[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Notices]
[Pages 30683-30687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14075]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
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  Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / 
Notices  

[[Page 30683]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Administrative Conference of the United States adopted 
three recommendations at its Sixty-Ninth Plenary Session. The appended 
recommendations address: Paperwork Reduction Act Efficiencies; 
Severability in Agency Rulemaking (formerly titled Minimizing the Cost 
of Judicial Review; and Electronic Case Management in Federal 
Administrative Adjudication. A fourth recommendation on the topic of 
Administrative Judges was recommitted to the committee of jurisdiction 
for further consideration. A working group convened by the Office of 
the Chairman presented the Conference's Model Adjudication Rules (rev. 
2018).

FOR FURTHER INFORMATION CONTACT: Gisselle Bourns for Recommendations 
2018-1 and 2018-2, and Gavin Young for Recommendation 2018-3. For each 
Recommendation and general information about other projects referenced 
in this notice, 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 www.acus.gov. At its Sixty-Ninth Plenary Session, held 
June 14-15, 2018, the Assembly of the Conference adopted three 
recommendations.
    Recommendation 2018-1, Paperwork Reduction Act Efficiencies. This 
recommendation encourages collaboration between the Office of 
Information and Regulatory Affairs and federal agencies to maximize 
opportunities for making the information collection clearance process 
under the Paperwork Reduction Act more efficient, while still 
maintaining its integrity. The recommendation also encourages using 
generic clearances and common forms more frequently, providing more 
training to agencies, and improving several other aspects of the 
information-collection clearance process.
    Recommendation 2018-2, Severability in Agency Rulemaking (formerly 
titled Minimizing the Cost of Judicial Review). This recommendation 
encourages federal agencies that anticipate litigation over their rules 
to consider early in the rulemaking process whether a rule is 
severable--that is, divisible into portions that can and should 
function independently. It also identifies steps agencies should take 
if they intend that portions of a rule should continue in effect even 
though other portions have been held unlawful on judicial review. In 
addition, it encourages courts reviewing an agency rule to solicit the 
parties' views on the issue of severability in appropriate 
circumstances.
    Recommendation 2018-3, Electronic Case Management in Federal 
Administrative Adjudication. This recommendation offers guidance for 
agencies considering whether and how to implement an electronic case 
management system. It provides factors for agencies to consider in 
weighing the costs and benefits of an electronic case management 
system; sets forth measures an agency should take to ensure privacy, 
transparency, and security; and describes ways an electronic case 
management system may improve adjudicatory processes.
    A proposed recommendation addressing agency practices related to 
the selection, oversight, evaluation, discipline, and removal of 
administrative judges who are not administrative law judges was also on 
the agenda of the Sixty-Ninth Plenary Session; however, the Assembly 
voted to recommit the proposed recommendation to the Committee on 
Adjudication for further consideration--particularly in light of a 
then-pending Supreme Court decision that may have had bearing on the 
recommendation (i.e., Lucia v. SEC, 585 U.S. ___(2018)).
    In addition to adopting three recommendations, the Assembly 
received and commented on a revised version of the Model Adjudication 
Rules (rev. 2018) prepared by a working group convened by the 
Conference's Office of the Chairman. The revised Rules offer agencies a 
complete set of model procedural rules--governing prehearing 
proceedings, hearings, and appellate review--to improve the fairness 
and efficiency of their adjudication programs. Once completed, the 
Rules will be published on the Conference's website and noticed in the 
Federal Register. Public comment on the revised Rules had been sought 
previously. See 83 FR 2958 (Jan. 22, 2018).
    The Appendix below sets forth the full texts of the three adopted 
recommendations. The Conference will transmit them to affected 
entities, which may include Federal agencies, Congress, and the 
Judicial Conference of the United States. The recommendations are not 
binding, so the entities to which they are addressed will make 
decisions on their implementation.
    The Conference based these recommendations on research reports that 
are posted at: www.acus.gov/69thPlenary.

    Dated: June 26, 2018.
Shawne C. McGibbon,
General Counsel.

Appendix--Recommendations of the Administrative Conference of the 
United States

Administrative Conference Recommendation 2018-1

Paperwork Reduction Act Efficiencies

Adopted June 14, 2018

    The Paperwork Reduction Act (PRA) created the Office of 
Information and Regulatory Affairs (OIRA) within the Office of 
Management and Budget to oversee information policy in the executive 
branch.\1\

[[Page 30684]]

OIRA's oversight responsibilities include the review and approval of 
federal agencies' information collections from the public. 
Information collections are government requests for structured 
information, such as those requests for information issued through 
report forms, application forms, schedules, questionnaires, surveys, 
and reporting or recordkeeping requirements.\2\ The goal of the OIRA 
review process is to ensure that the burden of information 
collection on the public is justified by the utility of the 
information to the government. This Recommendation primarily 
concerns the interaction between agencies and the OIRA review 
process.
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    \1\ The PRA was enacted in 1980 and has since been amended 
twice, in 1986 and 1995. See Paperwork Reduction Act of 1995, Public 
Law 104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501-3521).
    \2\ 5 CFR 1320.3(c)(1), (h)(4) (2018). The PRA applies to the 
collection of structured information, meaning requests for 
information calling for either answers to identical questions posed 
to, or identical reporting or recordkeeping requirements imposed on, 
ten or more persons, or answers to questions posed to agencies which 
are to be used for general statistical purposes. See 44 U.S.C. 
3502(3) (2018).
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    Under the OIRA review process, when an agency seeks to collect 
structured information from ten or more members of the public,\3\ it 
must follow a series of steps.\4\ It must first publish a notice in 
the Federal Register and give the public sixty days to comment. Once 
the comment period ends, the agency must submit the proposed 
information collection to OIRA with a detailed supporting statement, 
ordinarily using the Regulatory Information Service Center and 
Office of Information and Regulatory Affairs Combined Information 
System (ROCIS), the computer system used by agencies to submit 
information collections to OIRA. At the same time, the agency must 
also publish a second notice in the Federal Register asking for 
comments on the information collection it provided to OIRA. After 
the thirty days for public comments have elapsed, OIRA has another 
thirty days to decide whether to approve or disapprove the 
information collection.
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    \3\ See 44 U.S.C. 3502(3)(A)(i); 5 CFR 1320.3(c)(4).
    \4\ See 44 U.S.C. 3506-3507; 5 CFR pt. 1320.
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Expedited Clearance Processes

    The process of obtaining OIRA approval for an information 
collection can be lengthy.\5\ To address this, OIRA has issued a 
series of memoranda designed to highlight existing processes that 
shorten the review time of certain types of information collections, 
while maintaining the integrity of the review process.\6\ The 
memoranda discuss several categories of information collections that 
may qualify for expedited clearance from OIRA, such as generic 
clearances, fast-tracks, and common forms.\7\ Generic clearances are 
generally intended for ``voluntary, low-burden, and uncontroversial 
collections,'' not for ones with substantive policy impacts.\8\ The 
fast track process, a subset of generic clearances, was designed to 
encourage agencies to solicit feedback about their services, and is 
generally used for information collections that focus on customer 
service feedback.\9\ Common forms are information collections that 
can be used by two or more agencies, or government-wide, for the 
same purpose.\10\
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    \5\ Stuart Shapiro, The Paperwork Reduction Act: Research on 
Current Practices and Recommendations for Reform 26 (Feb. 15, 2012) 
(report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/final-draft-paperwork-reduction-act-report (stating that 
reviews can take from six to nine months).
    \6\ See Cass Sunstein, OIRA Administrator, Social Media, Web-
Based Interactive Technologies, and the Paperwork Reduction Act 
(Apr. 7, 2010), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf; Cass 
Sunstein, OIRA Administrator, Paperwork Reduction Act--Generic 
Clearances (May 28, 2010), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf; 
Cass Sunstein, OIRA Administrator, New Fast-Track Process for 
Collecting Service Delivery Feedback Under the Paperwork Reduction 
Act (June 15, 2011), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-26.pdf; Howard 
Shelanski, OIRA Administrator, Flexibilities under the Paperwork 
Reduction Act for Compliance with Information Collection 
Requirements (July 22, 2016), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/pra_flexibilities_memo_7_22_16_finalI.pdf.
    \7\ Agencies can also take advantage of expedited approval 
processes for the following additional categories of information 
collections: emergencies, non-substantive changes, de minimis 
changes, data search tools and calculators, challenges or prizes, 
and certain requests for information through social media. See 
Shelanski, supra note 6.
    \8\ When an agency asks for approval of a generic clearance, it 
is asking for approval of a series of related information 
collections under a single, umbrella request. The umbrella request 
describes the individual collections that would fall under it. The 
umbrella request then goes through the entire PRA process. If OIRA 
approves the umbrella request for a generic clearance, the 
individual collections covered by that clearance can be submitted 
through an expedited approval process in which OIRA reviews the 
proposed collection within ten days of receipt. See id.
    \9\ The fast track process borrows heavily from the generic 
clearance process, but fast tracks have a narrower range of uses 
primarily concerning customer feedback and OIRA reviews requests 
under the fast-track clearance within five working days. See id.
    \10\ Under the common form approval process, a ``host'' agency 
secures approval of the collection from OIRA. Later, other agencies 
that wish to use the form can avoid the two Federal Register notices 
required under the PRA and merely inform OIRA of any additional 
burden on the public that the use of the form might create. Id.
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Agencies' Use of Expedited Clearance Processes

    Agencies have used the expedited clearance processes offered by 
OIRA in varying degrees. Agencies' use of new generic clearances and 
fast tracks increased after OIRA publicized them and provided 
training to agencies on their use in 2011, but has since decreased 
(although agencies continue to seek OIRA approvals extensively under 
preexisting generic clearances).\11\ This is in part because the 
most likely candidates for generic clearances and fast-track 
approval were the first ones submitted by agencies. But these 
techniques have likely also faded in the consciousness of agencies, 
particularly with the turnover of agency personnel. There also 
appears to be very little use of the generic clearance and fast 
track processes to test the usability of forms or obtain feedback to 
improve agency websites, even though OIRA has indicated that 
usability testing is a good fit for these processes.\12\
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    \11\ Stuart Shapiro, Paperwork Reduction Act Efficiencies 12-17 
(May 14, 2018) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/paperwork-reduction-act-efficiencies-final-report.
    \12\ See id. at 26-27. Not all types of activities related to 
testing the usability of forms or website feedback would be covered 
by the PRA. Direct observations of users interacting with digital 
services tools are not subject to the PRA. See Shelanski, supra note 
6.
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    Common forms could also be used to expedite approval of 
collections and to promote data sharing among agencies, limiting the 
need for duplicative information collection. Agencies have not used 
common forms, however, as often as fast-tracks and generic 
clearances. This may be due to barriers that make it difficult for 
agencies to collaborate with one another to develop common 
forms.\13\ There also appears to be confusion at agencies about how 
they should report the burden created by an information collection 
conducted through a common form.\14\ Finally, agencies sometimes 
avoid common forms because they want to ask for information to suit 
particular agency needs.\15\ Regardless, it appears that there is a 
great deal of untapped potential for the use of common forms.\16\
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    \13\ See Shapiro, supra note 11, at 17-19.
    \14\ Id. Federal ``agencies must report their annual burden as 
part of OIRA's required submission to Congress of an Information 
Collection Budget.'' Id. at 18 n.38.
    \15\ Sometimes this is because statutes require agencies to 
collect data elements not on the common form; in other cases, it may 
be the agency's preference. Id. at 17-19.
    \16\ Id. at 17-19, 24.
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Other Opportunities for Facilitating the Clearance Process

    Aside from the expedited clearance processes outlined by OIRA, 
there are other opportunities for making the information collection 
clearance process more efficient, while still maintaining its 
integrity. One possibility would be for an agency to review all of 
the collections that are coming up for renewal without changes for a 
particular time period and to consolidate the Federal Register 
notices for those renewals. While there is a concern that combining 
unrelated collections might be confusing to the public, there are 
also offsetting benefits in terms of consistent information 
collection--especially for those collections that have previously 
undergone the review process.
    Another opportunity to achieve efficiencies is to update the 
supporting statement that agencies must submit with each submission 
of a proposed information collection to OIRA for review.\17\ The 
supporting statement is intended to allow OIRA to evaluate the 
collections against the statutory criteria in the PRA. Developing it 
is a significant component of the time it takes agencies to prepare 
information collections for review, especially new collections. 
Currently, neither

[[Page 30685]]

agencies nor OIRA are satisfied with it.\18\ Refining the supporting 
statement with the input of agency PRA clearance officers has the 
potential to reduce the burden on agencies while increasing the 
practical utility of submissions to OIRA.
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    \17\ The supporting statement consists of the answers to 
eighteen questions. Id at 22. For collections with a statistical 
component, there is a second part to the supporting statement 
consisting of five additional questions. Id.
    \18\ Filling out some parts of the form for the supporting 
statement is perceived by agencies as a pro forma exercise, and 
filling out other parts is perceived as a needlessly time-consuming 
exercise. From OIRA's perspective, agencies focus too much on 
discussing burdens of the proposed information collection and not 
enough time discussing its practical utility. Id. at 25.
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    Finally, some agencies have also reported difficulties and 
confusion in using ROCIS.\19\ Improvements to ROCIS could reduce 
agency burden, make agency submissions more useful to OIRA, and 
increase the usability of the data collected by ROCIS to agencies 
and the public.
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    \19\ Id. at 22-23, 25-26.
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Recommendation

    1. To the extent practicable, the Office of Information and 
Regulatory Affairs (OIRA) should provide training opportunities for 
agencies on the Paperwork Reduction Act (PRA). The training topics 
could include basic administration of the PRA; expedited clearance 
processes, including generic clearances and the use of common forms; 
and other new and emerging topics in information collection. The 
method of training could include in-person training of PRA clearance 
officers, as well as new training materials.
    2. Agencies should make greater use of generic clearances to 
comply with the PRA when engaging in usability testing of websites 
and other applications.
    3. OIRA should encourage the development of common forms. OIRA 
should ask agencies to provide a list of potential common forms, and 
facilitate agency coordination and implementation of promising 
candidates. This list should be included in the Annual Information 
Collection Budget report that OIRA submits to Congress every year.
    4. For information collection requests without changes from 
previous approvals, OIRA should clarify that agencies may 
consolidate the first Federal Register notice for extensions by 
taking the following steps:
    a. The agency would choose a time period (e.g., six months or a 
year) and review all of its related collections that are coming up 
for renewal during that period.
    b. The agency would then place a single notice in the Federal 
Register to inform the public that those collections are available 
for public comment.
    5. OIRA, in consultation with agency PRA clearance officers, 
should revise the supporting statement requirements on information 
collection submissions to ensure the requirements minimize 
preparation time and remain practically useful.
    6. OIRA, in consultation with agency PRA clearance officers, 
should make improvements to ROCIS, the internal computer system used 
to submit information collections to OIRA. OIRA should consider, for 
example, improvements to the user interface, workflow, and the 
usability of ROCIS, data to agencies and to the public.
    7. OIRA should continue to consult with a working group 
consisting of agency PRA clearance officers, and with other 
appropriate experts, to continue improving the PRA clearance 
process.

Administrative Conference Recommendation 2018-2

Severability in Agency Rulemaking

Adopted June 15, 2018

    If a court holds portions of a rule unlawful, and the agency has 
been silent about severability, then the default remedy is to vacate 
the entire rule, including those portions that the court did not 
hold unlawful.\1\ This outcome can impose unnecessary costs on the 
agency, if it chooses to re-promulgate the portions of the rule that 
the court did not hold unlawful but nonetheless set aside, and on 
the public, which would forgo any benefits that would have accrued 
under those portions of the rule.
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    \1\ Admin. Conf. of the U.S., Recommendation 2013-6, Remand 
Without Vacatur, 78 FR 76,269, 76,272 (Dec. 5, 2013); Ronald M. 
Levin, Judicial Remedies, in A Guide to Judicial and Political 
Review of Federal Agencies 251, 251-52 (Michael E. Herz et al. eds., 
2d ed. 2015).
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    In recent years, as administrative rules have become more 
complex,\2\ some agencies have adapted the concept of severability 
originally developed in the legislative context. Specifically, some 
agencies have included provisions in some of their rules stating 
that if portions of the rule are held unlawful in court, other 
portions not held unlawful should be allowed to go into or remain in 
effect.\3\ To date, only a handful of agencies have used these 
severability clauses,\4\ yet many other agencies issue rules that 
may be good candidates for considering the possibility of 
severability.
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    \2\ Jennifer Nou & Edward H. Stiglitz, Regulatory Bundling, 128 
Yale L.J. __(forthcoming 2018).
    \3\ A recent article on severability clauses identified fifty-
nine instances in which agencies had included severability clauses 
in their rules as of October 2014. Charles W. Tyler & E. Donald 
Elliott, Administrative Severability Clauses, 124 Yale L.J. 2286, 
2349-52 (2015).
    \4\ The Federal Trade Commission and Environmental Protection 
Agency have generated the largest volume of severability clauses. 
Id. at 2318-19.
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    This Recommendation suggests best practices for agencies in 
addressing severability in a rulemaking. Addressing severability is 
not appropriate in every rulemaking. Indeed, if agencies include 
severability clauses without a reasoned discussion of the rationale 
behind them and how severability might apply to a particular rule, 
the courts will be less likely to give them much weight. By 
contrast, addressing severability can be particularly valuable when 
an agency recognizes that some portions of its proposed rule are 
more likely to be challenged than others and that the remaining 
portions of the rule can and should function independently.
    It is not yet clear how principles of severability developed in 
the context of judicial review of legislation should be adapted to 
judicial review of agency rules. Nor is it clear how much weight the 
courts will or should give to an agency's expression of its views on 
severability. The Supreme Court has never addressed the issue, and 
the lower courts have reached different results in the context of 
particular rulemakings.\5\
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    \5\ See, e.g., Consumer Fin. Prot. Bureau v. The Mortg. Law 
Grp., LLP, 182 F. Supp. 3d 890, 894-95 (W.D. Wis. 2016) (deferring 
to severability clause on issue of whether the agency intended for 
the remainder of the rule to stay in effect); High Country 
Conservation Advocates v. U.S. Forest Serv., No. 13-CV-01723-RBJ, 
2014 WL 4470427, at *4 (D. Colo. Sept. 11, 2014) (``I conclude that 
the severability clause creates a presumption that the North Fork 
Exception is severable . . . .''); cf. MD/DC/DE Broads. v. FCC, 253 
F.3d 732, 734-36 (D.C. Cir. 2001) (declining to honor an agency's 
severability clause because the agency did not adequately explain 
how the remaining portion of the rule would have served the goals 
for which the rule was designed).
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    General principles of administrative law suggest that the 
agency's views on severability should be most persuasive when: (1) 
The agency includes its severability proposal in the text of the 
proposed rule and the agency's initial rationale for severability is 
explained in the preamble to the proposed rule; (2) these initial 
positions are made available for comment by interested parties; (3) 
the agency addresses its determination of severability in the text 
of the final rule; (4) the agency addresses the rationale for 
severability in the statement of basis and purpose accompanying the 
final rule (in the same manner as any other substantive policy issue 
in the rulemaking); and (5) the agency explains how specific 
portions of the rule would operate independently. While courts may 
also be willing to consider the agency's view on severability as 
expressed in agency briefs or at oral argument,\6\ courts may be 
less likely to agree with the agency if the issue of severability 
comes up for the first time in litigation because of `` `the 
fundamental principle that agency policy is to be made, in the first 
instance, by the agency itself--not by courts, and not by agency 
counsel.' ''\7\
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    \6\ Am. Petroleum Inst. v. EPA, 862 F.3d 50, 72 (D.C. Cir. 2017) 
(``If EPA, or any party, wishes to disabuse us of our substantial 
doubt with a petition for rehearing, we will of course reconsider as 
necessary.''), decision modified on reh'g, 883 F.3d 918 (D.C. Cir. 
2018).
    \7\ Nat'l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 867 
(D.C. Cir. 2006) (quoting Harmon v. Thornburgh, 878 F.2d 484, 494 
(D.C. Cir. 1989)). This is an application of the Chenery doctrine, 
which holds that a reviewing court may not affirm an agency decision 
on different grounds from those adopted by the agency. See SEC v. 
Chenery Corp., 318 U.S. 80, 92-94 (1943).
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    Sometimes courts have concluded that an agency's intentions are 
sufficiently clear to support severability, despite the absence of a 
severability clause or discussion of the issue in the rulemaking.\8\ 
This outcome is more likely, however, if the agency includes a 
severability clause in the proposed regulatory text; invites 
comment; and includes in the rule's statement of basis and purpose a 
reasoned explanation for why the agency

[[Page 30686]]

believes some portions of the rule can and should function 
independently.
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    \8\ See, e.g., Virginia v. EPA, 116 F.3d 499, 500-01 (D.C. Cir. 
1997); Davis Cty. Solid Waste Mgmt., 108 F.3d 1454, 1455-56, 1459-60 
(D.C. Cir. 1997); Nat'l Ass'n of Mfrs. v. NLRB, 846 F. Supp. 2d 34, 
62 (D.D.C. 2012), aff'd in part, rev'd in part, 717 F.3d 947 (D.C. 
Cir. 2013).
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    A separate but related question is how parties to a challenge to 
an agency rule should address the question of severability during 
litigation. Litigants may be reluctant to address the issue of 
severability in their briefs because: (1) It is often not clear in 
advance which portions of a rule a court may hold unlawful and on 
what basis; or (2) they may fear that addressing severability would 
suggest weakness in their positions on the merits.\9\
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    \9\ Charles W. Tyler & E. Donald Elliott, Tailoring the Scope of 
Judicial Remedies in Administrative Law 22 (May 4, 2018) (report to 
the Admin. Conf. of the U.S.), https://www.acus.gov/report/tailoring-scope-judicial-remedies-administrative-law-final-report.
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Recommendation

    1. Early in the process of developing a rule, in addition to 
other programmatic considerations, agencies that anticipate 
litigation should consider whether a rule is divisible into portions 
that could and should function independently if other portions were 
to be held unlawful on judicial review.
    a. If the agency intends that portions of the rule should 
continue in effect even if other portions are later held unlawful on 
judicial review, it should draft the rule so that it is divisible 
into independent portions that reflect this purpose.
    b. In order to provide members of the public an opportunity for 
comment, agencies should address the issue of severability in the 
text of the proposed rule and provide a reasoned explanation for the 
proposal.
    c. Agencies should likewise address their determination of 
severability in the text of the final rule and provide a reasoned 
explanation for that determination in the statement of basis and 
purpose. Agencies should identify which portions, if any, they 
intend to be severable and explain how they relate to other portions 
in the event a court holds some portions of the rule unlawful.
    2. When severability becomes an issue on judicial review, and it 
has not been previously briefed, courts should solicit the parties' 
views on severability.

Administrative Conference Recommendation 2018-3

Electronic Case Management in Federal Administrative Adjudication

Adopted June 15, 2018

    Courts and adjudicative agencies have increasingly come to rely 
on technology to manage various aspects of their adjudicative 
activities. Some of these federal agencies have adopted and 
implemented a form of electronic management for their casework, but 
others have not done so. Although practical considerations or 
resource constraints may sometimes weigh against the use of an 
electronic case management system (eCMS), agencies can often realize 
considerable efficiencies and reap other benefits by adopting such a 
system.

Benefits of an Electronic Case Management System

    As referred to here, an electronic case management system 
includes the functions usually associated with a paper-based case 
management system from the filing of a case to its resolution and 
beyond, such as: The initial receipt of the claim, complaint, or 
petition; the receipt, organization, and secure storage of evidence 
and briefs; the scheduling of hearings or other proceedings; the 
maintenance of tools to facilitate the analysis and resolution of 
the case; and the collection and reporting of data relating to the 
case, including when evidence was received, the time the case has 
remained pending, employees who have processed the case, and the 
outcome of the case, including any agency decision.
    An eCMS, properly implemented, may perform these functions in a 
more efficient and cost-effective manner than a paper-based 
management system.\1\ For example, maintaining paper records can be 
costly with respect to storage space, mailing fees, and staff time 
for agency employees needed to receive, store, track, and retrieve 
records, and locate lost or misfiled records. An eCMS may reduce 
these costs in addition to reducing processing time and improving 
interactions with litigants and the public. In addition to improving 
the traditional functions of a paper-based case management system, 
an eCMS may also provide new functionalities, such as making 
structured data available for analysis that can be used to improve 
an agency's operations.
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    \1\ Felix F. Bajandas & Gerald K. Ray, Implementation and Use of 
Electronic Case Management Systems in Federal Agency Adjudication 
(May 23, 2018) (report to the Admin. Conf. of the U.S.), https://acus.gov/report/final-report-implementation-and-use-electronic-case-management-systems-federal-agency.
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    Perhaps more importantly, an eCMS can assist adjudicative 
agencies in fulfilling their duties under various laws that impose 
requirements related to paperwork reduction, agency efficiency, 
public access to records, and technology management. For example, 
the Government Paperwork Elimination Act requires that federal 
agencies use electronic forms, electronic filing, and electronic 
signatures to conduct official business with the public, when 
practicable.\2\ Further, the E-Government Act of 2002 directs 
agencies to establish ``a broad framework of measures that require 
using internet-based information technology to improve citizen 
access to government information and services.'' \3\ And finally, 
beyond statutory requirements, an eCMS can also assist an agency's 
implementation of best practices for public access and 
participation, consistent with the objectives of past ACUS 
recommendations relating to both adjudication and rulemaking.\4\
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    \2\ Government Paperwork Elimination Act, Public Law 105-277, 
112 Stat. 2681-749 (1998) (codified at 44 U.S.C. 3504 note).
    \3\ E-Government Act of 2002, Public Law 107-347, 116 Stat. 2899 
(codified at 44 U.S.C. 101 note).
    \4\ See Admin. Conf. of the U.S., Recommendation 2017-1, 
Adjudication Materials on Agency websites, 82 FR 31,039, 31,039 
(Jul. 5, 2017); Admin. Conf. of the U.S., Recommendation 2013-5, 
Social Media in Rulemaking, 78 FR 76,269, 76,269 (Dec. 17, 2013); 
and Admin. Conf. of the U.S., Recommendation 2011-1, Agency 
Innovations in E-Rulemaking, 77 FR 2,257, 2,264 (Jan. 17, 2012).
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Considerations in Adopting an Electronic Case Management System

    Despite the advantages of an eCMS, the decision to implement an 
eCMS must be carefully considered. It may not be cost efficient for 
every adjudicative agency to implement an eCMS given agency-specific 
factors such as caseload volume. For example, there may be 
significant costs associated with the development, purchase, and 
maintenance of new hardware and software. Further, the need to train 
agency staff in new business processes associated with the eCMS may 
also be significant, as the new operations may be substantially 
different. In addition, an agency may need to allocate resources to 
ensure that any new eCMS complies with existing legal requirements, 
such as the protection of private information about individuals, as 
required by the Privacy Act.\5\
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    \5\ Privacy Act of 1974 (codified at 5 U.S.C. 552a), as amended 
by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 
538 (codified at 5 U.S.C. 101 note).
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    If, after considering the costs, an agency decides to implement 
an eCMS to partially or fully replace a paper-based case management 
system, the agency must consider a number of factors in deciding 
what particular eCMS features are to be used and how they are to be 
designed and implemented. Planning for an eCMS implementation thus 
requires a comprehensive understanding of an agency's structure and 
business process. Agencies considering implementing or enhancing an 
eCMS may find further benefit in studying the experiences of other 
agencies' eCMS implementations, and they should examine those 
experiences carefully, due to the highly fact-specific nature of a 
consideration of the costs and benefits of an eCMS.
    The implementation or expansion of an eCMS deserves full and 
careful consideration by federal adjudicative agencies, with 
recognition that each agency is unique in terms of its mission, 
caseload, and challenges. This Recommendation suggests that agencies 
implement or expand an eCMS only when they conclude, after 
conducting a thorough consideration of the costs and benefits, that 
doing so would lead to benefits such as reduced costs and improved 
efficiency, accuracy, public access, and transparency without 
impairing the fairness of the proceedings or the participants' 
satisfaction with them.

Recommendation

    1. Federal adjudicative agencies should consider implementing 
electronic case management systems (eCMS) in order to reduce costs, 
expand public access and transparency, increase both efficiency and 
accuracy in the processing of cases, identify opportunities for 
improvement through the analysis of captured data, and honor 
statutory requirements such as the protection of personally 
identifiable information.
    2. Federal adjudicative agencies should consider whether their 
proceedings are conducive to an eCMS and whether their facilities 
and staff can support the eCMS technology. If so, agencies should 
then consider the costs and benefits to determine

[[Page 30687]]

whether the implementation or expansion of an eCMS would promote the 
objectives identified in Recommendation 1 as well as the agency's 
statutory mission without impairing the fairness of proceedings or 
the participants' satisfaction with them. This consideration of the 
costs and benefits should include the following non-exclusive 
factors:
    a. Whether the agency's budget would allow for investment in 
appropriate and secure technology as well as adequate training for 
agency staff.
    b. Whether the use of an eCMS would reduce case processing times 
and save costs, including printing of paper and the use of staff 
resources to store, track, retrieve, and maintain paper records.
    c. Whether the use of an eCMS would foster greater accessibility 
and better public service.
    d. Whether users of an eCMS, such as administrative law judges, 
other adjudicators, other agency staff, parties, witnesses, 
attorneys or other party representatives, and reviewing officials 
would find the eCMS beneficial.
    e. Whether the experiences of other agencies' eCMS 
implementations provide insight regarding other factors which may 
bear on the manner of an eCMS implementation.
    3. The following possible eCMS features, currently implemented 
by some federal adjudicative agencies, should be considered by other 
agencies for their potential benefits:
    a. Web access to the eCMS that allows parties the flexibility to 
file a claim, complaint, or petition; submit documents; and obtain 
case information at any time.
    b. Streamlining of agency tasks in maintaining a case file, such 
as sorting and organizing case files, providing simultaneous access 
to files and documents by authorized users, tracking deadlines and 
elapsed age of a case, notifying parties of new activity in a case, 
and pre-populating forms with data from the case file.
    c. The comprehensive capture of structured and unstructured data 
that allows for robust data analysis to identify opportunities for 
improving an agency's operations, budget formulation, and reporting.
    d. Streamlined publication of summary data on agency operations.
    4. Federal adjudicative agencies that decide to implement or 
expand an eCMS should plan and manage their budgets and operations 
in a way that balances the needs of a sustainable eCMS with the 
possibility of future funding limitations. Those agencies should 
also:
    a. Consider the costs associated with building, maintaining, and 
improving the eCMS.
    b. Consider whether the adoption of an eCMS requires 
modifications of an agency's procedural rules. This would include 
addressing whether the paper or electronic version of a case file 
will constitute the official record of a case and whether filing 
methods and deadlines need to be changed.
    c. Consider whether to require non-agency individuals to file 
claims, complaints, petitions, and other papers using the eCMS. Such 
consideration should include the accessibility, suitability, 
usability, and burden of the eCMS for its likely user population, 
and whether creating exceptions to electronic filing procedures 
would assist in maintaining sufficient public access.
    d. Create a map or flow chart of their adjudicative processes in 
order to identify the needs of an eCMS. This involves listing the 
tasks performed by employees at each step in the process to ensure 
the eCMS captures all of the activities that occur while the case is 
pending, from initial filing to final resolution. It also includes 
identifying how members of the public or other non-agency users will 
access and interact with the eCMS. To the extent practical, this 
effort should also involve mapping or flow-charting the legal and 
policy requirements to decisional outcomes.
    e. Put in place a management structure capable of: (1) Restoring 
normal operations after an eCMS goes down (incident management); (2) 
eliminating recurring problems and minimizing the impact of problems 
that cannot be prevented (problem management); (3) overseeing a new 
release of an eCMS with multiple technical or functional changes 
(release management); (4) handling modifications, improvements, and 
repairs to the eCMS to minimize service interruptions (change 
management); and (5) identifying, controlling, and maintaining the 
versions of all of the components of the eCMS (configuration 
management).
    f. Establish a ``service desk,'' which is a central hub for 
reporting issues with the eCMS, providing support to eCMS users, and 
receiving feedback on the resolution of problems. A service desk 
should gather statistics of eCMS issues in order to help guide 
future improvements of the eCMS. A service desk could also enable 
eCMS users to offer suggestions for improving the eCMS.
    g. Plan adequate and timely training for staff on the use of the 
eCMS.
    5. Federal adjudicative agencies that decide to implement or 
expand an eCMS must do so in such a way that appropriate protections 
for privacy, transparency, and security are preserved by:
    a. Ensuring that the agency's compliance with the Privacy Act, 
other statutes protecting privacy, and the agency's own privacy 
regulations and policies remains undiminished by the implementation 
or expansion of an eCMS.
    b. To the extent it is consistent with Recommendation 5(a) 
above, making case information available online to parties and, when 
appropriate, the public, taking into account both the interests of 
transparency (as embodied in, for example, the Freedom of 
Information Act's proactive disclosure requirements) as well as the 
benefits of having important adjudicative documents publicly 
available.
    c. Adopting security measures, such as encryption, to ensure 
that information held in an eCMS cannot be accessed or changed by 
unauthorized persons.
    d. Ensuring that sensitive information is not provided to 
unintended third parties through private email services, unsecured 
data transmission, insider threats, or otherwise.
    e. Keeping track of the evolution of security technologies and 
considering the adoption of those technologies as they mature in 
order to ensure the integrity of agency information systems.
    6. Federal adjudicative agencies that decide to implement or 
expand an eCMS should consider how to analyze and leverage data that 
is captured by the eCMS to improve their adjudicative processes, 
including through the use of natural language processing, machine 
learning, and predictive algorithms. Agencies should consider:
    a. Evaluating how eCMS features could generate the types of data 
that would be useful for evaluating the effectiveness of their 
adjudicative processes and policies.
    b. Capturing and analyzing such data about adjudicative 
processes and policies to detect and define problem areas that 
present opportunities for improvement.
    c. Upon identification of areas for improvement in the 
adjudication process, taking corrective action, refining performance 
goals, and measuring performance under the newly improved process.
    d. Hiring staff trained in data science to facilitate data 
analysis and giving that staff access to subject matter experts 
within agencies.
    e. Collaborating with other agencies on best practices for data 
analytics.

[FR Doc. 2018-14075 Filed 6-28-18; 8:45 am]
 BILLING CODE 6110-01-P