ACUS adjudication committee approves revised recommendation urging tailored public participation and early pre-filing engagement

The Administrative Conference of the United States (ACUS) Adjudication Committee on a virtual call approved a revised draft recommendation urging agencies to provide opportunities for public participation in adjudications when appropriate, with guidance on tailoring outreach and data collection.

The committee’s chair, Nadine Mancini, opened the meeting and led members through a paragraph-by-paragraph review of the draft before putting the edited text to a vote. Leah Robbins, an ACUS attorney-advisor serving as staff counsel, handled roll call and technical facilitation.

Members debated several points of substance before voting. Russell Wheeler questioned the clarity of a phrase describing decisions that involve “a novel or important question of law, policy, or discretion,” saying the wording “was a little confusing” and suggested alternatives. Project consultant Glenn Sachevsky responded that the phrasing echoes earlier ACUS recommendations and is commonly used in agency regulations and appellate standards; he offered examples of discretionary determinations to illustrate the scope. Jeremy (project participant) added that similar language appears in some regulatory and adjudicative standards.

The committee also considered a new recommendation encouraging agencies to consider establishing pre-filing procedures—an early-engagement step used by the Federal Energy Regulatory Commission (FERC) in permitting and licensing contexts. Glenn Sachevsky described the FERC process as notifying agencies and stakeholders before a formal application is filed so concerns can be resolved in advance, and said the model ‘‘seems like a pretty innovative and effective program’’ that could streamline later adjudication and conserve agency resources. Members debated where to place that language in the draft (as a letter item, a separate paragraph, or appended to an existing paragraph) and whether to label it ‘‘as appropriate’’ given that pre-filing precedes formal adjudication.

The draft’s communications and transparency section—listing methods such as Federal Register notices, social media, email alerts and partner distribution—prompted discussion about reach and ordering. Russell Wheeler asked why the outreach list was longer than earlier lists of participation methods; Jeff Lovers recommended prioritizing social media higher to better reach affected audiences. Committee members clarified that one list describes forms of participation and another describes notification channels, and left ordering to staff and style review.

On data collection, Wendy Blake asked to restore language making clear that agencies should gather feedback ‘‘consistent with the Paperwork Reduction Act and any other applicable legal requirements,’’ and Jeff Lovers urged wording that avoids implying ACUS is directing agencies to change compliance practices. The committee discussed phrasing such as ‘‘in conformance with’’ or ‘‘consistent with’’ the PRA and other legal limits.

After final edits and no further substantive objections, the committee voted by show of hands and chat to adopt the draft as revised; members present indicated assent and the chair concluded the committee had sufficient agreement to forward the recommendation to the June 12 plenary. The meeting ended with the chair thanking staff and members and adjourning.

The adopted text preserves a directive tone—encouraging agencies to provide opportunities for participation ‘‘when appropriate in light of purpose, complexity, governing law and degree of public interest’’—while adding targeted options (including consideration of pre-filing procedures in permitting contexts), and clarifying that outreach and feedback collection should reflect relevant legal constraints such as the Paperwork Reduction Act. The committee did not record a roll-call tally during the meeting; the vote was taken by show of hands and chat.