ACUS 70th Plenary Session Concludes

This article was authored by Shawne McGibbon, ACUS’s General Counsel.

ACUS held its 70th Plenary Session on December 13-14 at The George Washington University Law School in Washington, DC. At this semi-annual meeting, the voting members of ACUS (i.e., the Assembly) adopted five recommendations that seek to enhance administrative procedures within the federal government. In addition, ACUS’s Vice Chairman and Executive Director, Matthew L. Wiener, shared with the ACUS Assembly recent implementation successes, announced the availability of significant new publications that map and explain the administrative state, and shed light on a number of new projects of major import.

Mr. Wiener noted in his remarks that the Model Adjudication Rules Working Group recently completed its extensive revision to the popular 1993 Model Adjudication Rules. The revised Rules were published in the Federal Register on October 2, 2018.  In addition to the revised Rules, three sourcebooks are planned: a revised edition of the Sourcebook of U.S. Executive Agencies [Note: printed copies are now available], the Federal Administrative Adjudication Outside the Administrative Procedure Act, and the Federal Administrative Procedure Sourcebook. The last of these three sourcebooks was originally published by ACUS until the early 1990s, later published by the ABA Section on Administrative Law and Regulatory Practice, and is now is back home at ACUS with editorial assistance from the Section. The Sourcebook is an annotated compilation of key legal resources governing nearly every aspect of administrative procedure. It’s intended to be a living document and available for free on ACUS’s website.

Mr. Wiener also emphasized several important areas of research in which ACUS has recently engaged, including: a multi-pronged initiative to study the future uses and limitations of artificial intelligence in administrative programs, a forum held in partnership with the Administrative Law Review on the role of mass and fake comments in rulemaking, research (required by recently-enacted bipartisan legislation) into how the Social Security Administration (SSA) can improve its representative payee program by identifying ways to enhance information-sharing between SSA and state courts, and a comprehensive look at statutory provisions governing judicial review of federal agency action (for the purpose of creating a guide to such provisions). All of this and much, much more, as the popular refrain goes.

Five recommendations were adopted during the 70th Plenary Session. While the text of the adopted recommendations (and any separate statements filed by ACUS members) will be published in the Federal Register in the coming days, each of the recommendations below includes a link to an associated project page containing draft recommendations, research reports underlying each project, and related materials.

Recommendation 2018-4: Recusal Rules for Administrative Adjudicators. This Recommendation, adopted on December 13, urges agencies to issue procedural regulations 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 the recusal of adjudicators assigned to their cases and to provide written explanations for recusal decisions. Additional information is available here.

Recommendation 2018-5: Public Availability of Adjudication Rules. This Recommendation, adopted on December 13, offers best practices to optimize agencies’ online presentations of procedural rules governing adjudications. It encourages agencies to make adjudication rules available online and to present them in a way that maximizes their accessibility both to parties appearing before the agency and to the broader public. Additional information is available here.

Recommendation 2018-6: Improving Access to Regulations.gov’s Rulemaking Dockets. This Recommendation, adopted on December 13, offers suggested improvements to Regulations.gov, the website that allows the public to comment on many federal agencies’ rulemaking proposals, to ensure that rulemaking materials on Regulations.gov are easily searchable and categorized consistently and clearly. Additional information is available here.

Recommendation 2018-7: Public Engagement in Rulemaking. This Recommendation, adopted on December 14, offers strategies for agencies to enhance public engagement when developing regulations. It encourages agencies to invest resources in a way that maximizes the probability that regulation-writers obtain high quality public information as early in the process as possible. Additional information is available here.

Recommendation 2018-8: Public-Private Partnerships This Recommendation, adopted on December 14, offers agencies guidance on legal and other considerations for participating in public-private partnerships. It commends to agencies a Guide to Legal Issues Encountered in Public-Private Partnerships and proposes mechanisms that allow agencies to share resources and best practices with one another when creating and administering public-private partnerships. Additional information is available here.