ACUS Seeks Consultant Proposals for Three New Projects

The Administrative Conference of the United States (ACUS) is seeking proposals from parties interested in serving as consultants for three new projects: (1) Choice of Forum for Judicial Review of Agency Rules, (2) Using Algorithmic Tools in Regulatory Enforcement, and (3) Public Engagement in Agency Rulemaking Under the Good Cause Exemption.

The consultant(s) selected for each project will prepare a report, work with a committee of ACUS members (including senior government officials and administrative law scholars) to produce recommendations to Congress and/or federal agencies, and participate in a plenary session of the full ACUS membership in 2024. Proposals must be received by 5 p.m. ET on September 4, 2023, to be guaranteed consideration.

Choice of Forum for Judicial Review of Agency Rules: Through this project, ACUS will study and, as appropriate, make recommendations to guide Congress in determining the appropriate forum and venue for judicial review of agency rules—with respect to both existing programs and programs established in the future. Among other topics, the project will address contexts in which agency rules should be subject to direct review by the courts of appeals rather than the district courts; when Congress should consider limiting the venue for judicial review of rules (beyond what the ordinary rules of venue would permit); when courts should consolidate multiple challenges to a single rule in a single case in a single court (including what procedures should apply to such consolidation); and any common ambiguities or drafting problems within the statutes governing choice of forum for judicial review of agency rules.

The consultant’s report will inform the work of an ACUS committee in producing recommendations in time for the June 2024 plenary session.

For additional information on the project—including how to submit a proposal, tentative deadlines, and consultant compensation—please refer to the request for proposals on the ACUS website.

Using Algorithmic Tools in Regulatory Enforcement: This project will study how agencies are using or might use algorithmic tools—including AI and predictive analytics—to detect, investigate, and prosecute current and potential noncompliance with the laws they administer. It will examine the potential benefits and risks of using algorithmic tools to support agencies’ regulatory enforcement efforts and identify policies, practices, and organizational structures agencies can put in place to ensure they enforce the law fairly, accurately, and efficiently.

The consultant’s report will inform the work of an ACUS committee in producing recommendations in time for the December 2024 plenary session.

For additional information on the project—including how to submit a proposal, tentative deadlines, and consultant compensation—please refer to the request for proposals on the ACUS website.

Public Engagement in Agency Rulemaking Under the Good Cause Exemption: Building upon ACUS’s prior work on improving public engagement in the rulemaking process, this project will study agency use of the good cause exemption and recommend best practices for public engagement in situations in which agencies find good cause to forgo formal notice-and-comment rulemaking procedures. Among other relevant topics, this project will identify best practices for agencies to employ in determining whether to undertake pre- or post-promulgation public engagement efforts with respect to such rules, what types of public engagement to use (including Federal Register notices, targeted outreach, and meetings with affected interests or other interested persons), and how and when to use information obtained through such public engagement efforts to modify or improve their rules.

The consultant’s report will inform the work of an ACUS committee in producing recommendations in time for the December 2024 plenary session.

For additional information on the project—including how to submit a proposal, tentative deadlines, and consultant compensation—please refer to the request for proposals on the ACUS website.

Working Group on Model Rules of Representative Conduct Holds Fourth Meeting

On August 9, 2023, the Subcommittee on Conduct of ACUS’s Working Group on Model Rules of Representative Conduct convened to consider comments on and suggested revisions to the section of the draft model rules that addresses standards of ethical conduct for representatives in agency adjudication.

In Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings, the ACUS Assembly directed the Office of the Chair to “consider promulgating model rules of conduct” consistent with the Recommendation and, in so doing, “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.”

Consistent with that direction, the Office of the Chair convened a working group of public- and private-sector representatives, chaired by Erin M. Wirth (Chief 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 resulting model rules are intended to help federal agencies amend or develop their rules governing representatives in adjudicative proceedings consistent with the best practices identified in Recommendation 2021-9.

The Working Group will reconvene on September 7, 2023, when the Subcommittee on Conduct will resume consideration of the section of the draft rules addressing standards of ethical representative conduct.

ACUS Welcomes New Public Members & Senior Fellows

On August 2, 2023, ACUS welcomed seven new public members and six new senior fellows.

New Public Members:

• Nicholas Bagley, Professor of Law, University of Michigan Law School
• Arjun Garg, Partner, Hogan Lovells LLP
• Emily Hammond, Glen Earl Weston Research Professor, The George Washington University Law School
• Paul J. Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation
• Cheryl M. Stanton, Chief Legal & Government Affairs Officer, BrightStar Care
• Louis J. Virelli III, Professor of Law, Stetson University College of Law
• Susan Webb Yackee, Director and Collins-Bascom Professor of Public Affairs, University of Wisconsin-Madison La Follette School of Public Affairs

New Senior Fellows:

• Jack M. Beermann, Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law
• Emily S. Bremer, Professor of Law, University of Notre Dame Law School
• Kristin E. Hickman, McKnight Presidential Professor in Law, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, and Associate Director, Corporate Institute, University of Minnesota Law School
• Aaron L. Nielson, Professor of Law, Brigham Young University J. Reuben Clark Law School
• Victoria F. Nourse, Ralph V. Whitworth Professor in Law, Georgetown University Law Center
• Adam J. White, Senior Fellow, American Enterprise Institute

ACUS Chair Andrew Fois issued the following statement to celebrate these appointments: “ACUS warmly welcomes these distinguished new members and Senior Fellows. We are grateful to them for volunteering their time and expertise in service of ACUS’s important mission to improve administrative procedure for the benefit of the American people. ACUS is lucky to have them.”

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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.