[Federal Register Volume 88, Number 126 (Monday, July 3, 2023)]
[Notices]
[Pages 42678-42684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14069]
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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.
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Federal Register / Vol. 88, No. 126 / Monday, July 3, 2023 /
Notices
[[Page 42678]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Assembly of the Administrative Conference of the United
States adopted four recommendations at its hybrid (virtual and in-
person) Seventy-ninth Plenary Session: Proactive Disclosure of Agency
Legal Materials, Virtual Public Engagement in Agency Rulemaking, Using
Algorithmic Tools in Retrospective Review of Agency Rules, and Online
Processes in Agency Adjudication.
FOR FURTHER INFORMATION CONTACT: For Recommendations 2023-1, 2023-2,
and 2023-3, Kazia Nowacki; and for Recommendation 2023-4, Matthew A.
Gluth. 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 www.acus.gov.
The Assembly of the Conference met during its Seventy-ninth Plenary
Session on June 15, 2023, to consider four proposed recommendations and
conduct other business. All four recommendations were adopted.
Recommendation 2023-1, Proactive Disclosure of Agency Legal
Materials. This recommendation identifies statutory reforms that, if
enacted by Congress, would 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
amendments also account for technological developments and correct
certain statutory ambiguities and drafting errors. The objective of
these amendments is to ensure that agencies provide ready public access
to important legal materials in the most efficient way possible.
Recommendation 2023-2, Virtual Public Engagement in Agency
Rulemaking. This recommendation identifies best practices to promote
enhanced transparency, accessibility, and accountability when agencies
use virtual tools to host public engagement meetings during the
rulemaking process. It encourages agencies to offer virtual options
when it would be beneficial to do so and offers best practices for
structuring virtual public engagements in a way that meets public
expectations and promotes valuable input for the agency.
Recommendation 2023-3, Using Algorithmic Tools in Retrospective
Review of Agency Rules. This recommendation identifies best practices
for agencies to consider when designing or using artificially
intelligent or other algorithmic tools to identify rules that are
outmoded or redundant, contain typographical errors or inaccurate
cross-references, or might benefit from resolving issues with
intersecting or overlapping rules or standards. It also discusses how
agencies can design these tools in a way that promotes transparency,
public participation, and accountability.
Recommendation 2023-4, Online Processes in Agency Adjudication.
This recommendation identifies best practices for developing online
processes by which private parties, representatives, and other
participants in agency adjudications can file forms, evidence, and
briefs; view case materials and status information; receive notices and
orders; and perform other common adjudicative tasks.
The Conference based its recommendations on research reports and
prior history that are posted at: https://www.acus.gov/event/79th-plenary-session.
The Appendix below sets forth the full texts of each
recommendation. The Conference will transmit the recommendations to
affected agencies, Congress, and the Judicial Conference of the United
States, as appropriate.
Authority: 5 U.S.C. 595.
Dated: June 28, 2023.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2023-1
Proactive Disclosure of Agency Legal Materials
Adopted June 15, 2023
Agencies produce many kinds of legal materials--that is,
documents that establish, interpret, apply, explain, or address the
enforcement of legal rights and obligations, along with constraints
imposed, implemented, or enforced by or upon an agency.\1\ Agency
legal materials come in many forms, ranging from generally
applicable rules to orders issued in the adjudication of individual
cases. Many statutes govern the public disclosure of these
materials, including the Freedom of Information Act (FOIA),\2\ the
Federal Register Act,\3\ and the E-Government Act of 2002.\4\
Together, these statutes require agencies to proactively disclose
certain materials, either by publishing them in the Federal Register
or posting them on their websites. Other materials must be made
available upon request. Some materials, based on their nature or
content, are exempt from disclosure.
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\1\ Bernard W. Bell, Cary Coglianese, Michael Herz, Margaret B.
Kwoka & Orly Lobel, Disclosure of Agency Legal Materials 5 (May 30,
2023) (report to the Admin. Conf. of the U.S.).
\2\ 5 U.S.C. 552.
\3\ 41 U.S.C. ch. 15.
\4\ Public Law 107-347, 116 Stat. 2899 (2002).
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Since its establishment, the Administrative Conference has
adopted dozens of recommendations encouraging agencies to
proactively disclose important legal materials, even beyond what the
law currently requires, and to make them publicly available in a
readily accessible fashion.\5\ The Conference has identified best
[[Page 42679]]
practices that, in some cases, Congress could implement through
legislative action.
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\5\ Recommendations adopted in recent years include: Admin.
Conf. of the U.S., Recommendation 2022-6, Public Availability of
Settlement Agreements in Agency Enforcement Proceedings, 88 FR 2312
(Jan. 13, 2023); 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 2020-
5, Publication of Policies Governing Agency Adjudicators, 86 FR 6622
(Jan. 22, 2021); Admin. Conf. of the U.S., Recommendation 2019-3,
Public Availability of Agency Guidance Documents, 84 FR 38931 (Aug.
8, 2019); Recommendation 2018-5, Public Availability of Adjudication
Rules, 84 FR 2142 (Feb. 6, 2019); and Recommendation 2017-1,
Adjudication Materials on Agency Websites, 82 FR 31039 (July 5,
2017).
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Considering the principal statutes governing the disclosure of
agency legal materials, the Conference has also identified
problems--inconsistencies and uncertainties, for example--that
Congress should remedy through statutory reforms. Developed at
different times and for different purposes, these statutes contain
overlapping requirements that are sometimes difficult to harmonize.
Some statutes are quite old--the Federal Register Act, for example,
dates from 1935--and technological developments and organizational
changes have rendered certain provisions outdated. Some statutory
provisions are vague, which has led to litigation over their meaning
and to differing agency practices.\6\
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\6\ See generally Bell et al., supra note 1.
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To ensure that agencies provide ready public access to important
legal materials in the most efficient manner, this Recommendation
identifies several statutory reforms that, if enacted by Congress,
would provide clear standards as to what legal materials agencies
must publish in the Federal Register, post on their websites, or
otherwise proactively disclose. The Conference recognizes that these
statutory reforms would impose additional initial and ongoing costs
on agencies. At the same time, proactive disclosure of agency legal
materials may save staff time or money through a reduction in the
volume of FOIA requests or printing costs, or an increase in the
speed with which agency staff will be able to respond to remaining
FOIA requests. In assigning responsibilities for overseeing the
development and implementation of the proactive disclosure plans and
for overseeing the agency's compliance with all legal requirements
for the proactive disclosure of agency legal materials, agencies may
wish to consider existing officials and the potential for
overlapping or shared responsibilities.\7\
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\7\ For example, 5 U.S.C. 552(j) requires agencies to designate
a Chief FOIA Officer.
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This Recommendation should not be considered as an exhaustive
catalog of useful reforms. For example, it does not address whether
the exemptions from FOIA's general disclosure requirements \8\
should be amended or recommend actions that may be at odds with
FOIA. The statutory reforms proposed in this Recommendation
therefore would not require agencies to proactively disclose matters
exempted or excluded from FOIA's general disclosure requirements,
including ``inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in
litigation with the agency.'' Congress should also consider
timeframes for implementation of the proactive disclosure
recommendations, whether for newly created or preexisting agency
legal materials.
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\8\ 5 U.S.C. 552(b).
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Nothing in this Recommendation should be interpreted to
constitute the Conference's interpretation of the statutes governing
the disclosure of agency legal materials. Any recommendation that a
statutory provision be amended to ``provide'' something does not
necessarily mean that the law does not already require it. Nor
should this Recommendation be read as superseding the Conference's
many previous recommendations on the disclosure of agency legal
materials. In the absence of congressional action, the Conference
encourages agencies to adopt the best practices identified in this
Recommendation and its many previous recommendations.
Recommendation
Proactive Disclosure of Agency Legal Materials
1. Congress should amend 5 U.S.C. 552(a)(2) to provide, subject
to Paragraph 2 of this Recommendation and the exemptions and
exclusions in 5 U.S.C. 552(b) and (c), that each agency make
available on its website:
a. Final opinions and orders issued in adjudications that are
governed by 5 U.S.C. 554 and 556-557 or otherwise issued after a
legally required opportunity for an evidentiary hearing. Each agency
should proactively disclose any such opinion or order regardless of
whether the agency designates the opinion or order as precedential,
published, or other similar designation;
b. Written documents that communicate to a member of the public
the agency's decision not to enforce a legal requirement against an
individual or entity. Such documents may include decisions to grant
an individual or entity a waiver or exemption, and advisory opinions
that apply generally applicable legal requirements to specific facts
or explain how the agency will exercise its discretion in particular
cases;
c. Written legally binding opinions and memoranda issued by or
under the authority of its chief legal officers;
d. Settlement agreements to which the agency is a party;
e. Memoranda of understanding, memoranda of agreement, and other
similar inter-agency or inter-governmental agreements that affect a
member of the public;
f. Any operative agency delegations of legal authority;
g. Any operative orders of succession for agency positions whose
occupants must be appointed by the President with the advice and
consent of the Senate; and
h. Any statutory or agency designations of first assistant
positions to positions whose occupants must be appointed by the
President with the advice and consent of the Senate.
2. Congress should provide in 5 U.S.C. 552 that an agency may
promulgate regulations providing that it will not proactively
disclose some records described in Paragraph 1 of this
Recommendation, and subject to the exemptions and exclusions in 5
U.S.C. 552(b) and (c), because individual records in the relevant
category do not vary considerably in terms of their factual contexts
or the legal issues they raise, or that proactive disclosure of such
documents would be misleading. Any such rule should explain which
records the agency will not proactively disclose and what other
information (e.g., aggregate data, representative samples), if any,
the agency will proactively disclose instead to adequately inform
the public about agency activities.
3. Congress should provide a mechanism for ensuring that
agencies:
a. Develop and post disclosure plans--internal management plans
and procedures for making legal materials available online on their
websites; and
b. Designate an officer or officers responsible for overseeing
the development and implementation of the proactive disclosure plans
described in Paragraph 3(a), and for overseeing the agency's
compliance with all legal requirements for the proactive disclosure
of agency legal materials.
4. Because various provisions of the E-Government Act, Public
Law 107-347, governing proactive disclosure are duplicative, contain
drafting errors, or are outdated, Congress should amend the statute
to:
a. Delete 206(b);
b. Delete ``and (b)'' in 207(f)(1)(A)(ii); and
c. Eliminate references to the Interagency Committee on
Government Information, which no longer exists. Congress should
instead require that the Office of Management and Budget, after
consultation with other relevant inter-agency bodies, periodically
update its guidance on federal agency public websites to ensure that
agencies present legal materials, required to be disclosed
proactively, on their websites in a clear, logical, and readily
accessible fashion.
5. Congress should provide that each agency should post each of
its legislative rules, or a link to those rules, on its website, and
should, to the extent feasible, include links to related agency
legal materials, such as preambles and other guidance documents
explaining the rule or significant adjudicative opinions
interpreting or applying it.
Enforcement of Proactive Disclosure Requirements
6. Congress should provide that a person may use the process
described in 5 U.S.C. 552(a)(3) to request that an agency
proactively disclose certain records when the requestor alleges the
agency is legally required to proactively disclose the records but
has not done so.
7. Congress should provide in 5 U.S.C. 552(a)(4) that when a
district court finds that an agency has not proactively disclosed
records when legally required to do so, the reviewing court may
order the agency to make them available to the general public in the
manner required by the proactive disclosure provisions of 5 U.S.C.
552(a). Congress should also provide that a requester must exhaust
administrative remedies required by 5 U.S.C. 552 before filing a
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complaint in district court to compel an agency to proactively
disclose records.
Preparation of Proposed Legislation
8. The Conference's Office of the Chair should prepare and
submit to Congress proposed statutory changes consistent with this
Recommendation.
Administrative Conference Recommendation 2023-2
Virtual Public Engagement in Agency Rulemaking
Adopted June 15, 2023
The law often requires agencies to give interested persons an
opportunity to participate in rulemakings.\1\ Presidential
directives, including Executive Order 14,094, Modernizing Regulatory
Review, also instruct agencies to proactively engage a range of
interested or affected persons, including underserved communities
and program beneficiaries.\2\ And as a matter of best practice, the
Administrative Conference has encouraged agencies to consider
additional opportunities for public engagement.\3\
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\1\ See, e.g., 5 U.S.C. 553(c).
\2\ 88 FR 21879 (Apr. 6, 2023).
\3\ 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 2018-7, Public Engagement in Rulemaking,
84 FR 2146 (Feb. 6, 2019); Admin. Conf. of the U.S., Recommendation
2017-2, Negotiated Rulemaking, 82 FR 31040 (July 5, 2017); Admin.
Conf. of the U.S., Recommendation 2014-6, Petitions for Rulemaking,
79 FR 75117 (Dec. 17, 2014); Admin. Conf. of the U.S.,
Recommendation 2013-5, Social Media in Rulemaking, 78 FR 76269 (Dec.
17, 2013); Admin. Conf. of the U.S., Recommendation 2011-8, Agency
Innovations in E- Rulemaking, 77 FR 2264 (Jan. 17, 2012); Admin.
Conf. of the U.S., Recommendation 2011-1, Legal Considerations in E-
Rulemaking, 76 FR 48789 (Aug. 9, 2011); Admin. Conf. of the U.S.,
Recommendation 76-3, Procedures in Addition to Notice and the
Opportunity for Comment in Informal Rulemaking, 41 FR 29654 (July
19, 1976); Admin. Conf. of the U.S., Recommendation 72-1, Broadcast
of Agency Proceedings, 38 FR 19791 (July 23, 1973).
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Interested persons are often able to learn about participation
opportunities through notice in the Federal Register and participate
in the rulemaking by submitting written data, views, and arguments,
typically after the agency has issued a notice of proposed
rulemaking (NPRM).
Agencies may also provide opportunities for oral presentation,
whether before or after an NPRM has been issued. This opportunity
can take the form of a public hearing, meeting, or listening
session--what this Recommendation refers to as a ``public rulemaking
engagement.'' Agencies may provide a public rulemaking engagement
because a statute, presidential directive, or agency rule or policy
requires one or because such engagement would improve agency
decision making and promote public participation in regulatory
policymaking.\4\ The Conference has encouraged agencies to hold
public rulemaking engagements when it would be beneficial to do so
and to explore more effective options for notice, to ensure
interested persons are aware of and understand regulatory
developments that affect them. Agencies also directly engage with
people and organizations that are interested in and affected by
their rules, and the Conference has encouraged them to do so
consistent with rules governing the integrity of the rulemaking
process.\5\
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\4\ Kazia Nowacki, Virtual Public Engagement in Agency
Rulemaking 5-6 (May 25, 2023) (report to the Admin. Conf. of the
U.S.).
\5\ See Admin. Conf. of the U.S., Recommendation 2014-4, ``Ex
Parte'' Communications in Informal Rulemaking, 79 FR 35993 (June 25,
2014).
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When agencies engage with the public, they must ensure that they
meet all legal accessibility requirements.\6\ Effective public
engagement also requires that agencies identify and address barriers
to participation, including geographical constraints, resource
limitations, and language barriers. For example, to ensure that all
people affected by a rulemaking are aware of the rulemaking and
opportunities to participate, the Conference has recommended that
agencies conduct outreach that targets members of the public with
relevant views who do not typically participate in rulemaking or may
otherwise not be represented.\7\
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\6\ See, e.g., Rehabilitation Act of 1973, 508, 29 U.S.C. 794d;
Plain Writing Act of 2010, Public Law 111-274, 124 Stat. 2861; E.O.
13985, 86 FR 7009 (Jan. 20, 2021); E.O. 13,166, 65 FR 50121 (Aug.
11, 2000).
\7\ E.g., Admin. Conf. of the U.S., Recommendation 2021-3, Early
Public Input on Regulatory Alternatives, paragraph 3, 86 FR 36082-
36083 (July 8, 2021); Admin. Conf. of the U.S., Recommendation 2018-
7, Public Engagement in Rulemaking, paragraph 1(b), 84 FR 2146-2147
(Feb. 6, 2019).
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In recent years, and especially during the COVID-19 pandemic,
agencies increasingly have used widely available, internet-based
videoconferencing software to engage with the public.\8\ By reducing
some barriers that people--especially members of historically
underserved communities--encounter, virtual public engagement can
help broaden participation in agency rulemakings.\9\ At the same
time, virtual engagements may present barriers to access for some
people, such as low-income individuals for whom it may be difficult
to obtain access to high-quality personal devices or private
internet services, individuals in rural areas who lack access to
broadband internet, individuals whose disabilities prevent effective
engagement in virtual proceedings or make it difficult to set up and
manage the necessary technology, and individuals with limited
English proficiency. Some individuals may also have difficulty, feel
uncomfortable, or lack experience using a personal device or
internet-based videoconferencing software to participate in an
administrative proceeding.\10\
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\8\ This mirrors developments with respect to the use of virtual
hearings in agency adjudication. See Admin. Conf. of the U.S.,
Recommendation 2021-6, Public Access to Agency Adjudicative
Proceedings, 87 FR 1715 (Jan. 12, 2022); Admin. Conf. of the U.S.,
Recommendation 2021-4, Virtual Hearings in Agency Adjudication, 86
FR 36083 (July 8, 2021).
\9\ Kazia Nowacki, Virtual Public Engagement in Agency
Rulemaking (May 25, 2023) (report to the Admin. Conf. of the U.S.).
\10\ Cf. Recommendation 2021-4, supra note 8.
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This Recommendation encourages agencies to offer virtual options
when they determine it would be beneficial to hold a public
rulemaking engagement or directly engage with specific people and
organizations. It also offers best practices for planning, improving
notice of, and managing public rulemaking engagements, as well as
ensuring that members of the public can easily access materials
related to virtual public rulemaking engagements (e.g., agendas,
recordings, transcripts) and underlying rulemakings (e.g., draft
rules, docket materials).
This Recommendation builds on many previous recommendations of
the Conference regarding public participation in agency rulemaking,
including Recommendation 2018-7, Public Engagement in Rulemaking,
which, among other things, encourages agencies to develop
comprehensive plans for public engagement in rulemaking, and
Recommendation 2014-4, ``Ex Parte'' Communications in Informal
Rulemaking, which offers best practices for engaging with members of
the public while safeguarding the integrity of agency rulemaking.
Recommendation
Virtual Public Engagement Planning
1. Agencies that engage in rulemaking should, when feasible and
appropriate, utilize internet-based videoconferencing software as a
means of broadening engagement with interested persons in a cost-
effective way, including through outreach that targets members of
the public with relevant views who do not typically participate in
rulemaking or may otherwise not be represented. As part of its
overall policy for public engagement in rulemaking (described in
Recommendation 2018-7, Public Engagement in Rulemaking), each agency
should explain how it intends to use internet-based
videoconferencing to engage with the public.
2. Each agency should ensure that its policies regarding
informal communications between agency personnel and individual
members of the public related to a rulemaking (described in
Recommendation 2014-4, ``Ex Parte'' Communications in Informal
Rulemaking) cover communications that take place virtually.
3. Each agency should prepare and post to a publicly available
website guidance on the conduct of virtual public rulemaking
engagements--that is, a meeting, hearing, listening session, or
other live event that is rulemaking related and open to the general
public--and ensure employees involved with such engagements are
familiar with that guidance.
4. When an agency plans to hold a public rulemaking engagement,
it should allow for interested persons to observe the engagement
remotely and, when feasible, provide input and ask questions
remotely.
5. When an agency decides to hold a public rulemaking
engagement, rulemaking personnel should collaborate with personnel
who oversee communications, public affairs, public engagement, and
other relevant activities for the agency to ensure the engagement
reaches the potentially interested members of the public and
facilitates effective participation from those persons,
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including groups that are affected by the rulemaking and may
otherwise have been underrepresented in the agency's administrative
process.
Notice
6. An agency should include, as applicable, the following
information in the public notices for a public rulemaking engagement
with a virtual or remote component:
a. The date and time of the engagement, at the beginning of the
notice;
b. Options for remote attendance, including a direct link or
instructions to obtain a direct link to the internet-based
videoconference event and alternative remote attendance options for
members of the public without access to broadband internet, at the
beginning of the notice;
c. A plain-language summary of the rulemaking and description of
the engagement's purpose and agenda and the nature of the public
input, if any, the agency is seeking to obtain through the
engagement;
d. A link to the web page described in Paragraph 7;
e. Information about opportunities for members of the public to
speak during the engagement, including any directions for requesting
to speak and any moderation policies, such as limits on the time for
speaking;
f. The availability of services such as closed captioning,
language interpretation, and telecommunications relay services and
access instructions;
g. The availability and location of a recording, a transcript, a
summary, or minutes; and
h. Contact information for a person who can answer questions
about the engagement or arrange accommodations.
7. To encourage participation in a public rulemaking engagement,
the agency should create a dedicated web page for each such
engagement that includes the information described in Paragraph 6.
The web page should include, as applicable, a link to:
a. The internet-based videoconferencing event, its registration
page, or information for alternative remote attendance options for
members of the public without access to broadband internet;
b. The Federal Register notice;
c. Any materials associated with the engagement, such as an
agenda, a program, speakers' biographies, a draft rule, the
rulemaking docket, or questions for participants;
d. A livestream of the engagement for the public to observe
while it is occurring; and
e. Any recording, transcript, summary, or minutes after the
engagement has ended.
8. The Office of the Federal Register (OFR) should update the
Document Drafting Handbook to provide agencies guidance on drafting
Federal Register notices for public rulemaking engagements with
virtual or remote components that include the information described
in Paragraph 6.
9. OFR and the eRulemaking Program should update the ``Document
Details'' sidebar on FederalRegister.gov and Regulations.gov to
include, for any rulemaking in which there is a public rulemaking
engagement, a link to the agency web page described in Paragraph 7.
Managing Virtual Public Engagements
10. When feasible, each agency should allow interested persons
to observe a livestream of the public rulemaking engagement remotely
and should not require members of the public to register. Agencies
may want to set a registration deadline for those wishing to speak
or requiring accommodations.
11. To manage participants' expectations, an agency should
communicate the following matters, among others, to participants at
the beginning of the event:
a. The purpose and goal of the engagement;
b. The moderation policies, including those governing speaking
time limits and whether or why the agency will or will not respond
to oral statements made by participants;
c. The management of the public speaking queue;
d. Whether the chat function, if using an internet-based
videoconferencing platform, will be disabled or monitored and, if
monitored, whether the chat will be included in the record;
e. How participants can access the rulemaking materials
throughout the meeting; and
f. Whether the event will be recorded or transcribed and where
it will be made available.
12. As agency resources allow, each agency should ensure it has
adequate support to run public rulemaking engagements, including
their virtual and other remote components. Adequate support might
include technological or troubleshooting assistance, a third-party
moderating service, or a sufficient number of available staff
members.
Recordings and Transcripts
13. When an agency holds a public rulemaking engagement, it
should record, transcribe, summarize, or prepare meeting minutes of
the engagement unless doing so would adversely affect the
willingness of public participants to provide input or ask
questions.
14. Each agency should, in a timely manner, make any recording,
transcript, summary, or minutes of a public rulemaking engagement
available in any public docket associated with the rulemaking and on
the web page described in Paragraph 7.
Fees
15. Agencies should not assess fees on the public for virtual
public engagement.
Administrative Conference Recommendation 2023-3
Using Algorithmic Tools in Retrospective Review of Agency Rules
Adopted June 15, 2023
Retrospective review is the process by which agencies assess
existing rules and decide whether they need to be revisited.
Consistent with longstanding executive-branch policy, the
Administrative Conference has endorsed the practice of retrospective
review of agency rules (including those that incorporate standards
by reference), encouraged regulatory agencies to cultivate a culture
of retrospective review, and urged agencies to establish plans to
conduct retrospective reviews periodically.\1\ The Conference has
also recognized, however, that agencies often have limited resources
available to conduct retrospective reviews. To encourage agencies to
undertake retrospective reviews despite resource limitations, the
Conference has identified opportunities for agencies to conserve
resources, for example by taking advantage of internal and external
sources of information and expertise.\2\
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\1\ See, e.g., Admin. Conf. of the U.S., Recommendation 2021-2,
Periodic Retrospective Review, 86 FR 36080 (July 8, 2021); Admin.
Conf. of the U.S., Recommendation 2017-6, Learning from Regulatory
Experience, 82 FR 61783 (Dec. 29, 2017); Admin. Conf. of the U.S.,
Recommendation 2014-5, Retrospective Review of Agency Rules, 79 FR
75114 (Dec. 17, 2014); Admin. Conf. of the U.S., Recommendation
2011-5, Incorporation by Reference, 77 FR 2257 (Jan. 17, 2012);
Recommendation 95-3, Review of Existing Agency Regulations, 60 FR
43108 (Aug. 18, 1995).
\2\ Admin. Conf. of the U.S., Recommendation 2014-5,
Retrospective Review of Agency Rules, 79 FR 75114 (Dec. 17, 2014).
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New technologies may offer additional opportunities for agencies
to conserve resources and conduct more robust retrospective review
in a cost-effective manner. Among these, algorithmic tools may
enable agencies to automate some tasks associated with retrospective
review. An algorithmic tool is a computerized process that uses a
series of rules or inferences drawn from data to transform specified
inputs into outputs to make decisions or support decision making.\3\
The use of such tools may also help agencies identify issues that
they otherwise might not detect. The General Services Administration
(GSA) and several other agencies have already begun experimenting
with the use of algorithmic tools to conduct some tasks in service
of retrospective review or similar functions.\4\
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\3\ Algorithmic tools include, but are not limited to,
applications that use artificial intelligence techniques.
\4\ Catherine M. Sharkey, Algorithmic Retrospective Review of
Agency Rules (May 3, 2023) (report to the Admin. Conf. of the U.S.).
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Although algorithmic tools hold out the promise of lowering the
cost of completing governmental tasks and improving the quality,
consistency, and predictability of agencies' decisions, agencies'
use of algorithmic tools also raises important concerns.\5\
Statutes, executive orders, and agency policies highlight many such
concerns.\6\ In a prior Statement, the Conference itself described
concerns about transparency (especially given the
[[Page 42682]]
proprietary nature of some artificial intelligence (AI) systems),
harmful bias, technical capacity, procurement, data usage and
storage, privacy, security, and the full or partial displacement of
human decision making and discretion that may arise when agencies
rely on AI tools.\7\ There are also practical challenges associated
with the development and use of agency-specific algorithmic tools
that may lead agencies to rely on the algorithmic tools developed
and used by GSA and other agencies. These challenges include the
potentially high startup costs associated with developing or
procuring them, the need to develop internal capacity and expertise
to use them appropriately, related needs in staffing and training,
and the need for ongoing maintenance and oversight.
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\5\ David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey &
Mariano-Florentino Cu[eacute]llar, Government by Algorithm:
Artificial Intelligence in Federal Administrative Agencies (Feb.
2020) (report to the Admin. Conf. of the U.S.).
\6\ See, e.g., AI Training Act, Public Law 117-207, 136 Stat.
2237 (Oct. 17, 2022); E.O. 14091, Further Advancing Racial Equity
and Support for Underserved Communities Through the Federal
Government, 88 FR 10825 (Feb. 16, 2023); E.O. 13960, Promoting the
Use of Trustworthy Artificial Intelligence in the Federal
Government, 85 FR 78939 (Dec. 3, 2020); E.O. 13859, Maintaining
American Leadership in Artificial Intelligence, 84 FR 3967 (Feb. 11,
2019).
\7\ Admin. Conf. of the U.S., Statement #20, Agency Use of
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021).
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The Conference recognizes that agencies may be able to leverage
algorithmic tools to more efficiently, cost-effectively, and
accurately identify rules (including those that incorporate
standards by reference) that are outmoded or redundant, contain
typographic errors or inaccurate cross-references, or might benefit
from resolving issues with intersecting or overlapping rules or
standards. Because agencies have only recently begun using
algorithmic tools to support retrospective review, this
Recommendation does not address the potential use of those tools to
perform more complex tasks--such as identifying rules that may need
to be modified, strengthened, or eliminated to better achieve
statutory goals or reduce regulatory burdens--for which the
potential risks and benefits are still unclear and which may raise
additional issues regarding agency decision making, including those
highlighted above. This Recommendation identifies best practices for
agencies to acquire, use, and assess algorithmic tools for
retrospective review in a way that accords with applicable legal
requirements and promotes accuracy, efficiency, transparency, and
accountability. To encourage coordination and collaboration across
the executive branch, this Recommendation also encourages GSA to
continue to explore options for developing, acquiring, and using
algorithmic tools to support retrospective review and share its
findings and capabilities with other agencies, and the Office of
Management and Budget to provide guidance on the use of these tools
to support retrospective review.
Recommendation
1. Agencies should assess whether they can use algorithmic tools
to more efficiently, cost-effectively, and accurately identify rules
(including those that incorporate standards by reference) that are
outmoded or redundant, contain typographic errors or inaccurate
cross-references, or might benefit from resolving issues with
intersecting or overlapping rules or standards.
2. When agencies contemplate using an algorithmic tool to
support retrospective review, they should consider whether it would
be most efficient, cost-effective, and accurate to develop a new
tool in-house, implement a tool developed and made available by
another agency, or procure a tool from a commercial vendor or
contractor. In making this determination, agencies should assess
whether there is an existing tool that meets their needs and, in so
doing, consult with other agencies that have experience using
algorithmic tools to support retrospective review. If there is no
such tool, agencies should consider whether they have sufficient in-
house expertise and capacity to develop an adequate tool.
3. Agencies should ensure that agency personnel who use
algorithmic tools to support retrospective review have adequate
training on the capabilities and risks of those tools and that
regulatory decision makers carefully assess the output before
relying on it.
4. To promote transparency and build internal expertise,
agencies should, when developing or selecting an algorithmic tool to
support retrospective review, consider open-source options and those
that would maximize interoperability with other government systems.
Agencies should ensure that key information about the algorithmic
tool's development, operation, and use is available to agency
personnel and the public.
5. When agencies publish retrospective review plans and
descriptions of specific retrospective reviews, as described in
Recommendation 2021-2, Periodic Retrospective Review, they should
disclose whether, and if so, explain how, they plan to use or used
algorithmic tools to support retrospective review. Additionally,
when agencies incorporate retrospective reviews in their Learning
Agendas and Annual Evaluation Plans, as described in Recommendation
2021-2, they should include information about the use of algorithmic
tools.
6. When the analysis deriving from a retrospective review using
an algorithmic tool will influence a new rulemaking, agencies should
be transparent about their use of the tool and explain how the tool
contributed to the decision to develop the new rule.
7. Agencies should share their experiences with each other in
using these tools. To manage risk and monitor internal processes,
agencies should consider developing their own internal evaluation
and oversight mechanisms for algorithmic tools used in retrospective
review, both for initial approval of a tool and, as applicable, for
regular oversight of the tool.
8. The General Services Administration should continue to
explore options for developing, acquiring, and using algorithmic
tools to support retrospective review and share its findings and
capabilities with other agencies.
9. The Office of Management and Budget should provide guidance
on the use of algorithmic tools to support retrospective review.
Administrative Conference Recommendation 2023-4
Online Processes in Agency Adjudication
Adopted June 15, 2023
Millions of people each year navigate adjudication systems
administered by federal agencies to, among other actions, access
benefits and services, answer charges of legal noncompliance, and
settle disputes with third parties. Individuals participating in
these systems often expend substantial time and resources completing
forms, submitting evidence and arguments, and monitoring their
cases, while agencies expend substantial time and resources
processing submissions, managing dockets, and providing case
updates.
To improve accuracy, efficiency, and accessibility, and fulfill
legal obligations to develop electronic business processes,\1\
agencies increasingly have deployed online processes by which
parties, their representatives, and other interested persons can
perform routine tasks such as filing, serving, and viewing forms,
briefs, evidence, and other case records or materials.\2\ These
processes range from simple email-based systems to robust online
self-help portals that allow users to update contact information,
communicate with agencies, complete forms, submit and view case
records or materials, and perform other tasks. These processes
ideally link with agencies' own electronic case management
systems,\3\ which serves also to reduce the time agency staff spend
receiving paper records, converting them into an electronic format,
and associating them with case files.
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\1\ See, e.g., 21st Century Integrated Digital Experience Act,
Public Law 115-336, 132 Stat. 5025 (2018); E.O. 14058, 86 FR 71357
(Dec. 16, 2021); OMB, Exec. Off. of the President, M-19-21,
Memorandum for Heads of Executive Departments and Agencies,
Transition to Electronic Records (June 28, 2019); OMB, Exec. Off. of
the President, M-23-07, Memorandum for Heads of Executive
Departments and Agencies, Update to Transition to Electronic Records
(Dec. 23, 2022); OMB, Exec. Off. of the President, Circular No. A-
11, Sec. 280 (2020).
\2\ Matthew A. Gluth, Online Processes in Agency Adjudication
(May 24, 2023) (report to the Admin. Conf. of the U.S.).
\3\ See Admin. Conf. of the U.S., Recommendation 2018-3,
Electronic Case Management in Federal Administrative Adjudication,
83 FR 30683 (June 29, 2018).
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If properly deployed, these processes make adjudication systems
easier to use and more accessible to the public, reduce the
administrative burden on agency staff, and increase the accuracy of
information collected during adjudication. However, these processes
can also pose significant risks, including increased burdens due to
poor design, exposure of agencies' computer systems to malware and
other security threats, and ongoing costs of maintenance and
upgrades. In designing and implementing online processes, agencies
should not only address these risks but also ensure that they meet
all legal accessibility requirements.\4\ In addition, agencies
should
[[Page 42683]]
make user resources available in languages other than English.\5\
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\4\ See, e.g., Rehabilitation Act of 1973, 508, 29 U.S.C. 794d;
Plain Writing Act of 2010, Public Law 111-274, 124 Stat. 2861; E.O.
13985, 86 FR 7009 (Jan. 25, 2021).
\5\ See, e.g., E.O. 13166, 65 FR 50121 (Aug. 11, 2000).
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Examples of agencies with online adjudication processes include
the Social Security Administration, Department of Veterans Affairs,
and U.S. Citizenship and Immigration Services, which have launched
robust customer service portals that let parties perform tasks at
many stages of adjudication from case initiation through appeal.
Others have only recently begun to develop online processes,
particularly in response to office closures during the COVID-19
pandemic.
This Recommendation encourages agencies to develop online
processes and provides best practices for agencies to consider when
doing so. Of course, agencies have different needs, serve different
communities, and have different resources available to them.
Further, what works best for one agency may not be appropriate for
another. This Recommendation identifies steps that agencies can
consider at any stage of developing online processes to improve the
accuracy, efficiency, and accessibility of their adjudication
systems.
Recommendation
Accessing Online Processes in Adjudication Systems
1. Agencies' online processes should work effectively with
relevant electronic case management systems (eCMS) and agency
websites where adjudication materials are made publicly available.
2. Agencies should develop online self-help portals that allow
users, as applicable and when feasible, to:
a. Update contact information, including email addresses, phone
numbers, and physical addresses;
b. Complete and submit forms;
c. File briefs, evidence, and other documents;
d. Receive service of documents, including documents filed by
other parties and agency notices and orders;
e. View and download case documents;
f. Make payments (e.g., filing fees, application fees, civil
penalties);
g. Schedule meetings, conferences, hearings, and other
appointments;
h. Access virtual appointments;
i. View case status information and information about deadlines,
appointments, and wait times, when agencies can reliably predict
them;
j. Receive reminders about upcoming deadlines and appointments;
and
k. Receive notifications about new documents, status changes,
and other developments in their cases.
3. Online self-help portals should allow different
functionality, with appropriate permissions, for different types of
users, including agency staff and contractors, parties, intervenors,
representatives and their staff, amici curiae, and the public.
4. Agencies should ensure online self-help portals employ
security mechanisms, such as firewalls and encryption, to protect
sensitive user information and maintain the system's integrity.
Agencies should also ensure self-help portals employ mechanisms to
authenticate users when necessary. Agencies that authenticate users
by requiring them to register for and log in to online self-help
portals should allow users to use Login.gov or other universal
logins used by government agencies. These security mechanisms should
not compromise the ability of non-authenticated users to access
public documents.
Electronic Filing and Forms
5. Agencies should permit, and consider requiring, parties to
file documents electronically.
If agencies require electronic filing, they should implement
exceptions for when electronic filing would be impossible or
impracticable or a party has demonstrated good cause for using an
alternative means of submission.
6. Agencies should ensure that their processes for electronic
filing allow users, as applicable and when feasible, to:
a. File documents in batches;
b. File documents of a large enough size to encompass common
filings;
c. File documents in multiple file formats, except that users
should be required to file documents in a format that cannot be
edited, such as Portable Document Format (PDF), unless a specific
procedure requires parties to submit documents that can be edited
(e.g., a proposed order);
d. Notify the agency that documents being filed contain legally
protected or other sensitive information; and
e. Notify the agency that documents are being filed under seal
or in camera.
7. Agencies without an eCMS should allow participants in an
adjudication to file briefs, exhibits, and other documents
electronically by emailing them to a designated agency email
address, uploading them to a web-accessible file-hosting service, or
transferring them to the agency using a secure file transfer
protocol (SFTP).
8. Agencies with an eCMS should develop tools that can be used
to submit documents directly into the eCMS. These tools should
require users to provide, or allow the system to capture,
information about their submission, such as document type, purpose,
or date, which would be stored as structured metadata in the eCMS,
so long as it would not be confusing or burdensome for users.
9. Agencies with an eCMS should consider developing application
programming interfaces (APIs) that allow users, such as
representatives, who use their own eCMS to transfer data directly
and securely between a user's eCMS and the agency's eCMS, without
needing to use a self-help portal as an intermediary.
10. Agencies that have forms or templates for use in
adjudications (e.g., applications, appointment of representative,
hearing requests, requests for agency appellate review, subpoena
requests) should post PDF versions of the forms or templates on
their websites and allow users to complete, sign, and submit them
electronically. Agencies should adapt frequently used forms as web-
based forms that users can complete and submit using a web browser.
When feasible, web-based forms should:
a. Be prepopulated with information about a user or case that
the agency already has collected in an eCMS or other database; and
b. Be based on prepopulated data and previous responses,
requiring users to answer only questions that are relevant to them.
11. Except when explicitly prohibited by statute, agencies
should allow participants in adjudications to sign documents
electronically and, as applicable, accept as valid electronic
signatures:
a. A form or document submitted through an agency's online self-
help portal while registered for and logged in to the portal;
b. A cryptographic digital signature;
c. A scanned or other graphical representation of a handwritten
signature;
d. A conformed signature (e.g., ``/s/Jane Doe''); and
e. An email used to transmit the document.
12. Agencies should consider whether to review some or all
electronically filed documents before associating them with a case
file. For example, agencies should ensure that documents are
associated with the correct case file, that they comport with agency
rules, and that they do not disclose legally protected or other
sensitive information, such as when a party files or requests to
file a document under seal or in camera.
Electronic Service
13. Agencies should allow electronic service, except when
electronic service would be impossible or impracticable or a party
has good cause for needing alternative means of delivery.
14. Agencies with an eCMS should provide automated service
through notice when a document has been filed through the web
portal.
15. Agencies without an eCMS should allow parties to serve
documents to other parties electronically, such as by emailing
documents to other parties. Agencies that allow parties to submit
documents using a file-hosting service or SFTP should ensure that
all parties are notified when new documents become available.
Management of Sensitive Documents
16. Agencies that redact legally protected or other sensitive
information from documents before making them available to other
parties or publicly available should clarify whether parties should
submit redacted versions of documents or whether the agency will
make the necessary redactions.
Scheduling, Notifications, and Reminders
17. Agencies should provide an online tool for parties to
schedule meetings, conferences, hearings, and other appointments
efficiently and at times that are reasonably convenient for all
participants.
18. Agencies with an eCMS should provide automatic notifications
or reminders to users about important events and developments, such
as when (a) a new document has been submitted and is available to
view; (b) an agency notice or order is available to view; (c) the
case status changes; (d) a meeting, conference, hearing, or other
appointment is scheduled or upcoming; and (e) a filing deadline is
approaching. Notifications and
[[Page 42684]]
reminders should be available in an online self-service portal and
sent by email and/or by text message, according to user preferences.
Developing and Improving Online Processes
19. When designing and implementing online processes, especially
before making them mandatory, agencies should consult potential
users and relevant stakeholders, including parties, representatives,
adjudicators and adjudicative staff, agency personnel who represent
the government in adjudicative proceedings, and personnel who
provide customer service or oversee customer experience functions
for the agency. Agencies should also continuously solicit feedback
from users on their online processes, for example through online
surveys and listening sessions, and should use that feedback to
identify and prioritize improvements.
20. When designing or working with a contractor to design their
online processes, agencies should create systems that can be
expanded to incorporate new technologies without requiring
replacement.
21. Agencies should ensure that their online processes function
on multiple platforms including, when practicable, mobile devices.
Guidance, Training, and Outreach
22. Agencies should update their rules of practice to permit or,
when appropriate, require the use of online processes.
23. Agencies should develop self-help materials (e.g.,
instruction manuals, reference guides, instructional videos) and, if
needed, hold training sessions to help agency personnel and the
public understand how to use the agency's online processes.
Materials intended for the public should be posted in an appropriate
location on the agency's website and made accessible through any
online self-help portal.
24. Agencies should conduct public outreach if needed to
encourage parties and representatives to use their online processes,
even prior to making an online process mandatory.
25. Agencies should make staff available to assist all users of
the agency's online processes, including agency personnel, and
should inform users when such assistance is available (e.g., during
normal business hours).
[FR Doc. 2023-14069 Filed 6-30-23; 8:45 am]
BILLING CODE 6110-01-P