Notice2022-00463
Adoption of Recommendation
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Published
January 12, 2022
Issuing agencies
Administrative Conference of the United States
Abstract
The Assembly of the Administrative Conference of the United States adopted five recommendations at its virtual Seventy-sixth Plenary Session: (a) Public Access to Agency Adjudicative Proceedings, (b) Public Availability of Inoperative Agency Guidance Documents, (c) Technical Reform of the Congressional Review Act, (d) Regulation of Representatives in Agency Adjudicative Proceedings, and (e) Quality Assurance Systems in Agency Adjudication.
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[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Notices]
[Pages 1715-1724]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00463]
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Notices
Federal Register
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Federal Register / Vol. 87, No. 8 / Wednesday, January 12, 2022 /
Notices
[[Page 1715]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendation
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Assembly of the Administrative Conference of the United
States adopted five recommendations at its virtual Seventy-sixth
Plenary Session: (a) Public Access to Agency Adjudicative Proceedings,
(b) Public Availability of Inoperative Agency Guidance Documents, (c)
Technical Reform of the Congressional Review Act, (d) Regulation of
Representatives in Agency Adjudicative Proceedings, and (e) Quality
Assurance Systems in Agency Adjudication.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2021-6, Jeremy
Graboyes; for Recommendation 2021-7, Todd Rubin; for Recommendation
2021-8, Kazia Nowacki; for Recommendation 2021-9, Gavin Young; and for
Recommendation 2021-10, Matthew A. Gluth. For each of these
recommendations the address and telephone number are: Administrative
Conference of the United States, Suite 706 South, 1120 20th Street NW,
Washington, DC 20036; Telephone 202-480-2080.
SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C.
591-596, established the Administrative Conference of the United
States. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by Federal agencies and makes
recommendations to agencies, the President, Congress, and the Judicial
Conference of the United States for procedural improvements (5 U.S.C.
594(1)). For further information about the Conference and its
activities, see <a href="http://www.acus.gov">www.acus.gov</a>.
The Assembly of the Conference met during its Seventy-sixth Plenary
Session on December 16, 2021, to consider five proposed
recommendations. All five were adopted.
Recommendation 2021-6, Public Access to Agency Adjudicative
Proceedings. This recommendation identifies best practices regarding
when and how federal agencies provide public access to adjudicative
proceedings. Within the legal framework established by federal law, it
identifies factors agencies should consider when determining whether to
open or close particular proceedings. It also offers best practices to
promote public access to proceedings that agencies open to the public
and recommends that agencies make the policies governing public access
readily available.
Recommendation 2021-7 Public Availability of Inoperative Agency
Guidance Documents. This recommendation provides best practices for
maintaining public access to agency guidance documents that are no
longer in effect--that is, inoperative. It identifies factors agencies
should consider in deciding whether to include certain types of
inoperative guidance documents on their websites, outlines steps
agencies can take to make it easier for the public to find inoperative
guidance documents, and identifies ways that agencies can label and
explain the significance of inoperative guidance documents.
Recommendation 2021-8 Technical Reform of the Congressional Review
Act. This recommendation offers technical reforms of the Congressional
Review Act (CRA) to clarify certain of its procedural aspects and
reduce administrative burdens on executive-branch agencies and
congressional offices. Specifically, it recommends (1) requiring
electronic rather than paper submission of the materials agencies must
transmit to Congress, (2) making it easier to ascertain key dates and
time periods relevant to review of agency rules under the CRA, and (3)
formalizing the procedure by which members of Congress initiate
congressional review of rules that agencies conclude are not covered by
the CRA.
Recommendation 2021-9, Regulation of Representatives in Agency
Adjudicative Proceedings. This recommendation recommends that agencies
consider adopting rules governing attorney and non-attorney
representatives in order to promote accessibility, fairness, integrity,
and efficiency in agency adjudicative proceedings. It provides guidance
on the topics that rules might cover and recommends that agencies
consider whether greater harmonization of different bodies of rules is
desirable and ensure that their rules are readily accessible on their
websites.
Recommendation 2021-10, Quality Assurance Systems in Agency
Adjudication. This recommendation identifies best practices for
promoting fairness, accuracy, timeliness, and consistency in agency
adjudications through the use of quality assurance systems. It provides
guidance to agencies on the selection, role, and institutional
placement of quality-assurance personnel. It also identifies specific
considerations for the timing of and process for quality-assurance
review; outlines different methodologies for identifying and correcting
quality issues; and addresses how agencies might use electronic case
management, data analytics, and artificial intelligence for quality-
assurance purposes.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/meetings-and-events/event/76th-plenary-session-virtual">https://www.acus.gov/meetings-and-events/event/76th-plenary-session-virtual</a>.
Authority: 5 U.S.C. 595.
Dated: January 7, 2022.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendation of the Administrative Conference of the United
States
Administrative Conference Recommendation 2021-6
Public Access to Agency Adjudicative Proceedings
Adopted December 16, 2021
Agencies adjudicate millions of cases each year. The matters
they adjudicate are diverse, as are the processes they use to do so.
Some processes are trial-like; others are informal. Some are
adversarial; others are non-adversarial. Agencies conduct many
different types of proceedings in the course of adjudicating cases,
such as investigatory hearings, prehearing and scheduling
conferences, settlement conferences, evidentiary hearings, and
appellate
[[Page 1716]]
arguments.\1\ Members of the public--participants' family and
friends, media representatives, representatives of non-governmental
organizations, researchers, and others--may seek to observe
adjudicative proceedings for any number of reasons.
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\1\ This Recommendation applies however adjudicative proceedings
are conducted, including virtually or by telephone or video
teleconferencing.
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Agencies must determine whether and how to allow public access
to the proceedings they conduct. Federal statutes govern how
agencies manage public access in some contexts. The Government in
the Sunshine Act \2\ and certain statutes specific to particular
programs and agencies require that agencies open or close
adjudicative proceedings or certain portions thereof to public
observation.\3\ Agencies may need to transcribe or record certain
adjudicative proceedings and may be required, under the Federal
Advisory Committee Act \4\ or other laws, to make such records
publicly available.\5\ Conversely, the Privacy Act \6\ and other
laws and executive-branch policies may require agencies to protect
sensitive interests and information.
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\2\ 5 U.S.C. 552b.
\3\ Members of the public have, in some instances, asserted a
right under the First Amendment to access certain agency
adjudicative proceedings. See Jeremy Graboyes & Mark Thomson, Public
Access to Agency Adjudicative Proceedings 10-12 (Nov. 22, 2021).
Courts have reached different conclusions on whether and in what
circumstances such a right exists for administrative proceedings.
Compare Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir.
2002), with N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198,
212-213 (3d Cir. 2002). Agencies should be aware of such opinions
when establishing policies on public access and responding to
requests for public access to adjudicative proceedings they conduct.
\4\ 5 U.S.C. app. 2, 11. Although the Federal Advisory Committee
Act principally governs the operation of advisory committees,
section 11 of the Act requires agencies to ``make available to any
person, at actual cost of duplication, copies of transcripts of
agency proceedings.'' Id. Sec. 11(a). ``Agency proceedings'' means
agency processes for rulemaking, adjudication, and licensing. Id.
Sec. 11(b).
\5\ The Administrative Conference has recommended that agencies
consider providing access on their websites to supporting
adjudicative materials issued and filed in adjudicative proceedings.
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication
Materials on Agency Websites, 82 FR 31039 (July 5, 2017). Online
disclosure of transcripts and recordings of adjudicative proceedings
and real-time broadcast of open proceedings can save staff time or
money through a reduction in the volume of Freedom of Information
Act (FOIA) requests or printing costs, or an increase in the speed
with which agency staff will be able to respond to remaining FOIA
requests.
\6\ 5 U.S.C. 552a.
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On top of these legal requirements, many agencies have adopted
their own policies regarding public access to adjudicative
proceedings.\7\ Settling on a sound policy for determining which
proceedings should be open to public observation can require
balancing different, and sometimes conflicting, interests.
Proceedings open to public observation promote transparency, public
accountability, and public understanding of agency decision making.
Openness encourages fair process for private parties and promotes
accurate and efficient decision making by subjecting arguments and
evidence to public scrutiny. And many participants, especially self-
represented parties, people with disabilities, and children, benefit
from having a family member, friend, personal care attendant, case
worker, or other supportive member of the public present at their
proceedings.\8\
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\7\ See Graboyes & Thomson, supra note 3.
\8\ Although family members, friends, personal care attendants,
care workers, or other supportive members of the public may wish to
attend an adjudicative proceeding as a public observer, such
individuals may, in some circumstances, assist or provide support
for a party or other participant by serving, for example, as a legal
guardian, representative, or interpreter. Individuals who serve in
such a role are not considered public observers for purposes of this
Recommendation.
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As with any legal proceeding, however, there can be drawbacks to
opening adjudicative proceedings to the public. Many adjudications
involve sensitive information that would be publicly disclosed in an
open proceeding. Public disclosure of unverified information or
unproven allegations may result in unwarranted reputational harm to
private parties. Just as open proceedings allow family members and
other supportive members of the public to accompany participants,
they also allow in those who would intimidate or harass. Openness
may also affect the dynamic of agency proceedings, leaving them
vulnerable to disruption or leading them to become unduly
adversarial or protracted. There can also be administrative costs
associated with facilitating in-person or remote observation of
adjudicative proceedings by members of the public, providing advance
public notice of open proceedings, and providing access to
transcripts and recordings of open proceedings. These costs may be
warranted in some circumstances but not others.
This Recommendation recognizes that agency adjudicative
proceedings vary widely in their purpose, complexity, and governing
law and the degree of public interest they attract. It also
recognizes that not all agencies can bring the same resources to
bear in addressing public access to their adjudicative proceedings.
In offering these best practices, the Administrative Conference
encourages agencies to develop policies that, in addition to
complying with all relevant legal requirements for public access,
recognize the benefits of public access for members of the public,
private parties, agencies, and other participants and account for
countervailing interests, such as privacy and confidentiality.
Recommendation
Policies for Public Access to Agency Adjudicative Proceedings
1. Agencies should promulgate and publish procedural regulations
governing public access to their adjudicative proceedings in the
Federal Register and codify them in the Code of Federal Regulations.
In formulating these regulations, agencies, in addition to adhering
to any legal requirements for public access, should consider the
benefits of public access and countervailing interests, such as
privacy and confidentiality, as elaborated in Paragraph 6. These
regulations should include the following:
a. A list of proceedings that should be categorically or
presumptively open or closed, and standards for determining when
adjudicators may or must depart from such presumption in individual
cases (see Paragraphs 5-7);
b. The manners in which members of the public can observe open
proceedings, for example by attending in person (e.g., at an agency
hearing room) or by remote means (e.g., online or by telephone) (see
Paragraphs 8-14);
c. Requirements, if any, for advance public notice of
proceedings, whether open or closed (see Paragraphs 11-14); and
d. The public availability of and means of accessing transcripts
and audio and video recordings of proceedings (see Paragraphs 15-
17).
2. In conjunction with such regulations, agencies should develop
guidelines that set forth, in plain language, the following
information for proceedings that are open to the public:
a. The manner in which agencies will communicate the schedule of
upcoming proceedings to the public;
b. The location at and manner in which members of the public can
observe proceedings;
c. The registration process, if any, required for members of the
public to observe proceedings and how they should register;
d. The agency official whom members of the public should contact
if they have questions about observing proceedings;
e. Any instructions for accessing agency or non-agency
facilities where proceedings are held;
f. Any requirements for conduct by public observers (e.g.,
regarding the possession and use of electronic devices);
g. Any protocols for facilitating media coverage; and
h. Any policies for managing proceedings that attract high
levels of public interest.
3. Agencies should also consider whether presumptively closed
proceedings may be open to select members of the public, such as
family members or caregivers, and, if so, develop guidelines for
such situations that address, as relevant, the information in
Paragraph 2.
4. Agencies should provide access to the regulations described
in Paragraph 1, the guidelines described in Paragraphs 2 and 3, and
any other information about public access to adjudicative
proceedings, in an appropriate location on their websites.
Standards and Procedures for Determining Which Adjudicative Proceedings
Are Open or Closed
5. Agencies ordinarily should presume that evidentiary hearings
and appellate proceedings (including oral arguments) are open to
public observation. Agencies may choose to close such proceedings,
in whole or in part, to the extent consistent with applicable law
and if there is substantial justification to do so. Substantial
justification may exist, for example, when the need to protect one
or more of the following interests can reasonably be considered to
outweigh the public interest in openness:
a. National security;
[[Page 1717]]
b. Law enforcement interests;
c. Confidentiality of business information;
d. Personal privacy interests;
e. The interests of minors and juveniles; and
f. Other interests protected by statute or regulation.
6. Agencies should consider whether types of adjudicative
proceedings other than evidentiary hearings and appellate
proceedings (such as investigatory hearings and prehearing
conferences), which are typically closed, should be open to public
observation. In doing so, agencies, in addition to adhering to any
legal requirements for public access, should consider the following:
a. Whether public access would promote important policy
objectives such as transparency, fairness to parties, accurate and
efficient development of records for decision making, or public
participation in agency decision making;
b. Whether public access would impede important policy
objectives such as encouraging candor, achieving consensus, deciding
cases and resolving disputes in an efficient manner, preventing
intimidation or harassment of participants, avoiding unwarranted
reputational harm to participants, or protecting national security,
law enforcement interests, confidentiality of business information,
personal privacy interests, the interests of minors and juveniles,
and other interests protected by statute or regulation;
c. Whether such proceedings or the broader adjudication process
of which the proceeding at issue is a part typically include
opportunities for public access;
d. Whether there is often public interest in observing such
proceedings; and
e. Whether matters to be discussed at such proceedings
ordinarily involve issues of broad public interest or the interests
of persons beyond the parties.
7. Agencies should adopt processes for departing from or
considering requests to depart from a presumption of open or closed
proceedings in particular cases. Agencies should consider addressing
the following topics in the procedural regulations described in
Paragraph 1:
a. How parties to a case can request that proceedings that are
presumptively open to public observation be closed or that
proceedings that are presumptively closed to public observation be
open to particular individuals or the general public;
b. How non-parties to a case can request access, for themselves
or the general public, to proceedings that are presumptively closed
to public observation;
c. How parties and non-parties can respond or object to requests
regarding public access made in subparagraphs (a) or (b);
d. Under what circumstances adjudicators or other agency
officials can, on their own motion, close proceedings that are
presumptively open to public observation or open proceedings that
are presumptively closed to public observation;
e. Whether and how adjudicators or other agency officials must
document and notify participants about decisions regarding public
access; and
f. Who, if anyone, can appeal decisions regarding public access
and, if so, when, to whom, and how they may do so.
Manner of Public Observation of Open Adjudicative Proceedings
8. When adjudicators conduct open proceedings in public hearing
rooms, members of the public should have the opportunity to observe
the proceedings from the rooms in which they are conducted, subject
to reasonable security protocols, resource and space constraints,
and concerns about disruptions.
9. Agencies should provide all or select members of the public,
such as family members or caregivers, the opportunity to observe
open adjudicative proceedings remotely. Agencies should provide
remote access in a way that is appropriate for a particular
proceeding, such as by providing a dial-in number to select members
of the public, such as family members or caregivers, on request, or
by livestreaming audio or video of the proceedings to the general
public online. Agencies should structure remote access in a way that
avoids disruptions, such as by ensuring that public observers cannot
unmute themselves or use chat, screen-sharing, document-annotation,
and file-sharing functions common in internet-based
videoconferencing software.
10. Agencies should consider whether interested members of the
public are likely to encounter any barriers to accessing open
adjudicative proceedings and, if so, take steps to remedy them. For
example, measures may be needed to accommodate people with
disabilities, people for whom it may be difficult to make
arrangements to travel to locations where proceedings are conducted,
and people who do not have access to electronic devices or private
internet services necessary to observe proceedings remotely.
Agencies may also need to adjust security protocols at the
facilities where proceedings are conducted to facilitate in-person
attendance while still accounting for reasonable security needs.
Advance Public Notice of Adjudicative Proceedings
11. Agencies should provide advance public notice of open
adjudicative proceedings and consider whether to provide advance
public notice of closed proceedings, so that the public is aware of
such proceedings and can request access to them as specified in
Paragraph 7(b). Agencies that determine that advance public notice
would be beneficial should consider (a) the best places and
publications for providing such notice, (b) the information provided
in the notice, and (c) the timing of the notice. Agencies that
regularly conduct open proceedings should also consider maintaining
a schedule of and information about upcoming proceedings in an
appropriate location on their websites.
12. To determine the best places and publications for providing
advance public notice of adjudicative proceedings, agencies should
consider their needs and available resources and the individuals,
communities, and organizations that are likely to be interested in
or affected by such proceedings. Places and publications where
agencies might provide public notice of proceedings include:
a. The Federal Register;
b. A press release, digest, newsletter, or blog post published
by the agency;
c. An agency events calendar;
d. Social media;
e. A newspaper or other media outlet that members of the public
who may be interested in observing the proceeding are likely to
monitor;
f. A physical location that potentially interested members of
the public are likely to see (e.g., a bulletin board at a jobsite or
agency office);
g. An email sent to persons who have subscribed to a mailing
list or otherwise opted to receive updates about a particular
adjudication; and
h. A communication sent directly to members of the public,
communities, and organizations who may be interested in observing
the proceeding.
13. Agencies should include the following information in any
public notice for an open adjudicative proceeding, as applicable:
a. The name and docket number or other identifying information
for the proceeding;
b. The date and time of the proceeding;
c. The ways that members of the public can observe the
proceeding, along with the directions, if any, for registering or
requesting access to the proceeding and, for in-person observers,
instructions for accessing the facility where the proceeding will
take place, including any security or public health protocols and
disability accommodations;
d. A brief summary of the proceeding's purpose; and
e. Contact information for a person who can answer questions
about the proceeding.
14. Agencies should determine the appropriate timing for
providing and updating public notice of adjudicative proceedings
given the nature of their programs and the proceeding at issue. More
advance notice may be warranted, for example, if significant public
interest in an open proceeding is likely and interested members of
the public will need to travel to observe it in person.
Public Access to Transcripts and Recordings of Adjudicative Proceedings
15. Consistent with applicable legal requirements, agencies
should consider how they make transcripts and recordings of
adjudicative proceedings available to interested members of the
public. In addition to providing public access to such materials on
their websites, an agency might also, as appropriate:
a. Make transcripts and recordings available for public
inspection in a reading room, docket office, or other agency
facility;
b. Make transcripts and recordings available for public
inspection on another public website, such as a public video sharing
website; or
c. Provide, or arrange for court reporters working under
contract with the government to provide, copies of transcripts and
recordings on request for a fee that is no more than the actual cost
of duplication, though the agency may charge a reasonable,
additional fee for expedited processing.
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16. Agencies should take steps to redact any information that is
protected by law or policy from public disclosure before providing
public access to transcripts and recordings.
17. Agencies should ensure that transcripts and recordings of
open proceedings are available for public inspection in a timely
manner.
Administrative Conference Recommendation 2021-7
Public Availability of Inoperative Agency Guidance Documents
Adopted December 16, 2021
Agencies issue guidance documents to help explain their programs
and policies, announce their interpretation of laws, and communicate
other important information to regulated entities, regulatory
beneficiaries, and the broader public.\1\ The Administrative
Conference has issued several recent recommendations regarding
guidance documents.\2\ Among them was Recommendation 2019-3, Public
Availability of Agency Guidance Documents, which encourages agencies
to facilitate public access to guidance documents on their websites.
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\1\ Guidance documents include what the Administrative Procedure
Act calls ``interpretive rules'' and ``general statements of
policy.'' 5 U.S.C. 553(b). They may also include other materials
considered to be guidance documents under other, separate
definitions adopted by government agencies. See Admin. Conf. of the
U.S., Recommendation 2019-3, Public Availability of Agency Guidance
Documents, 84 FR 38931, 38931 (Aug. 8, 2019).
\2\ See, e.g., Recommendation 2019-3, supra note 1; Admin. Conf.
of the U.S., Recommendation 2019-1, Agency Guidance Through
Interpretive Rules, 84 FR 38927 (Aug. 8, 2019); Admin. Conf. of the
U.S., Recommendation 2017-5, Agency Guidance Through Policy
Statements, 82 FR 61734 (Dec. 29, 2017); Admin. Conf. of the U.S.,
Recommendation 2014-3, Guidance in the Rulemaking Process, 79 FR
35992 (June 25, 2014).
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Over time, a given guidance document may no longer reflect an
agency's position. An agency may rescind the document in whole or in
part by announcing that it no longer reflects the agency's position.
Even without being rescinded in whole or in part, a guidance
document may be superseded in whole or in part by later statutory,
regulatory, or judicial developments, or it may fall into disuse in
whole or in part. The present Recommendation terms these documents
``inoperative guidance documents.''
Some inoperative guidance documents will be of interest to the
public because they disclose how an agency's legal interpretations
have changed \3\ or how policies or programs have changed over
time.\4\ But if these documents are not posted on an agency's
website, they will be either inaccessible (except through a Freedom
of Information Act (FOIA) request), in the case of documents not
published in the Federal Register, or not as accessible as they
should be, in the case of documents that were noticed in the Federal
Register.\5\
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\3\ See Blake Emerson & Ronald Levin, Agency Guidance Through
Interpretive Rules: Research and Analysis (May 28, 2019) (report to
the Admin. Conf. of the U.S.).
\4\ See Nicholas R. Parrillo, Agency Guidance Through Policy
Statements: An Institutional Perspective (Oct. 12, 2017) (report to
the Admin. Conf. of the U.S.).
\5\ See Recommendation 2019-3, supra note 1.
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Three statutes require agencies to make some inoperative
guidance documents publicly available. The Federal Records Act
requires agencies to post on their websites materials that are of
``general interest or use to the public.'' \6\ FOIA calls upon
agencies to publish notices in the Federal Register when they have
rescinded or partially rescinded certain guidance documents that are
addressed to the public generally rather than to specific
individuals or organizations.\7\ The E-Government Act requires
agencies, in certain circumstances, to publish these rescission and
partial rescission notices on their websites.\8\ Many agencies have
also issued regulations pertaining to the public availability of
their inoperative guidance documents.
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\6\ See 44 U.S.C. 3102(2).
\7\ See 5 U.S.C. 552(a)(1); Nat'l Org. of Veterans' Advocs.,
Inc. v. Sec'y of Veterans Affairs, 981 F.3d 1360, 1375 (Fed. Cir.
2020).
\8\ See E-Government Act of 2002 Sec. 206, 44 U.S.C. 3501 note
(Federal Management and Promotion of Electronic Government
Services).
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The Office of Management and Budget's 2007 Final Bulletin for
Agency Good Guidance Practices imposes additional requirements on
agencies relating to inoperative guidance documents. It directs all
agencies other than independent regulatory agencies to maintain a
list on their websites identifying significant guidance documents
that have been revised or withdrawn in the past year. It also
encourages agencies to stamp or otherwise prominently identify as
``superseded'' those significant guidance documents that have become
inoperative but which remain available for historical purposes.\9\
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\9\ See Office of Mgmt. & Budget, Exec. Office of the President,
OMB Bull. No. 07-02, Final Bulletin for Agency Good Guidance
Practices (2007).
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Recommendation 2019-3, though concerned primarily with operative
guidance documents, makes several recommendations relating to the
posting of inoperative guidance documents. In summary, it recommends
that agencies (1) mark posted guidance documents to indicate whether
they are current or were withdrawn or rescinded and (2) in the case
of rescinded or withdrawn documents, note their rescission or
withdrawal date and provide links to any successor documents.
Recommendation 2019-3 reserved the question, however, of which
inoperative guidance documents agencies should publish online. This
Recommendation takes up that issue, building on the principles
Recommendation 2019-3 set forth for operative documents by extending
them, as appropriate, to inoperative guidance documents.
Specifically, it advises agencies to develop written procedures for
publishing inoperative guidance documents, devise effective
strategies for labeling and organizing these documents on their
websites, and deploy other means of disseminating information about
these documents.\10\ The Recommendation also encourages agencies to
provide clear cross-references or links between inoperative guidance
documents and any operative guidance documents replacing or
modifying them.
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\10\ Several paragraphs of this Recommendation directly or
indirectly apply the paragraphs of Recommendation 2019-3 to
inoperative guidance documents. Compare Paragraph 1 of this
Recommendation with Recommendation 2019-3, ] 1; Paragraph 3 with
Recommendation 2019-3, ]] 4, 7, 9; Paragraph 4 with Recommendation
2019-3, ] 8; and Paragraph 6 with Recommendation 2019-3, ] 11.
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This Recommendation, like Recommendation 2019-3, accounts for
differences across agencies in terms of the number of guidance
documents they issue, how they use guidance documents, and their
resources and capacities for managing online access to these
documents.\11\ Accordingly, although it is likely that agencies
following this Recommendation will make some of their inoperative
guidance documents more readily available to the public, this
Recommendation should not be understood as necessarily advising
agencies to post the full universe of their inoperative guidance
documents online.
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\11\ See Todd Rubin, Public Availability of Inoperative Agency
Guidance Documents (Nov. 22, 2021) (report to the Admin. Conf. of
the U.S.); Cary Coglianese, Public Availability of Agency Guidance
Documents (May 15, 2019) (report to the Admin. Conf. of the U.S.).
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This Recommendation is limited to guidance documents that
agencies determine are inoperative after the date of this
Recommendation. Agencies may, of course, choose to apply it
retroactively to existing inoperative guidance documents.
Recommendation
Establishing Written Procedures Governing the Public Availability of
Inoperative Guidance Documents
1. Each agency should develop and publish on its website written
procedures governing the public availability of inoperative guidance
documents and should consider doing the following in its procedures:
a. Explaining what it considers to be inoperative guidance
documents for purposes of its procedures instituted under this
Recommendation;
b. Identifying which one or more of the following kinds of
inoperative guidance documents are covered by its procedures:
Rescinded guidance documents, partially rescinded guidance
documents, superseded guidance documents, partially superseded
guidance documents, or guidance documents that have fallen into
disuse in whole or in part;
c. Identifying, within the kinds of inoperative guidance
documents covered by its procedures, which categories of inoperative
guidance documents will be published on its website and otherwise
made publicly available, taking into consideration the categories
articulated in Paragraph 2 below;
d. Explaining how it will include links or cross-references
between any related inoperative and operative guidance documents;
[[Page 1719]]
e. Specifying how long inoperative guidance documents will be
retained on its website;
f. Specifying whether some types of previously unpublished
operative guidance documents will be posted on its website and
otherwise made publicly available when they become inoperative and,
if so, under what circumstances;
g. Providing for how inoperative guidance documents will be
organized on its website to facilitate searching and public access;
h. Identifying, as provided in Paragraph 4 below, what labels
and explanations it will use to communicate clearly the inoperative
status of guidance documents; and
i. Indicating whether any of the procedures should be applied
retroactively.
Determining Which Categories of Inoperative Guidance Documents To
Publish Online and Otherwise Make Publicly Available
2. Each agency should consider publishing on its website and
otherwise making publicly available one or more of the following
categories of inoperative guidance documents:
a. Inoperative guidance documents whose operative versions it
made publicly available;
b. Inoperative guidance documents that, if they were operative,
would be made publicly available under its current policies;
c. Inoperative guidance documents that have been replaced or
amended by currently operative guidance documents;
d. Inoperative guidance documents that expressed policies or
legal interpretations that remain relevant to understanding current
law or policy;
e. Inoperative guidance documents that generated reliance
interests when they were operative;
f. Inoperative guidance documents that generate--or, when they
were operative, generated--numerous unique inquiries from the
public;
g. Inoperative guidance documents that are--or, when operative,
were--the subject of attention in the general media or specialized
publications relevant to the agency, or have been cited frequently
in other agency documents, such as permits, licenses, grants, loans,
contracts, or briefs;
h. Inoperative guidance documents that, when originally being
formulated, generated a high level of public participation; and
i. Inoperative guidance documents that, when operative or
originally being formulated, had been published in the Unified
Agenda of Federal Regulatory and Deregulatory Actions or were
considered ``significant guidance documents'' under the Office of
Management and Budget's Final Bulletin for Agency Good Guidance
Practices.
Organizing and Labeling Inoperative Guidance Documents Available Online
3. Each agency should organize its inoperative guidance
documents on its website to make it easy for members of the public
to find them and relate them to any successor guidance documents.
The agency should consider one or more of the following approaches:
a. Assigning a unique guidance identification number to each
inoperative guidance document, if this number had not already been
assigned when the document was operative;
b. Creating a table that is indexed, tagged, or sortable and is
dedicated exclusively to displaying entries for inoperative guidance
documents, with links to these documents;
c. Providing a search function that enables retrieval of
inoperative guidance documents;
d. Using a method, such as a pull-down menu, that allows the
public to view inoperative guidance documents and see that they are
inoperative; and
e. Including links or notations within inoperative guidance
documents, pointing to any successor operative guidance documents.
4. Each agency should label inoperative guidance documents on
its website to ensure that the public can readily understand the
inoperative status of those guidance documents. The agency should
consider adopting one or more of the following methods for publicly
labeling its guidance documents as inoperative and then using the
selected method or methods consistently:
a. Including a watermark that displays ``rescinded,''
``partially rescinded,'' ``superseded,'' ``partially superseded,''
``not in use,'' or similar terminology as appropriate across each
page of an inoperative guidance document;
b. Including words such as ``rescinded,'' ``partially
rescinded,'' ``superseded,'' ``partially superseded,'' ``not in
use,'' or similar terminology as appropriate within a table in which
links to inoperative guidance documents appear;
c. Using an appropriate method, including redline versions or
lists of changes, to communicate changes made to a guidance document
that has been partially rescinded or superseded;
d. Including a prominent stamp at the top of an inoperative
guidance document noting that the document is inoperative and
indicating the date it became inoperative;
e. Providing cross-references, using links or notations, from an
inoperative guidance document to any successor versions of the
guidance document, and vice versa; and
f. Publishing a notice of rescission or partial rescission of a
guidance document on the agency's website and providing links to
this notice in the inoperative guidance document.
Using Means in Addition to Agency Websites To Notify the Public When a
Guidance Document Has Become Inoperative
5. At a minimum, each agency should notify the public that a
guidance document has become inoperative in the same way that it
notified the public that the operative version of the guidance
document was issued or in the same way it would notify the public
that an operative version of the guidance document has been issued
under the agency's current policies.
6. Each agency should consider using one or more of the
following methods to notify the public when a guidance document has
become inoperative:
a. Publishing this notification in the Federal Register even
when not required to do so by law;
b. Sending this notification over an agency listserv or to a
similar mailing list to which the public can subscribe;
c. Providing this notification during virtual meetings, in-
person meetings, or webinars involving the public; and
d. Publishing this notification in a press release.
7. In disseminating notifications as indicated in Paragraph 6,
each agency should consider including cross-references to any
successor guidance documents.
Administrative Conference Recommendation 2021-8
Technical Reform of the Congressional Review Act
Adopted December 16, 2021
The Congressional Review Act (CRA) \1\ allows Congress to enact
joint resolutions overturning rules issued by federal agencies. It
also establishes special, fast-track procedures governing such
resolutions. This Recommendation aims to address certain technical
flaws in the Act and how it is presently administered.
---------------------------------------------------------------------------
\1\ 5 U.S.C. 801-08.
---------------------------------------------------------------------------
The Hand-Delivery Requirement
The CRA provides that, before a rule can take effect, an agency
must submit a report (an 801(a) report) to each house of Congress
and the Comptroller General, who heads the Government Accountability
Office (GAO). Receipt of the 801(a) report by each house of Congress
and the Comptroller General also triggers the CRA's special, fast-
track procedures.
The CRA says nothing about how agencies must deliver 801(a)
reports to Congress or the Comptroller General. Congressional rules,
however, currently require that 801(a) reports be hand-delivered to
both chambers of Congress. Although the House allows members to
electronically submit certain legislative documents and the
Comptroller General permits agencies to electronically submit 801(a)
reports, electronic submission is not generally regarded by Congress
as an acceptable means of submitting 801(a) reports to Congress.
The hand-delivery requirement has been the subject of persistent
criticism on the grounds that it is inefficient and outdated and
results in exorbitant costs to federal agencies. Recent events have
also shown that it is sometimes impracticable. For example, staffing
disruptions related to the COVID-19 pandemic have, in some
instances, meant that agencies had difficulty delivering 801(a)
reports by hand and congressional officials have not been present in
the Capitol to receive 801(a) reports via hand-delivery.
Time Periods for Introducing and Acting on Resolutions Under the CRA
Another source of persistent criticism of the CRA concerns the
time periods during which members of Congress may introduce and act
on joint resolutions overturning agencies' rules. Under the CRA,
Congress's receipt of an 801(a) report begins a period of 60 days,
excluding days when either chamber adjourns for more than three
days, during
[[Page 1720]]
which any member of either chamber may introduce a joint resolution
disapproving the rule.\2\ Only rules submitted during this period,
sometimes called the ``introduction period,'' are eligible for the
CRA's special, fast-track procedures.
---------------------------------------------------------------------------
\2\ Id. 802(a).
---------------------------------------------------------------------------
Calculating the introduction period can be confusing because it
runs only on ``days of continuous session''--that is, on every
calendar day except those falling in periods when, pursuant to a
concurrent resolution, at least one chamber adjourns for more than
three days. As a practical matter, there is seldom a difference
between 60 days of continuous session and 60 calendar days because
recent Congresses have made regular use of pro forma sessions to
avoid adjournments of more than three days. Nevertheless, having to
calculate the introduction period according to days of continuous
session rather than calendar days can mislead people unfamiliar with
the concept of days of continuous session or with recent Congresses'
uses of pro forma sessions. Moreover, because modern Congresses
invoke pro forma sessions in a way that negates almost any practical
difference between days of continuous session and calendar days, the
CRA's use of days of continuous session to calculate the
introduction period accomplishes little beyond complicating the
process of ascertaining the period's end date.
The introduction period is not the only complicated timing
provision in the CRA. Another--sometimes called the ``lookback
period''--provides that if, within 60 days of session in the Senate
or 60 legislative days in the House after Congress receives a rule,
Congress adjourns its annual session sine die (i.e., for an
indefinite period), the periods to submit and act on a disapproval
resolution ``reset'' in their entirety in the next session of
Congress.\3\ In that next session, the reset period begins on the
15th day of the session in the Senate and the 15th legislative day
in the House. The lookback period thus ensures that Congress has the
full periods contemplated by the CRA to disapprove a rule, even if
the rule is submitted near the end of a session of Congress.
---------------------------------------------------------------------------
\3\ Id. 801(d)(1).
---------------------------------------------------------------------------
The lookback period is anomalous and difficult to ascertain for
several reasons. Whereas most of the time periods set forth in the
CRA are calculated in calendar days, the lookback period is
calculated using Senate session days and House legislative days--
terms of art with which most people are unfamiliar.\4\ The lookback
period is also unpredictable because House legislative and Senate
session days do not always correspond to each other, and the
chambers regularly modify their anticipated calendar of session or
legislative days, often with little advance notice. In addition,
using legislative and session days to calculate the lookback period
means interested members of Congress can strategically lengthen or
shorten the period, either by having legislative or session days
extend for multiple calendar days or cramming several legislative or
session days into a single calendar day. Perhaps most troublesome:
Whereas most time periods under the CRA are calculated
prospectively--that is, by counting forward from an established
starting date--the lookback period is calculated retrospectively--
that is, by counting backward from an end date that is not known
until Congress adjourns sine die. The lookback period's
retrospective quality makes it effectively impossible to calculate
in real time because the date on which the lookback period begins is
only knowable once the period has closed. For those and other
reasons, the public, members of Congress, congressional staff, and
agencies sometimes struggle to anticipate when the CRA's lookback
period will commence, or determine when it did commence, during a
given session of Congress.\5\
---------------------------------------------------------------------------
\4\ A Senate session day is ``[a] calendar day on which [the
Senate] convenes and then adjourns or recesses until a later
calendar day,'' while a House legislative day commences when the
House convenes and continues until the House adjourns. See Richard
S. Beth & Valerie Heitshusen, Cong. Rsch. Serv., R42977, Sessions,
Adjournments, and Recesses of Congress 2, 6 (2016), available at
<a href="https://crsreports.congress.gov/product/pdf/R/R42977">https://crsreports.congress.gov/product/pdf/R/R42977</a>.
\5\ In recent years, the lookback period has tended to commence
between mid-July and early August, with the precise date varying
from year to year. See Jesse M. Cross, Technical Reform of the
Congressional Review Act 35 (Oct. 8, 2021) (draft report to the
Admin. Conf. of the U.S.). In setting a commencement date for the
lookback period, Congress may wish to consider the relationship
between the CRA and what are sometimes called midnight rules (that
is, rules published in the final months of an administration). See
Admin. Conf. of the U.S., Recommendation 2012-2, Midnight Rules, 77
FR 47802 (Aug. 10, 2012).
---------------------------------------------------------------------------
Complicating matters still further, the CRA's key dates do not
necessarily align in ways that make sense. For instance, the CRA
expressly provides that the introduction and lookback periods
commence when an 801(a) report is submitted to Congress. But other,
related CRA time periods--such as the periods for discharging a
joint resolution from committee (the discharge period) and for fast-
tracking a rule through the Senate (the Senate action period)--
commence running only after Congress receives the report and the
rule is published in the Federal Register. This can lead to
anomalous situations. Members of Congress might, for instance,
timely introduce joint resolutions of disapproval under the CRA and
yet be unable to avail themselves of the CRA's fast-track
procedures.
At present, problems with synchronizing related CRA time windows
are addressed primarily through interpretations from the Senate and
House Parliamentarians. For example, the Senate Parliamentarian has
interpreted the lookback and introduction periods to commence only
after the 801(a) report has been submitted to Congress and the rule
has been published in the Federal Register, thereby harmonizing the
starting dates for those periods with the starting dates for the
discharge and Senate action periods.
But relying on the Parliamentarians' interpretations creates its
own problems. Chief among them is that the interpretations are not
always easily accessible by the public. Although some of the
Parliamentarians' interpretations are publicly available, many are
not. Indeed, the formal rulings of the Senate Parliamentarian have
not been published in decades. In the case of the interpretations
that are collected and published, moreover, most members of the
public are either unaware of the interpretations' existence or
unsure how to access them.
Initiating CRA Review of Actions for Which Agencies Do Not Submit
801(a) Reports
Still another criticism of the CRA concerns what Congress should
do to enable CRA review of agency actions for which agencies do not
submit 801(a) reports. The CRA itself does not say what to do in
those situations, even though studies show they arise frequently.
Absent statutory text addressing the subject, Congress has
adopted a process through which it initiates review of such agency
actions by requesting an opinion from the GAO. That process begins
when members of Congress or committees request a GAO opinion on
whether an agency action qualifies as a ``rule'' under the CRA. If
GAO concludes that it does, a member or a committee provides for
publication of the GAO opinion in the Congressional Record.
Publication in the Congressional Record is then deemed to be the
date that triggers the time periods for CRA review of the agency
action.
Although that process has worked tolerably well as a response to
the problem of unreported rules, it lacks a clear basis in the CRA's
text. There are also aspects of it that warrant revisiting. For
example, there is no time limit for using the current, de facto
procedure, meaning Congress might use it to subject a decades-old
action to CRA review.\6\
---------------------------------------------------------------------------
\6\ The role proposed for GAO in Paragraph 7 is applicable
solely for purposes of triggering the expedited congressional review
procedures under 5 U.S.C. 802; it does not have any impact on when a
rule is effectuated under 5 U.S.C. 801. Cf. Bowsher v. Synar, 478
U.S. 714 (1986).
---------------------------------------------------------------------------
* * * * *
This Recommendation provides targeted, technical reforms to
address many of the criticisms just identified--including criticisms
of the hand-delivery requirement, criticisms prompted by the
confusion surrounding key dates under CRA, and criticisms of the
process for initiating CRA review of agency actions for which
agencies do not submit 801(a) reports.
Recommendation
Requiring Electronic Submission of Reports Required by 5 U.S.C.
801(a)(1)(A)
1. Congress should amend 5 U.S.C. 801(a)(1)(A) to provide that
the reports required by that provision (801(a) reports) be submitted
to Congress and the Government Accountability Office (GAO)
electronically rather than by hard copy.
2. In the event Congress does not enact the amendment described
in Paragraph 1, both houses of Congress should modify their rules or
policies to require electronic submission of 801(a) reports.
3. In the event that Congress, in some manner, mandates
electronic submission of
[[Page 1721]]
801(a) reports, it should establish procedures governing how
agencies may electronically submit 801(a) reports.
Simplifying and Clarifying the Procedures for Determining Relevant
Dates Under 5 U.S.C. 801 and 802
4. Congress should simplify 5 U.S.C. 801(d)(1) by setting a
fixed month and day after which, each year, rules submitted to
Congress under the Congressional Review Act (CRA) will be subject to
the CRA's review process during the following session of Congress.
5. Congress should amend 5 U.S.C. 802(a), which establishes the
period during which joint resolutions of disapproval under the CRA
may be introduced, to either:
a. Eliminate the requirement that joint resolutions be
introduced during a particular period;
b. Align the dates on which the period commences and ends with
the period during which the Senate may act on a proposed joint
resolution of disapproval submitted under the CRA; or
c. Align the date on which the period commences with the period
during which the Senate may so act and provide that such period ends
a fixed number of calendar days from such commencement.
6. Congress should review and, where appropriate, enact
Parliamentarian interpretations that bear on calculating deadlines
under the CRA, either as statutory law or as formal rules of the
houses. If Congress does not enact those interpretations into
statutory law, it should ensure that they are published in a manner
that is accessible to the public.
Initiating Review of Agency Actions for Which Agencies Do Not Submit
801(a) Reports
7. If Congress continues the practice of requesting an opinion
from the GAO on whether an agency action, for which the agency did
not submit an 801(a) report, qualifies as a ``rule'' under the CRA
to initiate the expedited process for congressional review outlined
in 5 U.S.C. 802, it should provide a transparent mechanism for doing
so. To that end, Congress should amend Chapter 8 of title 5 of the
United States Code to enact the process it currently relies on to
initiate CRA review (while clarifying that such amendment is solely
for purposes of implementing 5 U.S.C. 802). Under such process:
a. Any member of Congress or committee may request the opinion
of the GAO on whether an agency action qualifies as a ``rule'' under
the CRA;
b. After soliciting views from the agency, GAO responds by
issuing an opinion as to whether the agency action in question
qualifies as a ``rule'';
c. If GAO concludes that the action amounts to a rule under the
CRA, any member of Congress or committee may provide for publication
of the GAO opinion in the Congressional Record; and
d. Publication of the GAO opinion in the Congressional Record is
the date that triggers the time periods for CRA review of the agency
rule.
8. If Congress amends the CRA to enact the procedure described
in Paragraph 7, it should impose time limits within which the steps
in Paragraph 7 must be taken.
Administrative Conference Recommendation 2021-9
Regulation of Representatives in Agency Adjudicative Proceedings
Adopted December 16, 2021
Many agencies have adopted rules governing the participation and
conduct of attorneys and non-attorneys who represent parties in
adjudicative proceedings. These rules may address a wide array of
topics, including who can represent parties in adjudications, how
representatives must conduct themselves, and how the agency enforces
rules of conduct.\1\ Some agencies have drafted their own rules.
Others have adopted rules developed by state bar associations or the
American Bar Association's (ABA) Model Rules of Professional
Conduct. Agencies provide public access to their rules in different
ways, including publishing them in the Federal Register and Code of
Federal Regulations and posting them on their websites. Some
agencies have provided explanatory materials to help
representatives, parties, and the public understand how the rules
operate.
---------------------------------------------------------------------------
\1\ See George M. Cohen, Regulation of Representatives in Agency
Adjudicative Proceedings (Dec. 3, 2021) (report to the Admin. Conf.
of the U.S.).
---------------------------------------------------------------------------
Agency authority to set qualifications for who may serve as a
representative depends on whether the potential representative is an
attorney or non-attorney. For attorneys, the generally applicable
Agency Practice Act provides, with some exceptions, that ``any
individual who is a member in good standing of the bar of the
highest court of a State may represent a person before an agency,''
\2\ though some statutes authorize agencies to impose additional
qualification requirements. Agencies generally have greater
discretion under the Administrative Procedure Act and agency- or
program-specific statutes to determine whether persons who are not
attorneys may act as representatives and, if they may, to establish
the qualifications for doing so.
---------------------------------------------------------------------------
\2\ 5 U.S.C. 500(b).
---------------------------------------------------------------------------
As a general matter, agencies have legal authority to establish
rules governing the conduct of representatives and to take actions
against representatives found to have violated such rules.\3\ Courts
have consistently found such authority inherent in agencies' general
rulemaking power or their power to protect the integrity of their
processes.\4\ Agencies' disciplinary authority is not limitless,
however, and agencies must determine what their governing statutes
allow.
---------------------------------------------------------------------------
\3\ See, e.g., 5 U.S.C. 301.
\4\ See, e.g., Checkovsky v. SEC, 23 F.3d 452, 456 (D.C. Cir.
1994); Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986); Polydoroff
v. ICC, 773 F.2d 372, 374 (D.C. Cir. 1985); Touche Ross & Co. v.
SEC, 609 F.2d 570, 580-82 (2d Cir. 1979); Koden v. U.S. DOJ, 564
F.2d 228, 233 (7th Cir. 1977).
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Agencies that adopt rules governing representatives will need to
make a number of decisions as they decide the type of rules to adopt
and how they will apply those rules. They must determine whether the
rules will apply only to attorney representatives or will also apply
to other representatives. They must decide whether to borrow
language from rules drafted by other entities (state bars, ABA) or
to draft their own rules. They must determine the particular conduct
that the rules will regulate and whether to apply the same rules to
attorneys and non-attorneys. And if they decide to adopt rules
governing who may practice before the agency, they must ensure that
they comply with the Agency Practice Act for rules applied to
attorneys and determine the qualification standards, if any, they
will establish for non-attorneys.
Once agencies have decided to adopt rules, they also must
determine how to enforce those rules. Agencies may enforce rules in
various ways, ranging from reminders or warnings to more serious
actions, including disqualifying a representative from appearing in
the current adjudication or future adjudications or imposing a
monetary penalty. Agencies must determine that they have the legal
authority to undertake any such actions. Agencies also must
determine whether to implement a program for reciprocal discipline,
which involves imposing discipline on a representative found to have
engaged in misconduct by another jurisdiction, or for referral
procedures, which involve reporting attorneys' misconduct to another
jurisdiction for purposes of taking possible disciplinary action.
Agencies that have adopted rules must ensure that
representatives, parties, and the public can easily access the
rules. Agencies also must decide whether to provide additional
explanatory materials and, if so, ensure that those are also easily
accessible.
This Recommendation recognizes that agency adjudicative
proceedings vary widely in their purpose, complexity, and governing
law. Some processes are trial-like; others are informal. Some are
adversarial; others are non-adversarial. Given the extensive
variation in agencies' needs and available resources, this
Recommendation focuses primarily on setting forth the various
options agencies should consider in deciding whether to adopt rules
and deciding on the content of those rules. It takes no position on
whether agencies should allow non-attorney representatives. For
agencies that decide to adopt rules for attorneys and, if they elect
to do so, for non-attorneys, the Recommendation offers best
practices for seeking to ensure that those rules are disseminated
widely and that representatives, parties, and the public can
understand the rules and how agencies go about enforcing them.
Although the Recommendation does not endorse harmonization of
rules for its own sake, it does urge agencies to consider whether
achieving greater uniformity among different adjudicative components
within the agency or even across adjudicative components of multiple
agencies might prove valuable for representatives who practice
before a variety of components or agencies. It also recommends that
the Administrative
[[Page 1722]]
Conference's Office of the Chairman consider preparing model rules
that agencies can use when drafting their own rules.
Recommendation
Adoption of Rules Governing Participation and Conduct
1. For federal agency adjudication systems in which parties are
represented--either by attorneys or non-attorney representatives--
agencies should consider adopting rules governing the participation
and conduct of representatives in adjudicative proceedings to
promote the accessibility, fairness, integrity, and efficiency of
adjudicative proceedings.
Rules of Conduct
2. Agencies should consider whether to adopt or reference rules
promulgated by other authorities or professional organizations or
instead draft their own rules. Agencies should ensure that the rules
are appropriate for the adjudicative proceedings they conduct and
consider whether any modifications to adopted rules should be
included. Agencies should consider whether any rules applicable to
attorneys should be applied to non-attorneys and whether they should
be modified before doing so.
3. Possible topics that agencies might consider in their rules
include representatives' actions that are likely to occur during a
particular adjudication and actions that might occur outside a
particular adjudication but that might still adversely affect the
conduct of agency adjudications. Topics agencies might consider
include the following:
a. Engaging in conduct that disrupts or is intended to disrupt
an adjudication;
b. Making unauthorized ex parte contacts with agency officials;
c. Engaging in representation of a client that conflicts with
other interests, including representation of another client, or the
attorney's personal interests;
d. Filing frivolous claims or asserting frivolous defenses;
e. Engaging in conduct that is prejudicial to the administration
of justice, including conduct not limited to that occurring during
an adjudication;
f. Failing to provide competent representation;
g. Improperly withdrawing from client representation;
h. Unreasonably delaying the conduct of an adjudication;
i. Making a material intentional false statement;
j. Improperly seeking to influence the conduct of a judge or
official;
k. Being convicted of a crime or being subject to an official
finding of a civil violation that reflects adversely on the
attorney's fitness to represent clients before the agency; and
l. Knowingly disobeying or attempting to disobey agency rules
(including conduct rules) or adjudicators' directions, or knowingly
assisting others in doing so.
4. Agencies should consider whether divergence among rules
governing different types of adjudicative proceedings would create
needless complexity in practicing before the agency. This might
entail harmonizing rules among different components of the agency.
It might also involve harmonization of style or language across
rules as well as cross-referencing of other rules of the agency.
Agencies should also consider whether to harmonize rules across
agencies, especially in cases in which the same representatives
commonly appear before a group of agencies (e.g., financial
agencies).
Agency Action in Response to Allegations of a Violation of Rules
5. Agencies should specify in their rules how they will respond
to an allegation of a violation of their conduct rules, and they
should publish these rules consistent with Paragraphs 9 through 12.
Among other topics, agencies should address:
a. Who can make a complaint and how to make it;
b. How notice of a complaint should be provided to the
representative who is the subject of the complaint;
c. Who adjudicates the complaint;
d. The procedure for adjudicating the complaint, including any
rules governing the submission of evidence and the making of
arguments;
e. The manner in which a decision will be issued, including any
applicable timeline for issuing a decision;
f. Procedures for appealing a decision;
g. Who is responsible for enforcing the decision within the
agency and communicating the decision to other relevant authorities;
and
h. The process for identifying and dismissing complaints that
are frivolous, repetitive, meant to harass, or meant primarily to
delay agency action, including any consequences for persons filing
such complaints.
Agency Action in Response to a Violation of Rules
6. Rules should address what actions an agency may take in the
case of a violation of the rules consistent with their authority to
do so, including informal warnings short of sanctions and the range
of available sanctions.
7. For rules applicable to attorneys, agencies should consider
whether to adopt any reciprocal disciplinary procedures or referral
procedures.
Who Can Practice Before Agencies
8. Agencies should, in compliance with the Agency Practice Act
(5 U.S.C. 500), only establish additional rules governing which
attorney representatives can practice before the agencies if
authorized to do so by separate statute. With respect to non-
attorneys, agencies should determine what rules, if any, they will
establish to govern who can practice before the agencies.
Transparency
9. Agencies should publish their rules governing
representatives' conduct in the Federal Register and codify them in
the Code of Federal Regulations.
10. When agencies adopt rules promulgated by another entity,
which may in some instances be copyrighted, they should ensure that
the rules are reasonably available to the public such as by
providing links on the agencies' websites or other mechanisms for
easily accessing those rules.
11. Agencies should also publish their rules governing
representatives' conduct on a single web page or in a single
document on their websites and clearly label them using a term such
as ``Rules of Conduct for Representatives.'' The agency should
indicate clearly whether the rules apply only to attorneys, non-
attorneys, or both.
12. On the web page or in the document described in Paragraph
11, agencies should also publish information concerning
qualifications for representatives (including for non-attorneys as
applicable), how to file a complaint, and a summary of the
disciplinary process.
13. On the web page or in the document described in Paragraph
11, agencies should consider providing comments, illustrations, and
other explanatory materials to help clarify how the rules work in
practice.
14. Agencies should consider publishing disciplinary actions, or
summaries of them, on the web page or in the document described in
Paragraph 11 so as to promote transparency regarding the types of
conduct that lead to disciplinary action. When necessary to preserve
recognized privacy interests, the agency may consider redacting
information about particular cases or periodically providing summary
reports describing the rules violated, the nature of the misconduct,
and any actions taken.
Model Rules
15. ACUS's Office of the Chairman should consider promulgating
model rules of conduct that would address the topics in this
Recommendation. The model rules should account for variation in
agency practice and afford agencies the flexibility to determine
which rules apply to their adjudicative proceedings. In doing so,
the Office of the Chairman should seek the input of a diverse array
of agency officials and members of the public, including
representatives who appear before agencies, and the American Bar
Association.
Administrative Conference Recommendation 2021-10
Quality Assurance Systems in Agency Adjudication
Adopted December 16, 2021
A quality assurance system is an internal review mechanism that
agencies use to detect and remedy both problems in individual
adjudications and systemic problems in agency adjudicative programs.
Through well-designed and well-implemented quality assurance
systems, agencies can proactively identify both problems in
individual cases and systemic problems, including misapplied legal
standards, inconsistent applications of the law by different
adjudicators, procedural violations, and systemic barriers to
participation in adjudicatory proceedings (such as denials of
reasonable accommodation). Identifying such problems enables
agencies to ensure adherence to their own policies and improve the
fairness (and perception of fairness), accuracy, inter-
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decisional consistency, timeliness, and efficiency of their
adjudicative programs.\1\
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\1\ Daniel E. Ho, David Marcus & Gerald K. Ray, Quality
Assurance Systems in Agency Adjudication (Nov. 30, 2021) (report to
the Admin. Conf. of the U.S.).
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In 1973, the Administrative Conference recommended the use of
quality assurance systems to evaluate the accuracy, timeliness, and
fairness of adjudication of claims for public benefits or
compensation.\2\ Since then, many agencies, including those that
adjudicate other types of matters, have implemented or considered
implementing quality assurance systems, often to supplement other
internal review mechanisms such as agency appellate systems.\3\
Unlike agencies' appellate systems, quality assurance systems are
not primarily concerned with error correction in individual cases,
and they may assess numerous adjudicatory characteristics that are
not typically subject to appellate review, such as effective case
management. Nor are they avenues for collateral attack on individual
adjudicatory dispositions. Also, quality assurance systems are
distinct from agencies' procedures that deal with allegation of
judicial misconduct. This Recommendation accounts for these
developments and provides further guidance for agencies that may
wish to implement new or to improve existing quality assurance
systems.
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\2\ Admin. Conf. of the U.S., Recommendation 73-3, Quality
Assurance Systems in the Adjudication of Claims of Entitlement to
Benefits or Compensation, 38 FR 16840 (June 27, 1973).
\3\ Admin. Conf. of the U.S., Recommendation 2020-3, Agency
Appellate Systems, 86 FR 6618 (Jan. 22, 2021).
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How agencies structure their quality assurance systems can have
important consequences for their success. For example, quality
assurance systems that overemphasize timeliness as a measure of
quality may overlook problems of decisional accuracy. Quality
assurance personnel must have the expertise and judgment necessary
to accurately and impartially perform their responsibilities.
Quality assurance personnel must use methods for selecting and
reviewing cases that allow them to effectively identify case-
specific and systemic problems. Agencies must determine how they
will use information collected through quality assurance systems to
correct problems that threaten the fairness (and perception of
fairness), accuracy, inter-decisional consistency, timeliness, and
efficiency of their adjudicative programs. Agencies also must design
quality assurance systems to comply with all applicable
requirements, such as the statutory prohibition against rating the
job performance of or granting any monetary or honorary award to an
administrative law judge.\4\
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\4\ See, e.g., 5 U.S.C. 4301; 5 CFR 930.206.
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There are many methods of quality review that agencies can use,
independently or in combination, depending upon the needs and goals
of their adjudicative programs. For example, agencies can adopt a
peer review process by which adjudicators review other adjudicators'
decisions and provide feedback before decisions are issued. Agencies
can prepare and circulate regular reports for internal use that
describe systemic trends identified by quality assurance personnel.
Agencies can also use information from quality assurance systems to
identify training needs and clarify or improve policies.
Agencies, particularly those with large caseloads, may also
benefit from using data captured in electronic case management
systems. Through advanced data analytics and artificial intelligence
techniques (e.g., machine-learning algorithms), agencies can use
such data to rapidly and efficiently identify anomalies and systemic
trends.\5\
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\5\ Admin. Conf. of the U.S., Statement #20, Agency Use of
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021); Admin. Conf. of
the U.S., Recommendation 2018-3, Electronic Case Management in
Federal Administrative Adjudication, 83 FR 30686 (June 29, 2018).
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This Recommendation recognizes that agencies have different
quality assurance needs and available resources. What works best for
one agency may not work for another. What quality assurance
techniques agencies may use may also be constrained by law. Agencies
must take into account their own unique circumstances when
implementing the best practices that follow.
Recommendation
Review and Development of Quality Assurance Standards
1. Agencies with adjudicative programs that do not have quality
assurance systems--that is, practices for assessing and improving
the quality of decisions in adjudicative programs--should consider
developing such systems to promote fairness, the perception of
fairness, accuracy, inter-decisional consistency, timeliness,
efficiency, and other goals relevant to their adjudicative programs.
2. Agencies with adjudicative programs that have quality
assurance systems should review them in light of the recommendations
below.
3. Agencies' quality assurance systems should assess whether
decisions and decision-making processes:
a. Promote fairness and the appearance of fairness;
b. Accurately determine the facts of the individual matters;
c. Correctly apply the law to the facts of the individual
matters;
d. Comply with all applicable requirements;
e. Are completed in a timely and efficient manner; and
f. Are consistent across all adjudications of the same type.
4. Agencies should consider both reviews that address decisions'
likely outcomes before reviewing tribunals, and reviews of
adjudicators' decisional reasoning, which address policy compliance,
consistency, and fairness.
5. A quality assurance system should review the work of
adjudicators and all related personnel who have important roles in
the adjudication of cases, such as attorneys who assist in drafting
decisions, interpreters who assist in hearings, and staff who assist
in developing evidence.
6. Analyzing decisions of agency appellate and judicial review
bodies may help quality assurance personnel assess whether the
adjudicatory process is meeting the goals outlined in Paragraph 3.
But agencies should not rely solely on such decisions to set and
assess standards of quality because appealed cases may not be
representative of all adjudications.
Quality Assurance Personnel
7. Agencies should ensure that quality assurance personnel can
perform their functions in a manner that is, and is perceived as,
impartial, including being able to perform such functions without
pressure, interference, or expectation of employment consequences
from the personnel whose work they review.
8. Agencies should ensure that quality assurance personnel
understand all applicable substantive and procedural requirements
and have the expertise necessary to review the work of all personnel
who have important roles in adjudicating cases.
9. Agencies should ensure that quality assurance personnel have
sufficient time to fully and fairly perform their assigned
functions.
10. Agencies should consider whether quality assurance systems
should be staffed by permanent or temporary personnel, or some
combination of the two. Personnel who perform quality assurance
functions on a permanent basis may gain more experience and
institutional knowledge over time than will personnel who perform on
a temporary basis. Personnel who perform quality assurance on a
temporary basis, however, may be more likely to contribute different
experiences and new perspectives.
Timing of and Process for Quality Assurance Review
11. Agencies should consider at what points in the adjudication
process quality assurance review should occur. In some cases, review
that occurs before adjudicators issue their decisions, or during a
period when agency appellate review is available, could allow errors
to be corrected before decisions take effect. However, agencies
should take care that pre-disposition review does not interfere with
adjudicators' qualified decisional independence and comports with
applicable restrictions governing ex parte communications, internal
separation of decisional and adversarial personnel, and decision
making based on an exclusive record.
12. Agencies should consider implementing peer review programs
in which adjudicators can provide feedback to other adjudicators.
13. Agencies should consider a layered approach to quality
assurance that employs more than one methodology. As resources
allow, this may include formal quality assessments and informal peer
review on an individual basis, sampling and targeted case selection
on a systemic basis, and case management systems with automated
adjudication support tools.
14. In selecting cases for quality assurance review, agencies
should consider the following methods:
a. Review of every case, which may be useful for agencies that
adjudicate a small
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number of cases but impractical for agencies that adjudicate a high
volume of cases;
b. Random sampling, which can be more efficient for agencies
that decide a high volume of cases but may cause quality assurance
personnel to spend too much time reviewing cases that are unlikely
to present issues of concern;
c. Stratified random sampling, a type of random sampling that
over-samples cases based on chosen characteristics, which may help
quality assurance personnel focus on specific legal issues or
factual circumstances associated with known problems, but may
systematically miss certain types of problems; and
d. Targeted selection of cases, which allows agencies to
directly select decisions that contain specific case characteristics
and may help agencies study known problems but may miss identifying
other possible problems.
Data Collection and Analysis
15. Agencies, particularly those with large caseloads, should
consider what data would be useful and how data could be used for
quality assurance purposes. Agencies should ensure that, for each
case, an electronic case management or other system includes the
following information:
a. The identities of adjudicators and any personnel who assisted
in evaluating evidence, writing decisions, or performing other case-
processing tasks;
b. The procedural history of the case, including any actions and
outcomes on administrative or judicial review;
c. The issues presented in the case and how they were resolved;
and
d. Any other data the agency determines to be helpful.
16. Agencies should regularly evaluate their electronic case
management or other systems to ensure they are collecting the data
necessary to assess and improve the quality of decisions in their
programs.
17. Agencies, particularly those with large caseloads, should
consider whether to use data analytics and artificial intelligence
(AI) tools to help quality assurance personnel identify potential
errors or other quality issues. Agencies should ensure that they
have the technical capacity, expertise, and data infrastructure
necessary to build and deploy such tools; that any data analytics or
AI tools the agencies use support, but do not displace, evaluation
and judgment by quality assurance personnel; and that such systems
comply with legal requirements for privacy and security and do not
create or exacerbate harmful biases.
Use of Quality Assurance Data and Findings
18. Agencies should not use information gathered through quality
assurance systems in ways that could improperly influence decision
making or personnel matters.
19. Agencies should provide, consistent with Paragraph 11,
individualized feedback for adjudicators and other personnel who
assist in evaluating evidence, writing decisions, or performing
other case-processing tasks within a reasonable amount of time and
include any relevant positive and negative feedback.
20. Agencies should establish regular communications mechanisms
to facilitate the dissemination of various types of quality
assurance information within the agency. Agencies should:
a. Communicate information about systemic recurring or emerging
problems identified by quality assurance systems to all personnel
who participate in the decision-making process and to training
personnel;
b. Communicate, as appropriate, with agency rule-writers and
operations support personnel to allow them to consider whether
recurring problems identified by quality assurance systems should be
addressed or clarified by rules, operational guidance, or decision
support tools; and
c. Consider whether to communicate information to appellate
adjudicators or other agency officials who are authorized to remedy
problems identified by quality assurance systems in issued
decisions.
Public Disclosure and Transparency
21. Agencies should provide access on their websites to all
rules and any associated explanatory materials that apply to quality
assurance systems, including standards for evaluating the quality of
agency decisions and decision-making processes.
22. Agencies should consider whether to publicly disclose data
in case management systems in a de-identified form (i.e., with all
personally identifiable information removed) to enable continued
research by individuals outside of the agency.
Assessment and Oversight
23. Agencies with quality assurance systems should assess
periodically whether those systems achieve the goals they were
intended to accomplish, including by affirmatively soliciting
feedback from the public, adjudicators, and other agency personnel
concerning the functioning of their quality assurance systems.
[FR Doc. 2022-00463 Filed 1-11-22; 8:45 am]
BILLING CODE 6110-01-P
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</html>Indexed from Federal Register on January 12, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.