ACUS 71st Plenary Session Concludes

ACUS convened its 71st Plenary Session on June 13 at The George Washington University Law School in Washington, DC. During this event, ACUS voting members adopted four recommendations that seek to enhance administrative procedures within the federal government:

• Recommendation 2019-1: Agency Guidance Through Interpretive Rules. This recommendation lists steps that agencies can take to offer members of the public the opportunity to propose alternative approaches to those presented in an interpretive rule and to encourage, when appropriate, public participation in the adoption or modification of interpretive rules. Additional information is available here.
   

• Recommendation 2019-1: Agency Recruitment and Selection of Administrative Law Judges. This recommendation addresses the processes and procedures agency heads should consider establishing for exercising their authority under Executive Order 13,843 (July 13, 2018) to hire administrative law judges. Additional information is available here.
   

• Recommendation 2019-3: Public Availability of Agency Guidance Documents. This recommendation offers best practices for promoting widespread availability of agency guidance documents. Additional information is available here. 
   

• Recommendation 2019-4: Revised Model Rules for Implementation of the Equal Access to Justice Act. This recommendation updates the Conference’s Model Rules for Implementation of the Equal Access to Justice Act (EAJA) related to the award of fees and expenses under EAJA in agency adjudicative proceedings. Additional information is available here.

The text of the adopted recommendations will be published in the Federal Register. The Model EAJA Rules will soon be published in the Code of Federal Regulations.

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:

• ACUS will undertake several new recommendation projects in 2019-2020, including studies of Acting Agency Officials and Delegations of Authority, Agency Appellate Systems, Agency Bid Protests, and Agency Economists.
   

• Agencies are relying on ACUS’s recommendations for video hearing best practices and the recently revised Model Adjudication Rules to update their rules and policies.
   

• ACUS has renamed its Council Room in honor of the late Supreme Court Justice Antonin Scalia, who served as ACUS’s third Chairman (1972-1974).
   

• The ACUS Office of the Chairman is working with federal agencies to compile a government-wide database on the award of attorney fees and other expenses under EAJA.  This is pursuant to the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019.
   

• The Office of the Chairman continues to examine the potential opportunities, barriers, and risks of information sharing in the Social Security Administration’s representative payee program pursuant to statute. This is pursuant to the Strengthening Protections for Social Security Beneficiaries Act of 2018.
   

• The Office of the Chairman is exploring the growing role that artificial intelligence is playing in federal agency adjudication, rulemaking, and other regulatory activities.
   

• The continuously edited online edition of the Federal Administrative Procedure Sourcebook and the Sourcebook of United States Executive Agencies are now available. The Sourcebook on Federal Administrative Adjudication Outside the Administrative Procedure Act is forthcoming, and the Sourcebook of Federal Judicial Review Statutes is in progress.
   

• The Office of the Chairman is convening a new Working Group to prepare a Guide to Compilation of Administrative Records.

During a special lunchtime session, the ACUS Assembly also heard from renowned scholars on the use of AI in the federal administrative process.