ACUS Adopts Four New Recommendations

On Thursday, December 14, 2023, the Administrative Conference of the United States (ACUS) convened its 80^th Plenary Session. Following a keynote address by former OIRA Administrator Cass Sunstein on the effect of administrative burdens, or “sludge,” in federal programs, the Assembly debated, amended, and ultimately adopted four new recommendations. A recording of the Plenary Session livestream is now available on the ACUS YouTube page.

Recommendation 2023-5, Best Practices for Adjudication Not Involving an Evidentiary Hearing

Recommendation 2023-5, developed by the Committee on Adjudication, examines the wide range of procedures agencies use when adjudicating cases within programs in which there is no legally required opportunity for an evidentiary hearing. It offers a set of broadly applicable best practices that promote fairness, accountability, and efficiency in these truly informal adjudications while accounting for the procedural and substantive diversity of matters decided through such adjudications.

The final recommendation, accompanying research report by Professor Michael Asimow, and comments received from ACUS members and the public are available online through the ACUS website. If you would like additional information on Recommendation 2023-5, including how we can assist you or your agency with deploying its best practices, please contact Matthew Gluth (mgluth@acus.gov).

Recommendation 2023-6, Identifying and Reducing Burdens on the Public in Administrative Processes

Coming out of ACUS’s Committee on Administration and Management, Recommendation 2023-6 examines best practices, such as public engagement, 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. Recommendation 2023-6 also provides strategies agencies can employ to reduce unnecessary burdens, such as simplifying processes, digitizing services, and collaborating with other agencies and nongovernmental organizations to streamline service delivery.

You can access the final recommendation, the underlying research report by Professors Pamela Herd, Donald Moynihan, and Amy Widman, and all submitted comments through the Recommendation 2023-6 project page on the ACUS website. Please reach out to Matthew Gluth (mgluth@acus.gov) with any questions.

Recommendation 2023-7, Improving Timeliness in Agency Adjudication

In Recommendation 2023-7, ACUS examines strategies—including procedural, technological, personnel, and other reforms—that agencies have used or might use in the future to address backlogs or delays in administrative adjudication programs.

Developed by a special Ad Hoc Committee, this recommendation builds upon prior ACUS recommendations to provide a general framework that agencies and Congress can use to both foster an organizational culture of timeliness in agency adjudication and devise plans to address surging caseloads, delays, backlogs, and other timeliness concerns when they arise.

The in-depth report that informed development of Recommendation 2023-7, authored by in-house researchers Jeremy Graboyes and Jennifer Selin, is available on the project page on ACUS’s website, along with the final recommendation, and all comments received from ACUS members and the public.

For additional information on Recommendation 2023-7, please contact Lea Robbins (lrobbins@acus.gov).

Recommendation 2023-8, User Fees

Recommendation 2023-8, developed by the Committee on Regulation, identifies best practices to assist agencies and Congress when they are considering, designing, or implementing user fees in administrative programs. The recommendation provides a wide range of useful guidance for the designers and managers of user fee systems, including how Congress and agencies, as appropriate, might determine when imposition of user fees is appropriate, what fee level would be fair and reasonable, when and how agencies should engage with the public while fixing or modifying user fees, and how agencies should review their user fee programs.

The final recommendation, supporting research report by Professor Erika Lietzan, and submitted comments are available through the Recommendation 2023-8 project page on the ACUS website.

Please direct any questions about Recommendation 2023-8, including how we can support your agency’s deployment of the best practices it identifies, to Kazia Nowacki (knowacki@acus.gov).

Office of the Chair Transmits Draft Implementing Legislation for Recommendation 2023-1 to Congress

In Recommendation 2023-1, Proactive Disclosure of Agency Legal Materials, ACUS identifies issues within the principal statutes governing disclosure of agency legal materials and proposes statutory reforms that, if enacted, would provide clear and logical standards as to what legal materials an agency must publish—and where they must be published. To better facilitate implementation, Paragraph 8 of the recommendation directs the Office of the Chair to prepare and submit to Congress proposed statutory changes that would, if enacted, effect the recommendation’s reforms to the proactive disclosure provisions of the Freedom of Information Act and the E-Government Act.

Heeding that call to action, ACUS Chair Andrew Fois promptly established a Statutory Drafting Working Group composed of ACUS members who were uniquely qualified to assist the Office of the Chair with development of the draft implementing legislation called for by the recommendation.

Following six months of diligent work and extensive collaboration with the Working Group, Chair Fois transmitted the contemplated draft implementing legislation to relevant Congressional stakeholders on December 11, 2023. In addition to the draft bill itself, the transmittal package includes a section-by-section summary of the draft bill, statutory redlines that demonstrate the draft bill’s effect in context, Recommendation 2023-1 itself, and the research report that informed the recommendation’s development.

Chair Fois offers his thanks to the Working Group’s members, including its Co-Chairs Public Member Jennifer Dickey and Government Member Roxanne Rothschild, for their hard work and sustained engagement on this project. Special thanks are also owed to ACUS Liaison Representative Tobias Dorsey, who provided indispensable legislative drafting assistance, and Professor Margaret Kwoka, for lending her extensive subject-matter expertise to the group.

If you have any questions about Recommendation 2023-1, the recently transmitted draft implementing legislation, or the working group itself, don’t hesitate to send me an email at cdryland@acus.gov.

Implementation Success: OPM Launches PLUM Act Website

In December 2019, the ACUS assembly adopted Recommendation 2019-8, Public Identification of Agency Officials, which sought to improve the public availability of real-time information about high-level officials at federal agencies and encourage agencies to publish basic information on their websites about high-level agency leaders, vacant leadership positions, and acting officials.

On December 23, 2022, President Biden signed the Periodically Listing Updates to Management (PLUM) Act into law as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (Pub. L. 117-263). The PLUM Act, which was first introduced in June 2020, requires the Office of Personnel Management (OPM) to establish and maintain a current, publicly available directory of senior government leaders online. Former Rep. Carolyn Maloney, who introduced the bill in the House, has explained that the measure was intended to “implement recommendations made by GAO and the Administrative Conference of the United States.”

In another important step towards such implementation, on January 2, 2024, OPM launched a new website to facilitate access to information on the occupants and status of high-ranking policy and policy supporting positions in the Federal government, consistent with the requirements of the PLUM Act. While data on some positions is currently missing from the website, OPM will be working with the White House Office of Presidential Personnel over the next three months to confirm the completeness, accuracy, and reliability of the information provided by agencies through the new website.

FNN Airs Fifth Episode of “Between the Lines with the Administrative Conference”

The fifth episode of ACUS’s new podcast series, Between the Lines, is now available to stream on-demand through the Federal News Network website. In this episode, Chair Fois sits down with Professors Pamela Herd, Donald Moynihan, Eloise Pasachoff and Mr. Todd Rubin (Customer Experience Desk Officer, OMB) to discuss recent efforts to improve agencies’ ability to identify and reduce unnecessary administrative burdens in federal administrative programs.

In the fourth episode of Between the Lines, Chair Fois, ACUS Council Member Fernando Laguarda, and Professors Tom Merrill and Kristin Hickman explored the current role and continued significance of the Chevron Doctrine in judicial review of agency action.

New episodes of Between the Lines air on the first Tuesday of each month from 1:00 – 2:00 pm ET on AM 1500 and are available to stream on-demand shortly thereafter through the Federal New Network website.

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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.