Notice2022-10749
Disclosure of Agency Legal Materials; Comment Request
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 19, 2022
Issuing agencies
Administrative Conference of the United States
Abstract
The Office of the Chairman of ACUS is requesting public input on what legal materials agencies must or should make publicly available and how they ought to do so. Responses to this request may inform an ongoing ACUS project, Disclosure of Agency Legal Materials. If warranted, the project will recommend statutory reforms to ensure that agencies provide public access to legal materials in the most equitable, effective, and efficient way possible for both the public and agencies.
Full Text
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[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30445-30446]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10749]
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Notices
Federal Register
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Federal Register / Vol. 87, No. 97 / Thursday, May 19, 2022 /
Notices
[[Page 30445]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Disclosure of Agency Legal Materials; Comment Request
AGENCY: Administrative Conference of the United States (ACUS).
ACTION: Notice.
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SUMMARY: The Office of the Chairman of ACUS is requesting public input
on what legal materials agencies must or should make publicly available
and how they ought to do so. Responses to this request may inform an
ongoing ACUS project, Disclosure of Agency Legal Materials. If
warranted, the project will recommend statutory reforms to ensure that
agencies provide public access to legal materials in the most
equitable, effective, and efficient way possible for both the public
and agencies.
DATES: Comments must be received no later than 10 a.m. (ET) July 18,
2022.
ADDRESSES: You may submit comments by email to <a href="/cdn-cgi/l/email-protection#31585f575e71505244421f565e47"><span class="__cf_email__" data-cfemail="31585f575e71505244421f565e47">[email protected]</span></a> (with
``Disclosure of Agency Legal Materials Comments'' in the subject line
of the message); online by clicking ``Submit a comment'' near the
bottom of the project web page found at <a href="https://www.acus.gov/research-projects/disclosure-agency-legal-materials">https://www.acus.gov/research-projects/disclosure-agency-legal-materials</a>; or by U.S. Mail addressed
to Disclosure of Agency Legal Materials Comments, Administrative
Conference of the United States, Suite 706 South, 1120 20th Street NW,
Washington, DC 20036. ACUS will ordinarily post comments on the project
web page as they are received. Commenters should not include
information, such as personal information or confidential business
information, that they do not wish to appear on the ACUS website. For
the full ACUS public comment policy, please visit <a href="https://www.acus.gov/policy/public-comment-policy">https://www.acus.gov/policy/public-comment-policy</a>.
FOR FURTHER INFORMATION CONTACT: Todd Rubin, Attorney Advisor,
Administrative Conference of the United States, 1120 20th Street NW,
Suite 706 South, Washington, DC 20036; Telephone (202) 480-2080; email
<a href="/cdn-cgi/l/email-protection#9aeee8eff8f3f4dafbf9efe9b4fdf5ec"><span class="__cf_email__" data-cfemail="0b7f797e6962654b6a687e78256c647d">[email protected]</span></a>.
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>.
Disclosure of Agency Legal Materials
Agencies generate a wide range of materials that impose legal
obligations on members of the public, agency employees, and agency
heads; determine the rights or interests of private parties; advise the
public of the agencies' interpretation of the statutes and rules they
administer; advise the public prospectively of the manner in which
agencies plan to exercise discretionary powers; or otherwise explain
agency actions that affect members of the public. Federal laws govern
when and how agencies make these legal materials publicly available.
These include generally applicable statutes such as the Freedom of
Information Act (FOIA), the Federal Register Act, the E-Government Act
of 2002, the Federal Records Act, as well as agency- and program-
specific statutes.
ACUS has undertaken many projects in which it has recommended best
practices for the disclosure of records such as guidance documents,\1\
adjudication rules,\2\ adjudication materials,\3\ and litigation
materials.\4\ Many of these projects focus on a broader set of
materials than legal materials, but they do encompass, touch on, or
include legal materials. A recurrent question in the discussion
surrounding these projects has been whether Congress should amend the
main statutes governing disclosure of agency legal materials to
consolidate and harmonize overlapping requirements, account for
technological developments, and correct statutory ambiguities and
drafting errors.
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\1\ See, e.g., Admin. Conf. of the U.S., Recommendation 2021-7,
Public Availability of Inoperative Agency Guidance Documents, 87 FR
1718 (Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 2019-
3, Public Availability of Agency Guidance Documents, 84 FR 38931
(Aug. 8, 2019).
\2\ See, e.g., Admin. Conf. of the U.S., Recommendation 2020-5,
Publication of Policies Governing Agency Adjudicators, 86 FR 6622
(Jan. 22, 2021); Admin. Conf. of the U.S., Recommendation 2018-5,
Public Availability of Adjudication Rules, 84 FR 2142 (Feb. 6,
2019).
\3\ See, e.g., Admin. Conf. of the U.S., Recommendation 2017-1,
Adjudication Materials on Agency websites, 82 FR 31039 (July 5,
2017).
\4\ See, e.g., Admin. Conf. of the U.S., Recommendation 2020-6,
Agency Litigation web pages, 86 FR 6624 (Jan. 22, 2021).
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ACUS is now undertaking this project to answer this question. A
team of leading scholars will submit a report to ACUS that addresses
this question and others that may be identified. If warranted, a
committee of ACUS members will develop proposed recommendations to
Congress for possible consideration by the ACUS Assembly. Recommended
statutory reforms will provide clear standards as to what legal
materials agencies must publish and where they must publish them
(whether in the Federal Register, on their websites, or elsewhere). The
objective of any such proposed amendments will be to ensure that
agencies provide appropriate public access to legal materials in the
most equitable, effective, and efficient way possible for both the
public and the agency. Visit <a href="https://www.acus.gov/research-projects">https://www.acus.gov/research-projects</a> to
learn more about how ACUS develops recommendations.
Specific Topics for Public Comment
ACUS welcomes views, information, and data on all aspects of this
topic. ACUS also seeks specific feedback on the following questions:
1. What types of agency records should ACUS consider to be ``agency
legal materials'' for purposes of this project?
2. What obstacles have you or others faced in gaining access to
agency legal materials?
3. Are there certain types of agency legal materials or legal
information that agencies are not making publicly available that would
be valuable to you or others?
[[Page 30446]]
4. Agencies provide public access to legal materials in different
ways. Agencies make some materials available to the general public on
their own initiative without having received a request from a member of
the public (i.e., proactive disclosure). Other materials are provided
to members of the public on request. What types of legal materials
should agencies proactively disclose to the general public? What types
of legal materials may or should agencies disclose only in response to
a request from a member of the public?
5. For agency legal materials that should be proactively disclosed,
where or how should agencies make them publicly available (on agency
websites, in the Federal Register, or elsewhere)?
6. Are there certain types of agency legal materials, or certain
types of information contained in agency legal materials, that agencies
should not make publicly available? When there is public interest in
these types of materials or information, how should agencies balance
the public interest in disclosure with any private or governmental
interests in nondisclosure?
7. Some statutes governing the public availability of agency legal
materials apply to most or all agencies (e.g., Federal Register Act),
whereas others apply to only one or a small number of agencies (e.g.,
Food and Drug Administration Modernization Act of 1997). When should
Congress create disclosure requirements that apply to most or all
agencies, and when should Congress create disclosure requirements that
apply to only one or a small number of agencies?
8. Are there certain best practices regarding disclosure of legal
materials on agency websites that should be required by statute (e.g.,
indexing of legal materials, search functions to help find legal
materials)? If so, should these practices be required for all legal
materials or only certain types of legal materials?
9. What inconsistencies, ambiguities, and overlaps exist in the
main statutes governing disclosure of agency legal materials (e.g.,
FOIA, Federal Register Act, E-Government Act of 2002, Federal Records
Act) that Congress should remedy?
10. What other statutory reforms might be warranted to ensure
adequate public availability of agency legal materials?
Dated: May 13, 2022.
Shawne McGibbon,
General Counsel.
[FR Doc. 2022-10749 Filed 5-18-22; 8:45 am]
BILLING CODE 6110-01-P
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