Notice2023-00628
Adoption of Recommendations
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Published
January 13, 2023
Issuing agencies
Administrative Conference of the United States
Abstract
The Assembly of the Administrative Conference of the United States adopted three recommendations at its hybrid (virtual and in- person) Seventy-eighth Plenary Session: Precedential Decision Making in Agency Adjudication, Regulatory Enforcement Manuals, and Public Availability of Settlement Agreements in Agency Enforcement Proceedings.
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[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Notices]
[Pages 2312-2316]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00628]
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Notices
Federal Register
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Federal Register / Vol. 88, No. 9 / Friday, January 13, 2023 /
Notices
[[Page 2312]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
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 three recommendations at its hybrid (virtual and in-
person) Seventy-eighth Plenary Session: Precedential Decision Making in
Agency Adjudication, Regulatory Enforcement Manuals, and Public
Availability of Settlement Agreements in Agency Enforcement
Proceedings.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2022-4, Matthew
Gluth; and for Recommendations 2022-5 and 2022-6, Alexandra Sybo. 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-eighth
Plenary Session on December 15, 2022, to consider three proposed
recommendations and conduct other business. All three recommendations
were adopted.
Recommendation 2022-4, Precedential Decision Making in Agency
Adjudication. This recommendation identifies best practices on the use
of precedential decisions in agency adjudication. It addresses whether
agencies should issue precedential decisions and, if so, according to
what criteria; what procedures agencies should follow to designate
decisions as precedential and overrule previously designated decisions;
and how agencies should communicate precedential decisions internally
and publicly. It also recommends that agencies codify their procedures
for precedential decision making in their rules of practice.
Recommendation 2022-5, Regulatory Enforcement Manuals. This
recommendation identifies best practices for agencies regarding the use
and availability of enforcement manuals--that is, documents that
provide agency personnel with a single, authoritative resource for
enforcement-related statutes, rules, and policies. It recommends that
agencies present enforcement manuals in a clear, logical, and
comprehensive fashion; periodically review and update them as needed;
ensure enforcement personnel can easily access them; and consider
making manuals, or portions of manuals, publicly available.
Recommendation 2022-6, Public Availability of Settlement Agreements
in Agency Enforcement Proceeding. This recommendation identifies best
practices for providing public access to settlement agreements reached
during administrative enforcement proceedings. It recommends that
agencies develop policies addressing when to post such agreements on
their websites; provides factors for agencies to consider in
determining which agreements to post on their websites; and identifies
best practices for presenting settlement agreements in a clear,
logical, and accessible manner without disclosing sensitive or
otherwise protected information.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/meetings-and-events/plenary-meeting/78th-plenary-session">https://www.acus.gov/meetings-and-events/plenary-meeting/78th-plenary-session</a>.
Authority: 5 U.S.C. 595.
Dated: January 10, 2023.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2022-4
Precedential Decision Making in Agency Adjudication
Adopted December 15, 2022
It is a tenet of our system of justice that like cases be
treated alike. Agencies use many different mechanisms to ensure such
consistency, predictability, and uniformity when adjudicating cases,
including designating some or all of their appellate decisions as
precedential.\1\ Agencies can also use precedential decision making
to communicate how they interpret legal requirements or intend to
exercise discretionary authority, as well as to increase efficiency
in their adjudicative systems.\2\
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\1\ Other mechanisms include rulemaking, quality assurance
programs, appellate review, aggregate decision making, and
declaratory orders. See, e.g., Admin. Conf. of the U.S.,
Recommendation 2021-10, Quality Assurance Systems in Agency
Adjudication, 87 FR 1722 (Jan. 12, 2022); Admin. Conf. of the U.S.,
Recommendation 2020-3, Agency Appellate Systems, 86 FR 6618 (Jan.
22, 2021); Admin. Conf. of the U.S., Recommendation 2016-2,
Aggregation of Similar Claims in Agency Adjudication, 81 FR 40260
(June 21, 2016); Admin. Conf. of the U.S., Recommendation 2015-3,
Declaratory Orders, 80 FR 78161 (Dec. 16, 2015).
\2\ See Christopher J. Walker, Melissa Wasserman & Matthew Lee
Wiener, Precedential Decision Making in Agency Adjudication (Dec. 6,
2022) (report to the Admin. Conf. of the U.S.).
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An agency's decision is precedential when an agency's
adjudicators must follow the decision's holding unless the precedent
is distinguishable or until it is overruled. Many agencies use some
form of precedential decision making. Some agencies treat all agency
appellate decisions as precedential, while others treat only some
appellate decisions as precedential. Additionally, some agencies
highlight nonprecedential decisions that may be useful to
adjudicators by labeling them ``informative,'' ``notable,'' or a
similar term.\3\ In any of these cases, precedential decisions can
come from an agency head or heads, adjudicators exercising the
agency's authority to review hearing-level decisions, adjudicators
who review hearing-level decisions but whose decisions are subject
to (usually discretionary) agency-head review, or adjudicators other
than the agency head who have statutory authority to issue final
decisions. Rarely do hearing-level adjudicators issue precedential
decisions.
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\3\ See id. at 28, 37 & app. G (discussing the use of ``adopted
decisions'' at the U.S. Citizenship and Immigration Services).
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[[Page 2313]]
This Recommendation provides best practices for agencies in
considering whether and how to use precedential decisions in their
adjudicative systems. It begins by recommending that agencies
determine whether they issue appellate decisions that may lend
themselves to use as precedent and, if they do, whether to treat all
or some appellate decisions as precedential. For agencies that treat
only some decisions as precedential, the Recommendation sets forth
criteria for deciding which ones to treat as such, and it identifies
procedures for agencies to consider using when designating decisions
as precedential, such as the solicitation of public input.
For agencies that use some form of precedential decision making,
this Recommendation provides best practices for identifying
decisions which are precedential and making information about such
decisions available internally and to the public. Some of these
practices build on the Freedom of Information Act's requirement that
agencies post on their websites all final orders and opinions and
its general prohibition against agencies relying on, using, or
citing an order or opinion as precedent against a private party if
it has not been indexed and posted online.\4\
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\4\ See 5 U.S.C. 552(a)(2)(A).
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The Recommendation concludes by urging agencies to address their
use of, and procedures for, precedential decision making in
procedural rules published in the Federal Register and Code of
Federal Regulations.
Recommendation
Use of Precedential Decision Making
1. Agencies should determine whether, and if so when, to treat
their appellate decisions as precedential, meaning that an
adjudicator must follow the decision's holding in subsequent cases,
unless the facts of the decision are distinguishable or until the
holding is overruled. In determining whether to treat all, some, or
no appellate decisions as precedential, agencies should consider:
a. The extent to which they issue decisions that would be useful
as precedent and are written in a form that lends itself to use as
precedent;
b. The extent to which they issue decisions that mainly concern
only case-specific factual determinations or the routine application
of well-established policies, rules, and interpretations to case-
specific facts; and
c. The extent to which they issue such a large volume of
decisions that adjudicators cannot reasonably be expected to
identify those which should control future decisions.
2. Agencies that treat only some appellate decisions as
precedential should consider treating a decision as precedential if
it:
a. Addresses an issue of first impression;
b. Clarifies or explains a point of law or policy that has
caused confusion among adjudicators or litigants;
c. Emphasizes or calls attention to an especially important
point of law or policy that has been overlooked or inconsistently
interpreted or applied;
d. Clarifies a point of law or policy by resolving conflicts
among, or by harmonizing or integrating, disparate decisions on the
same subject;
e. Overrules, modifies, or distinguishes existing precedential
decisions;
f. Accounts for changes in law or policy, whether resulting from
a new statute, federal court decision, or agency rule;
g. Addresses an issue that the agency must address on remand
from a federal court; or
h. May otherwise serve as a necessary, significant, or useful
guide for adjudicators or litigants in future cases.
3. Agencies should not prohibit parties from citing
nonprecedential decisions in written or oral arguments.
4. Agencies should consider identifying nonprecedential
decisions that may be useful to adjudicators by designating them
``informative,'' ``notable,'' or a similar term.
Processes and Procedures for Designating Precedential Decisions
5. Agencies' procedures for designating decisions as
precedential should not be unduly time consuming or resource
intensive.
6. Prior to designating an appellate decision as precedential,
agencies should consider soliciting input from appellate
adjudicators not involved in deciding the case.
7. Agencies should consider implementing procedures by which
appellate adjudicators can issue precedential decisions to resolve
important questions that arise during hearing-level proceedings.
Options include procedures by which, on an interlocutory basis or
after a hearing-level decision has been issued:
a. Hearing-level adjudicators may certify specific questions in
cases or refer entire cases for precedential decision making;
b. Appellate adjudicators on their own motion may review
specific questions in cases or entire cases for precedential
decision making; and
c. Parties may request that appellate adjudicators review
specific questions in cases or entire cases for precedential
decision making.
8. Agencies should consider establishing a process by which
adjudicators, other agency officials, parties, and the public can
request that a specific nonprecedential appellate decision be
designated as precedential.
9. Agencies should consider soliciting amicus participation or
public comments in cases in which they expect to designate a
decision as precedential, particularly in cases of significance or
high interest. That could be done, for example, by publishing a
notice in the Federal Register and on their websites, and by
directly notifying those persons likely to be especially interested
in the matter. In determining whether amicus participation or public
comments would be valuable in a particular case, agencies should
consider the extent to which the case addresses broad policy
questions whose resolution requires consideration of general or
legislative facts as opposed to adjudicative facts particular to the
parties.
10. When an agency rejects or disavows the holding of a
precedential decision, it should expressly overrule the decision, in
whole or in part as the circumstances dictate, and explain why it is
doing so.
Availability of Precedential Decisions
11. Agencies that treat only some appellate decisions as
precedential should clearly identify precedential decisions as such.
Such agencies should also identify those precedential decisions in
digests and indexes that agencies make publicly available.
12. Agency websites, as well as any agency digests and indexes
of decisions, should clearly indicate when a precedential decision
has been overruled or modified.
13. Agencies should ensure that precedential decisions are
effectively communicated to their adjudicators.
14. Agencies should update any manuals, bench books, or other
explanatory materials to reflect developments in law or policy
effected through precedential decisions.
15. Agencies should consider posting on their websites brief
summaries of precedential decisions, a digest of precedential
decisions, and an index, organized topically, of precedential
decisions.
16. Subject to available resources, agencies should consider
tracking, on their own or in coordination with commercial databases,
and making available to agency officials and the public the
subsequent history of precedential decisions, including whether they
have been remanded, set aside, modified following remand by a
federal court, or superseded by statute or other agency action, such
as a rule.
Rules on Precedential Decision Making
17. As part of their rules of practice, published in the Federal
Register and codified in the Code of Federal Regulations, agencies
should adopt rules regarding precedential decision making. These
rules should:
a. State whether all, some, or none of the agency's appellate
decisions are treated as precedential;
b. Describe the criteria and process for designating decisions
as precedential, if the agency considers some but not all of its
decisions as precedential;
c. Specify who has authority to designate decisions as
precedential, if the agency considers some but not all of its
decisions as precedential;
d. Explain the legal effect of precedential decisions in
subsequent cases;
e. Define any terms the agency uses to identify useful
nonprecedential decisions, such as ``informative'' or ``notable,''
and describe the criteria and process for designating these
decisions;
f. Explain for what purposes a party may cite a nonprecedential
decision, and how the agency will treat it;
g. Describe any opportunities for amicus or other public
participation in precedential decision making; and
h. Explain how precedential decisions are clearly identified as
precedential, how they are identified when overturned, and how they
are made available to the public.
18. Agencies should use clear and consistent terminology in
their rules relating to precedential decisions. Agencies that
distinguish between ``published'' decisions and ``nonpublished'' or
``unpublished'' decisions (or some other such terminology) should
identify in their rules of practice the
[[Page 2314]]
relationship between these terms and the terms ``precedential'' and
``nonprecedential.''
19. Agencies should consider soliciting public input when they
materially revise existing or adopt new procedural regulations on
the subjects addressed above, unless the costs outweigh the benefits
of doing so in a particular instance.
Administrative Conference Recommendation 2022-5
Regulatory Enforcement Manuals
Adopted December 15, 2022
Many agencies are responsible for detecting, investigating, and
prosecuting potential violations of the laws they administer.
Statutes and agency rules govern the exercise of agencies'
enforcement authority and direct the activities of enforcement
personnel. Agencies' policies: (a) explain and interpret relevant
statutes and rules; (b) establish standards, priorities, and
procedures for detecting and investigating suspected violations,
issuing complaints against suspected violators, and prosecuting
cases before an administrative body or a federal court; (c) describe
how enforcement staff interact with other agency personnel and
persons outside the agency; and (d) set forth processes for
soliciting and receiving complaints about alleged violations from
members of the public.
Many agencies have developed documents, often called
``enforcement manuals,'' that provide their personnel with a single,
comprehensive resource regarding enforcement-related laws and
policies. Enforcement manuals provide a way for agencies to
effectively communicate such policies, which would otherwise be
dispersed within a voluminous body of separate documents, and to
ensure that agency enforcement is internally consistent, fair,
efficient, effective, and legally sound.\1\ Although enforcement
manuals do not necessarily bind agencies as a whole, it is also
sometimes appropriate for agencies, as an internal agency management
matter, to direct enforcement personnel to act in conformity with an
enforcement manual.\2\
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\1\ See Jordan Perkins, Regulatory Enforcement Manuals 1, 9
(Dec. 9, 2022) (report to the Admin. Conf. of the United States).
\2\ See Admin. Conf. of the U.S., Recommendation 2017-5, Agency
Guidance Through Policy Statements, ] 3, 82 FR 61734, 61736 (Dec.
29, 2017).
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Enforcement manuals can also be a useful, practical resource for
the public. The Freedom of Information Act (FOIA) requires agencies
to post on their websites ``administrative staff manuals and
instructions to staff that affect a member of the public.'' \3\
Although several courts of appeals have held that this provision
does not apply to some portions of enforcement manuals,\4\ by
providing public access to them, agencies can improve awareness of
and compliance with relevant policies while promoting transparency
more generally.
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\3\ 5 U.S.C. 552(a)(2)(C).
\4\ See, e.g., Smith v. NTSB, 981 F.2d 1326 (D.C. Cir. 1993);
Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973).
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Enforcement manuals may contain information that agencies should
not disclose. Disclosure of some portions of enforcement manuals
might, for example, enable persons to circumvent the law by
revealing forms of noncompliance that will not lead to investigation
or enforcement. Accordingly, FOIA exempts from disclosure records or
information that ``would disclose techniques and procedures for law
enforcement investigations or prosecutions'' or ``guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.'' \5\ FOIA
also allows agencies to withhold records that fall within the
attorney work-product privilege. This exemption may encompass
information provided to enforcement personnel about litigation
strategies and legal theories, the disclosure of which could
adversely affect the integrity of adversarial proceedings.\6\
Agencies cannot rely on these exemptions reflexively, however. Since
2016, agencies may withhold information under FOIA only if they
``reasonably foresee that disclosure would harm an interest
protected by'' an exemption or if disclosure is prohibited by
law.\7\ In other circumstances, agencies should disclose their
enforcement manuals, or at least the non-exempt portions of the
manual.
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\5\ Id. Sec. 552(b)(7)(E).
\6\ See ACLU of N. Cal. v. U.S. DOJ, 880 F.3d 473, 486-88 (9th
Cir. 2018); Nat'l Ass'n of Crim. Def. Lawyers v. U.S. DOJ Exec. Off.
for U.S. Attys., 844 F.3d 246, 254 (D.C. Cir. 2016).
\7\ 5 U.S.C. 552(a)(8)(A).
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This Recommendation offers agencies best practices for
developing, managing, and disseminating enforcement manuals. It
builds on several recommendations the Administrative Conference has
previously adopted regarding the development, management, and
dissemination of agency procedural rules and guidance documents.\8\
In offering these recommendations, the Conference recognizes that
enforcement manuals may not be appropriate for all agencies, given
differences in the volume and complexity of documents that govern
their enforcement activities, resources available to agencies, and
the differing informational needs of persons affected by or
interested in agency enforcement activities.
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\8\ See 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); 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 2018-5, Public Availability
of Adjudication Rules, 84 FR 2142 (Feb. 6, 2019); Recommendation
2017-5, supra note 2.
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Recommendation
Developing Enforcement Manuals
1. Subject to available resources, agencies responsible for
investigating and prosecuting potential violations of the laws that
they administer should develop an enforcement manual--that is, a
document that provides personnel a single, comprehensive resource
for enforcement-related statutes, rules, and policies--if doing so
would improve the communication of enforcement-related policies to
agency personnel and promote the fair and efficient performance of
enforcement functions consistent with established policies.
2. In developing enforcement manuals, agencies should consider,
among other things:
a. Identifying the office or individual within the agency under
whose name and authority the manual is being issued;
b. Identifying which offices within the agency are directed to
act in conformity with the manual;
c. Describing the manual's purpose, scope, and organization;
d. Describing the manual's legal effect, including a disclaimer,
if applicable, that the manual does not bind the agency as a whole;
e. Identifying the statutes and rules that govern the agency's
enforcement activities;
f. Identifying any ``safe harbors'' (i.e., conduct that does not
trigger agency enforcement actions);
g. Describing criteria for selecting among options available to
the agency to compel remedial action, procedures for formally
initiating agency adjudicative or judicial proceedings, and criteria
for making criminal referrals;
h. Identifying the office or individual within the agency that
is empowered to receive, and potentially to act on, any complaint
that the agency personnel who are conducting an investigation or
other enforcement action are engaging in unlawful or inappropriate
conduct;
i. Describing procedures for soliciting and receiving
information about alleged violations from persons outside the
agency;
j. Identifying criteria used to classify the severity of alleged
violations, recommend or assess penalties or other remedies, or
prioritize investigations or prosecutions;
k. Describing procedures for conducting investigations,
inspections, audits, or similar processes;
l. Describing policies governing communications between
enforcement personnel and other agency personnel, the subjects of
enforcement actions, and other persons outside the agency;
m. Explaining procedures for determining if records or
information are legally protected from unauthorized disclosure, and
procedures for handling such records or information;
n. Addressing when agency personnel may publicly disclose
information about an enforcement proceeding, such as by issuing a
press release, and the nature of information that may be disclosed;
o. Identifying guidelines for both informally adjudicating and
negotiating settlements with the subjects of enforcement actions;
and
p. Explaining how and by whom the manual is developed,
periodically reviewed for accuracy, and updated.
3. Agencies should ensure that the contents of enforcement
manuals are presented in a clear, logical, and comprehensive
fashion, and include a table of contents and an index.
Managing Enforcement Manuals
4. Agencies should periodically review their enforcement manuals
and update them
[[Page 2315]]
as needed to ensure that they accurately reflect current law and
policies. When agencies update their enforcement manuals, the
manuals should prominently display the date of the update and
identify what changes were made.
5. Agencies with enforcement manuals should develop procedures
for reviewing and keeping them up to date. These procedures should
address:
a. How often the enforcement manual, in whole or in part, is
reviewed for accuracy and updated if necessary;
b. Which office or individual within the agency is responsible
for periodically reviewing the enforcement manual, in whole or in
part; and
c. How and by whom changes to the enforcement manual are
drafted, reviewed, approved, and implemented.
6. To ensure that enforcement personnel can easily access
current versions of enforcement manuals, agencies should make
enforcement manuals available in a searchable, electronic format in
an appropriate location on an internal network.
7. Agencies should solicit feedback on their enforcement manuals
from their personnel and consider that feedback in reviewing and
revising their manuals.
Disseminating Enforcement Manuals to the Public
8. Agencies should make their enforcement manuals, or portions
of their manuals, publicly available on their websites when doing so
would improve public awareness of relevant policies and compliance
with legal requirements or promote transparency more generally, and
if they have adequate resources available to ensure publicly
available enforcement manuals remain up to date. Agencies should not
include information in publicly available versions of enforcement
manuals that would reflect litigation strategies or legal theories,
the disclosure of which would adversely affect the integrity of
adversarial proceedings, or enable persons to circumvent the law.
9. When agencies post publicly available versions of enforcement
manuals, they should post the manuals in an easily identified
location on their websites, in a user-friendly format, and with an
introduction sufficient to ensure that potentially interested
persons--including members of historically underserved communities,
who may be unfamiliar with the existence, purpose, and legal effect
of enforcement manuals--can easily find and use them.
10. When agencies issue or revise publicly available enforcement
manuals, they should provide notice to the public of such actions,
for example by placing a notice on the agency's website, issuing a
press release, making an announcement on social media, or publishing
a notice of availability in the Federal Register.
11. Agencies that make enforcement manuals publicly available
should solicit feedback on them, from persons interested in or
affected by agency enforcement proceedings, including possibly in a
public forum and through direct outreach.
Administrative Conference Recommendation 2022-6
Public Availability of Settlement Agreements in Agency Enforcement
Proceedings
Adopted December 15, 2022
Many statutes grant administrative agencies authority to
adjudicate whether persons have violated the law and, for those
found to have done so, order them to pay a civil penalty, provide
specific relief, or take some other remedial action.\1\ Some
administrative enforcement proceedings result in a final agency
adjudicative decision. But in many, perhaps most, such proceedings,
a settlement is reached, either before or after an adjudication is
formally initiated.\2\
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\1\ This Recommendation addresses only settlements reached in
administrative enforcement proceedings, not those reached in federal
court cases brought by agencies. For purposes of this
Recommendation, ``enforcement proceedings'' is used broadly to
include both investigative and trial-like adjudicative proceedings,
whether the parties to the proceeding include the agency or instead
only non-agency parties. The Administrative Conference addressed
settlement agreements reached in court cases in Recommendation 2020-
6, Agency Litigation Webpages, 86 FR 6624 (Jan. 22, 2021).
\2\ Michael Asimow, Greenlighting Administrative Prosecution:
Checks and Balances on Charging Decisions 1 (Jan. 21, 2022) (report
to the Admin. Conf. of the U.S.).
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Settlements can play an important role in administrative
enforcement proceedings by allowing parties to resolve disputes more
efficiently and effectively. Indeed, both the Administrative
Procedure Act and Administrative Dispute Resolution Act (ADRA)
recognize the importance of settlements in resolving enforcement
proceedings,\3\ and the Administrative Conference has similarly
recommended that agencies consider using alternative means of
dispute resolution.\4\
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\3\ See 5 U.S.C. 554(c)(2), 556(c)(6)-(8), 571-584.
\4\ See, e.g., Admin. Conf. of the U.S., Recommendation 2016-4,
Evidentiary Hearings Not Required by the Administrative Procedure
Act, ]] 8, 12, 81 FR 94314, 94315 (Dec. 23, 2016); Admin. Conf. of
the U.S., Recommendation 88-5, Agency Use of Settlement Judges, 53
FR 26030 (July 11, 1988); Admin. Conf. of the U.S., Recommendation
86-8, Acquiring the Services of ``Neutrals'' for Alternative Means
of Dispute Resolution, 51 FR 46990 (Dec. 30, 1986); Admin. Conf. of
the U.S., Recommendation 86-3, Agencies' Use of Alternative Means of
Dispute Resolution, 51 FR 25643 (July 16, 1986).
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Unlike final orders and opinions issued in the adjudication of
cases, settlement agreements ordinarily do not definitively resolve
disputed factual and legal matters, authoritatively decide whether a
violation has taken place, or establish binding precedent.
Nevertheless, public access to settlement agreements can be
desirable for several reasons. First, disclosure of settlement
agreements can help regulated entities and the general public
understand how the agency interprets the laws and regulations it
enforces and exercises its enforcement authority. Second, public
access to settlement agreements can help promote accountable and
transparent government. The public has an interest in evaluating how
agencies enforce the law and use public funds. By disclosing how
agencies interact with different regulated entities, public access
may also help guard against bias. Third, high-profile settlements,
such as those that involve large dollar amounts or require changes
in business practices, often attract significant public interest.
Fourth, the terms of a settlement agreement may also affect the
interests of third parties, such as consumers, employees, or local
communities.\5\
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\5\ See Elysa Dishman, Public Availability of Settlement
Agreements in Agency Enforcement Proceedings 1, 6-7 (Nov. 30, 2022)
(report to the Admin. Conf. of the U.S.).
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However valuable public access to settlement agreements might
be, federal law generally does little to mandate their proactive
disclosure. Generally applicable statutes such as the Freedom of
Information Act (FOIA) and ADRA typically require disclosure only
when members of the public specifically request the agreements in
which they are interested. They do not generally require proactive
disclosure on agency websites, as FOIA does for final adjudicative
orders and opinions.\6\ Nevertheless, many agencies do post
settlement agreements on their websites.\7\
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\6\ See 5 U.S.C. 552(a)(2).
\7\ See Dishman, supra note 5, at 21.
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There may, of course, be reasons for agencies not to proactively
disclose settlement agreements. Settlement agreements, or
information contained within them, may be exempted or protected from
disclosure. Confidential commercial information, for example, is
exempted from disclosure under FOIA.\8\ In addition, the promise of
confidentiality may encourage candor, help parties to achieve
consensus, and yield more efficient resolution of disputes. And as a
practical matter, there may be little public interest in large
volumes of factually and legally similar settlement agreements, such
that the costs to agencies of proactively disclosing them,
especially costs associated with redacting sensitive or protected
information, might outweigh the benefits of proactive disclosure to
the public.
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\8\ 5 U.S.C. 552(b)(4); see also Food Mktg. Inst. v. Argus
Leader Media, 588 U.S. _, 139 S. Ct. 2356 (2019); compare Seife v.
FDA, 43 F.4th 231 (2d. Cir. 2022), with Am. Small Bus. League v.
U.S. Dep't of Def., 411 F. Supp. 3d 824, 836 (N.D. Cal. 2019).
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This Recommendation encourages agencies to develop policies that
recognize the benefits of proactively disclosing settlement
agreements in administrative enforcement proceedings and account for
countervailing interests. It builds on several other recommendations
of the Administrative Conference that encourage agencies to
proactively disclose other important materials related to the
adjudication of cases, including orders and opinions, supporting
records, adjudication rules and policies, and litigation
materials.\9\ In offering the best
[[Page 2316]]
practices that follow, the Conference recognizes that settlement
agreements vary widely in many respects, including in their terms,
their effects on the interests of third parties, and the degree of
public interest they attract. It also recognizes that not all
agencies can bring the same resources to bear in providing public
access to settlement agreements.
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\9\ See Recommendation 2020-6, supra note 1; 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); Admin. Conf. of the U.S.,
Recommendation 2017-1, Adjudication Materials on Agency Websites, 82
FR 31039 (July 5, 2017).
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Recommendation
1. To inform regulated entities and the general public about
administrative enforcement, agencies should develop policies
addressing whether and when to post on their websites settlement
agreements reached in administrative enforcement proceedings--that
is, those proceedings in which a civil penalty or other coercive
remedy was originally sought against a person for violating the law.
Settlement agreements addressed in these policies should include
those reached both before and after adjudicative proceedings are
formally initiated.
2. In determining which settlement agreements to post on its
website, an agency should consider factors including the extent to
which:
a. Disclosure would help regulated entities and the general
public understand how the agency interprets the laws and regulations
it enforces and exercises its enforcement authority;
b. Disclosure would promote accountability and transparency,
such as by allowing the public to evaluate agency administrative
enforcement and use of public funds, and help guard against bias;
c. Particular types of settlement agreements are likely to
attract public interest;
d. Disclosure might deter regulated entities from reaching
settlements and resolving disputes expeditiously;
e. Disclosure, even after redaction or anonymization, would
adversely affect sensitive or legally protected interests involving,
among other things, national security, law enforcement, confidential
business information, personal privacy, or minors; and
f. Disclosure would impose significant administrative costs on
the agency or, conversely, whether it would save the agency time or
money by reducing the volume of requests for disclosure.
3. An agency that chooses generally not to post individual
settlement agreements on its website--for example because certain
agreements are required by statute to be confidential or do not vary
considerably in terms of their factual contexts or the legal issues
they raise--should consider other means to provide information about
settlements, including by posting on its website:
a. A form or template commonly used for settlement agreements;
b. A representative sample of settlement agreements;
c. Settlement agreements that entail especially significant
legal issues;
d. Settlement agreements that, because of their facts, are
likely to attract significant public interest;
e. A summary of each settlement or settlement trends; and
f. A sortable or searchable database that lists information
about settlement agreements, such as case types, dates, case
numbers, parties, and key terms.
4. When an agency posts settlement agreements or information
about settlement agreements on its website, it should redact any
information that is sensitive or otherwise protected from
disclosure, and redact identifying details to the extent required to
prevent an unwarranted invasion of personal privacy.
5. An agency posting settlement agreements on its website should
do so in a timely manner.
6. An agency should present settlement agreements or information
about settlement agreements on its website in a clear, logical, and
readily accessible fashion. In so doing, the agency should consider
providing access to the settlement agreements or information about
them through:
a. A web page dedicated to agency enforcement activities that is
easily accessed from the agency's homepage, site map, and site
index;
b. A web page dedicated to an individual enforcement proceeding,
such as a docket web page, that also includes any associated
materials (e.g., case summaries, press releases, related
adjudication materials, links to any related actions); and
c. A search engine that allows users to easily locate settlement
agreements and sort, narrow, or filter them by case type, date, case
number, party, and keyword.
7. When an agency posts settlement agreements on its website, it
should include a statement that settlement agreements are provided
only for informational purposes.
[FR Doc. 2023-00628 Filed 1-12-23; 8:45 am]
BILLING CODE 6110-01-P
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</html>Indexed from Federal Register on January 13, 2023.
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.