[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Notices]
[Pages 56276-56286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14981]
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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. 89, No. 131 / Tuesday, July 9, 2024 /
Notices
[[Page 56276]]
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) Eighty-first Plenary Session: Choice of Forum for Judicial
Review of Agency Rules, Individualized Guidance, Senate-Confirmed
Officials and Administrative Adjudication, and Managing Congressional
Constituent Service Inquiries.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2024-1, Kazia
Nowacki; Recommendation 2024-2, Benjamin Birkhill; Recommendation 2024-
3, Matthew Gluth; and Recommendation 2024-4, Conrad Dryland. 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 Eighty-first Plenary
Session on June 13, 2024, to consider four proposed recommendations and
conduct other business. All four recommendations were adopted. In
addition, three separate statements, which are permitted under ACUS's
bylaws, were filed by various ACUS members regarding Recommendation
2024-3, Senate-Confirmed Officials and Administrative Adjudication.
Recommendation 2024-1, Choice of Forum for Judicial Review of
Agency Rules. This recommendation provides that, when drafting a
statute that provides for judicial review of agency rules, Congress
ordinarily should provide that rules promulgated using notice-and-
comment procedures are subject to direct review by a court of appeals.
The recommendation also identifies common statutory ambiguities that
Congress should avoid in drafting new or amending existing statutes
that provide for judicial review of agency actions.
Recommendation 2024-2, Individualized Guidance. This recommendation
offers practices to promote fairness, accuracy, and efficiency in
agency processes for providing written guidance in response to requests
for advice from members of the public. Among other topics, it will
address processes for members of the public to request guidance from
agencies; agency practices for drafting responses to guidance requests,
including the personnel involved and mechanisms to ensure accuracy and
consistency; the public availability of individualized guidance
documents; and the extent to which members of the public can rely on
legal interpretations and policy statements made in individualized
guidance documents.
Recommendation 2024-3, Senate-Confirmed Officials and
Administrative Adjudication. This recommendation examines, as a legal
and practical matter, whether, when, how, and how often agency heads
and other Senate-confirmed officials participate in the adjudication of
cases across a range of federal administrative programs. For agencies
that have decided to provide or are considering providing for
participation by Senate-confirmed officials in the adjudication of
individual cases, the recommendation identifies principles and
practicalities that agencies should consider in structuring such
participation and provides best practices for developing and
communicating relevant policies regarding such participation.
Recommendation 2024-4, Managing Congressional Constituent Service
Inquiries. This recommendation identifies best practices for agencies
to promote quality, efficiency, and timeliness in their procedures for
managing and responding to congressional constituent service inquiries.
Among other topics, it addresses the proper scope, content, internal
dissemination, and public availability of such procedures; how agencies
can use technology to streamline their management and resolution of
constituent service inquiries; how agencies should adopt and evaluate
constituent service-specific performance goals; and strategies for
improving communication with congressional offices and staff.
The Conference based its recommendations on research reports and
prior history that are posted at: https://www.acus.gov/event/81st-plenary-session.
Authority: 5 U.S.C. 595.
Dated: July 2, 2024.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2024-1
Choice of Forum for Judicial Review of Agency Rules
Adopted June 13, 2024
Final rules adopted by federal agencies are generally subject to
review in the federal courts.\1\ In a series of recommendations
adopted in the 1970s, 1980s, and 1990s, the Administrative
Conference sought to identify principles to guide Congress in
choosing the appropriate forum for judicial review of agency rules.
The most significant was Recommendation 75-3, The Choice of Forum
for Judicial Review of Administrative Action, which recommended
that, in the case of rules adopted after notice and comment,
Congress
[[Page 56277]]
generally should provide for direct review in the courts of appeals
whenever ``an initial district court decision respecting the
validity of the rule will ordinarily be appealed'' or ``the public
interest requires prompt, authoritative determination of the
validity of the rule.'' \2\ Subsequent recommendations opposed
altering the ordinary rules governing venue in district court
actions against the United States,\3\ set forth a principle for
determining when it is appropriate to give the Court of Appeals for
the District of Columbia Circuit exclusive jurisdiction to review
agency rules,\4\ and offered guidance to Congress on the factors it
should consider in determining whether to assign responsibility for
review to a specialized court.\5\ The Conference also addressed the
choice of forum for judicial review of rules adopted under specific
statutes.\6\
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\1\ See 5 U.S.C. 702. This Recommendation does not address
judicial review of adjudicative orders, including those that
announce principles with rule-like effect or agency actions
regarding petitions for rulemaking. Additionally, the Recommendation
does not address suits challenging agency delay or inaction in
promulgating rules. See Telecomms. Rsch. & Action Ctr. v. Fed.
Commc'ns Comm'n, 750 F.2d 70, 72 (D.C. Cir. 1984); see generally
Joseph W. Mead, Choice of Forum for Judicial Review of Agency Rules
(May 9, 2024) (report to the Admin. Conf. of the U.S.).
\2\ 40 FR 27926 (July 2, 1975).
\3\ Admin. Conf. of the U.S., Recommendation 82-3, Federal Venue
Provisions Applicable to Suits Against the Government, 47 FR 30706
(July 15, 1982).
\4\ Id.
\5\ Admin. Conf. of the U.S., Recommendation 91-9, Specialized
Review of Administrative Action, 56 FR 67143 (Dec. 30, 1991).
\6\ Admin. Conf. of the U.S., Recommendation 76-4, Judicial
Review Under the Clean Air Act and Federal Water Pollution Control
Act, 41 FR 56767 (Dec. 30, 1976); Admin. Conf. of the U.S.,
Recommendation 91-5, Facilitating the Use of Rulemaking by the
National Labor Relations Board, 56 FR 33851 (July 24, 1991).
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Several years ago, the Conference undertook a study to identify
and review all statutory provisions in the United States Code
governing judicial review of federal agency rules and adjudicative
orders.\7\ Based on that initiative, ACUS adopted Recommendation
2021-5, Clarifying Statutory Access to Judicial Review of Agency
Action,\8\ which recommended that Congress address statutory
provisions that create unnecessary obstacles to judicial review or
overly complicate the process of judicial review. That
Recommendation also prompted questions regarding ``whether Congress
should specify where judicial review should be sought with regard to
agency actions that are not currently the subject of any specific
judicial review statute.'' \9\
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\7\ See Jonathan R. Siegel, Admin. Conf. of the U.S., Sourcebook
of Federal Judicial Review Statutes 33 (2021).
\8\ 86 FR 53262 (Sept. 27, 2021).
\9\ Id. at 53,262 n.7.
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In this Recommendation, the Conference revisits the principles
that should guide Congress in choosing the appropriate forum for
judicial review of agency rules and in drafting clear provisions
that govern the choice of forum. While this Recommendation offers
drafting advice to Congress, agencies may also find it useful in
responding to congressional requests for technical assistance.\10\
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\10\ See Admin. Conf. of the U.S., Recommendation 2015-2,
Technical Assistance by Federal Agencies in the Legislative Process,
80 FR 78161 (Dec. 16, 2015).
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Determining the Court in Which To Seek Review
Absent a statute providing otherwise, parties may seek judicial
review of agency rules in a district court. Although this approach
may be appropriate in some contexts, direct review by a court of
appeals is often more appropriate. For one, district court
proceedings are less necessary when an agency has already compiled
an administrative record that is adequate for judicial review and
further appeal of a district-court decision is likely. Allowing
parties to choose the district court in which to seek review also
creates opportunities for forum shopping to a greater extent than
when review is sought in a court of appeals.\11\ For these and other
reasons, Congress has in many contexts provided for direct review of
agency rules in the courts of appeals. And in a minority of
statutes, Congress has required parties to seek review in a single,
specified tribunal.
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\11\ See Mead, supra note 1; Admin. Conf. of the U.S.,
Recommendation 80-5, Eliminating or Simplifying the ``Race to the
Courthouse'' in Appeals from Agency Action, 45 FR 84954 (Dec. 24,
1980).
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In this Recommendation, the Conference generally reaffirms its
earlier recommendations that Congress ordinarily should provide for
direct review of agency rules by a court of appeals. The Conference
believes that this principle is particularly important for rules
promulgated through public notice and opportunity for comment. Such
procedures produce a record that is conducive to review by an
appeals court without need for additional development or
factfinding, and drawing the line at rules promulgated after public
notice and opportunity for comment provides a relatively clear
jurisdictional rule.
Avoiding Drafting Ambiguities
Courts have faced two sources of ambiguity in interpreting
choice-of-forum provisions which this Recommendation addresses.\12\
First, some statutes specify the forum for review of ``orders''
without specifying the forum for review of ``rules'' or
``regulations.'' This can lead to uncertainty regarding whether
``orders'' includes rules, particularly because the Administrative
Procedure Act defines an ``order'' as any agency action other than a
rule.\13\ Second, some statutes are unclear as to the forum in which
a party may file an action challenging the validity of a rule. A
lack of clarity may result from statutory silence or a choice-of-
forum provision of uncertain scope.
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\12\ The Committee on Judicial Review, from which this
Recommendation arose, identified a third source of ambiguity: Many
statutes are unclear as to whether choice-of-forum provisions
regarding rules apply only to rules promulgated by an agency or
whether they apply also to other rule-related actions such as delay
or inaction in promulgating a rule or the grant or denial of a
petition for rulemaking. This Recommendation does not address this
ambiguity. The Committee on Judicial Review has suggested it for
future study by the Conference.
\13\ 5 U.S.C. 551(6).
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This Recommendation urges Congress, in drafting new or amending
existing provisions governing the choice of forum for the review of
rules,\14\ to avoid using the term ``orders'' to encompass rules; to
state clearly the forum in which judicial review of rules is
available; and to state clearly whether such provisions apply to
rule-related actions other than the promulgation of a rule.
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\14\ This Recommendation provides advice to Congress in drafting
future statutes. It should not be read to address existing statutes.
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Recommendation
1. When drafting a statute that provides for judicial review of
agency rules, Congress ordinarily should provide that rules
promulgated using notice-and-comment procedures are subject to
direct review by a court of appeals.
2. When drafting a statute that provides for judicial review of
agency actions, Congress should state explicitly whether actions
taken under the statute are subject to review by a district court
or, instead, subject to direct review by a court of appeals. If
Congress intends to establish separate requirements for review of
rules, as distinguished from other agency actions, it should refer
explicitly to ``rules'' and not use the term ``orders'' to include
rules.
Administrative Conference Recommendation 2024-2
Individualized Guidance
Adopted June 13, 2024
Agencies provide written guidance to help explain their programs
and policies, announce interpretations of legal materials and how
they intend to exercise their discretion, and communicate other
important information to regulated entities, regulatory
beneficiaries, and the broader public. When used appropriately,
guidance documents--including what the Administrative Procedure Act
(APA) calls general statements of policy and interpretive rules
\1\--can be important instruments of administration and of great
value to agencies and the public. The Administrative Conference has
adopted numerous recommendations to help agencies use and develop
guidance documents effectively and appropriately, to make them
publicly available, and to ensure that such documents are well
organized, up to date, and easily accessible.\2\
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\1\ 5 U.S.C. 553(b)(A). Some agencies define or use the term
``guidance'' to include materials that may not qualify as
interpretive rules or policy statements under the APA. See 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 2022-3,
Automated Legal Guidance, 87 FR 39798 (July 5, 2022); Admin. Conf.
of the U.S., Recommendation 2021-7, Public Availability of
Inoperative Agency Guidance Documents, 87 FR 1718 (Jan. 12, 2022);
Recommendation 2019-3, supra note 1; Admin. Conf. of the U.S.,
Recommendation 2019-1, Agency Guidance Through Interpretive Rules,
84 FR 38,927 (Aug. 8, 2019); Admin. Conf. of the U.S.,
Recommendation 2017-5, Agency Guidance Through Policy Statements, 82
FR 61734 (Dec. 29, 2017); Admin. Conf. of the U.S., Recommendation
2014-3, Guidance in the Rulemaking Process, 79 FR 35992 (June 25,
2014); Admin. Conf. of the U.S., Recommendation 92-2, Agency Policy
Statements, 57 FR 30103 (July 8, 1992); Admin. Conf. of the U.S.,
Recommendation 76-5, Interpretive Rules of General Applicability and
Statements of General Policy, 41 FR 56769 (Dec. 30, 1976).
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[[Page 56278]]
In many federal programs, individuals may request written
guidance from an agency regarding how the law applies to a
requester's specific circumstances.\3\ Such ``individualized
guidance'' goes by a variety of names, including advisory opinions,
opinion letters, and letters of interpretation.\4\ The Internal
Revenue Service issues private letter rulings to provide tax law
advice to taxpayers,\5\ for example, and the Securities and Exchange
Commission issues no-action letters to provide advice regarding
whether a product, service, or action may violate federal securities
law.\6\ In some programs, the provision of individualized guidance
is authorized by statute; in others, agencies offer individualized
guidance on their own initiative as a public service.
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\3\ This Recommendation does not cover guidance that is not
requested by a member of the public, such as an agency warning
letter explaining why the agency believes a regulated party is in
violation of a law or regulation.
\4\ This Recommendation does not attempt to situate
individualized guidance within the APA's categories of ``rule,''
``order,'' ``license,'' ``sanction,'' or ``relief,'' and it does not
seek to define agency processes for providing individualized
guidance as ``rulemaking'' or ``adjudication.'' See 5 U.S.C. 551.
Individualized guidance is distinguished from declaratory orders,
which agencies may issue in the context of an adjudication to
``terminate a controversy or remove uncertainty.'' 5 U.S.C. 554(e).
Unlike most individualized guidance, declaratory orders are final
agency actions and legally binding. See Admin. Conf. of the U.S.,
Recommendation 2015-3, Declaratory Orders, 80 FR 78161 (Dec. 16,
2015).
\5\ See Admin. Conf. of the U.S., Recommendation 75-5, Internal
Revenue Service Procedures: Taxpayer Services and Complaints, 41 FR
3986 (Jan. 27, 1976).
\6\ See Admin. Conf. of the U.S., Recommendation 70-2, SEC No-
Action Letters Under Section 4 of the Securities Act of 1933, 1 ACUS
34 (1970).
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Agency practices vary in several key respects. Some
individualized guidance is issued in a relatively formal manner
(such as a signed letter on agency letterhead), while other
individual guidance may be issued in relatively informal ways (such
as in the body of an email).\7\ Some individualized guidance is
reviewed and issued by agency heads or other senior officials, while
other individualized guidance is prepared and issued by lower-level
officials. Some individualized guidance has no legally binding
effect on the agency or requester, while other such guidance may,
for example, provide the requester with a defense to an agency
enforcement action.\8\
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\7\ This Recommendation does not address guidance provided
orally.
\8\ See generally Shalini Bhargava Ray, Individualized Guidance
in the Federal Bureaucracy (June 4, 2024) (report to the Admin.
Conf. of the U.S.).
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Individualized guidance offers many benefits. It facilitates
communication between an agency and requester, reduces uncertainty,
promotes compliance, spurs useful transactions, and can be faster
and less costly than other agency actions. For example, agencies may
provide individualized guidance to help a regulated party better
understand whether its conduct may be permissible, and this may
limit the need for future enforcement action. In addition, making
individualized guidance publicly available can inform other
interested persons about how the agency evaluates issues that may
affect them.
At the same time, individualized guidance may raise concerns.
Even if an agency does not intend to use individualized guidance to
bind the public, requesters or others may nevertheless choose to
follow the guidance strictly to limit the perceived risk of sanction
in a future agency proceeding. Agencies also risk providing
inconsistent guidance if they lack appropriate procedures for
developing and reviewing it. In addition, some members of the public
may lack equal access to processes for requesting individualized
guidance or have limited opportunities to participate in processes
for developing individualized guidance that affects them.
These benefits can be increased, and these concerns addressed,
through the best practices identified in this Recommendation. The
Recommendation encourages agencies, when appropriate, to establish
procedures for providing individualized guidance to members of the
public. It identifies procedures agencies should use to process
requests for such guidance fairly, efficiently, and accurately,\9\
and it encourages agencies to make the guidance available to agency
personnel and the public. It cautions agencies not to treat
individualized guidance as creating binding standards on the public
but identifies circumstances in which agencies should consider
allowing the public to rely on such guidance (that is, circumstances
in which agencies should consider adhering to guidance that is
favorable to a person in a subsequent agency proceeding despite the
nonbinding character of the guidance). It also urges agencies to
involve their ombuds offices in supplementing or improving guidance
to the public.\10\ Finally, it addresses circumstances in which
agencies should use individualized guidance to support development
of general rules.
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\9\ Paragraph 7(f) of this Recommendation urges agencies to
describe any fees they charge for individualized guidance, including
circumstances where they will waive or reduce such fees. Agencies
should avoid charging fees for such guidance that would impose undue
burdens on people of limited means. See Admin. Conf. of the U.S.,
Recommendation 2023-8, User Fees, ] 3, 89 FR 1516 (Jan. 10, 2024)
(recommending that agencies, as appropriate, should ``set forth
procedures for waiving or reducing user fees that would cause undue
hardship for low-income individuals, members of historically
underserved communities, small businesses, and other small
entities'').
\10\ See also Admin. Conf. of the U.S., Recommendation 2016-5,
The Use of Ombuds in Federal Agencies, 81 FR 94316 (Dec. 23, 2016).
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This Recommendation recognizes the wide variation among the
programs that agencies administer, the resources available to
agencies, and the needs and preferences of persons with whom they
interact. Agencies should account for these differences when
implementing the best practices below and tailor their
individualized guidance procedures accordingly.
Recommendation
Individualized Guidance Policies
1. To the extent of, and in a manner consistent with, their
resources, priorities, and missions, agencies should respond to
requests from members of the public for written guidance by
providing individualized written guidance regarding how the law
applies to requesters' specific circumstances.
2. Agencies should not treat individualized guidance as creating
standards with which noncompliance may form an independent basis for
action in matters that determine the rights and obligations of any
member of the public.
3. Agencies should develop policies regarding whether and when
it is appropriate to allow a requester or other individual to rely
on individualized guidance. In so doing, agencies should consider
factors including:
a. The applicability of constitutional, statutory, or other
authorities mandating or prohibiting a party's entitlement to rely
on such guidance;
b. The accuracy and completeness of the information the
requester provided at the time it sought the guidance;
c. The certainty of the relevant facts and law at the time the
agency issued the guidance;
d. Changes in facts or law after initial issuance of the
guidance;
e. The formality of the agency's individualized guidance
procedure, including the position and authority of the agency
officials involved in developing and issuing the guidance;
f. Whether a person other than the requester of individualized
guidance may rely on it, which might depend on the similarity of the
person's circumstances to the requester's circumstances; and
g. Whether allowing reliance is necessary to prevent significant
hardship.
4. Agencies should explain in individualized guidance provided
to requesters the extent to which requesters or others can rely on
that guidance.
5. Even if agencies do not recognize a right for persons to rely
on individualized guidance or encourage them to do so, agencies
should, when appropriate and lawful, minimize hardships on persons
who nevertheless acted in conformity with the guidance, such as by
reducing or waiving any penalty for past noncompliance or taking
enforcement action with solely prospective effect.
6. Agencies with ombuds offices should provide opportunities for
members of the public to seek assistance from such offices to
supplement individualized guidance or to resolve issues related to
individualized guidance. Agencies should also involve such offices
in efforts to improve agency policies and procedures related to
individualized guidance.
Individualized Guidance Procedures
7. Agencies should develop written procedures for requesting and
issuing individualized guidance. Agencies should publish such
procedures in the Federal Register and, as appropriate, codify them
in the Code of Federal Regulations. Agencies
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should also make the procedures publicly available on their websites
and, if applicable, in other agency publications. The procedures
should describe:
a. How members of the public may submit requests for
individualized guidance, including the office(s) or official(s)
responsible for receiving requests;
b. The type(s) of individualized guidance members of the public
may request;
c. Any matters that the agency will not address through
individualized guidance, including the rationale for not providing
guidance as to such matters;
d. The information that the requester should include with the
request for individualized guidance;
e. Whether the agency will make individualized guidance and any
related information (including the identity of the requester and
information from the request) publicly available as described in
paragraphs 10 through 13;
f. Any fees the agency charges for providing individualized
guidance, as well as any provisions for waivers of, exemptions from,
or reduced rates for such fees;
g. Any opportunities for public participation in the preparation
of individualized guidance;
h. The manner in which a response to a request for
individualized guidance will be provided to the requester;
i. To the extent practicable, the expected timeframe for
responding to requests for individualized guidance;
j. Whether requesters may seek review of individualized guidance
by a higher-level official; and
k. The agency's policy, developed as described in paragraph 3,
regarding whether and when it is appropriate for a requester or
other individual to rely on individualized guidance.
8. Agencies should develop procedures for agency personnel to
manage and process requests for individualized guidance, including:
a. Allowing for electronic submission of, and response to,
requests;
b. Creating methods for identifying and tracking requests;
c. Maintaining past responses to requests in a manner that
allows agency personnel to identify and consider them when
developing responses to new requests that present similar or related
issues; and
d. Ensuring that relevant personnel receive training in the
agencies' individualized guidance procedures.
9. In cases in which members of the public other than the
requester are likely to have information relevant to the request or
are likely to be significantly affected by the agency's action,
agencies should consider soliciting public participation before
issuing individualized guidance.
Public Availability of Individualized Guidance
10. Absent substantial countervailing considerations, agencies
should make publicly available on their websites any individualized
guidance that affects, or may be of interest to, persons other than
the requester, including regulated persons and regulatory
beneficiaries.
11. When making individualized guidance available on their
websites, agencies should, as appropriate:
a. Identify the date, requester, and subject matter of the
guidance;
b. Identify the legal authority under which the guidance was
issued and under what circumstances other parties may rely on the
guidance; and
c. Use other techniques to help the public find relevant
information, such as indexing or tagging individualized guidance by
general topic area.
12. When making individualized guidance publicly available,
agencies should redact any information that is sensitive or
otherwise protected from disclosure consistent with the Freedom of
Information Act or other relevant information laws.
13. Agencies should keep individualized guidance on their
websites current. If an agency modifies or rescinds a publicly
available individualized guidance document, it should indicate on
the face of the document that it has been modified or rescinded and
direct readers to any successor guidance and any explanation for the
modification or rescission.
Accessibility of Individualized Guidance Materials
14. Agencies that provide individualized guidance should
maintain a page on their websites that provides easy access to the
procedures described in Paragraph 7, all individualized guidance
that they make publicly available as described in paragraphs 10
through 13, and information about electronically submitting a
request for individualized guidance.
Use of Individualized Guidance in Aid of General Rulemaking
15. Agencies should periodically review individualized guidance
to identify matters that may warrant the development of a general
rule.
Administrative Conference Recommendation 2024-3
Senate-Confirmed Officials and Administrative Adjudication
Adopted June 13, 2024
Tens of thousands of federal agency officials participate in
administrative adjudication. Most are members of the career civil
service hired and supervised under the civil service laws. Several
thousand, like administrative law judges (ALJs) and some
administrative judges, are appointed by a department head.\1\ Some,
like many agency heads, are appointed by the President with the
advice and consent of the Senate. It is to such ``PAS'' officials
that federal laws typically assign authority to adjudicate matters,
and it is PAS officials who--by rule, delegation of authority, and
the development of norms, practices, and organizational cultures--
work with career civil servants and other officials to structure
systems of administrative adjudication and oversee their operation,
ensuring some measure of political accountability.
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\1\ See Lucia v. SEC, 585 U.S. 237 (2018). Under the
Constitution's Appointments Clause, art. II section 2, cl. 2,
``Officers of the United States'' must be appointed through
presidential nomination and Senate confirmation, except that
``Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.''
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PAS officials often participate indirectly and directly in
administrative adjudication. Indirectly, they may establish agency
subunits and positions responsible for adjudicating cases. They may
appoint and supervise adjudicators,\2\ and they may appoint and
supervise, or oversee the appointment and supervision of, other
adjudicative personnel. PAS officials may coordinate with the
President and Congress to help ensure that adjudicative subunits
have the resources they need to adjudicate cases in a fair,
accurate, consistent, efficient, and timely manner.\3\ PAS officials
may also establish rules of procedure and practice to structure
administrative adjudication,\4\ and they may develop substantive
rules that supply the law in adjudications.
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\2\ See Lucia, 585 U.S. at 251 (holding that administrative law
judges employed by the Securities and Exchange Commission are
``Officers of the United States'' and must be appointed in
accordance with the Appointments Clause).
\3\ See Admin. Conf. of the U.S., Recommendation 2023-7,
Improving Timeliness in Agency Adjudication, 89 FR 1513 (Jan. 10,
2024); Admin. Conf. of the U.S., Recommendation 2021-10, Quality
Assurance Systems in Agency Adjudication, 87 FR 1722 (Jan. 12,
2022).
\4\ See, e.g., Admin. Conf. of the U.S., Recommendation 2018-5,
Public Availability of Adjudication Rules, 84 FR 2142 (Feb. 6,
2019); see also Admin. Conf. of the U.S., Recommendation 2023-5,
Best Practices for Adjudication Not Involving an Evidentiary
Hearing, 89 FR 1509 (Jan. 10, 2024); Admin. Conf. of the U.S.,
Recommendation 2016-4, Evidentiary Hearings Not Required by the
Administrative Procedure Act, 81 FR 94314 (Dec. 23, 2016).
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Additionally, PAS officials may participate directly in
administrative adjudication, serving as the final, executive-branch
decision makers in cases arising under the statutes they
administer.\5\ Although questions regarding whether, when, and how
PAS officials participate directly in the adjudication of cases are
not new, they have gained new salience in recent years. Most
notably, in United States v. Arthrex \6\ the Supreme Court held that
a statute providing for the administrative resolution of certain
patent disputes violated the Constitution's Appointments Clause by
vesting final decisional authority in adjudicators in the U.S.
Patent and Trademark Office's Patent Trial and Appeal Board, whose
members are neither PAS officials nor subject to at-will removal.
The Court remedied the violation by holding unenforceable the
statutory prohibition on the authority of a PAS official, the
Director of the U.S. Patent and Trademark Office, to review the
Board's decisions.
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\5\ See Admin. Conf. of the U.S., Recommendation 2020-3, Agency
Appellate Systems, 86 FR 6618 (Jan. 22, 2021).
\6\ 594 U.S. 1 (2021).
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While Congress has for some programs determined by statute
whether, when, and how PAS officials participate directly in the
adjudication of cases, for many programs Congress has given agencies
the discretion to
[[Page 56280]]
develop procedures and practices that are effective and appropriate
for the specific programs they administer. This Recommendation
provides a framework to help agencies develop effective procedures
and practices, when required or appropriate, for direct
participation by PAS officials in the adjudication of individual
cases.
It does not address whether Congress or agencies should, for
constitutional or other reasons, provide for direct participation by
PAS officials in the adjudication of individual cases under specific
programs. Nor does this recommendation address the broader question
of whether and when agencies should develop policies through
rulemaking, adjudication, setting enforcement priorities, or other
means. Of course, Congress and agencies must pay careful attention
to such questions and ensure that laws, rules, and policies comport
with applicable legal requirements.
To develop effective and appropriate procedures and practices,
agencies must consider, in addition to applicable constitutional and
statutory requirements, the characteristics of PAS officials and the
potential consequences of such characteristics for fair, accurate,
consistent, efficient, and timely adjudication. While there is wide
variation among PAS positions and PAS officials, at least five
characteristics commonly distinguish PAS positions and officials
from other agency positions and officials, especially career civil
servants.
First, as the Administrative Conference has previously noted,
there are often numerous vacancies in PAS positions.\7\ Frequent
vacancies exist for several reasons, including delays related to the
appointments process. When adjudicative functions are assigned to
PAS positions, vacancies in those positions can affect the
timeliness of adjudication. At some agencies, for example, vacancies
or the lack of a quorum have resulted in long delays.\8\
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\7\ See Admin. Conf. of the U.S., Recommendation 2019-7, Acting
Agency Officials and Delegations of Authority, 84 FR 71352 (Dec. 27,
2019).
\8\ See Matthew A. Gluth, Jeremy S. Graboyes & Jennifer L.
Selin, Participation of Senate-Confirmed Officials in Administrative
Adjudication 40-42 (June 9, 2024) (report to the Admin. Conf. of the
U.S.).
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Second, there is relatively high turnover in PAS positions, and
PAS officials almost always serve in their positions for a shorter
time than career civil servants. Thus, PAS officials may lack
preexisting relationships with agency employees, knowledge of agency
processes, and the specialized adjudicative expertise that career
adjudicators develop as a result of their work and experience in
this area.
Third, unlike career civil servants who are hired without regard
to political affiliation, activity, or beliefs,\9\ PAS officials are
often nominated by the President at least in part because of their
political affiliation, activity, or beliefs. PAS officials are also
subject to removal by the President, although a statute may impose
for-cause or other limitations on their removal. Unlike officials
appointed by a department head or the President alone, however, PAS
officials are also confirmed by the Senate, which may make them more
attentive to Congress than career agency officials. On the one hand,
such exposure to politics may help ensure that agency decision
making, including the development of policy through case-by-case
adjudication, remains publicly accountable. And given their
relationships with the President, other political appointees, and
Congress, PAS officials may be well equipped to address systemic
problems, identified through the adjudication of cases, that require
intra- or interbranch coordination. On the other hand, the
involvement of PAS officials in administrative adjudication may
raise concerns about the impartiality and objectivity of agency
decision making.\10\
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\9\ 5 U.S.C. 2301.
\10\ See Gluth, Graboyes & Selin, supra note 8 at 45-50.
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Fourth, unlike career adjudicators, who are often appointed
based on prior adjudicative or litigation experience,\11\ PAS
officials are often appointed for other reasons such as prior
experience in a particular industry or familiarity with a particular
policy domain. PAS officials may have better access to substantive,
subject-matter expertise than other agency decision makers, which
may improve the quality of policies developed through case-by-case
adjudication. On the other hand, they may lack experience or
familiarity with the procedural aspects of administrative
adjudication.
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\11\ See Admin. Conf. of the U.S., Recommendation 2019-2, Agency
Recruitment and Selection of Administrative Law Judges, 84 FR 38930
(Aug. 8, 2019).
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Fifth, PAS officials often sit atop agency hierarchies, and
statutes often assign PAS officials, especially the heads of cabinet
departments, a broad range of responsibilities, potentially
including the administration of multiple programs and, under any
given program, multiple functions (e.g., rulemaking, investigation,
prosecution) in addition to adjudication. Such responsibilities can
provide PAS officials with a unique opportunity to coordinate
policymaking within and across programs, promote consistent decision
making, and gain better awareness of the adjudicative and regulatory
systems for which they are statutorily responsible. On the other
hand, because PAS officials often face many competing demands on
their time, they may have less practical capacity to devote to the
adjudication of individual cases than other officials whose primary
function is to adjudicate cases.\12\ Additionally, some have raised
concerns in certain contexts that the combination of adjudication
and enforcement functions (investigation and prosecution) in a
single official may affect the integrity of agency proceedings and
that the combination of adjudication and rulemaking functions in a
single official may encourage the resolution of important legal and
policy issues through case-by-case adjudication, even when general
rulemaking offers a better mechanism for resolving such issues.\13\
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\12\ See Gluth, Graboyes & Selin, supra note 8, at 52-56.
\13\ See id.
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Considering these and other characteristics, and consistent with
statutory and regulatory requirements, agencies must determine
whether participation by PAS officials in the adjudication of cases
provides an effective mechanism for directing and supervising
systems of administrative adjudication and, if it does, what
procedures and practices will permit PAS officials to adjudicate
cases in a manner that best promotes fairness, accuracy,
consistency, efficiency, and timeliness. The Conference has
addressed some of these issues in previous recommendations, most
notably in Recommendation 68-6, Delegation of Final Decisional
Authority Subject to Discretionary Review by the Agency; \14\
Recommendation 83-3, Agency Structures for Review of Decisions of
Presiding Officers Under the Administrative Procedure Act; \15\
Recommendation 2018-4, Recusal Rules for Administrative
Adjudicators; \16\ Recommendation 2020-3, Agency Appellate Systems;
\17\ and Recommendation 2022-4, Precedential Decision Making in
Agency Adjudication.\18\ Recognizing that agencies must consider
applicable constitutional and statutory requirements and the unique
characteristics of the programs they administer, this Recommendation
builds on these earlier recommendations but focuses exclusively on
identifying best practices to help agencies determine whether, when,
and how PAS officials should participate directly in the
adjudication of individual cases.
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\14\ 38 FR 19783 (July 23, 1973).
\15\ 48 FR 57461 (Dec. 30, 1983).
\16\ 84 FR 2139 (Feb. 6, 2019).
\17\ 86 FR 6618 (Jan. 22, 2021).
\18\ 88 FR 2312 (Jan. 13, 2023).
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Recommendation
Determining Whether and When Officers Appointed by the President With
the Advice and Consent of the Senate--PAS Officials--Should Participate
in the Adjudication of Cases
1. When a statute authorizes a PAS official or collegial body of
PAS officials to adjudicate matters arising under the statute, and
such authority is delegable as a constitutional and statutory
matter, the agency ordinarily should delegate to one or more non-PAS
adjudicators responsibility for conducting initial proceedings
(i.e., receiving and evaluating evidence and arguments and issuing a
decision). PAS officials, individually or as a collegial body,
should exercise their retained statutory authority to conduct
initial proceedings ordinarily only if:
a. A matter is exceptionally significant or broadly
consequential, and they have the capacity personally to receive and
evaluate evidence and arguments and issue a decision in a fair,
accurate, consistent, efficient, and timely manner; or
b. There are unlikely to be disputed issues of fact, the matter
to be decided does not require taking much evidence, and resolution
of the matter turns on qualitative judgments of a broad nature.
2. When a statute authorizes a PAS official or a collegial body
of PAS officials to adjudicate matters arising under the statute or
review lower-level decisions rendered by other adjudicators, and
such authority is delegable as a constitutional and statutory
[[Page 56281]]
matter, the agency should determine in which types of cases it would
be beneficial for a PAS official or collegial body of PAS officials
to review lower-level decisions rendered by other adjudicators and
in which it would be more appropriate to delegate final decision-
making authority to a non-PAS official (e.g., an agency ``Judicial
Officer'') or a collegial body of non-PAS officials (e.g., a final
appellate board). If a PAS official or collegial body of PAS
officials delegates final decision-making authority to other
officials, they should adopt mechanisms to ensure adequate direction
and supervision of decision makers exercising delegated authority.
Circumstances in which it may be beneficial for an agency to provide
for review by a PAS official or a collegial body of PAS officials
include:
a. Cases that involve legal or factual issues that are
exceptionally significant or broadly consequential;
b. Cases that involve a novel or important question of law,
policy, or discretion, such that direct participation by one or more
PAS officials would promote centralized or politically accountable
coordination of policymaking; and
c. When participation by one or more PAS officials in the
adjudication of individual cases would promote consistent decision
making by agency adjudicators.
3. When it would be beneficial to provide for review by a PAS
official or a collegial body of PAS officials, the agency should,
consistent with constitutional and statutory requirements, determine
the appropriate structure for such review. Structural options
include:
a. Providing the only opportunity for administrative review of
lower-level decisions. This option may be appropriate when caseloads
are relatively low and individual cases frequently raise novel or
important questions of law, policy, or discretion.
b. Delegating first-level review authority to a non-PAS
official, such as an agency ``Judicial Officer,'' or an appellate
board and retaining authority to exercise second-level
administrative review in exceptional circumstances. This option may
be appropriate when caseloads are relatively high and individual
cases only occasionally raise novel or important questions of law,
policy, or discretion or have significant consequences beyond the
parties to the case.
c. Delegating final review authority to another PAS official.
This option may be appropriate, for example, when individuals, by
virtue of holding another PAS position, have greater access to
subject-matter expertise or greater capacity to adjudicate cases in
a fair, accurate, consistent, efficient, and timely manner.
d. For collegial bodies of PAS officials, delegating first-level
review authority to a single member or panel, and retaining
authority for the collegial body as a whole to exercise second-level
(and final) administrative review. This option may be appropriate
when a collegial body manages a relatively high caseload and most
individual cases do not raise novel or important questions of law,
policy, or discretion or have significant consequences beyond the
parties to the case.
Initiating Review by PAS Officials
4. An agency ordinarily should provide that a decision subject
to review by a PAS official or a collegial body of PAS officials
becomes final and binding after a specified number of days unless,
as applicable:
a. A party or other interested person files a petition for
review, if a statute entitles a party or other interested person to
such review;
b. A PAS official or collegial body of PAS officials exercises
discretion to review the decision upon petition by a party or other
interested person;
c. A PAS official or collegial body of PAS officials exercises
discretion to review the lower-level decision upon referral by the
adjudicator or appellate board (as a body or through its chief
executive or administrative officer) that issued the decision;
d. A PAS official or collegial body of PAS officials exercises
discretion to review the decision upon request by a federal official
who oversees a program impacted by a decision, or his or her
delegate; or
e. A PAS official or collegial body of PAS officials exercises
discretion to review the decision sua sponte.
5. When a PAS official or collegial body of PAS officials serves
as a first-level reviewer, an agency should develop a policy for
determining the circumstances in which such review may be exercised.
Review may be warranted if there is a reasonable probability that:
a. The adjudicator who issued the lower-level decision committed
a prejudicial procedural error or abuse of discretion;
b. The lower-level decision includes an erroneous finding of
material fact;
c. The adjudicator who issued the lower-level decision
erroneously interpreted the law or agency policy;
d. The case presents a novel or important issue of law, policy,
or discretion; or
e. The lower-level decision presents a recurring issue or an
issue that agency adjudicators have decided in different ways, and
the PAS official or officials can resolve the issue more accurately
and efficiently through precedential decision making.
6. When a PAS official or collegial body of PAS officials serves
as a second-level reviewer, an agency should determine the
circumstances in which such review may be warranted. To avoid
multilevel review of purely factual issues, the agency should limit
second-level review by a PAS official or collegial body of PAS
officials to circumstances in which there is a reasonable
probability that:
a. The case presents a novel or important issue of law, policy,
or discretion; or
b. The first-level reviewer erroneously interpreted the law or
agency policy.
7. When agency rules permit parties or other interested persons
to file a petition requesting that a PAS official or a collegial
body of PAS officials review a lower-level decision and review is
discretionary, the agency should require that petitioners explain in
the petition why such review is warranted with reference to the
grounds for review identified in Paragraph 5 or 6, as applicable.
Agency rules should permit other parties or interested persons to
respond to the petition or file a cross-petition.
8. An agency should provide that if a PAS official or collegial
body of PAS officials, or a delegate, does not exercise discretion
to grant a petition for review within a set time period, the
petition is deemed denied.
9. In determining whether to provide for interlocutory review by
a PAS official or collegial body of PAS officials of rulings by
agency adjudicators, an agency should evaluate whether such review
can be conducted in a fair, accurate, consistent, efficient, and
timely manner, considering the best practices identified in
Recommendation 71-1, Interlocutory Appeal Procedures.
10. When a PAS official or collegial body of PAS officials
exercises discretion to review a lower-level decision (e.g., by
granting a petition or accepting a referral), the agency should:
a. Notify the parties;
b. Provide a brief statement of the grounds for review; and
c. Provide the parties a reasonable time to submit written
arguments.
PAS Official Review Process
11. A PAS official or collegial body of PAS officials who
reviews a lower-level decision ordinarily should limit consideration
to the evidence and legal issues considered by the adjudicator who
issued that decision. The PAS official or collegial body of PAS
officials should consider new evidence and legal issues, if at all,
only if (a) the proponent of new evidence or a new legal issue shows
that it is material to the outcome of the case and that, despite due
diligence, it was not available when the record closed, or (b)
consideration of a new legal issue is necessary to clarify or
establish agency law or policy. In situation (a), the PAS official
or collegial body of PAS officials should determine whether it would
be more effective to consider the new evidence or legal issue or
instead to remand the case to another adjudicator for further
development and consideration.
12. An agency should provide a PAS official or collegial body of
PAS officials discretion to permit oral argument on their own
initiative or upon a party's request if doing so would assist the
PAS official(s) in deciding the matter.
13. In cases when a PAS official or collegial body of PAS
officials will decide a novel or important question of law, policy,
or discretion, the agency should provide the PAS official(s)
discretion to solicit arguments from interested members of the
public, for example by inviting amicus participation, accepting
submission of written comments, or holding a public hearing to
receive oral comments.
Integrity of the Decision-Making Process
14. To promote impartiality and the appearance of impartiality,
each agency at which PAS officials participate in the adjudication
of individual cases should have a process for determining if
participation by a particular PAS official in a case would violate
government-wide or agency-specific ethics standards and hence
require recusal. Agencies should also have a process for determining
if participation would raise other significant concerns, and if so,
[[Page 56282]]
determine whether and in what circumstances PAS officials should
recuse themselves from participating in a case based on those
concerns.
Coordination of Policymaking and Decision Making by Agency Adjudicators
15. An agency ordinarily should treat decisions of PAS officials
as precedential if they address novel or important issues of law,
policy, or discretion, or if they resolve recurring issues or issues
that other agency adjudicators have decided in different ways.
Unless the agency treats all decisions of PAS officials as
precedential, in determining whether and under what circumstances to
treat such decisions as precedential, the agency should consider the
factors listed in Paragraph 2 of Recommendation 2022-4, Precedential
Decision Making in Agency Adjudication.
16. Each agency periodically should review petitions for review
and decisions rendered by PAS officials to determine whether issues
raised repeatedly indicate that the agency, its adjudicators, or the
public may benefit from rulemaking or development of guidance.
Adjudicative Support for PAS Officials
17. When a PAS official or collegial body of PAS officials
adjudicates individual cases, agencies should assign or delegate
case-related functions to non-PAS officials, when appropriate,
including:
a. Performing routine tasks such as managing dockets and case
filings; managing proceedings, including the submission of materials
and the scheduling of oral arguments;
b. Responding to routine motions;
c. Dismissing, denying, and granting petitions for review in
routine circumstances when such action is clearly warranted, for
example when a petition is untimely, a party requests to withdraw a
petition, or the parties to a proceeding agree to a settlement;
d. Conducting the preliminary review of lower-level decisions,
evidence, and arguments;
e. Conducting the preliminary evaluation of petitions for review
and petitions for reconsideration;
f. Identifying unappealed decisions that may warrant review by a
PAS official or collegial body of PAS officials;
g. Encouraging settlement and approving settlement agreements;
h. Conducting legal and policy research;
i. Recommending case dispositions;
j. Preparing draft decisions and orders for review and signature
by a PAS official or collegial body of PAS officials;
k. Transmitting decisions and orders to parties and making them
publicly available; and
l. Staying decisions and orders pending reconsideration by a PAS
official or collegial body of PAS officials or judicial review.
18. When a PAS official or collegial body of PAS officials
adjudicates individual cases, the agency should determine which
offices or officials are best suited to perform assigned or
delegated functions such as those in paragraph 17 in a fair,
accurate, consistent, efficient, and timely manner. Possibilities
include:
a. Adjudicators and staff who serve at an earlier level of
adjudication;
b. Full-time appeals counsel;
c. Advisors to a PAS official;
d. The chief legal officer or personnel under his or her
supervision; and
e. A Clerk or Executive Secretary or personnel supervised by
such officials.
In making such determinations, the agency should ensure adequate
separation between personnel who support a PAS official or collegial
body of PAS officials in an adjudicative capacity and those who
support the PAS official(s) in an investigative or prosecutorial
capacity.
Transparency
19. Each agency should provide updated access on its website to
decisions issued by PAS officials, whether or not designated as
precedential, and associated supporting materials. In posting
decisions, the agency should redact identifying details to the
extent required to prevent an unwarranted invasion of personal
privacy and any information that implicates sensitive or legally
protected interests involving, among other things, national
security, law enforcement, confidential business information,
personal privacy, or minors. In indexing decisions on its website,
the agency should clearly indicate which decisions are issued by PAS
officials.
20. Each agency ordinarily should presume that oral arguments
and other review proceedings before PAS officials are open to public
observation. Agencies may choose to close such proceedings, in whole
or in part, to the extent consistent with applicable law and if
there is substantial justification to do so, as described in
Recommendation 2021-6, Public Access to Agency Adjudicative
Proceedings.
Development and Publication of Procedures for Adjudication by PAS
Officials
21. Each agency should publish procedural regulations governing
the participation of PAS officials in the adjudication of individual
cases in the Federal Register and codify them in the Code of Federal
Regulations. These regulations should cover all significant
procedural matters pertaining to adjudication by PAS officials. In
addition to those matters identified in Paragraph 2 of
Recommendation 2020-3, Agency Appellate Systems, such regulations
should address, as applicable:
a. Whether and, if so, which PAS officials may participate
directly in the adjudication of cases;
b. The level(s) of adjudication (e.g., hearing level, first-
level appellate review, second-level appellate review) at which a
PAS official or collegial body of PAS officials have or may assume
jurisdiction of a case (see Paragraphs 1-3);
c. Events that trigger participation by a PAS official or
collegial body of PAS officials (see Paragraph 4);
d. An exclusive, nonexclusive, or illustrative list of
circumstances in which a PAS official or collegial body of PAS
officials will or may review a decision or assume jurisdiction of a
case, if assumption of jurisdiction or review is discretionary (see
Paragraphs 5-6);
e. The availability, timing, and procedures for filing a
petition for review by a PAS official or collegial body of PAS
officials, including any opportunity for interlocutory review, and
whether filing a petition is a mandatory prerequisite to judicial
review (see Paragraphs 7 and 9);
f. The actions the agency may take upon receiving a petition
(e.g., grant, deny, or dismiss it), and whether the agency's failure
to act on a petition within a set period of time constitutes denial
of the petition (see Paragraph 8);
g. The form, contents, and timing of notice provided to the
parties to a case when proceedings before a PAS official or
collegial body of PAS officials are initiated (see Paragraphs 9-10);
h. The record for decision making by a PAS official or collegial
body of PAS officials and the opportunity, if any, to submit new
evidence or raise new legal issues (see Paragraph 11);
i. Opportunities for oral argument (see Paragraph 12);
j. Opportunities for public participation (see Paragraph 13);
k. The process for determining if participation by a PAS
official in a case would violate government-wide or agency-specific
ethics standards (see Paragraph 14);
l. Circumstances, if any, in which PAS officials should recuse
themselves from participating in a case for reasons not addressed in
government-wide or agency-specific ethics standards, and the process
for determining whether such circumstances are present (see
Paragraph 14);
m. The treatment of decisions by PAS officials as precedential
(see Paragraph 15);
n. Any significant delegations of authority to agency
adjudicators; appellate boards; staff attorneys; clerks and
executive secretaries; other support personnel; and, in the case of
collegial bodies of PAS officials, members who serve individually or
in panels consisting of fewer than all members (see Paragraphs 17-
18);
o. Any delegations of review authority or alternative review
procedures in effect when a PAS position is vacant or a collegial
body of PAS officials lacks a quorum; and
p. The public availability of decisions issued by PAS officials
and supporting materials, and public access to proceedings before
PAS officials (see Paragraphs 19-20).
22. An agency should provide updated access on its website to
the regulations described in Paragraph 21 and all other relevant
sources of procedural rules and related guidance documents and
explanatory materials.
Separate Statement for Administrative Conference Recommendation 2024-3
by Senior Fellow Christopher J. Walker and Public Member Melissa F.
Wasserman
Filed June 27, 2024
We are pleased to see the Administrative Conference adopt such
an important and timely recommendation concerning best practices for
agency-head review in administrative adjudication. We write
separately to address that which the Administrative Conference
prudentially chose not to: ``whether Congress or agencies
[[Page 56283]]
should, for constitutional or other reasons, provide for direct
participation by [presidentially appointed, Senate-confirmed (PAS)]
officials in the adjudication of individual cases under specific
programs.'' Our answer is yes.
Elsewhere, we have made the case for why the ``standard model''
for agency adjudication does and should include agency-head final
decisionmaking authority. See Christopher J. Walker & Melissa F.
Wasserman, The New World of Agency Adjudication, 107 Calif. L. Rev.
141 (2019). In our view, agency-head review is valuable because it
assists the agency to make precedential policy, to increase
consistency in adjudicative outcomes, to gain greater awareness of
how a regulatory system is functioning, and to make the agency's
adjudicatory efforts more politically accountable.
Regardless of whether one is convinced by our normative
arguments, agency-head review is likely now a constitutional
requirement. If the Supreme Court did not so conclude in United
States v. Arthrex, 594 U.S. 1 (2021), it came quite close. And the
Court is bound to expressly embrace that constitutional rule in the
near future. Accordingly, it would be wise for every agency--and
Congress, where statutory fixes are required--to ensure some form of
direct review by the agency head.
As agencies (and Congress) revisit adjudication systems in light
of this constitutional requirement, two parts of the Recommendation
are worth underscoring.
First, a constitutional requirement of agency-head final
decisionmaking authority does not mean the agency head must review
every decision in every case. Especially in higher-volume
adjudication systems, agencies should design appellate systems to
conduct such review, including the issuance of precedential
decisions where appropriate. See generally Christopher J. Walker,
Melissa Wasserman & Matthew Lee Wiener, Precedential Decision Making
in Agency Adjudication (Dec. 6, 2022) (report to the Admin. Conf. of
the U.S.); Christopher J. Walker & Matthew Lee Wiener, Agency
Appellate Systems (Dec. 14, 2020) (report to the Admin. Conf. of the
U.S.). In our view, such delegation of final decisionmaking
authority would be constitutional under the Supreme Court's evolving
approach to separation of powers so long as the agency head
preserves the authority to intervene and issue a final decision when
necessary.
Second, it is critical, as the Recommendation advises, that
``the agency ordinarily should delegate to one or more non-PAS
adjudicators responsibility for conducting initial proceedings
(i.e., receiving and evaluating evidence and arguments and issuing a
decision).'' Although the Administrative Procedure Act allows the
agency head to preside over an evidentiary hearing, that is not--and
should not be--the norm. The standard model for agency adjudication
has two key structural features: the possibility of a final decision
by a politically accountable agency head, as noted above, and an
initial hearing and decision by a decisionally independent, tenure-
protected agency adjudicator. See Aaron L. Nielson, Christopher J.
Walker & Melissa F. Wasserman, Saving Agency Adjudication, 103 Tex.
L. Rev. (forthcoming 2025).
This standard model enables a specific method for political
control of agency adjudication, which is both transparent and
circumscribed. Importantly, it ensures that an impartial agency
adjudicator compiles the administrative record and makes the initial
findings and decision. In a world where the Constitution requires
political control of final agency adjudication decisions, it becomes
all the more important that the hearing-level adjudicator bases the
initial decision on the law and a matter's individual facts--and not
out of a fear of being fired or otherwise punished for not sharing
the politics or policy preferences of the agency head.
Separate Statement for Administrative Conference Recommendation 2024-3
by Public Member John F. Duffy, Joined by Public Members Jennifer B.
Dickey, Jennifer L. Mascott, and Kate Todd
Filed June 27, 2024
I respectfully dissent from the promulgation of this
Recommendation. The Recommendation instructs agencies that, in many
common circumstances, they ``should'' delegate adjudicative power
downward into the bureaucracy--i.e., away from officers appointed by
the President with the advice and consent of the Senate (``PAS
officials'') and toward agency officials not so appointed (``non-
PAS'' officials). To make matters worse, the Recommendation tells
agencies that they ``should'' limit review by PAS officials so that
the lower-level officials will often have the last word in
adjudicating many issues, including important factual
determinations.
The overall tenor of the Recommendation is, in my view, entirely
too much in favor of pushing responsibility away from top agency
officials (whose appointment process is controlled by the
democratically accountable President and Senators) and toward a far
less accountable set of lower-level officials in the bureaucracy.
The Recommendation thereby encourages top officials to shun
responsibility for the decisions of their agencies. In my view, a
body such as ACUS--which is statutorily charged with helping
formulate recommendations for action ``by proper authorities'' for
ensuring that ``Federal responsibilities may be carried out
expeditiously in the public interest'' (5 U.S.C. 591(1))--should be
encouraging responsibility, not irresponsibility, at the very
highest levels of government.
The Recommendation's encouragement of the downward diffusion of
power is particularly evident in six paragraphs. First, paragraph 1
tells agencies that they ``ordinarily should delegate'' to lower-
level officials initial adjudicatory responsibilities, including the
crucial functions of ``evaluating evidence'' and ``issuing a
decision.'' Agencies may well be able lawfully to delegate powers
downward into the bureaucracy, but it merely encourages the shirking
of responsibility at the top to tell agencies that they ``should''--
indeed, ``should ordinarily''--delegate so as to empower an
unaccountable or tenuously accountable bureaucracy.
To make matters worse, paragraph 1 goes further to recommend
that top-level PAS officials ``should'' exercise initial
adjudicative authority ``only if'' a case presents one of two
uncommon circumstances, namely, (i) where the matter is
``exceptionally significant or broadly consequential'' or (ii)
``[t]here are unlikely to be disputed issues of fact.'' Thus, the
suggested limit on top agency officials engaging in crucial
adjudicatory functions such as ``evaluating evidence'' should be
limited, outside of ``exceptionally significant or broadly
consequential'' circumstances, to those cases where there's very
little adjudication of evidence to do. That's not merely permitting
higher officials to shun responsibility. It's telling those
officials that they ``should'' do so and that any attempts to take
back adjudicatory power from the bureaucratic depths ``should''
occur ``only'' in highly unusual and exceptional times.
Second, paragraph 2 continues the pro-delegation push by
encouraging agencies to enact policies that, in some class of cases,
would ``delegate final decision-making authority to a non-PAS
official (e.g., an agency ``Judicial Officer'') or a collegial body
of non-PAS officials (e.g., a final appellate board).'' I think the
class of such cases should be the null set. In fact, legally it is
the null set. Even where agency rules appear to delegate ``final''
decisional power to lower-level officials, such delegations can be
undone at any time and in any case. Procedural agency rules (i.e.,
those governing ``agency organization, procedure, or practice'') can
be repealed in the blink of an eye--without either notice-and-
comment rulemaking or a 30-day waiting period to take effect. See 5
U.S.C. 553(c) & (d). Thus, even if an agency previously enacted
rules purporting to delegate ``final'' authority to non-PAS
officers, such a delegation is an illusion because, under the
Constitution, some PAS officer must ``have the discretion to review
decisions'' so that ``the President remains responsible for the
exercise of executive power.'' United States v. Arthrex, 594 U.S. 1,
27 (2021). Agencies that follow this ACUS Recommendation and purport
to delegate final power down into the bureaucracy are merely
misleading the public by disguising the lines of ultimate authority
that must remain in the control of PAS officers.
Third, paragraph 5 suffers from a different flaw than the one in
paragraphs 1 and 2. While paragraphs 1 and 2 encourage agencies to
delegate responsibility downward, paragraph 5 is insufficiently
aggressive in instructing agencies when, if power is delegated,
review by high-level officers should occur. The Recommendation
states that agencies should promulgate policies concerning where
such high-level review ``may be exercised'' and that review ``may be
warranted'' in several circumstances. In my view, the permissive
word ``may'' is precisely wrong. The paragraph should be phrased in
terms of ``should'' and not merely ``may.''
A quick review of the circumstances where the Recommendation
tells agencies that review ``may be warranted'' demonstrates the
point. Where a ``lower-level decision includes an erroneous finding
of material
[[Page 56284]]
fact'' or ``erroneously interpreted the law or agency policy,'' the
higher-level PAS officers in the agency really should intervene and
correct the lower-level decision. This ACUS recommendation tells
high level agency officers that they ``may'' want to review such
decisions, but it's not really necessary to do so. The paragraph is
thus consistent with the overall thrust of the Recommendation to
push power down into the bureaucracy and to diffuse responsibility,
but it's also utterly inconsistent with a Constitution designed to
foster transparency, responsibility and accountability at the
highest levels of the Executive Branch.
Fourth, paragraph 6 continues the theme of encouraging agencies
to curtail higher-level review and responsibility. Where PAS
officers serve as ``second-level'' reviewers, this paragraph
encourages agencies once again to promulgate policies concerning
circumstances in which review ``may be warranted,'' and it then
tells agencies that they ``should'' limit second-level review of
factual issues to two narrow sets of circumstances: (i) where
``[t]he case presents a novel or important issue of law, policy, or
discretion,'' and (ii) where ``[t]he first-level reviewer
erroneously interpreted the law or agency policy.'' Importantly,
neither of those two circumstances involve incorrect factual
determinations.
Thus, in a garden-variety case in which the lower-level decision
does not get the law or policy wrong, but the supervising PAS
officers believes the lower-level decision may be wildly wrong on
the facts, this paragraph recommends that agencies ``should limit''
the review in order to ``avoid multilevel review of purely factual
issues.'' For a party aggrieved by a lower-level decision that
poorly adjudicated the facts, this paragraph encourages supervising
PAS officers to tell the aggrieved party ``too bad--the buck stops
at the lower-level official.''
Fifth, while paragraph 11 has a meritorious general goal of
preventing parties from withholding evidence and arguments from a
lower-level adjudicator where power is delegated downward, it is too
restrictive in the set of circumstances in which new matters might
be considered by the higher-level official. The first sentence of
the paragraph 11 states the unobjectionable principle that higher-
level officials engaging in review of a lower-level decision
``ordinarily should limit consideration to the evidence and legal
issues considered by the adjudicator who issued that decision.''
That's ``ordinarily'' a good rule, but the next sentence purports to
limit exceptions to the ordinary rule to two circumstances ``only.''
Indeed, the sentence emphasizes exceptions begrudgingly, stating
that PAS officials should consider new evidence and legal issues
``if at all'' only in the two circumstances set forth. Once again,
the tenor of the Recommendation is to restrict the power of higher-
level officers to limited categories. That's the wrong approach.
Higher-level officers should be told in clear terms that they bear
ultimate responsibility for their agencies' actions and that they
should engage in all the review they deem necessary in order to make
sure that they are comfortable bearing that responsibility.
Sixth, paragraph 17 closes out the pro-delegation theme of the
Recommendation by advising that, even where PAS officers do
adjudicate individual cases, agencies ``should'' delegate certain
case-related functions to non-PAS officials. Some of those case-
related functions are truly mechanical, such as ``[t]ransmitting
decisions and orders to parties and making them publicly
available,'' but many are much more important, such as
``[c]onducting legal and policy research,'' ``[r]ecommending case
dispositions,'' and ``[p]reparing draft decisions and orders for
review and signature by a PAS official or collegial body of PAS
officials.'' Research into law and policy and the subsequent
drafting of decisions are crucial functions of adjudication, and the
high-level PAS officers in an agency should be afforded the time and
resources to perform those functions. They should not be relegated
merely to supplying the ``signature'' to validate decisions
researched and drafted by others.
President Harry Truman famously had a sign on his desk reading:
``The buck stops here!'' See https://www.trumanlibrary.gov/education/trivia/buck-stops-here-sign (setting forth images of
Truman's wooden desk sign). That principle is not merely folksy
wisdom; it has constitutional dimension. As the Supreme Court
recently reaffirmed in United States v. Arthrex, the Take Care
Clause and other features of Article II require that the President
be ``responsible for the actions of the Executive Branch'' and that
he ``cannot delegate [that] ultimate responsibility or the active
obligation to supervise that goes with it.'' 594 U.S. 1, 11 (2021)
(internal quotations omitted). A corollary of that principle is
that, as the Arthrex decision confirms, high-level PAS officers
cannot be relieved of ``responsibility for the final decisions'' of
the subordinate officers under their supervision. Id. at 15. In
short, the tenor of the Arthrex decision is to prevent the diffusion
of responsibility deep into the bureaucracy. For decisions within an
Executive agency, the buck has to stop with the PAS officers and,
ultimately, with the President who has to bear ultimate
responsibility.
The thrust of this ACUS Recommendation is the exact reverse of
those principles. High-level PAS officers are encouraged to push
down adjudicatory responsibility and then to limit their review of
the resulting lower-level decisions. That's a charter for the
diffusion of power in the depths of the bureaucracy, and the very
opposite of responsible administration within the Executive Branch.
Separate Statement for Administrative Conference Recommendation 2024-3
by Public Member Jennifer L. Mascott
Filed June 28, 2024
I signed onto the concerns raised by Professor John Duffy and
joined by Kate Todd and Jenn Dickey because the Appointments Clause
requirements of Article II of the U.S. Constitution are an important
constraint ensuring that government officials exercise authority in
a way that is accountable back to elected officials and ultimately
the American public. Therefore, under the Appointments Clause,
``officers of the United States'' who exercise that authority must
be selected by the President subject to Senate consent or by the
President alone, a department head, or a court of law. U.S. Const.
art. II, section 2, clause 2 (``He . . . shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the supreme Court, and
all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by
Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments.'').
This ACUS recommendation inverts that hierarchy by recommending
that decisions be pushed lower into the administrative bureaucracy
rather than ensuring that appointed officials must take
responsibility for the outcomes of executive adjudication. Today the
United States Supreme Court recognized the importance of this
democratic accountability structure by removing certain decisions
from adjudicators within the Securities and Exchange Commission,
noting that common-law securities fraud claims must be resolved by
Article III courts with jury trial protections. See SEC v. Jarkesy,
__S. Ct. __(2024). In instances where common law judicial authority
is being exercised in adjudication, the Article III presidentially
appointed judicial, and jury system, must resolve those claims at
the federal level. In instances of executive adjudication,
ultimately the President must take responsibility for final outcomes
by supervising officers whose nomination and appointment he oversees
and directs. Congress further has a role by constitutionally being
required to create the offices those decisionmakers fill.
Therefore, I respectfully dissent from the June 2024 ACUS
Recommendation addressing the Participation of Senate-Confirmed
Officials in Administrative Adjudication.
Administrative Conference Recommendation 2024-4
Managing Congressional Constituent Service Inquiries
Adopted June 13, 2024
Since the country's earliest years, constituent services have
been a cornerstone of the representational activities of members of
Congress. Thousands of people each year contact their elected
representatives for help accessing federal programs or navigating
adjudicative and other similar administrative processes. Elected
representatives and their staff often submit requests to federal
agencies on behalf of their constituents in such situations. This
Recommendation refers to such requests as constituent service, or
``casework,'' \1\ requests. In most circumstances, the resolution of
an individual's issue should not require the assistance of the
individual's elected
[[Page 56285]]
representative or his or her staff.\2\ However, these casework
requests often appear to be helpful in ensuring appropriate agency
action. For agencies, congressional casework requests may reveal
broader, systemic problems with their policies and procedures. For
Congress, casework requests may also play an important role in
oversight of executive-branch agencies, allowing members of Congress
to gain greater awareness of the operation and performance of the
programs Congress authorizes and funds.
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\1\ This Recommendation and the best practices it identifies are
intended to assist agencies with improving their management and
resolution of congressional casework requests. Agency management of
congressional requests directed towards programmatic or policy
oversight is beyond the scope of this Recommendation.
\2\ Many agencies provide avenues for members of the public to
seek assistance or redress of grievances directly from the agency,
such as through agency ombuds. See Admin. Conf. of the U.S.,
Recommendation 2016-5, The Use of Ombuds in Federal Agencies, 81 FR
94316 (Dec. 23, 2016).
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Today, every member of Congress employs ``caseworkers,'' both in
Washington, DC, and in local offices, who help constituents with
requests ranging from the simple, such as assistance with government
forms, to the complex, such as correcting errors in veterans'
service records. While nearly all agencies receive congressional
casework requests, the agencies most frequently contacted include
the Department of Veterans Affairs, Internal Revenue Service, Social
Security Administration, Department of State, and U.S. Citizenship
and Immigration Services.\3\
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\3\ See Sean J. Kealy, Congressional Constituent Service
Inquiries 20 (June 5, 2024) (report to the Admin. Conf. of the
U.S.).
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Agencies have developed practices for receiving, processing, and
responding to requests and interacting with congressional
caseworkers. There is significant variation in these practices
across a number of dimensions.
Organization: Some agencies assign responsibility for managing
casework requests to a centralized congressional liaison office,
while others assign that responsibility to regional offices and
staff that are empowered to work directly with caseworkers located
in members' state or district offices.
Technology: Some agencies continue to use ad hoc, legacy systems
to receive, process, and respond to casework requests, while others
employ new technologies like internal electronic case management
systems \4\ and public-facing, web-based portals \5\ to receive,
process, and respond to casework requests in a more accurate,
efficient, transparent, and timely manner.
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\4\ Cf. Admin. Conf. of the U.S., Recommendation 2018-3,
Electronic Case Management in Federal Administrative Adjudication,
83 FR 30686 (June 29, 2018).
\5\ Cf. Admin. Conf. of the U.S., Recommendation 2023-4, Online
Process in Agency Adjudication, 88 FR 42682 (July 3, 2023).
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Procedures: Many agencies have developed standard operating
procedures (SOPs) for managing casework requests and made them
available to caseworkers and the public. These SOPs vary widely in
their content, scope, and level of detail. Some agencies have also
produced handbooks and other informational materials like flowcharts
and plain-language summaries of their SOPs to educate and assist
caseworkers.
Agencies are also subject to differing legal requirements that
affect when, how, and what agency personnel can communicate to
congressional caseworkers in responding to a casework request. These
legal requirements, including the Privacy Act of 1974 and the Health
Insurance Portability and Accountability Act of 1996 typically bar
agencies from sharing records or information that contain protected
or personally identifiable information with congressional
caseworkers unless the constituent provides an executed expression
of consent.\6\
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\6\ See Kealy supra note 3, at 11-12.
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Recognizing the unique and important role that constituent
services play in agency-congressional relations and congressional
oversight of federal programs, this Recommendation offers best
practices to help agencies receive, process, and respond to
congressional casework requests in an accurate, efficient,
transparent, and timely manner. Of course, agencies differ with
respect to the volume of casework requests they receive, the
communities they serve, their operational needs, their statutory
requirements, and the resources available to them. This
Recommendation recognizes that when adopting or reviewing practices
for receiving, processing, and responding to casework requests and
interacting with congressional caseworkers, agencies may need to
tailor these best practices to their unique circumstances.
Recommendation
Adopting Standard Operating Procedures
1. Agencies, especially those that receive a large volume of
congressional casework requests, should develop standard operating
procedures (SOPs) for tracking and managing such requests. Topics
that SOPs should address include, as appropriate:
a. The agency office(s) or title(s) of personnel responsible for
receiving, processing, and responding to congressional casework
requests and interacting with congressional caseworkers, and the
responsibilities of such office(s) or personnel;
b. The procedure by which congressional caseworkers should
submit casework requests to the agency, including releases, waivers,
or other documentation required by law;
c. The procedure by which agency personnel receive, process, and
respond to requests, including: (i) intra-agency assignments of
responsibility for the preparation, review, and approval of draft
responses; (ii) constraints on agency personnel's ability to provide
information in response to a casework request; (iii) circumstances
in which a casework request should be elevated for review by program
or agency leadership; and (iv) the process by which agency personnel
responsible for handling casework requests communicate with other
agency personnel, including ombuds, when working to resolve a
casework request, consistent with ex parte rules;
d. The agency's use of electronic case management or other
systems employed for managing casework requests and status updates,
including the use of a trackable unique identifier such as a docket
number or case number (see Paragraph 6);
e. The agency's procedures for monitoring the progress of
responses to each casework request (see Paragraphs 10-11);
f. The major legal requirements, if any, that may restrict the
agency's ability to provide information to a congressional
caseworker;
g. The types of communications that the agency provides to
congressional caseworkers upon receiving a casework request (e.g., a
notice acknowledging receipt), while processing a request (e.g.,
periodic status updates), and in responding to a request (e.g., a
letter, email, or other communication that explains action taken by
the agency to resolve the request);
h. Circumstances in which agency personnel will prioritize
certain casework requests, including on a temporary basis to address
emergencies, and how the agency's processing of prioritized requests
differs from its handling of non-prioritized requests;
i. The kinds of assistance or relief that the agency can and
cannot provide in response to a casework request; and
j. Performance goals and measures for responding to casework
requests (see Paragraph 9).
2. Agencies should make their SOPs on matters described in
Paragraphs 1(a)-1(i) publicly available on their websites as a
single, consolidated document along with plain-language materials
that succinctly summarize them.
3. Agencies should provide regular training designed for both
new and experienced agency personnel involved in receiving,
processing, and responding to congressional casework requests to
ensure their familiarity and compliance with agency SOPs.
Managing Casework Requests
4. Agencies should not automatically close out incoming casework
requests that do not include information or documentation required
for the request to be processed. Instead, agency personnel should
notify congressional caseworkers that their submissions are
incomplete and cooperate with the congressional caseworkers' efforts
to remedy the deficiency.
5. When agencies complete a casework request, they should
provide written notice to the congressional caseworker or office,
unless the caseworker or office has indicated that no written
response is necessary.
Using Technology To Streamline Request Management and Resolution
6. Consistent with their resources, agencies that receive a
large volume of congressional casework requests should adopt
systems, such as electronic case management systems and web-based
portals, to receive, process, and respond to requests in an
accurate, efficient, transparent, and timely manner. Such systems
should allow agency personnel to receive, process, and respond to
casework requests consistent with established SOPs and allow
managers to monitor the status of requests and evaluate key
performance goals and measures.
7. When considering adoption or development of an electronic
case management system or web-based portal,
[[Page 56286]]
agencies should consult with similarly situated agencies or units
with particular expertise that may be able to share lessons learned
during the adoption or development of similar systems.
8. In developing and modifying electronic case management
systems and web-based portals, agencies should solicit feedback and
suggestions for improvement from agency managers and personnel and,
as appropriate, congressional caseworkers.
Measuring Agency Performance
9. Agencies should adopt performance goals for processing
congressional casework requests and, for each goal, objective
measures that use data collected consistent with Paragraph 10 to
evaluate whether agency personnel are processing and responding to
congressional casework requests successfully.
10. Agencies should collect data (to the extent possible, in a
structured format) to allow managers to track and evaluate, as
applicable:
a. Processing times for casework requests;
b. The congressional offices or caseworkers from which requests
originate;
c. Agency actions taken in response to casework requests;
d. The nature, timing, and substance of communications between
agency personnel and members of Congress and their caseworkers
regarding specific casework requests;
e. The frequency with which members of Congress and their
caseworkers resubmit the same request, for example, because the
agency prematurely closed a previous request without fully
responding to the caseworker's inquiry, and the reason(s) for the
resubmission;
f. Training and other assistance that agency personnel provide
to members of Congress and their caseworkers regarding casework
generally;
g. The identities and roles of agency personnel who work on
casework requests; and
h. Any other data the agency determines to be helpful in
assessing the performance of their processes for receiving,
processing, and responding to casework requests.
11. Agencies should evaluate on an ongoing basis whether they
are meeting performance goals for processing congressional casework
requests and, as appropriate, identify internal or external factors
affecting their performance, identify opportunities for improvement,
and predict future resource needs.
12. Agencies periodically should reassess performance goals and
measures, and update them as needed, to ensure that they continue to
serve as accurate indicators of good performance consistent with
available resources, agency priorities, and congressional
expectations. Additionally, agencies periodically should reassess
their data collection practices and update them as needed to ensure
managers can track and evaluate performance accurately over time.
13. Senior agency officials regularly should consider whether
issues raised in congressional casework requests indicate broader
policy issues or procedural hurdles facing members of the public
which the agency should address.
Communicating Effectively With Congress
14. Agencies should foster strong working relationships with
congressional caseworkers and maintain open lines of communication
to provide information to and receive input from caseworkers on
agency procedures and facilitate efficient resolution of casework
requests. Options for fostering such relationships include:
a. Providing a point of contact to whom caseworkers can direct
questions about individual casework requests or casework generally;
b. Maintaining a centralized web page on the agency's website,
consistent with Paragraph 2, where caseworkers can access the
agency's SOPs; any plain language materials that succinctly
summarize the agency's SOPs; and any releases, waivers, or other
documentation that caseworkers must submit with requests;
c. Providing training or other events--in person in Washington,
DC, or regionally, or online in a live or pre-recorded format--
through which agency personnel can share information with
congressional caseworkers about the agency's procedures for
receiving, processing, and responding to congressional casework
requests (and, for agencies that frequently receive a high volume of
casework requests, holding these events regularly and either in
person or live online, to the extent practicable, in a manner that
facilitates receipt of user experience feedback);
d. Participating in training or other casework-focused events
organized by other agencies and congressional offices, including the
Office of the Chief Administrative Officer of the House of
Representatives and the Senate's Office of Education and Training;
and
e. Organizing periodic, informal meetings with congressional
offices and caseworkers with whom the agency regularly interacts to
answer questions.
15. Agencies periodically should solicit input and user
experience-related feedback from congressional caseworkers on the
timeliness and accuracy of agencies' responses to casework requests.
16. When communicating with congressional caseworkers in the
course of receiving, processing, or responding to casework requests,
agencies should ensure that each communication identifies, as
appropriate, any applicable legal constraints on the agency's
ability to provide the information or assistance requested.
17. Congress should consider directing its training or
administrative offices, such as the Office of the Chief
Administrative Officer of the House of Representatives and the
Senate's Office of Education and Training, to create a web page that
consolidates links to agencies' SOPs in one place for ready access
by congressional caseworkers. Agencies should cooperate with any
such effort, including by alerting the designated offices to any
changes to the web page at which their SOPs may be accessed.
[FR Doc. 2024-14981 Filed 7-8-24; 8:45 am]
BILLING CODE 6110-01-P