News from ACUS (July 2024)

This monthly newsletter provides a roundup of recent, ongoing, and upcoming initiatives from the Administrative Conference of the United States. Sign up here to get the newsletter delivered to your inbox each month.

In this issue:

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81st Plenary Session

At the 81st Plenary Session on June 13, ACUS adopted four recommendations for action by federal administrative agencies and Congress.

Recommendation 2024-1, Choice of Forum for Judicial Review of Agency Rules

This recommendation provides that, when drafting a statute that provides for judicial review of agency rules, Congress ordinarily should provide that rules promulgated using notice-and-comment procedures are subject to direct review by a court of appeals. The recommendation also identifies common statutory ambiguities that Congress should avoid in drafting new or amending existing statutes that provide for judicial review of agency actions.

Recommendation 2024-2, Individualized Guidance

This recommendation offers practices to promote fairness, accuracy, and efficiency in agency processes for providing written guidance in response to requests for advice from members of the public. Among other topics, it will address processes for members of the public to request guidance from agencies; agency practices for drafting responses to guidance requests, including the personnel involved and mechanisms to ensure accuracy and consistency; the public availability of individualized guidance documents; and the extent to which members of the public can rely on legal interpretations and policy statements made in individualized guidance documents.

Recommendation 2024-3, Senate-Confirmed Officials and Administrative Adjudication

This recommendation examines, as a legal and practical matter, whether, when, how, and how often agency heads and other Senate-confirmed officials participate in the adjudication of cases across a range of federal administrative programs. For agencies that have decided to provide or are considering providing for participation by Senate-confirmed officials in the adjudication of individual cases, the recommendation identifies principles and practicalities that agencies should consider in structuring such participation and provides best practices for developing and communicating relevant policies regarding such participation.

Recommendation 2024-4, Agency Management of Congressional Constituent Service Inquiries

This recommendation identifies best practices for agencies to promote quality, efficiency, and timeliness in their procedures for managing and responding to congressional constituent service inquiries. Among other topics, it addresses the proper scope, content, internal dissemination, and public availability of such procedures; how agencies can use technology to streamline their management and resolution of constituent service inquiries; how agencies should adopt and evaluate constituent service-specific performance goals; and strategies for improving communication with congressional offices and staff.

Regulatory Review: 80th Plenary Session

The Regulatory Review recently published a series of essays about the four recommendations that ACUS adopted at the 80th Plenary Session in December 2023:

Series contributors include consultants Michael Asimow (UCLA Law), Pamela Herd (Georgetown McCourt School of Public Policy), Public Member Erika Lietzan (University of Missouri Law), Donald Moynihan (Georgetown McCourt School of Public Policy), and Amy Widman (Rutgers Law), as well as ACUS staff Jeremy Graboyes, Lea Robbins, and Jennifer Selin.

Report: Nationwide Injunctions

ACUS released a new report analyzing how nationwide injunctions and universal vacaturs have impacted the administration of federal regulatory programs. The report—by Zachary Clopton (Northwestern University Pritzker School of Law), Public Member Mila Sohoni (Stanford Law School), and Jed Stiglitz (Cornell Law School)—examines how frequently courts issue nationwide injunctions and universal vacaturs and how agency officials understand, implement, and respond to them.

The report followed a public forum in 2020 that brought together commentators, judges, and public officials to address arguments for and against nationwide injunctions and universal vacaturs, special issues that arise in challenges to federal regulations, and possible judicial and statutory reforms.

International Regulatory Cooperation

ACUS recently hosted a public forum as part of an ongoing project, International Regulatory Cooperation.

Across three panels, federal and international regulators, scholars, practitioners, and other experts discussed federal agencies’ experiences since 2012, when President Obama issued Executive Order 13609 (Promoting International Regulatory Cooperation), and remaining barriers and potential best practices.

ACUS was pleased to partner with project consultants Kathleen Claussen (Georgetown Law), David Zaring (Wharton), and Elena Chachko (Berkeley Law) in organizing the forum. ACUS will release a report by the consultants later this year.

Nonlawyer Assistance and Representation

ACUS is requesting public input on strategies for expanding assistance and representation for members of the public who engage with administrative programs and participate in agency adjudicative processes. Comments should be submitted by August 31, 2024, to info@acus.gov (with “Nonlawyer Assistance and Representation” in the subject line of the message).

The request is part of an ongoing project, Nonlawyer Assistance and Representation, that explores how nonlawyers represent and assist parties in administrative proceedings and seeks to identify potential strategies for expanding access to representation. Amy Widman (Rutgers Law) is serving as the consultant for this project.

Between the Lines

In the newest episode of ACUS’s podcast, Chair Andrew Fois explores lessons learned in international regulatory cooperation (see above) with Kathleen Claussen, David Zaring, and Elena Chachko.