The Administrative Conference recently published its newest slate of recommendations, which the Assembly adopted at its 70th Plenary session, held in December 2018. Two of the recommendations drew separate statements from members of the Assembly.  As I have previously explained, separate statements are permitted by the Administrative Conference Act (5 U.S.C. 595(a)(1)) and the agency’s bylaws, but they are rare.  For one Plenary to draw two separate statements is unusual indeed!

The Federal Register notice summarizes the newly adopted recommendations:

Recommendation 2018-4, Recusal Rules for Administrative Adjudicators. This recommendation urges agencies to issue procedural rules governing the recusal of adjudicators to ensure both impartiality and the appearance of impartiality in agency adjudications. It encourages agencies to adopt procedures by which parties can seek recusal of adjudicators assigned to their cases and to provide written explanations for recusal decisions.

Recommendation 2018-5, Public Availability of Adjudication Rules. This recommendation offers best practices to optimize agencies’ online presentations of procedural rules governing adjudications. It encourages agencies to make procedural rules for adjudications and related guidance documents available on their websites and to organize those materials in a way that allows both parties appearing before the agencies and members of the public to easily access the documents and understand their legal significance.

Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets (formerly titled Regulations.gov and the Federal Docket Management System). This recommendation offers suggested improvements to Regulations.gov, the website that allows the public to comment on many federal agencies’ rulemaking proposals. It provides recommendations to the governing body of Regulations.gov, called the eRulemaking Program, and to agencies that participate in Regulations.gov for ensuring that rulemaking materials on Regulations.gov are easily searchable and categorized consistently and clearly. These recommendations include using one electronic docket per rulemaking, promoting interoperability among key websites (e.g., Federalregister.gov and Reginfo.gov), and making rulemaking materials available to search engines.

Recommendation 2018-7, Public Engagement in Rulemaking. This recommendation offers strategies for agencies to enhance public engagement prior to and during informal rulemaking. It encourages agencies to invest resources in a way that maximizes the probability that rule-writers obtain high quality public information as early in the process as possible. It recommends expanding the use of requests for information and advance notices of proposed rulemaking, targeting outreach to individuals who might otherwise be unlikely to participate, and taking advantage of in-person engagement opportunities to solicit stakeholder input and support future informed participation.

Recommendation 2018-8, Public-Private Partnerships. This recommendation offers agencies guidance on legal and practical considerations for participating in public-private partnerships. It commends to agencies a Guide to Legal Issues Involved in Public-Private Partnerships at the Federal Level, which provides guidance on the key legal questions agencies encounter in the operation of public-private partnerships, and proposes mechanisms that would allow agencies to share resources and best practices with one another when creating and administering such partnerships.

The full text of each recommendation is included in the Federal Register notice.  Other documents and information related to the recommendations–including the underlying research reports, draft recommendations, member and public comments, and videos of committee meetings–are available on ACUS’s website, at the links above.

Public Member Richard D. Klingler filed a separate statement on Recommendation 2018-4, Recusal Rules for Administrative Adjudicators.  Mr. Klingler objected to the recommendation on separation of powers grounds.  Specifically, he raised concerns that the recommendation’s appearance of impartiality approach may not be appropriate as applied to agency heads or other senior agency officials whose role is to make policy and interpretative judgments.  In a traditional judicial context, these types of judgments may be viewed as inherently biased or as a clear indication of a lack of independence. Thus, they may provide an appropriate basis for judicial recusal.  Within the Executive branch, however, Mr. Klingler argued that such judgments may be perfectly appropriate.  Applying judicial standards of recusal within an agency may disregard this reality and therefore conflict with administrative structures.

Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets also drew a separate statement.  This statement was filed by a group of members, including Government Member Chai R. Feldblum; Public Members Victoria F. Nourse, Anne Joseph O’Connell, Sidney A. Shapiro, and Kathryn A. Watts; and Senior Fellows Cynthia R. Farina, Ronald M. Levin, Jerry L. Mashaw, Nina A. Mendelson, Richard J. Pierce Jr., Richard L. Revesz, and Peter L. Strauss.  Writing as administrative law teachers, these members “enthusiastically” supported the recommendation’s stated aims of improving public access to comments and other inputs to agency rulemakings.  But the members expressed concern that the recommendation cannot fully satisfy those aims because it fails to address comments and other information that may be submitted in one agency’s rulemaking by other government agencies, including the Office of Information and Regulatory Affairs (OIRA).  The members expressed regret that the Assembly declined an amendment moved at the Plenary that would have extended the recommendation to intra-governmental communications that are both submitted during a rulemaking and would otherwise be subject to disclosure under the Freedom of Information Act (FOIA). The amendment failed on procedural grounds, because the subject was not addressed in earlier stages of the Conference’s recommendation process.

Both separate statements are published in full in ACUS’s Federal Register notice, and they–along with all of the recommendations–are well worth reading in their entirety!

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.