Notice2024-00302
Adoption of Recommendations
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
January 10, 2024
Issuing agencies
Administrative Conference of the United States
Abstract
The Assembly of the Administrative Conference of the United States adopted four recommendations at its hybrid (virtual and in- person) Eightieth Plenary Session: Best Practices for Adjudication Not Involving an Evidentiary Hearing, Identifying and Reducing Burdens on the Public in Administrative Processes, Improving Timeliness in Agency Adjudication, and User Fees.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 7 (Wednesday, January 10, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 7 (Wednesday, January 10, 2024)]
[Notices]
[Pages 1509-1517]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00302]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 /
Notices
[[Page 1509]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Assembly of the Administrative Conference of the United
States adopted four recommendations at its hybrid (virtual and in-
person) Eightieth Plenary Session: Best Practices for Adjudication Not
Involving an Evidentiary Hearing, Identifying and Reducing Burdens on
the Public in Administrative Processes, Improving Timeliness in Agency
Adjudication, and User Fees.
FOR FURTHER INFORMATION CONTACT: For Recommendations 2023-5 and 2023-6,
Matthew Gluth; Recommendation 2023-7, Lea Robbins; and Recommendation
2023-8, Kazia Nowacki. 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 Eightieth Plenary
Session on December 14, 2023, to consider four proposed recommendations
and conduct other business. All four recommendations were adopted.
Recommendation 2023-5, Best Practices for Adjudication Not
Involving an Evidentiary Hearing. This recommendation examines the wide
range of procedures that agencies use when adjudicating cases in
programs in which there is no legally required opportunity for an
evidentiary hearing. It offers a set of broadly applicable best
practices that account for the diversity of matters that agencies
decide through truly informal adjudication and promote fairness,
accuracy, and efficiency.
Recommendation 2023-6, Identifying and Reducing Burdens on the
Public in Administrative Processes. This recommendation examines best
practices, such as public engagement, that agencies can use to identify
unnecessary burdens that members of the public face when they engage
with administrative programs or participate in administrative
processes. It also recommends strategies agencies can use to reduce
unnecessary burdens, such as simplifying processes, digitizing
services, and collaborating with other agencies and nongovernmental
organizations.
Recommendation 2023-7, Improving Timeliness in Agency Adjudication.
This recommendation examines strategies--including procedural,
technological, personnel, and other reforms--that agencies have used or
might use to address backlogs or delays in administrative adjudication.
It identifies best practices to help agencies devise plans to promote
timeliness in administrative adjudication, in accord with principles of
fairness, accuracy, and efficiency.
Recommendation 2023-8, User Fees. This recommendation provides best
practices for agencies and Congress to consider in designing and
implementing user fees in administrative programs. It addresses how
Congress and agencies might determine when user fees are appropriate;
how agencies might determine fair and reasonable user fees for specific
programs, including whether there are reasons for waivers, exemptions,
or reduced rates; when and how agencies should engage with the public
in determining or modifying user fees; and how agencies should review
their user fee programs.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/event/80th-plenary-session">https://www.acus.gov/event/80th-plenary-session</a>.
Authority: 5 U.S.C. 595.
Dated: January 4, 2024.
Shawne C. McGibbon,
General Counsel.
APPENDIX--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES
Administrative Conference Recommendation 2023-5
Best Practices for Adjudication Not Involving an Evidentiary Hearing
Adopted December 14, 2023
Federal administrative adjudication takes many forms.\1\ Many
adjudications include a legally required opportunity for an
evidentiary hearing--that is, a proceeding ``at which the parties
make evidentiary submissions and have an opportunity to rebut
testimony and arguments made by the opposition.'' \2\ Such
proceedings also follow the exclusive record principle, in which the
decision maker is confined to considering ``evidence and arguments
from the parties produced during the hearing process (as well as
matters officially noticed) when determining factual issues.'' \3\
---------------------------------------------------------------------------
\1\ The term ``adjudication'' as used in this Recommendation
refers to the process for formulating an order that is ``a decision
by government officials made through an administrative process to
resolve a claim or dispute between a private party and the
government or between two private parties arising out of a
government program.'' Michael Asimow, Admin. Conf. of the U.S.,
Federal Administrative Adjudication Outside the Administrative
Procedure Act 8 (2019).
\2\ Asimow, supra note 1, at 10.
\3\ Asimow, supra note 1, at 10. The Administrative Conference
has used the term ``Type A adjudications'' to refer to adjudications
that include an opportunity for a legally required evidentiary
hearing that is covered by the formal adjudication provisions of the
Administrative Procedure Act (APA), 5 U.S.C. 554, 556-557. The
Conference has used the term ``Type B adjudications'' to refer to
adjudications that include an opportunity for a legally required
evidentiary hearing that is not covered by the APA's formal
adjudication provisions. See Admin. Conf. of the U.S.,
Recommendation 2016-4, Evidentiary Hearings Not Required by the
Administrative Procedure Act, 81 FR 94314 (Dec. 23, 2016).
---------------------------------------------------------------------------
In many federal administrative adjudications, however, no
constitutional provision, statute, regulation, or executive order
grants parties the right to an evidentiary hearing.\4\ Proceedings
of this type include many agency decisions regarding grants,
licenses, or permits; immigration and naturalization; national
security; the
[[Page 1510]]
regulation of banks and other financial matters; requests for
records under the Freedom of Information Act; land-use requests; and
a wide variety of other matters.\5\
---------------------------------------------------------------------------
\4\ The Conference has used the term ``Type C'' adjudication to
refer to adjudications that are not subject to a legally required
evidentiary hearing. See id.
\5\ Michael Asimow, Fair Procedure in Informal Adjudication 7
(Dec. 5, 2023) (report to the Admin. Conf. of the U.S.).
---------------------------------------------------------------------------
There are many policy reasons why adjudications might be
conducted without a legally required opportunity for an evidentiary
hearing, though such reasons are beyond the scope of this
Recommendation. The stakes in disputes resolved through such
adjudications vary widely, but whether the stakes are low or high,
each decision matters to the parties. For those involved in or
familiar with these adjudications, the most important factor in
their view of government may be the way these decisions are made.
Accordingly, decision making in such adjudications should be
accurate, efficient, and both fair and perceived to be fair,
regardless of the stakes involved.
Adjudications without an evidentiary hearing differ in
fundamental ways from those that include a legally required
opportunity for an evidentiary hearing. In adjudications of all
types, a decision maker conducts an investigation and issues an
initial, preliminary, or proposed decision. In adjudications that
include an evidentiary hearing, if the private party does not
acquiesce in that decision, the party is entitled to an evidentiary
hearing before a neutral decision maker who, after considering the
evidence and arguments, issues a decision. Typically, the private
party also can seek review of that decision within the agency, often
by the agency head or officials exercising authority delegated by
the agency head. By contrast, in adjudications without an
evidentiary hearing, often the same decision maker who issued the
initial, proposed, or preliminary decision issues the decision,
normally after considering input from the affected party. Typically,
that party is entitled to seek review of that decision by a
different decision maker within the agency. These fundamental
differences are reflected in this Recommendation.
No uniform set of procedures applies to all adjudications
without evidentiary hearings, nor could one be devised. Some
characteristics are common, however. Such adjudications often allow
for document exchanges and submission of research studies, oral
arguments, public hearings, conferences with staff, interviews,
negotiations, examinations, and inspections. Agencies that engage in
such adjudications typically employ dispute resolution methodologies
without the procedures typical of evidentiary hearings, such as the
opportunity to cross examine witnesses, the prohibition of ex parte
communications, the separation of adjudicative functions from
investigative and prosecutorial functions, and the exclusive record
principle.
While not subject to the requirement that a decision be preceded
by an evidentiary hearing, adjudications without evidentiary
hearings may be subject to other legal requirements. The Due Process
Clause of the Constitution's Fifth Amendment may require certain
minimum procedures for such adjudications that involve
constitutionally protected interests in life, liberty, or
property.\6\ In addition, agencies conducting such adjudications
typically must observe certain general provisions of the
Administrative Procedure Act (APA)--in particular 5 U.S.C. 555 \7\
and 558--and are subject to other generally applicable statutes and
regulations addressing the conduct of federal employees, rights of
representation,\8\ ombuds,\9\ and other matters.\10\ The procedures
employed by agencies conducting these adjudications may also be
subject to agency-specific statutes and procedural regulations.
Finally, judicial review is available for many such adjudications.
---------------------------------------------------------------------------
\6\ See Mathews v. Eldridge, 424 U.S. 319 (1976); Brock v.
Roadway Express, Inc., 481 U.S. 252, 262-63 (1987) (applying Mathews
principles in a Type C context); Goss v. Lopez, 415 U.S. 565 (1975)
(discussing minimal procedures required for short-term suspension
from public school).
\7\ See PBG Corp. v. LTV Corp. 496 U.S. 633 (1990).
\8\ See Asimow, supra note 55, at 36, for a discussion of the
right to representation before agencies, including the right to lay
representation under many agencies' regulations.
\9\ See Admin. Conf. of the U.S., Recommendation 2016-5, The Use
of Ombuds in Federal Agencies, 81 FR 94316 (Dec. 23, 2016).
\10\ See Asimow, supra note 55, at 33.
---------------------------------------------------------------------------
Statutorily required procedures and judicial review, however,
may be insufficient to ensure fairness, accuracy, and efficiency in
adjudications without an evidentiary hearing. Due process, the APA,
and other sources of law external to the agency often do not
specifically prescribe the details of agency procedures, and
judicial review may be unrealistic because the costs of such review
exceed the value of the interests at stake.\11\ For these reasons,
agency-adopted policies offer the best mechanism for establishing
procedural protections for parties, promoting fairness and
participant satisfaction, and facilitating the efficient and
effective functioning of these adjudications. The public
availability of such rules also facilitates external oversight.
---------------------------------------------------------------------------
\11\ Id. at 46.
---------------------------------------------------------------------------
This Recommendation identifies a set of best practices for
adjudications without an evidentiary hearing and encourages agencies
to implement them through their regulations and guidance documents.
Many agencies conducting such adjudications already follow these
best practices. This Recommendation recognizes that agencies
adjudicate a wide range of matters, have different adjudicatory
needs and available resources, and are subject to different legal
requirements. What works best for one agency may not work for
another. Agencies must take into account their own unique
circumstances when implementing the best practices that follow.
Accordingly, agencies adopting or modifying procedures for
adjudication without an evidentiary hearing should tailor these best
practices to their individual systems.
Recommendation
Notice of Proposed Action
1. Agencies conducting adjudications without evidentiary
hearings should notify parties of the initial, proposed, or
preliminary decision, including the reasons for that decision.
2. Such notice should provide sufficient detail and be given in
sufficient time to allow parties to contest the initial, proposed,
or preliminary decision and submit evidence to support their
position. This notice should provide parties with the following
information, when applicable:
a. Whether the agency provides a second chance to achieve
compliance;
b. The manner by which the party can submit additional evidence
and argument to influence the agency's initial, proposed, or
preliminary decision;
c. The amount of time before further agency action will be
taken; and
d. Whether and, if so, how parties may access materials in the
agency's case file.
Opportunity To Submit Evidence and Argument
3. Agencies should allow parties in adjudications without
evidentiary hearings to furnish decision makers with evidence and
arguments. Depending on the stakes involved, the types of issues
involved, and the agency's caseload and adjudicatory resources, the
process for furnishing evidence and argument may include written
submissions or oral presentations and the opportunity to rebut
adverse information. Agencies should make such opportunities
available in a manner that permits people with disabilities and
people with limited English proficiency to take advantage of them.
4. If credibility issues are presented, the party should be
permitted an opportunity to rebut adverse information.
Representation
5. When feasible, agencies should allow participants in their
adjudications without evidentiary hearings to be represented by a
lawyer or a lay person with relevant expertise.
6. Particularly for self-represented parties, agencies should
not prevent participants in their adjudications without evidentiary
hearings from obtaining assistance or support from friends, family
members, or other individuals in presenting their case.
7. Agencies should make their proceedings as accessible as
possible to self-represented parties by providing plain-language
resources, such as frequently asked questions (FAQs), and other
appropriate assistance, such as offices dedicated to helping the
public navigate agency programs.
Decision Maker Impartiality
8. Agencies should tailor neutrality standards appropriately to
adjudications without evidentiary hearings, which may be conducted
by decision makers who engage in their own investigations or
participate in investigative teams and may have prior involvement in
the matter.
9. Consistent with government ethics requirements, agencies
should require the recusal of employees engaged in adjudications
without evidentiary hearings who have financial or other conflicts
of interest in matters they are investigating or deciding.
[[Page 1511]]
10. Agencies should require recusal of employees who reasonably
may be viewed as not impartial.
11. When adjudications without evidentiary hearings involve
serious sanctions, agencies should consider adopting internal
separation of investigative or prosecutorial functions and
adjudicatory functions.
Statement of Reasons
12. Agencies conducting adjudications without evidentiary
hearings should provide oral or written statements of reasons that
follow federal plain-language guidelines setting forth the rationale
for the decision, including the factual and other bases for it. The
level of detail in the statement should be consistent with the
stakes involved in the adjudication.
Administrative Review
13. Agencies should provide for administrative review of their
decisions by higher-level decision makers or other reviewers unless
it is impracticable because of high caseload, lack of available
staff, or time constraints, or because of low stakes.
Procedural Regulations
14. Agency regulations should specify the procedures for each
adjudication without an evidentiary hearing the agency conducts.
Consistent with Recommendation 92-1, The Procedural and Practice
Rule Exemption from the APA Notice-and-Comment Rulemaking
Requirements, agencies should voluntarily use notice-and-comment
rulemaking for the adoption of significant procedural regulations
unless the costs outweigh the benefits of doing so.
15. Agencies should ensure their regulations, guidance
documents, staff manuals, procedural instructions, and FAQs
addressing their adjudications without evidentiary hearings follow
federal plain-language guidelines and are easily accessible on the
agency's website.
16. Agencies should ensure that their notices, statements,
procedural instructions, FAQs, and other documents that contain
important information about their adjudications without evidentiary
hearings are made available in languages understood by people who
frequently appear before the agency.
Ombuds
17. Agencies with an ombuds program should ensure that their
ombuds are empowered to handle complaints about adjudications
without evidentiary hearings.
18. Agencies without an ombuds program should consider
establishing one, particularly if their adjudications without
evidentiary hearings have sufficient caseloads, significant stakes,
or significant numbers of unrepresented parties. The establishment
and standards of such programs should follow the best practices
identified in Recommendation 2016-5, The Use of Ombuds in Federal
Agencies.
19. Agencies with smaller caseloads, lower stakes, or lack of
available staff should consider sharing an ombuds program with other
similarly situated agencies to address any resource constraints.
20. Agencies that choose not to establish or share an ombuds
program should provide alternative procedures for allowing parties
to submit feedback or complaints, such as through an agency portal
or dedicated email address.
Quality Assurance
21. Agencies conducting adjudications without evidentiary
hearings should establish methods for assessing and improving the
quality of their decisions to promote accuracy, efficiency,
fairness, the perception of fairness, and other goals relevant to
those adjudications in accordance with Recommendation 2021-10,
Quality Assurance Systems in Agency Adjudication. Depending on the
caseload, stakes, and available resources, such methods 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 data analytics and artificial
intelligence tools.
Administrative Conference Recommendation 2023-6
Identifying and Reducing Burdens on the Public in Administrative
Processes
Adopted December 14, 2023
Each year, millions of people navigate administrative processes
to access benefits and services and otherwise engage with government
programs to help themselves and their families. These processes can
be extraordinarily complex. Additionally, processes can vary
significantly across and within government agencies. These
variations can make it especially hard when members of the public
need to access multiple programs at the same time, for example
during key life events such as retirement, birth of a child, or
unexpected disaster.
Navigating these processes requires time and effort to learn
both about programs and how to access them. Complying with these
processes also requires significant work, such as completing forms,
obtaining and submitting information, and possibly traveling to in-
person interviews or hearings. Efforts to comply can result in
stress, stigma, frustration, fear, or other psychological harms.
These costs--which may be described as learning, compliance, and
psychological costs, respectively--can be collectively understood as
administrative burden.\1\
---------------------------------------------------------------------------
\1\ Pamela Herd, Donald Moynihan & Amy Widman, Identifying and
Reducing Burdens in Administrative Processes 4 (Oct. 4, 2023)
(report to the Admin. Conf. of the U.S.). This Recommendation uses
both ``administrative burden'' and ``administrative burdens.'' The
singular is intended to capture the idea of burden as a theoretical
concept; the plural reflects the fact that, in practice, burdens are
multiple rather than singular. See Pamela Herd & Donald Moynihan,
Administrative Burden: Policymaking by Other Means 1, 269 (2018);
see also Burden Reduction Initiative, Off. of Info. & Regul. Affs.,
Off. of Mgmt. & Budget, Exec. Off. of the President, <a href="https://www.whitehouse.gov/omb/information-regulatory-affairs/burden-reduction-initiative">https://www.whitehouse.gov/omb/information-regulatory-affairs/burden-reduction-initiative</a> (last visited Dec. 14, 2023).
---------------------------------------------------------------------------
Administrative burdens significantly affect whether and how the
public accesses a wide range of government programs, including those
related to veterans benefits and services, student financial aid,
Social Security benefits, health care, disaster assistance, tax
credits, nutrition assistance, housing assistance, and unemployment
insurance. These burdens can be exacerbated when programs are not
wholly administered by the federal government but in partnership
with state, local, or tribal governments. Although some level of
administrative burden may be necessary--to establish eligibility for
programs with sufficient accuracy or to prevent fraud--research
shows the cumulative effect of this burden hinders the ability of
agencies to achieve their missions. Billions of dollars in
government benefits go unclaimed every year,\2\ and administrative
burdens are a key reason.\3\ Administrative burdens do not fall
equally on all members of the public but fall disproportionately on
certain members of historically underserved communities (including
persons with disabilities),\4\ the elderly, persons with limited
English proficiency, and persons with poor physical or mental
health.\5\ Reducing administrative burden, while also taking into
account other important public values such as program integrity, can
make government work better for everyone.
---------------------------------------------------------------------------
\2\ Off. of Info. & Regul. Affs., Off. of Mgmt. & Budget, Exec.
Off. of the President, Tackling the Time Tax: How the Federal
Government is Reducing Burdens to Accessing Critical Benefits and
Services 9 (2023).
\3\ See Herd et al., supra note 1, at 15-17.
\4\ Exec. Order No. 13,985, 86 FR 7009 (Jan. 20, 2021).
\5\ Tackling the Time Tax, supra note 2, at 10; see also Herd &
Moynihan, supra note 1, at 105, 134-135, 157-162, 264; Herd et al.,
supra note 1, at 10-12.
---------------------------------------------------------------------------
Various authorities govern how federal agencies identify and
reduce administrative burdens. The Paperwork Reduction Act (PRA) has
long required agencies to identify burdens associated with
information they collect from the public and explain why those
burdens are necessary to administer their programs.\6\ Office of
Management and Budget (OMB) Circular A-11 emphasizes the importance
of customer life experiences \7\ and human-centered design \8\ in
how agencies
[[Page 1512]]
manage organizational performance to improve service delivery.
---------------------------------------------------------------------------
\6\ 44 U.S.C. 3501-3521.
\7\ Customer life experiences are experiences that require
members of the public to navigate government services across
multiple programs, agencies, or levels of government. Off. of Mgmt.
& Budget, Exec. Off. of the President, OMB Circular A-11,
Preparation, Submission, and Execution of the Budget (2023). As
explained in Part 6 Sec. 280.16, OMB will manage the selection of a
limited number of customer life experiences to prioritize for
government-wide action in line with the President's Management
Agenda. See also Exec. Order No. 14,058, 86 FR 71357 (Dec. 16,
2021).
\8\ OMB Circular A-11, supra note 7, Sec. 280.1. Human-centered
design is a technique to understand administrative process from the
user's perspective and then use those insights to adjust processes
to better match human capacities. Herd et al., supra note 1, at 22.
Journey mapping is a related concept that involves documenting each
step that an individual takes when engaging with an administrative
process in order to better understand the process and where
individuals struggle with it. Id.
---------------------------------------------------------------------------
While some administrative burdens are imposed by Congress or by
state law, federal agencies have an important role to play in
reducing the burdens they impose when administering their programs.
Agencies employ numerous strategies to reduce those burdens,
including simplifying processes, improving access for persons with
limited English proficiency and persons with disabilities, expanding
the availability of online (instead of solely in-person) processes,
and establishing ombuds offices to assist those experiencing
burdens.\9\ In addition, agencies have achieved success in reducing
burdens by establishing devoted customer experience (CX) teams that
have sufficient policy knowledge and authority within the agency to
be effective.\10\
---------------------------------------------------------------------------
\9\ See Herd et al., supra note 1, at 28; see also Tackling the
Time Tax, supra note 2, at 48-49; White House Legal Aid Interagency
Roundtable, Access to Justice through Simplification (2022); Admin.
Conf. of the U.S., Recommendation 2016-5, The Use of Ombuds in
Federal Agencies, 81 FR 94316 (Dec. 23, 2016).
\10\ Herd et al., supra note 1, at 26. Under Executive Order
14,058, the term ``customer'' refers to any individual, business, or
organization that interacts with an agency or program, and the term
``customer experience'' refers to the public's perceptions of and
overall satisfaction with interactions with an agency, product, or
service. See 86 FR at 71358. This Recommendation uses the term
``customer'' following its use in that Executive Order,
notwithstanding the debate regarding the appropriateness of
referring to members of the public as ``customers.'' See, e.g., Does
DHS Really Have Customers?, U.S. Dep't of Homeland Sec., <a href="https://www.dhs.gov/news/2022/06/23/does-dhs-really-have-customers">https://www.dhs.gov/news/2022/06/23/does-dhs-really-have-customers</a> (last
visited Dec. 14, 2023).
---------------------------------------------------------------------------
Collaboration within and between federal agencies, and between
federal agencies and state, local, and tribal governments, is also
essential for burden reduction. Interagency data sharing that is
consistent with the Fair Information Practice Principles \11\ and
all relevant law and policy, especially when used in conjunction
with simplifying onerous processes or eliminating unnecessary ones,
can also reduce administrative burdens.\12\ In addition to
collaboration across the government, federal agency partnerships
with non-governmental third parties (such as legal aid organizations
and others) also play a crucial role in agency efforts to reduce
burden. Third parties assist agencies by providing information about
how processes can be improved to serve the public better and by
directly assisting members of the public who interact with
government programs.\13\
---------------------------------------------------------------------------
\11\ Fair Information Practice Principles (FIPPs), Fed. Priv.
Council, Off. of Mgmt. & Budget, Exec. Off. of the President,
<a href="https://www.fpc.gov/resources/fipps">https://www.fpc.gov/resources/fipps</a> (last visited Dec. 14, 2023).
\12\ See Herd et al., supra note 1, at 18, 29-31; see also
Tackling the Time Tax, supra note 2, at 36, 41.
\13\ See Herd et al., supra note 1, at 46; see also Admin. Conf.
of the U.S. & Legal Servs. Corp., Forum, Assisting Parties in
Federal Administrative Adjudication (2023); Admin. Conf. of the
U.S., Recommendation 2021-9, Regulation of Representatives in Agency
Adjudicative Proceedings, 87 FR 1721 (Jan. 12, 2022).
---------------------------------------------------------------------------
This Recommendation provides best practices for agencies to use
in identifying and reducing unnecessary administrative burdens.
Building on previous recommendations of the Conference,\14\ this
Recommendation provides specific consultative techniques agencies
should use to gather information from individual members of the
public to gain a fuller and more accurate understanding of
administrative burdens. The Recommendation encourages the use of
online processes and offers other techniques to simplify and
streamline processes and to make information about processes more
accessible. The Recommendation also identifies broad organizational
and collaborative tools agencies should employ in their burden
reduction efforts, including outlining how agency leadership and
staff \15\ should engage with burden reduction initiatives within
their agencies and across the government. The primary focus of
burden reduction efforts should be with those federal agencies that
have frequent or consequential interactions with the public. The
tools discussed are intended to reduce burdens on the public and not
become a reporting burden on agencies for which they are less
relevant.
---------------------------------------------------------------------------
\14\ See, e.g., Admin. Conf. of the U.S., Recommendation 2023-4,
Online Processes in Agency Adjudication, 88 FR 42681 (July 3, 2023);
Admin. Conf. of the U.S., Recommendation 2023-2, Virtual Public
Engagement in Agency Rulemaking, 88 FR 42680 (July 3, 2023); Admin.
Conf. of the U.S., Recommendation 2021-3, Early Input on Regulatory
Alternatives, 86 FR 36082 (July 8, 2021); 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 2018-7, Public Engagement in Rulemaking, 86 FR 2146
(Feb. 6, 2019); Admin. Conf. of the U.S., Recommendation 2017-3,
Plain Language in Regulatory Drafting, 82 FR 61728 (Dec. 29, 2017);
Admin. Conf. of the U.S., Recommendation 2016-6, Self-Represented
Parties in Administrative Hearings, 81 FR 94319 (Dec. 23, 2016).
\15\ For the purposes of this Recommendation, agency leadership
and staff include a wide range of stakeholders such as general
counsels, chief information officers, chief risk officers, and chief
data officers, as well as ombuds and officials responsible for
compliance with laws such as the Privacy Act (5 U.S.C. 552a) and the
PRA.
---------------------------------------------------------------------------
This Recommendation also includes a recommendation directed to
OMB that builds on OMB's prior actions directed at reducing burdens.
It recommends that OMB provide agencies with additional guidance for
measurement and consideration of administrative burden and forgone
benefits and services, as well as provide additional guidance on
agencies' consideration of the potential advantages and
disadvantages of administrative data sharing. This guidance could
take many forms, including written guidance or agency-specific or
government-wide training. In addition, again building on past
recommendations of the Conference and related implementation
efforts,\16\ this Recommendation encourages OMB to provide agencies
with additional guidance on the use of flexibilities under the PRA
to conduct CX research. It also includes a recommendation to
Congress that, when developing new legislation that establishes or
affects administrative programs, it should provide express statutory
authority for agencies to share data where beneficial for achieving
the goals of the legislation.
---------------------------------------------------------------------------
\16\ See also Admin. Conf. of the U.S., Recommendation 2018-1,
Paperwork Reduction Act Efficiencies, 83 FR 30683 (June 29, 2018);
Admin. Conf. of the U.S., Recommendation 2012-4, Paperwork Reduction
Act, 77 FR 47808 (Aug. 10, 2012).
---------------------------------------------------------------------------
Recommendation
Burden Identification and Reduction Principles
1. Federal agencies should seek to identify and reduce
administrative burdens that the public faces when interacting with
government programs.
2. Agencies' efforts to identify and reduce burdens should take
into account the experiences and perspectives of members of the
public who interact with government programs.
3. Because members of the public often interact with multiple
government agencies and programs during key life experiences, such
as retirement, birth of a child, or unexpected disaster, agency and
program officials should collaborate to identify and reduce burdens
that would predictably arise during those experiences.
4. When undertaking efforts to identify and reduce burdens,
agencies should consider the effects on other important public
values, including program integrity.
Burden Identification Strategies
5. Agencies should adopt procedures for consulting with members
of the public who interact with government programs to better inform
agency officials about the nature of the burdens their processes
impose. In seeking to do so, agencies should try to identify and
consult with those who may face disproportionate burdens in
accessing agency programs. Agencies should employ multiple
consultative techniques, including:
a. Client outreach, such as surveys and focus groups;
b. Requests for public comment;
c. Complaint portals available on agency websites;
d. Consultation with agency staff who work with the public,
including agency ombuds or public advocate staff; and
e. Consultation with nongovernmental organizations, advocacy
groups, and other members of the private sector (such as
representatives, program navigators who help members of the public
engage with governmental processes, and social workers) who assist
members of the public.
6. To help identify burdens, agencies should use the information
obtained through such consultation to identify the procedures
members of the public face, and resulting burdens, at each step in
the process.
7. To determine agencies' authority to reduce burdens, agencies
should trace the legal or operational source of identified burdens
to determine whether they are imposed by statute or by regulation,
guidance, or agency practice, at the federal or state level.
8. Agencies should, to the extent feasible, estimate and
quantify any learning, compliance, or psychological costs of
interacting with their programs. These costs
[[Page 1513]]
include the time it takes to learn about programs and how to access
them, the work it takes to comply with program requirements, and the
stress or stigma resulting from engaging with administrative
programs, as well as forgone benefits or services.
Burden Reduction Strategies
9. Agencies should periodically review their administrative
processes to identify opportunities to simplify them by, as
appropriate:
a. Limiting the number of steps in processes;
b. Reducing the length of required forms;
c. Limiting documentation requirements, where possible;
d. Eliminating notary requirements and substituting unsworn
statements under penalty of perjury; and
e. Expanding access to persons with limited English proficiency
and persons with disabilities.
10. Agencies should allow the public to interact with government
programs using online processes while still retaining in-person
processes when necessary to ensure access to benefits and services.
In particular, agencies should, when possible:
a. Create alternatives (such as digital or telephonic
signatures) for requirements for ``wet'' signatures;
b. Allow members of the public to use universal logins used by
government agencies;
c. Allow members of the public to interact with agencies by
telephone or video conference rather than requiring in-person
appointments; and
d. Make agency websites and processes accessible on mobile
devices.
11. When permitted by law, agencies should reduce steps members
of the public must take to receive benefits or services by using
information in the government's possession to determine program
eligibility, prepopulate enrollment forms, or automatically select
the most beneficial program options for members of the public unless
they decide to opt out.
12. Agencies should make information about their programs as
easy as possible to find and understand, proactively provide
information to members of the public about their eligibility for
benefits and services, and allow members of the public to
expeditiously access records pertaining to themselves when required
for obtaining benefits and services.
13. Agencies should timely provide information in plain language
and, when appropriate and feasible, in multiple languages to ensure
members of the public can understand and use the information.
14. Agencies should increase the availability of assistance for
members of the public interacting with their programs, beyond
continuing to enable members of the public to rely on assistance
from other persons such as family or friends, by:
a. Working with legal aid organizations and others who provide
pro bono or ``low'' bono (below market rate but not free) services
to increase availability of representation;
b. Establishing rules authorizing accredited or qualified
nonlawyer representatives to practice before the agency; and
c. Expanding the use of agency staff, including front-line
staff, ombuds, and public advocates, as well as government-sponsored
and -supported entities designed to help members of the public
navigate government processes.
15. Agencies should identify unnecessary administrative burdens
that are required by statutes in their Supporting Statements under
the Paperwork Reduction Act (PRA) and in their annual proposed
legislative program submissions to the Office of Management and
Budget (OMB) under OMB Circular A-19.
Agency Organization
16. Political appointees, senior executives, and other agency
leaders should prioritize burden identification strategies and
reduction efforts, using their leadership positions to articulate
burden reduction goals for agency staff and outline commitments for
achieving them, particularly when such commitments require
collaboration between agency units. Agencies should connect their
burden reduction goals to their strategic planning and reporting
goals under the Government Performance and Results Act.
17. Agencies should identify whether they have particular
programs or functions that involve interaction with the public.
Agencies with such programs should assemble a team devoted to
improving the experiences that these members of the public have when
interacting with the agency, often referred to as customer
experience (CX) teams. CX teams should have thorough knowledge of
relevant agency programs. Senior career staff should partner with
one or more political appointees to provide CX teams with sufficient
authority within the agency to accomplish their goals.
18. Agencies should include their general counsels and other
relevant staff with statutory responsibilities related to burden
reduction (for example, privacy officers and PRA officers) in such
reduction efforts as early as possible in order to facilitate agency
efforts to maximize burden reduction.
Agency Collaboration
19. Federal agencies should expand efforts to collaborate with
other entities to maximize burden reduction. In particular, program
and legal staff should collaborate with their chief data officer and
other relevant officials on ways to share data across federal
agencies and between federal and state agencies, consistent with the
Fair Information Practice Principles and all relevant law and
policy, in order to:
a. Increase outreach to members of the public who may be
eligible for administrative programs;
b. Reduce requirements for forms and documentation; and
c. Under certain conditions, provide for automatic enrollment
and renewal.
20. Agencies should work with their chief data officers and
other relevant officials in cross-agency working groups to share
information about best practices for reducing burden and using data-
sharing agreements.
Roles for OMB and Congress
21. OMB should provide agencies with additional guidance,
potentially including models and training, to inform agency:
a. Measurement and consideration of administrative burden and
forgone benefits and services, such as in regulatory impact
analyses;
b. Examination of the potential legal or policy advantages and
disadvantages of administrative data sharing, in particular
providing additional positive examples of data sharing; and
c. Use of flexibilities under the PRA to make it easier for
agencies to conduct CX research and to improve agency service
delivery.
22. When developing legislation that establishes or affects
administrative programs, Congress should provide express statutory
authority for agencies to share data where doing so would further
the goals of the legislation and not cause undue harm to other
legislative purposes or critical privacy interests.
Administrative Conference Recommendation 2023-7
Improving Timeliness in Agency Adjudication
Adopted December 14, 2023
It is often said that justice delayed is justice denied. Indeed,
one rationale underlying the adjudication of many types of cases by
executive branch agencies is that they often can decide them more
quickly through administrative methods than the courts can through
judicial methods.
Federal agencies adjudicate millions of cases each year,
including applications for benefits and services, applications for
licenses and permits, and enforcement actions against persons
suspected of violating the law. Members of the public depend on the
timely adjudication of their cases. Delayed adjudication, especially
given the possible added time of judicial review, can have
significant consequences, particularly for members of historically
underserved communities.
The time it takes an agency to decide a case depends on, among
other variables, the evidentiary and procedural demands of the case,
the volume of cases pending before the agency, and the resources
available to the agency to adjudicate cases. Many factors can affect
these variables, such as the funds appropriated by Congress, which
directly impact the resources that agencies can allocate to
adjudication. Other factors include the establishment and expansion
of programs by Congress, economic and demographic changes, trends in
federal employment affecting agencies' ability to recruit and retain
personnel involved in adjudication, disruptions to agency
operations, such as the COVID-19 pandemic, and agency organizational
structures and procedures.\1\ When delays or backlogs increase,
agencies frequently face pressure from parties, representatives,
Congress, the media, and others to process and decide cases more
promptly.
---------------------------------------------------------------------------
\1\ Jeremy S. Graboyes & Jennifer L. Selin, Improving Timeliness
in Agency Adjudication (Dec. 11, 2023) (report to the Admin. Conf.
of the U.S.).
---------------------------------------------------------------------------
Agencies rely on a wide range of procedural, organizational,
personnel,
[[Page 1514]]
technological, and other initiatives to promote timeliness and to
respond to concerns about timeliness when they arise. The
Administrative Conference has adopted many recommendations
identifying specific methods that agencies have used or might use to
improve timeliness. One of its earliest recommendations encourages
agencies to collect and analyze case processing data to ``develop
improved techniques fitted to [their] particular needs to reduce
delays'' and measure the effectiveness of those techniques.\2\ Later
recommendations address options including:
---------------------------------------------------------------------------
\2\ Admin. Conf. of the U.S., Recommendation 69-1, Compilation
of Statistics on Administrative Proceedings by Federal Departments
and Agencies, 38 FR 19784 (July 23, 1973).
---------------------------------------------------------------------------
<bullet> Delegation of final decisional authority subject to
discretionary review by the agency head; \3\
---------------------------------------------------------------------------
\3\ Admin. Conf. of the U.S., Recommendation 68-6, Delegation of
Final Decisional Authority Subject to Discretionary Review by the
Agency, 38 FR 19783 (July 23, 1973); see also 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 83-3,
Agency Structures for Review of Decisions of Presiding Officers
Under the Administrative Procedure Act, 48 FR 57461 (Dec. 30, 1983).
---------------------------------------------------------------------------
<bullet> Use of precedential decision making by appellate
decision makers; \4\
---------------------------------------------------------------------------
\4\ Admin. Conf. of the U.S., Recommendation 2022-4,
Precedential Decision Making in Agency Adjudication, 88 FR 2312
(Jan. 13, 2023).
---------------------------------------------------------------------------
<bullet> Adoption of procedures for summary judgment \5\ and
prehearing discovery; \6\
---------------------------------------------------------------------------
\5\ Admin. Conf. of the U.S., Recommendation 70-3, Summary
Decision in Agency Adjudication, 38 FR 19785 (July 23, 1973).
\6\ Admin. Conf. of the U.S., Recommendation 70-4, Discovery in
Agency Adjudication, 38 FR 19786 (July 23, 1973).
---------------------------------------------------------------------------
<bullet> Use of a broad suite of active case management
techniques; \7\
---------------------------------------------------------------------------
\7\ Admin. Conf. of the U.S., Recommendation 86-7, Case
Management as a Tool for Improving Agency Adjudication, 51 FR 46989
(Dec. 30, 1986).
---------------------------------------------------------------------------
<bullet> Implementation of electronic case management and
publicly accessible online processes; \8\
---------------------------------------------------------------------------
\8\ Admin. Conf. of the U.S., Recommendation 2023-4, Online
Processes in Agency Adjudication, 88 FR 42681 (July 3, 2023); Admin.
Conf. of the U.S., Recommendation 2018-3, Electronic Case Management
in Federal Administrative Adjudication, 83 FR 30686 (June 29, 2018).
---------------------------------------------------------------------------
<bullet> Establishment of quality assurance systems; \9\
---------------------------------------------------------------------------
\9\ 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); Admin. Conf.
of the U.S., Recommendation 2021-10, Quality Assurance Systems in
Agency Adjudication, 87 FR 1722 (Jan. 12, 2022).
---------------------------------------------------------------------------
<bullet> Development of reasonable time limits or step-by-step
time goals for agency action; \10\
---------------------------------------------------------------------------
\10\ Recommendation 86-7, supra note 7, ] 7; Admin. Conf. of the
U.S., Recommendation 78-3, Time Limits on Agency Actions, 43 FR
27509 (June 26, 1978).
---------------------------------------------------------------------------
<bullet> Use of alternative dispute resolution (ADR) techniques;
\11\
---------------------------------------------------------------------------
\11\ Admin. Conf. of the U.S., Recommendation 86-3, Agencies'
Use of Alternative Means of Dispute Resolution, 51 FR 25643 (July
16, 1986); see also 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 87-5, Arbitration in Federal
Programs, 52 FR 23635 (June 24, 1987).
---------------------------------------------------------------------------
<bullet> Use of simplified or expedited procedures in
appropriate cases; \12\
---------------------------------------------------------------------------
\12\ Admin. Conf. of the U.S., Recommendation 90-6, Use of
Simplified Proceedings in Enforcement Actions Before the
Occupational Safety and Health Review Commission, 55 FR 53271 (Dec.
28, 1990); Recommendation 86-7, supra note 7, ] 3.
---------------------------------------------------------------------------
<bullet> Use of remote hearings; \13\
---------------------------------------------------------------------------
\13\ Admin. Conf. of the U.S., Recommendation 2021-4, Virtual
Hearings in Agency Adjudication, 86 FR 36083 (July 8, 2021); Admin.
Conf. of the U.S., Recommendation 2014-7, Best Practices for Using
Video Teleconferencing for Hearings, 79 FR 75114 (Dec. 17, 2014);
Admin. Conf. of the U.S., Recommendation 2011-4, Agency Use of Video
Hearings: Best Practices and Possibilities for Expansion, 76 FR
48795 (Aug. 9, 2011); Admin. Conf. of the U.S., Recommendation 86-7,
supra note 7.
---------------------------------------------------------------------------
<bullet> Aggregation of similar claims; \14\ and
---------------------------------------------------------------------------
\14\ Admin. Conf. of the U.S., Recommendation 2016-2,
Aggregation of Similar Claims in Agency Adjudication, 81 FR 40260
(June 21, 2016); Recommendation 86-7, supra note 7, ] 9.
---------------------------------------------------------------------------
<bullet> Use of personnel management strategies.\15\
---------------------------------------------------------------------------
\15\ Recommendation 86-7, supra note 7, ] 1.
---------------------------------------------------------------------------
These recommendations remain valuable resources for policymakers
charged with promoting and improving timeliness in agency
adjudication. As technologies develop, policymakers also are
increasingly looking to artificial intelligence and other advanced
algorithmic tools to streamline or automate time-consuming, error-
prone, or resource-intensive processes.\16\
---------------------------------------------------------------------------
\16\ Cf. David Freeman Engstrom et al., Government by Algorithm:
Artificial Intelligence in Federal Administrative Agencies 38, 45
(2020) (report to the Admin. Conf. of the U.S.); Admin. Conf. of the
U.S., Statement #20, Agency Use of Artificial Intelligence, 86 FR
6616 (Jan. 22, 2021); see also Exec. Order No. 14,110, 88 FR 75191
(Nov. 1, 2023).
---------------------------------------------------------------------------
At the same time, no single method will promote timeliness at
all agencies in all circumstances. Each agency has its own mission,
serves different communities, adjudicates according to a distinct
set of legal requirements, has different resources available to it,
and faces different operational realities. Moreover, in promoting
timely adjudication, agencies must remain sensitive to other values
of administrative adjudication such as decisional quality,
procedural fairness, consistency, transparency, customer service,
and equitable treatment. Building on earlier recommendations, this
Recommendation provides a general framework that agencies and
Congress can use to both foster an organizational culture of
timeliness in agency adjudication in accord with principles of
fairness, accuracy, and efficiency and devise plans to address
increased caseloads, delays, backlogs, and other timeliness concerns
when they arise.
Recommendation
Information Collection
1. Agencies should ensure their electronic or other case
management systems are collecting data necessary for accuracy in
monitoring and detecting changes in case processing times at all
levels of their adjudication systems (e.g., initial level, hearing
level, appellate review level), identify the causes of changes in
case processing times, and devise methods to promote or improve
timeliness without adversely affecting decisional quality,
procedural fairness, or other objectives. Agencies should identify
the kinds of data or records that Congress, media representatives,
researchers, or other interested persons frequently request to
ensure that agency personnel responsible for responding to such
requests can do so in an efficient manner. Agencies should ensure
that electronic or other case management systems track the following
information:
a. The number of proceedings of each type pending, commenced,
and concluded during a standard reporting period (e.g., week, month,
quarter, year) within and across different levels of their
adjudication systems;
b. The current status of each case pending at every level of
their adjudication systems; and
c. For each case, the number of days required to meet critical
case processing milestones within and across different levels of
their adjudication systems.
2. To meet organizational goals and obtain information about
expectations for adjudication timelines, agencies should communicate
regularly with interested persons within and outside the agency. In
addition to formal engagements, agencies should provide ongoing
opportunities for interested persons within and outside the agency
to provide feedback and suggestions. Methods for obtaining such
information include:
a. Surveys of interested persons within and outside the agency;
b. Listening sessions and other meetings;
c. Requests for information published in the Federal Register;
d. Online feedback forms; and
e. Use of ombuds.
Performance Goals and Standards
3. Agencies should adopt organizational performance goals that
encourage and provide clear expectations for timeliness. Performance
goals may take several forms, including goals contained in agency
strategic plans, guidelines establishing time limits for concluding
cases, and policies instituting step-by-step time goals. In
developing organizational performance goals for timeliness, agencies
should:
a. Use the information described in Paragraphs 1 and 2 to
develop goals that are reasonable and objective;
b. Encourage interested persons within and outside the agency to
participate in the development of such goals; and
c. Periodically reevaluate such goals to ensure they (i)
continue to be reasonable; (ii) encourage and provide clear
expectations for timeliness; and (iii) do not adversely affect
decisional quality or the fairness or integrity of proceedings.
4. When agencies use timeliness or productivity measures in
appraising the performance of employees, as defined in 5 U.S.C.
4301, and members of the Senior Executive Service, or in setting
timeliness or productivity expectations for administrative law
judges, who are not subject to performance appraisals, agencies
should:
[[Page 1515]]
a. Use the information described in Paragraphs 1 and 2 to
develop measures or expectations that are reasonable and objective
and provide clear expectations for timeliness;
b. Encourage interested persons within and outside the agency,
including employees to whom the measures or expectations apply, to
participate in the development of such measures or expectations;
c. Ensure measures or expectations reflect tasks within the
control of individual employees;
d. Ensure measures or expectations take into account the range
of case types and tasks performed by individual employees as well as
resources (e.g., staff support, technology) at their disposal;
e. For employees who decide cases, ensure measures or
expectations do not lead them to decide cases in a particular way;
f. For all employees, ensure measures or expectations do not
lead them to take actions that would adversely affect decisional
quality or the fairness or integrity of proceedings; and
g. Periodically reevaluate such measures or expectations.
Organizational, Procedural, Technological, and Case Management
Techniques
The Administrative Conference has adopted many recommendations,
listed in the Preamble, that identify organizational, procedural,
technological, and case management techniques that agencies should
use, in appropriate circumstances, to promote timeliness in
adjudication or respond to increased caseloads, delays, backlogs,
and other timeliness concerns. Agencies should also implement the
following best practices, as appropriate:
5. Agencies should narrow disputes and resolve cases at the
lowest possible level of their adjudication systems and, at each
level, use the least time- and resource-intensive processes
available and appropriate to the circumstances, such as informal
prehearing procedures, alternative dispute resolution, streamlined
procedures, or decision making on the written record.
6. As appropriate, agencies should adopt procedures for (i)
resolving multiple cases in a single proceeding, such as the
aggregation of similar claims; and (ii) resolving recurring legal or
factual issues, such as precedential decision making or substantive
rulemaking.
7. Agencies should adopt processes for screening cases at intake
to (i) resolve procedural issues as early as possible; (ii) identify
cases that may be appropriate for less time- and resource-intensive
processes, such as those described in Paragraphs 5 and 6; (iii)
identify cases that can be resolved quickly because they are legally
and factually straightforward; and (iv) identify cases that should
be prioritized or expedited.
8. Agencies should adopt procedures that standardize the
allocation of tasks among adjudicators, managers, staff attorneys,
and paralegal support staff.
9. Agencies should review and update as necessary their Human
Capital Operating Plans (5 CFR pt. 250) to ensure their hiring and
position management needs are aligned properly with their
operational goals for adjudication.
10. Agencies should automate routine tasks that do not require a
significant exercise of discretion when automation will not
adversely affect quality or program integrity. Such tasks may
include receiving filings and evidence, establishing new case files,
associating records with case files, de-duplicating records,
assigning cases to agency personnel for action, screening cases as
described in Paragraph 7, and generating and releasing standardized
correspondence.
11. Agencies should outsource routine tasks that do not require
a significant exercise of discretion--such as transcribing, scanning
records, or mailing correspondence--when it would be more efficient
and cost-effective for a contractor to perform them and there are no
legal or policy reasons to assign the tasks to agency personnel
(e.g., restrictions on access to sensitive personal or national
security information).
12. Agencies should adopt rules and policies that reflect best
practices for case management, including evidentiary development,
motions practice, intervention, extensions of time, decision
writing, and methods for encouraging prompt action and discouraging
undue delay by parties. At the same time, agencies should ensure
that adjudicators, managers, and support staff have sufficient
flexibility to manage individual cases fairly, accurately, and
efficiently, and test alternative case management techniques that
may reveal new best practices. Agencies should periodically
reevaluate such rules and policies, using the information described
in Paragraphs 1 and 2, to ensure they continue to reflect best
practices for case management and provide relevant personnel with
sufficient flexibility to manage individual cases and test
alternative case management techniques.
13. Agencies should establish organizational units, supervisory
structures, and central and field operations that reinforce
timeliness and facilitate appropriate communication among agency
personnel involved in adjudication at all levels of an adjudication
system.
14. Agencies should update public websites and electronic case
management systems so that they are able to handle the volume of
current and future cases efficiently and effectively.
Strategic Planning
15. Agencies should engage in evidence-based and transparent
strategic planning to anticipate and address concerns about
timeliness, including increased caseloads, delays, and backlogs. In
undertaking such strategic planning, agencies should:
a. Use the information described in Paragraphs 1 and 2 to
identify case processing trends such as geographical or temporal
variations in case intake or case processing times, assess the
causes of timeliness concerns, and identify points at all levels of
their adjudication systems that are causing delays;
b. Review previous efforts to address timeliness concerns to
understand what initiatives have been attempted and which have been
effective;
c. Consider a wide range of options for improving timeliness in
the adjudication process without adversely affecting decisional
quality, procedural fairness, program integrity, or other
objectives. Options may include organizational, procedural,
technological, case management, and other techniques, including
those identified in previous Conference recommendations and
Paragraphs 5-14;
d. Engage in candid discussions with adjudicators, managers, and
support staff at all levels of their adjudication systems, as well
as interested persons outside the agency, regarding the benefits,
costs, and risks associated with different options for improving
timeliness;
e. Develop proposed plans for addressing timeliness concerns,
and solicit feedback on the plans from interested persons within and
outside of the agency;
f. Consider pilot studies and demonstration projects before
implementing interventions broadly to test the effectiveness of
different interventions and identify unintended consequences; and
g. Designate a senior official responsible for coordinating the
activities described in this Paragraph.
Coordination and Collaboration
16. Agencies should facilitate communication between components
involved in their adjudication systems and other components that
carry out functions necessary for timely adjudication, such as those
that oversee information technology, human resources, budget
planning, office space, and procurement.
17. Agencies should coordinate, as appropriate, with the
President and Congress by providing information on recommended
legislative changes and appropriations that would promote timeliness
generally or address ongoing timeliness concerns.
18. Agencies should partner with federal entities such as the
Chief Information Officers Council, the U.S. Digital Service, the
General Services Administration, and the Office of Personnel
Management to develop and implement best practices for leveraging
information technology, human capital, and other resources to
promote or improve timeliness.
19. Unless precluded by law or otherwise inappropriate, agencies
should share information with each other about their experiences
with and practices for promoting timeliness generally and addressing
ongoing timeliness concerns. The Office of the Chair of the
Administrative Conference should provide for the interchange of such
information, as authorized by 5 U.S.C. 594(2).
20. Agencies should develop partnerships with relevant legal
service providers, other nongovernmental organizations, and state
and local government agencies that advocate for or provide
assistance to individuals who participate as parties in agency
adjudications.
21. Agencies should make informational materials available to
adjudicators, managers, staff attorneys, and paralegal support
staff. Agencies should conduct regular training sessions for such
personnel on best practices for fair, accurate, and efficient case
management.
[[Page 1516]]
Communication and Transparency
22. Agencies should provide parties and representatives with
resources to help them navigate their adjudication systems,
understand procedural alternatives that may expedite decision making
in appropriate cases, and learn about best practices for efficient
and effective advocacy before the agency. Such resources may include
informational materials (e.g., documents written in plain language
and available in languages other than English, short videos,
decision trees, and visualizations), navigator programs, and
counseling for self-represented parties.
23. As early as possible and at key points throughout the
adjudication process, agencies should provide self-represented
parties with plain-language materials informing them of (i) their
right to be represented by an attorney or qualified nonlawyer legal
service provider; (ii) potential benefits of representation; and
(iii) options for obtaining representation.
24. Agencies should publicly identify case management priorities
and procedures that have been adopted to improve timeliness and may
result in parties' cases being identified for aggregation,
expedition, or similar alternative techniques.
25. Agencies should publicly disclose (i) average processing
times and aggregate processing data for claims pending, commenced,
and concluded during a standard reporting period; (ii) any deadlines
or processing goals for adjudicating cases; and (iii) information
about the agency's plans for and progress in addressing timeliness
concerns. Agencies should consider whether and to what extent they
should disclose such information pertaining to agency subcomponents.
26. When agencies use timeliness or productivity measures in
appraising the performance of employees, as defined in 5 U.S.C.
4301, and members of the Senior Executive Service, or in setting
timeliness or productivity expectations for administrative law
judges, who are not subject to performance appraisals, they should
disclose such measures or expectations publicly and explain how they
were developed. For employees who are subject to performance
appraisal, agencies should disclose publicly (i) how they use such
measures to appraise employees, and (ii) whether employees are
eligible for incentive awards based on timeliness or productivity.
Consideration for Congress
27. As set forth in Recommendation 78-3, Time Limits on Agency
Actions, Congress ordinarily should not impose statutory time limits
on agency adjudication. If Congress does consider imposing time
limits on adjudication by a particular agency, it should first seek
information from the agency and interested persons. If Congress does
decide to impose time limits, it should do so only after determining
that the benefits of such limits outweigh the costs. If Congress
then decides time limits are necessary or warranted, it should
require agencies to adopt reasonable time limits or, in rare
circumstances, impose such limits itself. In setting any statutory
time limits, Congress should:
a. Recognize that preexisting statutory or regulatory frameworks
or special circumstances (e.g., a sudden substantial increase in an
agency's caseload or the complexity of the issues in a particular
case) may justify an agency's failure to conclude a case within the
proposed statutory time limit;
b. State expressly what should occur if the agency does not meet
its statutory deadline;
c. State expressly whether affected persons may or may not
enforce the time limit through judicial action and, if so, the
nature of the relief available for this purpose; and
d. Consider the need to increase agency resources to enable the
agency to meet its statutory deadline.
Administrative Conference Recommendation 2023-8
User Fees
Adopted December 14, 2023
Federal agencies charge user fees as part of many programs. For
purposes of this Recommendation, a federal agency ``user fee'' is
(1) any fee assessed by an agency for a good or service that the
agency provides to the party paying the fee, as well as (2) any fee
collected by an agency from an entity engaged in, or seeking to
engage in, activity regulated by the agency, either to support a
specific regulatory service provided to that entity or to support a
regulatory program that at least in part benefits the entity.\1\
User fees serve many purposes, for example, to shift the costs of a
program from taxpayers to those persons or entities whom the program
directly benefits, to supplement general revenue, or to incentivize
or discourage certain behavior.
---------------------------------------------------------------------------
\1\ Erika Lietzan, User Fee Programs: Design Choices and
Processes 6 (Nov. 9, 2023) (report to the Admin. Conf. of the U.S.).
---------------------------------------------------------------------------
Agencies have assessed user fees since this country was founded.
In 1952, Congress enacted the Independent Offices Appropriations Act
(IOAA), giving agencies broad authority to charge user fees in
connection with specific goods or services that benefit identifiable
persons or entities.\2\ The Bureau of the Budget, the predecessor to
the Office of Management and Budget (OMB), issued Circular A-25 in
1959 to implement the IOAA. Since 1982, when the President's Private
Sector Survey on Cost Control urged expanded application of user
fees, Congress and agencies increasingly have relied on user fees,
instead of or in addition to general revenue, to fund federal
programs.
---------------------------------------------------------------------------
\2\ 31 U.S.C. 9701.
---------------------------------------------------------------------------
In 1987, the Administrative Conference adopted Recommendation
87-4, User Fees, which identified basic principles for Congress and
agencies to consider in establishing user fee programs and setting
fee levels. Recommendation 87-4 stated that a ``government service
for which a user fee is charged should directly benefit fee
payers.'' It also identified principles intended to allocate
government goods and services efficiently and fairly.\3\
---------------------------------------------------------------------------
\3\ 52 FR 23634 (June 24, 1987).
---------------------------------------------------------------------------
There have been significant developments since ACUS last
addressed this topic in 1987. Congress and agencies have continued
to expand the collection of and reliance on user fees,\4\ and OMB
revised Circular A-25 in 2017 to update federal policy regarding
fees assessed for government services, resources, and goods; provide
information on which activities are subject to user fees and the
basis for setting user fees; and provide guidance for implementing
and collecting user fees.
---------------------------------------------------------------------------
\4\ See Lietzan, supra note 1, at 3.
---------------------------------------------------------------------------
Today, user fee programs serve many purposes and vary
significantly in their design. Some are established by a specific
statute. Such statutes may specify the fee amount, provide a formula
for calculating fees, or prescribe a standard for the agency to use
in establishing reasonable fees (e.g., full or partial cost
recovery). Some statutory authorizations are permanent, while others
sunset and require periodic reauthorization. Other programs are
established by agencies on their own initiative under the IOAA or
other authority. Some fees are transactional, while others are paid
on a periodic basis. Some fees are set to achieve economic
efficiency, while others are set to advance other values, goals, and
priorities. Other statutes impose requirements that apply to a user
fees program unless Congress specifies otherwise; one example is the
Miscellaneous Receipts Act, which requires that money received by
the government from any source be deposited into the U.S.
Treasury.\5\
---------------------------------------------------------------------------
\5\ 31 U.S.C. 3302.
---------------------------------------------------------------------------
When designing user fee programs, Congress and agencies must
also consider possible negative consequences such as the potential
for fees to adversely affect the quality of agency decision making
or its appearance of impartiality; their potential to affect the
behavior of private persons and entities in unintended ways; the
impact of the fees on low-income people, members of historically
underserved communities, and small businesses and other small
entities; the agency's revenue stability; and congressional
oversight. The Conference consistently has emphasized the potential
for public engagement to help policymakers obtain more comprehensive
information, enhance the legitimacy of their decisions, and increase
public support for their decisions.\6\
---------------------------------------------------------------------------
\6\ Cf. Admin. Conf. of the U.S., Recommendation 2018-7, Public
Engagement in Agency Rulemaking, 84 FR 2146 (Feb. 6, 2019); see also
Admin. Conf. of the U.S., Office of the Chair, Statement of
Principles for Public Engagement in Agency Rulemaking (rev. Sept. 1,
2023); Admin. Conf. of the U.S., Recommendation 2023-2, Virtual
Public Engagement in Agency Rulemaking, 88 FR 42680 (July 3, 2023);
Admin. Conf. of the U.S., Recommendation 2021-3, Early Input on
Regulatory Alternatives, 86 FR 36082 (July 8, 2021).
---------------------------------------------------------------------------
Given expanded reliance on user fees, the development of new
models for user fee programs, and updated guidance on user fees from
OMB, the Conference decided to revisit the subject. This
Recommendation represents the Conference's current views on the
objectives, design, and implementation of user fee programs by
Congress and agencies, and supplements and updates Recommendation
87-4.\7\
---------------------------------------------------------------------------
\7\ This Recommendation does not address what constitutional
limits, if any, may apply to fee-supported agency activities even
when congressionally approved.
---------------------------------------------------------------------------
[[Page 1517]]
Recommendation
General Considerations
1. In creating or modifying user fees, Congress or agencies, as
appropriate, should identify the purpose(s) of an agency's user fee
program, such as shifting the costs of a program from taxpayers to
those persons or entities whom the program benefits, supplementing
general revenue, or incentivizing or discouraging certain behavior.
Congress or agencies also should consider whether or not there are
reasons for waivers, exemptions, or reduced rates.
2. When establishing a user fee-funded program, especially one
with a novel fee structure and one that collects fees from regulated
entities, Congress or agencies, as appropriate, should consider
whether any feature of the program might inappropriately affect or
be perceived as inappropriately affecting agency decision making and
whether any steps should be taken to mitigate those effects.
3. Congress or agencies, as appropriate, should consider whether
a user fee may have a negative or beneficial effect on the behavior
of individuals and entities subject to that fee. Congress or
agencies also should consider whether the user fee might have other
public benefits, such as promoting equity, reducing barriers to
market entry, incentivizing desirable behavior, or producing some
other socially beneficial outcome, or might have other public costs.
Congress or agencies, as appropriate, should set forth procedures
for waiving or reducing user fees that would cause undue hardship
for low-income individuals, members of historically underserved
communities, small businesses, and other small entities.
4. Congress or agencies, as appropriate, should ensure user fees
are not disproportionate in relation to government costs or to the
benefits that users receive.
Considerations for Congress
5. When Congress enacts a specific statute, separate from the
Independent Offices Appropriations Act, authorizing an agency to
collect user fees, it should specify, as applicable:
a. The manner for setting fee levels. Congress should either
determine the amount of the fee, with or without adjustment for
inflation, set a formula for calculating it, or alternatively give
the agency discretion to determine the appropriate fee (e.g., to
achieve a particular purpose or to recover some or all of the costs
of providing a good or service or administering a program);
b. Any circumstances in which the agency may or must charge a
fee or, conversely, may or must waive or reduce the fee amount.
Congress should determine whether it is appropriate to reduce or
eliminate fees for certain individuals or entities to promote
equity, reduce barriers to market entry, incentivize desirable
behavior, or produce some other socially beneficial outcome;
c. Any required minimum process for setting or modifying fees,
either through the notice-and-comment rulemaking process set forth
in 5 U.S.C. 553 or an alternative process, including requirements
for public engagement;
d. Any authorizations, limitations, or prescriptions pertaining
to the manner in which the agency may collect fees;
e. Any required process for enforcing the obligation to pay user
fees and any penalties for failure to pay required fees, including
interest (specifying rates);
f. The availability of collected fees. Congress should determine
whether or not the fees collected by the agency should be deposited
in the U.S. Treasury, consistent with the Miscellaneous Receipts
Act, 31 U.S.C. 3302, and made available to the agency only after
appropriation;
g. The period during which the agency may expend collected fees.
Should Congress determine that, for reasons of revenue stability,
collected fees should remain available to the agency, it should
consider, for reasons of oversight, whether they should only be
available for a limited period or subject to other requirements or
limitations;
h. Any authorizations or prescriptions for the uses for which
the agency may expend collected fees;
i. Any requirement that the agency periodically review its user
fees and any required method(s) for doing so (e.g., comparing fee
amounts with corresponding costs or recalculating fees based on new
developments and information); and
j. Whether the authority granted under the statute sunsets.
6. Whenever Congress decides to create a new statutory user fee
program, it should reach out to relevant agencies for technical
assistance early in the legislative drafting process and it should
consider input from interested persons.
7. Congress should maintain oversight of agencies that operate
user fee programs, such as through the appropriations process or
authorizing legislation that specifies the purpose, time, and
availability for money collected through user fee programs.
Considerations for Agencies
8. When an agency establishes a new user fee program or sets
fees under an existing program, it should follow the rulemaking
requirements of 5 U.S.C. 553 unless Congress has specified
otherwise. In engaging with interested members of the public,
agencies should follow the best practices suggested in
Recommendations 2018-7, Public Engagement in Rulemaking, 2021-3,
Early Input on Regulatory Alternatives, and 2023-2, Virtual Public
Engagement in Agency Rulemaking.
9. Agencies should communicate clearly to the public the
purpose(s) of their user fee programs, the nature of the fee setting
process, and the uses for which the agency expends collected fees.
Agencies also should be transparent with and engage the public when
conducting activities that may affect the design of their user fee
programs or the level of their fees, for instance by inviting public
participation at early stages such as during cost and demand
forecasting and budget formulation.
10. Agencies should maintain an easy-to-find page on their
websites describing their user fee-funded programs, identifying and
explaining the fees, describing any waivers or exemptions available,
identifying the uses for which the agency expends collected fees,
and providing links to supporting resources, such as the governing
sections of the United States Code and the Code of Federal
Regulations, and recent notices in the Federal Register.
11. Agencies should conduct regular reviews, consistent with
Recommendation 2021-2, Periodic Retrospective Review, of their user
fee programs to ensure the programs are meeting their purposes and
that the fee levels are appropriate. Agencies also should assess
other resulting consequences or effects of the programs, such as
those described in Paragraphs 2, 3, and 4.
[FR Doc. 2024-00302 Filed 1-9-24; 8:45 am]
BILLING CODE 6110-01-P
</pre></body>
</html>Indexed from Federal Register on January 10, 2024.
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.