, accuracy, and efficiency in such proceedings.

A draft report, prepared by project consultant Professor Michael Asimow (UCLA School of Law; Santa Clara University School of Law), and draft recommendations are now available on the ACUS website.

Please contact ACUS Deputy Research Director and project Staff Counsel Matt Gluth (MGluth@acus.gov) with any questions.

Committee on Regulation

The Committee on Regulation, chaired by ACUS Government Member Helen Serassio (Associate General Counsel, Cross-Cutting Issues Law Office, Environmental Protection Agency), will convene on Thursday, October 19 (2 p.m. ET), and Tuesday, October 31 (2 p.m.), to consider User Fees.

This project will recommend best practices for agencies—and Congress, if warranted—to consider in designing and implementing user fees in administrative programs. It will examine, among other topics, how Congress and agencies determine when user fees are appropriate; how agencies determine fair and reasonable user fees for specific programs; how they engage with the public in determining user fees; and how often they review their user fee programs. Professor Erika Lietzan (University of Missouri School of Law) is serving as the consultant for this project.

Please contact ACUS Attorney Advisor and project Staff Counsel Kazia Nowacki (KNowacki@acus.gov) with any questions.

Ad Hoc Committee on Improving Timeliness in Agency Adjudication

A special Ad Hoc Committee, chaired by ACUS Government Member Ray Limon (Board Member, U.S. Merit Systems Protection Board), will convene on Wednesday, October 18 (1 p.m. ET), and Monday, October 30 (1 p.m. ET), to consider Improving Timeliness in Agency Adjudication.

This project will survey strategies—including procedural, technological, personnel, and other reforms—that agencies have used or might use to address backlogs or delays in administrative adjudication. Based on this survey, it will identify best practices to help agencies devise plans to promote timeliness in administrative adjudication, in accord with principles of fairness, accuracy, and efficiency. The project will also consider potential legislative reforms, if warranted. ACUS Research Director Jeremy Graboyes and ACUS Attorney Advisor Jennifer Selin are serving as in-house researchers for this project.

Please contact Lea Robbins (LRobbins@acus.gov), ACUS Attorney Advisor and project Staff Counsel, with any questions.

Office of the Chair Convenes New Working Group to Develop Draft Bill to Implement Recent Recommendation

As recommended by the ACUS Assembly, Chair Andrew Fois has convened a new Working Group of ACUS members to assist with preparation of draft legislation that would, if enacted by Congress, implement the statutory reforms identified in Recommendation 2023-1, Proactive Disclosure of Agency Legal Materials.

The working group, co-chaired by ACUS Government Member Roxanne Rothschild (Executive Secretary, National Labor Relations Board) and Public Member Jennifer Dickey (Associate Chief Counsel, U.S. Chamber Litigation Center), held its first meeting on Tuesday, October 10. I have the pleasure of serving as Staff Counsel to the Working Group, so don’t hesitate to reach out to me at CDryland@acus.gov with any questions.

Working Group Continues to Develop Model Rules of Representative Conduct

In Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings, the ACUS Assembly recommended that the Office of the Chair “consider promulgating model rules of conduct” consistent with the Recommendation and, in doing so, “seek the input of a diverse array of agency officials and members of the public, including representatives who appear before agencies, and the American Bar Association.”

Heeding that suggestion, the Office of the Chair convened a Working Group of public- and private-sector representatives, chaired by Judge Erin Worth (Administrative Law Judge, Federal Maritime Commission), to develop model rules of representative conduct that, as contemplated by Recommendation 2021-9, “account for variation in agency practice and afford agencies the flexibility to determine which rules apply to their adjudicative proceedings.” The Working Group’s Enforcement Subcommittee will hold its first meeting on Thursday, October 19 (11 a.m. – 1 p.m. ET).

Please contact Matthew Gluth (MGluth@acus.gov), ACUS Deputy Research Director and Working Group Staff Counsel, with any questions.

Between the Lines with ACUS

ACUS has a new radio show, “Between the Lines with the Administrative Conference of the United States,” airing on the Federal News Network. The show, which is produced monthly and airs every other Tuesday from 1–2 p.m. ET on AM 1500 in Washington, D.C., takes listeners “between the lines” of administrative procedure with in-depth looks at ACUS projects and interviews with leading voices in the field of administrative law.

In the first episode, aired on September 5, ACUS Chair Andrew Fois, Council members Funmi Olorunnipa Badejo and Ron Cass, and former Chair Paul Verkuil introduced listeners to ACUS, including the agency’s history, mission, organization, and operations.

In episode two, aired on October 3, Chair Fois discussed access to justice in administrative proceedings with Rachel Rossi (Director, Office for Access to Justice, Department of Justice), Ron Flagg (President, Legal Services Corporation), ACUS Public Member Lou Virelli (Professor of Law, Stetson University College of Law), and Amy Widman (Professor of Law, Rutgers University).

---

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 prior posts in the series can be found here.

Conrad Dryland is an Attorney Advisor & Special Counsel to the Chair at the Administrative Conference of the United States. Any views expressed belong to the author and do not necessarily represent the views of the Administrative Conference or the federal government.