[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30445-30446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10749]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
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  Federal Register / Vol. 87, No. 97 / Thursday, May 19, 2022 / 
Notices  

[[Page 30445]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Disclosure of Agency Legal Materials; Comment Request

AGENCY: Administrative Conference of the United States (ACUS).

ACTION: Notice.

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SUMMARY: The Office of the Chairman of ACUS is requesting public input 
on what legal materials agencies must or should make publicly available 
and how they ought to do so. Responses to this request may inform an 
ongoing ACUS project, Disclosure of Agency Legal Materials. If 
warranted, the project will recommend statutory reforms to ensure that 
agencies provide public access to legal materials in the most 
equitable, effective, and efficient way possible for both the public 
and agencies.

DATES: Comments must be received no later than 10 a.m. (ET) July 18, 
2022.

ADDRESSES: You may submit comments by email to [email protected] (with 
``Disclosure of Agency Legal Materials Comments'' in the subject line 
of the message); online by clicking ``Submit a comment'' near the 
bottom of the project web page found at https://www.acus.gov/research-projects/disclosure-agency-legal-materials; or by U.S. Mail addressed 
to Disclosure of Agency Legal Materials Comments, Administrative 
Conference of the United States, Suite 706 South, 1120 20th Street NW, 
Washington, DC 20036. ACUS will ordinarily post comments on the project 
web page as they are received. Commenters should not include 
information, such as personal information or confidential business 
information, that they do not wish to appear on the ACUS website. For 
the full ACUS public comment policy, please visit https://www.acus.gov/policy/public-comment-policy.

FOR FURTHER INFORMATION CONTACT: Todd Rubin, Attorney Advisor, 
Administrative Conference of the United States, 1120 20th Street NW, 
Suite 706 South, Washington, DC 20036; Telephone (202) 480-2080; email 
[email protected].

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.

Disclosure of Agency Legal Materials

    Agencies generate a wide range of materials that impose legal 
obligations on members of the public, agency employees, and agency 
heads; determine the rights or interests of private parties; advise the 
public of the agencies' interpretation of the statutes and rules they 
administer; advise the public prospectively of the manner in which 
agencies plan to exercise discretionary powers; or otherwise explain 
agency actions that affect members of the public. Federal laws govern 
when and how agencies make these legal materials publicly available. 
These include generally applicable statutes such as the Freedom of 
Information Act (FOIA), the Federal Register Act, the E-Government Act 
of 2002, the Federal Records Act, as well as agency- and program-
specific statutes.
    ACUS has undertaken many projects in which it has recommended best 
practices for the disclosure of records such as guidance documents,\1\ 
adjudication rules,\2\ adjudication materials,\3\ and litigation 
materials.\4\ Many of these projects focus on a broader set of 
materials than legal materials, but they do encompass, touch on, or 
include legal materials. A recurrent question in the discussion 
surrounding these projects has been whether Congress should amend the 
main statutes governing disclosure of agency legal materials to 
consolidate and harmonize overlapping requirements, account for 
technological developments, and correct statutory ambiguities and 
drafting errors.
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    \1\ See, e.g., Admin. Conf. of the U.S., Recommendation 2021-7, 
Public Availability of Inoperative Agency Guidance Documents, 87 FR 
1718 (Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 2019-
3, Public Availability of Agency Guidance Documents, 84 FR 38931 
(Aug. 8, 2019).
    \2\ See, e.g., Admin. Conf. of the U.S., Recommendation 2020-5, 
Publication of Policies Governing Agency Adjudicators, 86 FR 6622 
(Jan. 22, 2021); Admin. Conf. of the U.S., Recommendation 2018-5, 
Public Availability of Adjudication Rules, 84 FR 2142 (Feb. 6, 
2019).
    \3\ See, e.g., Admin. Conf. of the U.S., Recommendation 2017-1, 
Adjudication Materials on Agency websites, 82 FR 31039 (July 5, 
2017).
    \4\ See, e.g., Admin. Conf. of the U.S., Recommendation 2020-6, 
Agency Litigation web pages, 86 FR 6624 (Jan. 22, 2021).
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    ACUS is now undertaking this project to answer this question. A 
team of leading scholars will submit a report to ACUS that addresses 
this question and others that may be identified. If warranted, a 
committee of ACUS members will develop proposed recommendations to 
Congress for possible consideration by the ACUS Assembly. Recommended 
statutory reforms will provide clear standards as to what legal 
materials agencies must publish and where they must publish them 
(whether in the Federal Register, on their websites, or elsewhere). The 
objective of any such proposed amendments will be to ensure that 
agencies provide appropriate public access to legal materials in the 
most equitable, effective, and efficient way possible for both the 
public and the agency. Visit https://www.acus.gov/research-projects to 
learn more about how ACUS develops recommendations.

Specific Topics for Public Comment

    ACUS welcomes views, information, and data on all aspects of this 
topic. ACUS also seeks specific feedback on the following questions:
    1. What types of agency records should ACUS consider to be ``agency 
legal materials'' for purposes of this project?
    2. What obstacles have you or others faced in gaining access to 
agency legal materials?
    3. Are there certain types of agency legal materials or legal 
information that agencies are not making publicly available that would 
be valuable to you or others?

[[Page 30446]]

    4. Agencies provide public access to legal materials in different 
ways. Agencies make some materials available to the general public on 
their own initiative without having received a request from a member of 
the public (i.e., proactive disclosure). Other materials are provided 
to members of the public on request. What types of legal materials 
should agencies proactively disclose to the general public? What types 
of legal materials may or should agencies disclose only in response to 
a request from a member of the public?
    5. For agency legal materials that should be proactively disclosed, 
where or how should agencies make them publicly available (on agency 
websites, in the Federal Register, or elsewhere)?
    6. Are there certain types of agency legal materials, or certain 
types of information contained in agency legal materials, that agencies 
should not make publicly available? When there is public interest in 
these types of materials or information, how should agencies balance 
the public interest in disclosure with any private or governmental 
interests in nondisclosure?
    7. Some statutes governing the public availability of agency legal 
materials apply to most or all agencies (e.g., Federal Register Act), 
whereas others apply to only one or a small number of agencies (e.g., 
Food and Drug Administration Modernization Act of 1997). When should 
Congress create disclosure requirements that apply to most or all 
agencies, and when should Congress create disclosure requirements that 
apply to only one or a small number of agencies?
    8. Are there certain best practices regarding disclosure of legal 
materials on agency websites that should be required by statute (e.g., 
indexing of legal materials, search functions to help find legal 
materials)? If so, should these practices be required for all legal 
materials or only certain types of legal materials?
    9. What inconsistencies, ambiguities, and overlaps exist in the 
main statutes governing disclosure of agency legal materials (e.g., 
FOIA, Federal Register Act, E-Government Act of 2002, Federal Records 
Act) that Congress should remedy?
    10. What other statutory reforms might be warranted to ensure 
adequate public availability of agency legal materials?

    Dated: May 13, 2022.
Shawne McGibbon,
General Counsel.
[FR Doc. 2022-10749 Filed 5-18-22; 8:45 am]
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