Adoption of Recommendations, 2139-2150 [2019-01284]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Notices]
[Pages 2139-2150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01284]


========================================================================
Notices
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains documents other than rules 
or proposed rules that are applicable to the public. Notices of hearings 
and investigations, committee meetings, agency decisions and rulings, 
delegations of authority, filing of petitions and applications and agency 
statements of organization and functions are examples of documents 
appearing in this section.

========================================================================


Federal Register / Vol. 84, No. 25 / Wednesday, February 6, 2019 / 
Notices

[[Page 2139]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Administrative Conference of the United States adopted 
five recommendations at its Seventieth Plenary Session. The appended 
recommendations address Recusal Rules for Administrative Adjudicators, 
Public Availability of Adjudication Rules, Improving Access to 
Regulations.gov's Rulemaking Dockets,) Public Engagement in Rulemaking, 
and Public-Private Partnerships.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2018-4, Gavin 
Young; for Recommendation 2018-5, Todd Phillips; for Recommendations 
2018-6 and 2018-8, Todd Rubin; and for Recommendation 2018-7, Frank 
Massaro. For each of these actions the address and telephone number 
are: Administrative Conference of the United States, Suite 706 South, 
1120 20th Street NW, Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov. At its Seventieth Plenary Session, held 
December 13-14, 2018, the Assembly of the Conference adopted five 
recommendations.
    Recommendation 2018-4, Recusal Rules for Administrative 
Adjudicators. This recommendation urges agencies to issue procedural 
rules governing the recusal of adjudicators to ensure both impartiality 
and the appearance of impartiality in agency adjudications. It 
encourages agencies to adopt procedures by which parties can seek 
recusal of adjudicators assigned to their cases and to provide written 
explanations for recusal decisions.
    Recommendation 2018-5, Public Availability of Adjudication Rules. 
This recommendation offers best practices to optimize agencies' online 
presentations of procedural rules governing adjudications. It 
encourages agencies to make procedural rules for adjudications and 
related guidance documents available on their websites and to organize 
those materials in a way that allows both parties appearing before the 
agencies and members of the public to easily access the documents and 
understand their legal significance.
    Recommendation 2018-6, Improving Access to Regulations.gov's 
Rulemaking Dockets (formerly titled Regulations.gov and the Federal 
Docket Management System). This recommendation offers suggested 
improvements to Regulations.gov, the website that allows the public to 
comment on many federal agencies' rulemaking proposals. It provides 
recommendations to the governing body of Regulations.gov, called the 
eRulemaking Program, and to agencies that participate in 
Regulations.gov for ensuring that rulemaking materials on 
Regulations.gov are easily searchable and categorized consistently and 
clearly. These recommendations include using one electronic docket per 
rulemaking, promoting interoperability among key websites (e.g., 
Federalregister.gov and Reginfo.gov), and making rulemaking materials 
available to search engines.
    Recommendation 2018-7, Public Engagement in Rulemaking. This 
recommendation offers strategies for agencies to enhance public 
engagement prior to and during informal rulemaking. It encourages 
agencies to invest resources in a way that maximizes the probability 
that rule-writers obtain high quality public information as early in 
the process as possible. It recommends expanding the use of requests 
for information and advance notices of proposed rulemaking, targeting 
outreach to individuals who might otherwise be unlikely to participate, 
and taking advantage of in-person engagement opportunities to solicit 
stakeholder input and support future informed participation.
    Recommendation 2018-8, Public-Private Partnerships. This 
recommendation offers agencies guidance on legal and practical 
considerations for participating in public-private partnerships. It 
commends to agencies a Guide to Legal Issues Involved in Public-Private 
Partnerships at the Federal Level, which provides guidance on the key 
legal questions agencies encounter in the operation of public-private 
partnerships, and proposes mechanisms that would allow agencies to 
share resources and best practices with one another when creating and 
administering such partnerships.
    The Appendix below sets forth the full texts of these five 
recommendations. In addition, there are two timely filed Separate 
Statements associated with Recommendations 2018-4 and 2018-6 
(authorized under 5 U.S.C. 595(a)(1)). The Conference will transmit the 
recommendations to affected agencies, Congress, and the Judicial 
Conference of the United States, as appropriate. The recommendations 
are not binding, so the entities to which they are addressed will make 
decisions on their implementation.
    The Conference based these recommendations on research reports that 
are posted at: https://www.acus.gov/meetings-and-events/plenary-meeting/70th-plenary-session.

    Dated: February 1, 2019.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2018-4

Recusal Rules for Administrative Adjudicators

Adopted December 13, 2018

    Recusal, the voluntary or involuntary withdrawal of an 
adjudicator from a particular proceeding, is an important tool for 
maintaining the integrity of adjudication. Recusal serves two 
important purposes. First, it helps ensure that parties to an 
adjudicative proceeding have their claims resolved by an impartial 
decisionmaker. This aspect of

[[Page 2140]]

recusal is reflected in the Due Process Clause, as well as 
statutory, regulatory, and other sources of recusal standards. 
Second, the recusal of adjudicators who may appear partial helps 
inspire public confidence in adjudication in ways that a narrow 
focus on actual bias against the parties themselves cannot.\1\ 
Appearance-based recusal standards are in general not 
constitutionally required, but have been codified in judicial 
recusal statutes as well as model codes.\2\ Unlike with federal 
judicial recusal, there is no uniformity regarding how agencies 
approach appearance-based recusal in the context of administrative 
adjudication.
---------------------------------------------------------------------------

    \1\ Louis J. Virelli, III, Recusal Rules for Administrative 
Adjudicators (Nov. 30, 2018) (report to the Admin. Conf. of the 
U.S.), https://www.acus.gov/report/final-report-recusal-rules-administrative-adjudicators.
    \2\ See 28 U.S.C. 455(a) (2012); Model Code of Judicial Conduct 
for Federal Administrative Law Judges Canon 3(C) (Am. Bar Ass'n 
1989), available at https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1521&context=naalj. Both require recusal by 
federal adjudicators when their ``impartiality might reasonably be 
questioned.''
---------------------------------------------------------------------------

    In Recommendation 2016-4, Evidentiary Hearings Not Required by 
the Administrative Procedure Act, the Conference recommended that 
agencies require adjudicator recusal in the case of actual bias.\3\ 
This Recommendation builds upon Recommendation 2016-4 by addressing 
the need for agency-specific recusal rules that consider the full 
range of actual and apparent bias. It focuses on a variety of agency 
adjudications, including those governed by the adjudication 
provisions of the Administrative Procedure Act (APA), as well as 
adjudications not governed by the APA but nonetheless consisting of 
evidentiary hearings required by statute, regulation, or executive 
order.\4\ It also covers appeals from those adjudications. Although 
this Recommendation does not apply to adjudications conducted by 
agency heads, agencies could take into account many of the 
provisions in the Recommendation when determining rules for the 
recusal of agency heads.
---------------------------------------------------------------------------

    \3\ Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary 
Hearings Not Required by the Administrative Procedure Act, 81 FR 
94,314 (Dec. 23, 2016).
    \4\ In the context of Recommendation 2016-4 and the associated 
consultant report, adjudications with evidentiary hearings governed 
by the APA adjudication sections (5 U.S.C. 554, 556, and 557) and 
adjudications that are not so governed but that otherwise involve a 
legally required hearing have been named, respectively, ``Type A'' 
and ``Type B'' adjudications. This Recommendation addresses both 
Type A and Type B adjudications but does not apply to adjudications 
that do not involve a legally required evidentiary hearing (known as 
``Type C'' adjudications). See Admin. Conf. of the U.S., 
Recommendation 2016-4, Evidentiary Hearings Not Required by the 
Administrative Procedure Act, 81 FR 94,314 (Dec. 23, 2016); Michael 
Asimow, Evidentiary Hearings Outside the Administrative Procedure 
Act 2 (Nov. 10, 2016) (report to the Admin. Conf. of the U.S.), 
https://www.acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.
---------------------------------------------------------------------------

    Recusal rules addressing actual and apparent bias can protect 
parties and promote public confidence in agency adjudication without 
compromising the agency's ability to fulfill its mission effectively 
and efficiently. This necessarily lends itself to standards that are 
designed in accord with the specific needs and structure of each 
agency and that allow for fact-specific determinations regarding the 
appearance of adjudicator impartiality. This contextualized nature 
of administrative recusal standards is reflected in the list of 
relevant factors in Paragraph 3 for agencies to consider in 
fashioning their own recusal rules. The parenthetical explanations 
accompanying these factors show how different features of an 
agency's administrative scheme may affect the stringency of those 
rules.
    Recusal rules also provide a process for parties to petition 
their adjudicator to recuse in the event he or she does not elect to 
do so sua sponte. This right of petition promotes more informed and 
accountable recusal decisions. Recusal rules can further provide for 
appeal of those decisions within the agency. Such appeals are 
typically conducted by other agency adjudicators acting in an 
appellate capacity but may also include the official responsible for 
the adjudicator's work assignments. This right of appeal increases 
the reliability and accuracy of recusal determinations and helps 
ensure the consistency and effectiveness of the work assignment 
process. Consistent with the APA, adjudicators, including appellate 
reviewers, must provide parties with a written explanation of their 
recusal decisions.\5\ Finally, agencies could provide for the 
publication of recusal decisions. Both written explanations and 
publication of recusal decisions increase transparency and thus the 
appearance of impartiality.
---------------------------------------------------------------------------

    \5\ 5 U.S.C. 555(e) (2012).
---------------------------------------------------------------------------

    It is important to distinguish adjudicative recusal rules and 
procedures from the ethics rules promulgated by the Office of 
Government Ethics (OGE).\6\ As an initial matter, the two are not 
mutually exclusive. Even where ethical and recusal rules overlap, it 
is entirely possible and coherent to enforce both. This is due, at 
least in part, to the differences in scope, form, and enforcement 
mechanisms between the two. Ethics rules prohibit employees from 
participating in certain matters when they have a conflict of 
interest or an appearance of a conflict. Adjudicative recusal rules 
focus on how an agency, acting through its adjudicators and appeal 
authorities, decides who will hear certain cases in a manner that 
ensures the integrity and perceived integrity of adjudicative 
proceedings. Adjudicative recusal rules are thus broader in focus 
and narrower in application than ethics rules. In this light, ethics 
rules tend to be very precise, as agency employees need to have 
clear guidance as to what they may or may not do. Adjudicative 
recusal rules, by contrast, tend to be much more open-ended and 
standard-like. They are focused on maintaining both actual 
impartiality and the appearance of impartiality of adjudicative 
proceedings, which may be compromised by conduct that would not 
constitute a breach of any ethics rule, such as advocating a 
particular policy in a speech before a professional association.
---------------------------------------------------------------------------

    \6\ The Ethics in Government Act of 1978, Public Law 95-521, 92 
Stat. 1824 (codified at 5 U.S.C. App.) established the Office of 
Government Ethics to provide ``overall direction of executive branch 
policies related to preventing conflicts of interest on the part of 
officers and employees of any executive agency.'' OGE's Standards of 
Ethical Conduct for Employees of the Executive Branch are available 
at 5 CFR part 2635.
---------------------------------------------------------------------------

    The enforcement mechanism is also different. If an adjudicator, 
like other employees, participates in a matter in violation of an 
ethics rule, the adjudicator can be subject to discipline. In 
contrast, if an adjudicator decides not to recuse him or herself in 
a case where he or she should have been recused, even if the 
adjudicator would not be subject to discipline, the decision not to 
recuse could be appealed under whatever process the agency has 
established. In addition, the recusal process can be initiated by a 
party to the adjudication if an adjudicator does not recuse him or 
herself sua sponte.
    Under current law, an agency that wishes to supplement its 
ethics rules must, of course, do so through the OGE supplemental 
process.\7\ Under that process, agencies, with the concurrence of 
OGE, may promulgate ethics rules that supplement existing OGE rules. 
This Recommendation, in contrast, focuses exclusively on a set of 
recusal rules an agency may wish to adopt to preserve the integrity 
and perceived integrity of its adjudicative proceedings.
---------------------------------------------------------------------------

    \7\ See Standards of Ethical Conduct for Employees of the 
Executive Branch, 5 CFR 2635.105.
---------------------------------------------------------------------------

Recommendation

    1. Agencies should adopt rules for recusal of adjudicators who 
preside over adjudications governed by the adjudication sections of 
the Administrative Procedure Act (APA), as well as those not 
governed by the APA but administered by federal agencies through 
evidentiary hearings required by statute, regulation, or executive 
order. The recusal rules should also apply to adjudicators who 
conduct internal agency appellate review of decisions from those 
hearings, but not to agency heads. When adopting such rules, 
agencies should consider the actual and perceived integrity of 
agency adjudications and the effectiveness and efficiency of 
adjudicative proceedings.
    2. Agency rules should, consistent with ACUS Recommendation 
2016-4, Evidentiary Hearings Not Required by the Administrative 
Procedure Act,\8\ provide for the recusal of adjudicators in cases 
of actual adjudicator partiality, referred to as bias in ACUS 
Recommendation 2016-4, including:
---------------------------------------------------------------------------

    \8\ 81 FR 94,314 (Dec. 23, 2016).
---------------------------------------------------------------------------

    a. Improper financial or other personal interest in the 
decision;
    b. Personal animus against a party or group to which that party 
belongs; or
    c. Prejudgment of the adjudicative facts at issue in the 
proceeding.
    3. Agency recusal rules should preserve the appearance of 
impartiality among its adjudicators. Such rules should be tailored 
to accommodate the specific features of an agency's adjudicative 
proceedings and its institutional needs, including consideration of 
the following factors:
    a. The regularity of the agency's appearance as a party in 
proceedings before

[[Page 2141]]

the adjudicator (the more frequently an adjudicator must decide 
issues in which his or her employing agency is a party, the more 
attentive the agency should be in ensuring that its adjudicators 
appear impartial);
    b. Whether the hearing is part of enforcement proceedings (an 
agency's interest in the outcome of enforcement proceedings could 
raise public skepticism about adjudicators' ability to remain 
impartial and thus require stronger appearance-based recusal 
standards);
    c. The agency's adjudicative caseload volume and capacity, 
including the number of other adjudicators readily available to 
replace a recused adjudicator (if recusal could realistically 
infringe upon an agency's ability to adjudicate by depriving it of 
necessary adjudicators, then more flexible appearance-based recusal 
standards may be necessary);
    d. Whether a single adjudicator renders a decision in 
proceedings, or whether multiple adjudicators render a decision as a 
whole (concerns about quorum, the administrative complications of 
tied votes, and preserving the deliberative nature of multi-member 
bodies may counsel in favor of more flexible appearance-based 
recusal standards); and
    e. Whether the adjudicator acts in a reviewing/appellate 
capacity (limitations on appellate standards of review could reduce 
the need for strict appearance-based recusal standards, but the 
greater authority of the reviewer could warrant stronger appearance-
based recusal standards).
    4. Agency rules should include provisions identifying 
considerations that do not, on their own, warrant recusal and 
specifying situations in which recusal is not required or is 
presumptively not required.
    5. Agency recusal rules should also include procedural 
provisions for agencies to follow in determining when recusal is 
appropriate. At a minimum, those provisions should include the right 
of petition for parties seeking recusal, initial determination by 
the presiding adjudicator, and internal agency appeal.
    6. In response to a recusal petition, adjudicators and appellate 
reviewers of recusal decisions must provide written explanations of 
their recusal decisions. In addition, agencies should publish their 
recusal decisions to the extent practicable and consistent with 
appropriate safeguards to protect relevant privacy interests 
implicated by the disclosure of information related to adjudications 
and adjudicative personnel.
    7. Although this Recommendation does not apply to adjudications 
conducted by agency heads, agencies could take into account many of 
the provisions in the Recommendation when establishing rules 
addressing the recusal of agency heads.

Separate Statement on Administrative Conference Recommendation 2018-4 
by Public Member Richard D. Klingler \1\
---------------------------------------------------------------------------

    \1\ Partner, Sidley Austin LLP. This statement is made solely in 
my capacity as an ACUS Public Member.
---------------------------------------------------------------------------

Filed January 4, 2019

    This statement briefly summarizes the reasons for my vote 
against adopting Administrative Conference Recommendation 2018-4, 
Recusal Rules for Administrative Adjudicators (Dec. 13, 2018). I 
appreciate the fine and careful work by committee members and others 
leading to this Recommendation, and in particular Prof. Virelli's 
thorough and helpful report to the Conference. However, I believe 
the Recommendation is in considerable tension with basic separation 
of powers principles and will lead to associated distortions in 
Executive Branch decisionmaking and accountability. To avoid these 
results, agencies might (a) carefully consider whether any recusal 
rules should apply at all to more senior agency officials, including 
those reviewing initial adjudicatory decisions and (b) clarify that 
their recusal rules do not apply to statements or positions 
regarding policy or the interpretation of statutes or regulations. I 
especially urge agencies not to extend the Recommendation's 
provisions to agency heads.
    The Recommendation focuses on ``the appearance of adjudicator 
impartiality'' to force ``the recusal of adjudicators who may appear 
partial.'' Rec. at 1, 2 (emphases added).\2\ It acknowledges that 
the resulting recusal rules will ``tend to be much more open-ended 
and standard-like'' than the extensive ethics rules already 
applicable to these and other officials and will be akin to rules 
``codified in judicial recusal statutes as well as model codes.'' 
Id. at 1, 3. Most troubling for my purposes, the Recommendation 
states that ``[t]he recusal rules should also apply to adjudicators 
who conduct internal agency review of decisions from [initial] 
hearings'' and that ``agencies could take into account many of the 
provisions in the Recommendation when establishing rules addressing 
the recusal of agency heads.'' Id. at 4, 6.
---------------------------------------------------------------------------

    \2\ Citations to the recommendation in this Statement refer to 
page numbers of the original document that is posted at https://www.acus.gov/sites/default/files/documents/Recusal%20Rules%20Recommendation%20Post-Plenary%2012-21-2018%20Final.pdf.
---------------------------------------------------------------------------

    Appearance of impartiality standards, especially those modeled 
on judicial standards, tend and often seek to foster the public 
perception that agency adjudicators act independently of policy 
determinations or the directions of more senior officials. Those 
standards also tend to foster agency cultures and official actions 
consistent with those views. But that independence does not reflect 
reality, nor should it. These ``adjudicators'' are Executive Branch 
officials. They are not Article III or even Article I judges, and 
should not be treated as such. They should be and inevitably are 
``partial'' in the sense of implementing and developing distinct 
Executive Branch policies through their decisions, and many of those 
policies are set forth prior to deciding individual cases. Ideally, 
those policy choices and associated legal interpretations would be 
expressly acknowledged and would reflect the views of senior 
officials, including the President. This is especially so for 
officials reviewing initial hearing decisions and for agency heads, 
who must even more clearly execute the law through the exercise of 
discretion informed by distinct views of law and policy.
    The Recommendation's conflation of these judicial and executive 
roles will likely undermine the formulation and implementation of 
Executive Branch legal policy. This is so because large segments of 
the public and many adjudicators themselves are prone to view the 
advocacy and implementation of distinct policies in the course of or 
prior to executing the law as reflecting inappropriate bias and lack 
of independence. That is, they view what should be the proper 
discharge of office as reflecting the ``appearance of adjudicator 
impartiality.'' The resulting rules and the likely frequent resort 
to recusal motions will reinforce those views and impede the 
articulation of legal policy and the implementation of senior 
officials' judgments of how the law should be executed. Indeed, the 
Recommendation seeks to bar activities ``such as advocating a 
particular policy in a speech before a professional association'' 
and suggests that ``the greater authority of the reviewer could 
warrant stronger appearance-based recusal standards.'' Rec. at 3 & 
5. Especially as applied to officials who review initial 
adjudications and even more so for agency heads, this type of 
constraint is beyond unwarranted: It is undesirable as inconsistent 
with those officials' core responsibilities as Executive Branch 
officials and inconsistent with the powers vested in them and their 
superior officers.
    The Recommendation also will tend to insulate administrative 
adjudicators further from the President, principal officers, other 
political appointees, and other officials who formulate policy and 
direct the execution of laws. That may be the intended effect. But 
that insulation does not only produce decisions that reflect 
uncoordinated policy choices and legal interpretations, masked as 
neutral decisionmaking. It also undermines the ultimate public 
accountability that the separation of powers is designed to ensure. 
The adjudicators subject to the recommended rules will be at least 
``inferior Officers,'' and those reviewing or ultimately issuing the 
adjudicatory orders may well be principal officers. For both, the 
Appointments Clause is designed to ``maintain clear lines of 
accountability--encouraging good appointments and giving the public 
someone to blame for poor ones,'' Lucia v. SEC, 585 U.S. __, slip 
op. 2 (2018) (Thomas, J., concurring), and those clear lines of 
accountability are also necessary to enable the President to ``take 
Care that the Laws be faithfully executed.'' U.S. Const. Art. II, 
Sec.  3.
    The Recommendation and resulting rules also have the unintended 
effect of inserting the Conference and agencies into highly 
contested legal debates regarding the proper scope of Presidential 
appointment and removal powers. Like other limitations on or 
counterweights to those powers, the recommended rules will have the 
practical effect of submerging the role that discretionary policy 
and legal determinations play in adjudications, and of insulating 
agency adjudicators from the direct and indirect influence of 
officials accountable to the President. The Recommendation was 
adopted soon after the President expanded

[[Page 2142]]

his control over appointing certain adjudicators, see E.O. 13843, 
Excepting Administrative Law Judges from the Competitive Service 
(July 10, 2018), and as the courts appear poised to address broader 
challenges to limits on the President's ability to direct agency 
decisionmaking, including adjudications, by appointing and removing 
officers. See, e.g., Lucia v. SEC, supra; Free Enterprise Fund v. 
PCAOB, 561 U.S. 477 (2010). The Conference and agencies should, if 
anything, seek instead to foster a more unified and coordinated 
exercise of Executive Branch action within our scheme of separated 
powers.

Administrative Conference Recommendation 2018-5

Public Availability of Adjudication Rules

Adopted December 13, 2018

    [Note: The appendix referenced in this Recommendation has been 
omitted from this notice because of the inaccessible images it 
contains. The full appendix may be found online at www.acus.gov/sites/default/files/documents/Recommendation-2018-5_Appendix.pdf.]
    Every year, federal agencies conduct hundreds of thousands of 
adjudications.\1\ In order to participate meaningfully in 
adjudications, persons appearing before federal agencies must have 
ready online access both to the key materials associated with these 
adjudications (including prior decisions) and the procedural rules 
governing them. Administrative Conference Recommendation 2017-1 
addresses the former set of materials, urging agencies to provide 
online access to the key documents associated with adjudications.\2\ 
This Recommendation deals with the latter set of materials. It sets 
forth best practices to assist agencies in making their procedural 
rules available online and in organizing those materials in a way 
that is accessible to and comprehensible for the public and persons 
appearing before agencies, consistent with 5 U.S.C. 552(a)(1), 
(a)(2), and other applicable provisions of law.\3\
---------------------------------------------------------------------------

    \1\ See Admin. Conf. of the U.S., Recommendation 2016-2, 
Aggregate Agency Adjudication, 81 FR 40,260 (June 21, 2016).
    \2\ See Admin. Conf. of the U.S., Recommendation 2017-1, 
Adjudication Materials on Agency websites, 82 FR 31,039 (July 5, 
2017).
    \3\ Another ongoing Administrative Conference project addresses 
the online availability of agency guidance documents. Admin. Conf. 
of the U.S., Public Availability of Agency Guidance, https://www.acus.gov/research-projects/public-availability-agency-guidance. 
This recommendation deals only with the limited class of those 
documents relating to adjudication procedure.
---------------------------------------------------------------------------

    A number of different sources create procedural rules that 
govern agency adjudications. At the very least, these sources 
include: (a) The Due Process Clause of the Constitution's Fifth 
Amendment; (b) the adjudication provisions of the Administrative 
Procedure Act (APA); \4\ (c) agency or program-specific statutes 
that set forth rules for particular types of adjudications; (d) 
agency-promulgated rules of procedure with legal effect; (e) agency 
precedents as set forth in decisions by agency officials authorized 
to engage in final agency action; \5\ (f) adjudicator-specific 
practice procedures applicable across multiple cases, such as 
standing orders; and (g) agency-specific forms that persons 
appearing before an agency are required to use.
---------------------------------------------------------------------------

    \4\ 5 U.S.C. 554-58.
    \5\ Id. Sec.  704. Decisions of the Supreme Court may also be 
considered a binding source of law. Whether lower-court decisions 
are binding is not addressed here.
---------------------------------------------------------------------------

    In addition, many agencies have issued guidance documents and 
explanatory materials that help persons appearing before agencies 
navigate the adjudicative process and guide agency adjudicators and 
other agency officials.\6\ These documents and materials usually 
take the form of policy statements and other forms of agency 
guidance, that, if not published, cannot be used to the disadvantage 
of persons appearing before the agency.\7\
---------------------------------------------------------------------------

    \6\ To facilitate ease of understanding, an agency should tailor 
explanatory materials to meet the needs of the members of the public 
who typically appear before it. Admin. Conf. of the U.S., 
Recommendation 2017-3, Plain Language in Regulatory Drafting, 82 FR 
61,728 (Dec. 29, 2017).
    \7\ 5 U.S.C. 552(a)(1)-(2); but see id. Sec.  552(a)(1) 
(providing that an individual that has ``actual and timely notice'' 
of a requirement may be bound thereby even if the document was not 
published).
---------------------------------------------------------------------------

    Under existing law, agencies, with some limited exceptions, are 
required to publish rules of procedure with general applicability 
and legal effect in the Federal Register and to codify such rules in 
the Code of Federal Regulations,\8\ and those rules in turn are 
required to be published on the agency websites.\9\ Generally, 
agencies have some discretion over how to organize these materials 
on their websites.
---------------------------------------------------------------------------

    \8\ 5 U.S.C. 552(a)(1); 44 U.S.C. 1505(a)(2), 1510(a); 1 CFR 
5.2(c), 5.5, 5.9.
    \9\ See, e.g., E-Government Act of 2002, Public Law 107-347, 
206, 116 Stat. 2899, 2916 (amending 44 U.S.C. 3501).
---------------------------------------------------------------------------

    A review of existing agency websites reveals that agency 
practices vary widely. Some provide access on their websites to all 
relevant statutes, rules of practice, precedents, standing orders, 
forms, and guidance documents and explanatory materials, whereas 
others publish few or none of these things. Of those that do publish 
such documents and materials, some identify the sources of law from 
which the rules derive and clearly delineate between agency-
promulgated rules of procedure with legal effect and (non-binding) 
guidance documents, whereas others do not. Finally, some websites 
are much more effective than others in organizing these materials 
and placing them in a logical location on the agency website such 
that they are easily accessible.
    This Recommendation offers best practices to optimize agencies' 
online presentation of procedural rules for agency adjudications. 
Implementation of these best practices will benefit not only 
individuals appearing before agencies, who need ready access to 
procedural rules in order to proceed effectively, but also agencies, 
which, among other things, have an interest in ensuring that non-
binding explanatory materials are clearly labeled as such. These 
best practices will also advance the purpose of the E-Government Act 
and recent amendments to the Freedom of Information Act, which 
expand affirmative disclosure by federal agencies and ensure that 
key agency documents are made available.\10\
---------------------------------------------------------------------------

    \10\ E-Government Act of 2002, Sec.  206, (amending 44 U.S.C. 
3501); FOIA Improvement Act of 2016, Public Law 114-185, 2, 130 
Stat. 538 (amending 5 U.S.C. 552(a)(2)).
---------------------------------------------------------------------------

Recommendation

    The following recommendations offer best practices for agencies 
to consider as they seek to make procedural rules publicly available 
and to present those rules and related materials in a way that is 
accessible to and comprehensible for the public and persons 
appearing before agencies:
    1. Agencies should provide updated access on their websites to 
all sources of procedural rules and related guidance documents and 
explanatory materials that apply to agency adjudications, including 
as relevant: (a) The provisions of the Administrative Procedure Act 
relating to adjudication (5 U.S.C. 554-58); (b) statutory provisions 
providing procedural rules for adjudication; (c) agency-promulgated 
rules of procedure with legal effect; (d) guidance documents and 
explanatory materials relating to adjudicative procedures, including 
guides designed for persons appearing before an agency and agency 
adjudicators (e.g., manuals, bench books), excepting those covered 
by a Freedom of Information Act exemption that the agency intends to 
invoke; and (e) agency-specific forms that individuals must use. 
Agencies should also consider, as appropriate, providing access to 
adjudicator-specific practice procedures applicable across multiple 
cases, such as standing orders.
    2. In providing access to the materials pursuant to Paragraph 1, 
agencies should present the materials in a clear, logical, and 
comprehensive fashion. One way to do so is to display the materials 
published under Paragraph 1 in an easy-to-read table. An example 
appears in the Appendix located at www.acus.gov/sites/default/files/documents/Recommendation-2018-5_Appendix.pdf. When possible, 
agencies should prominently delineate between binding and nonbinding 
materials.
    3. Agency-promulgated rules of procedure with legal effect 
should be accessible on agency websites in one easily searchable 
file. The rules should include a table of contents listing the rule 
titles. The rule titles should be hyperlinked to the rule text. The 
numbering system in the searchable file should mirror the Code of 
Federal Regulations' (CFR) numbering system and provide a link to 
the official version of the CFR.
    4. When an agency's mission consists exclusively or almost 
exclusively of conducting adjudications, the agency should link to 
its materials published under Paragraph 1 on the agency's homepage. 
When conducting adjudications is merely one of an agency's many 
functions, the agency should link to its rules and guidance from a 
location on the website that is both dedicated to adjudicatory 
materials and logical in terms of

[[Page 2143]]

a person's likelihood of finding the documents in the selected 
location, such as an enforcement or adjudications page. Examples 
appear in the Appendix located at www.acus.gov/sites/default/files/documents/Recommendation-2018-5_Appendix.pdf.
    5. Agencies should consider providing access on their websites 
to explanatory materials aimed at providing an overview of relevant 
agency precedents that apply the rules of procedure. Explanatory 
materials should link to applicable statutes, rules of procedure, 
and adjudicative precedents relating to adjudication procedures.

Administrative Conference Recommendation 2018-6

Improving Access to Regulations.gov's Rulemaking Dockets

Adopted December 13, 2018

    As agencies develop regulations, they often seek input from the 
public. In order to submit an informed comment, a member of the 
public needs to be able to at least: (1) Access the proposed rule 
and the agency's justification for it, and (2) access materials upon 
which the agency substantially relied to develop the proposed rule. 
Commenters should also be able to access other comments that may 
have been submitted on the proposed rule in time to submit 
responsive comments, to the extent this is possible.
    Members of the public, especially those who are subject to the 
rule, should be able easily to determine whether further action has 
been taken on the proposed rule and, when a final rule has been 
issued, to access the rule and all materials, including public 
comments, that informed its development. This Recommendation seeks 
to make it easier for members of the public to access these 
materials on Regulations.gov, thereby allowing them to contribute 
more effectively to the rulemaking process and understand their 
regulatory obligations.

Legal Requirements for Maintaining Electronic Rulemaking Dockets

    The purposes of the E-Government Act of 2002 are to ``improve 
performance in the development and issuance of agency regulations by 
using information technology to increase access, accountability, and 
transparency,'' and to ``enhance public participation in Government 
by electronic means, consistent with [the Administrative Procedure 
Act].'' \1\ The E-Government Act of 2002 requires agencies, to the 
extent practicable, to maintain electronic rulemaking dockets (e-
dockets).\2\ An e-docket is simply a virtual folder that contains 
materials relevant to a particular rulemaking. It ideally includes 
any relevant notices (e.g., notices of proposed rulemaking (NPRMs)), 
supporting materials, and comments. Under the E-Government Act of 
2002, e-dockets must make publicly available online, to the extent 
practicable, all comments received ``and other materials that by 
agency rule or practice are included in the rulemaking docket . . . 
whether or not submitted electronically.'' \3\
---------------------------------------------------------------------------

    \1\ E-Government Act of 2002, Public Law 107-347, 206(a), 116 
Stat. 2899, 2915 (amending 44 U.S.C. 3501).
    \2\ The E-Government Act of 2002 also requires agencies, to the 
extent practicable, to accept comments by electronic means. Id. 
Sec.  206(c).
    \3\ Id. Sec.  206(d)(2)(B).
---------------------------------------------------------------------------

    The Administrative Conference has recommended that agencies 
manage their public rulemaking dockets to achieve ``maximum public 
disclosure.'' This means that, to the extent feasible, agencies 
should include the following within their public rulemaking dockets: 
(1) Notices pertaining to the rulemaking; (2) comments and other 
materials submitted to the agency related to the rulemaking; (3) 
transcripts or recordings, if any, of oral presentations made in the 
course of a rulemaking; (4) reports or recommendations of any 
relevant advisory committees; (5) other materials required by 
statute, executive order, or agency rule to be considered or made 
public in connection with the rulemaking; and (6) any other 
materials considered by the agency during the course of the 
rulemaking.\4\ Because the E-Government Act of 2002 treats the e-
docket as equivalent to the traditional rulemaking docket, agencies 
should include all these materials in their e-dockets.
---------------------------------------------------------------------------

    \4\ See Admin. Conf. of the U.S., Recommendation 2013-4, 
Administrative Record in Informal Rulemaking, ] 1, 78 FR 41,358, 
41,360 (July 10, 2013).
---------------------------------------------------------------------------

Basic Structure of FDMS/Regulations.gov

    Regulations.gov and the Federal Docket Management System (FDMS) 
are the primary vehicles through which all agencies, except for some 
independent regulatory agencies,\5\ comply with the electronic 
commenting and e-docket requirements of the E-Government Act of 
2002.\6\ FDMS/Regulations.gov therefore houses a large part of the 
federal government's rulemaking and, for some agencies, non-
rulemaking materials (e.g., adjudication dockets and Paperwork 
Reduction Act notices), spanning nearly 40 years from over 180 
federal agencies.
---------------------------------------------------------------------------

    \5\ The Federal Communications Commission and the Securities and 
Exchange Commission, for example, do not participate in FDMS/
Regulations.gov. Instead, they maintain their own online rulemaking 
systems.
    \6\ Regulations.gov and FDMS were established by an initiative 
led by the Office of Management and Budget to implement President 
George W. Bush's Management Agenda. See Office of Mgmt. & Budget, 
Exec. Office of the President, Memorandum No. M-02-08, Redundant 
Information Systems Related to On-Line Rulemaking Initiative (May 6, 
2002).
---------------------------------------------------------------------------

    Agencies create and manage e-dockets and their contents through 
FDMS.gov, a password-protected site that can be accessed only by 
authorized agency personnel. Agency officials are responsible not 
only for creating e-dockets but also for appropriately indexing them 
by selecting relevant Docket and Document Types and Subtypes, which 
will be described in greater detail below.
    FDMS maintains a data feed that is updated daily with contents 
of the Federal Register. Data received through this feed includes 
all rulemaking materials from participating and non-participating 
agencies that are published in the Federal Register.
    The Regulatory Information Service Center (RISC) within the 
General Services Administration (GSA) also regularly interacts with 
FDMS/Regulations.gov. RISC maintains the Unified Agenda of 
Regulatory and Deregulatory Actions (Unified Agenda), a semi-annual 
publication of significant regulatory actions that agencies plan to 
take in the short and long term. The Unified Agenda requires 
agencies to indicate, among other things, whether a rule has 
federalism implications, creates unfunded mandates, or affects small 
entities.\7\ When an agency official enters a key identifier 
assigned by RISC, which is referred to as the Regulation Identifier 
Number (RIN) into the e-docket in FDMS, the Unified Agenda 
information publicly appears on Regulations.gov.
---------------------------------------------------------------------------

    \7\ Admin. Conf. of the U.S., Recommendation 2015-1, Promoting 
Accuracy and Transparency in the Unified Agenda, 80 FR 36,757 (June 
26, 2015).
---------------------------------------------------------------------------

Governance and Funding of FDMS/Regulations.gov

    FDMS/Regulations.gov is governed by an Executive Steering 
Committee (Committee) that consists of officials from dozens of 
federal agencies. The Committee is co-chaired by the Deputy 
Administrator of the Office of Information and Regulatory Affairs 
(OIRA) and the Chief Information Officer of the Environmental 
Protection Agency (EPA). It makes decisions about the design, 
operations, maintenance, and budgeting of FDMS/Regulations.gov upon 
advice from several smaller, lower-tiered bodies.
    EPA is considered the ``managing partner'' of FDMS/
Regulations.gov. As such, it is responsible for implementing changes 
to the system that have been approved by the Committee. To carry out 
this responsibility, the EPA created a Project Management Office 
(PMO), which consists of a small staff of experts in online docket 
management technology. This staff implements the policy decisions of 
the Committee. Although some commenters use the term ``eRulemaking 
Program'' to refer to the PMO specifically, the term as used in this 
Recommendation refers not solely to the PMO, but also to the FDMS/
Regulations.gov governance structure as a whole, including 
participating agencies.
    There is no direct appropriated funding for FDMS/
Regulations.gov.\8\ Agencies that participate in FDMS/
Regulations.gov fund the system through contributions, decided by a 
formula. The formula for contributions, established by the EPA in 
its Capital Asset Plan and Business Case, is based on a number of 
factors, including the average annual number of rules and non-rule 
items the agency publishes and the average annual number of comments 
posted on Regulations.gov.
---------------------------------------------------------------------------

    \8\ Cynthia R. Farina, Reporter, Achieving the Potential: The 
Future of Federal E-Rulemaking, Report of the Committee on the 
Status and Future of Federal E-Rulemaking, 62 Admin. L. Rev. 279, 
282 (2010).
---------------------------------------------------------------------------

Interaction Among FDMS/Regulations.gov, Other Online eRulemaking 
Systems, and Commercial Search Engines

    In addition to the eRulemaking Program, there are federal 
offices that publish rulemaking materials and information. These 
include the Office of the Federal Register (OFR) and RISC. OIRA 
(within the Office of Management and Budget) and GSA publish the 
Unified Agenda on Reginfo.gov. The

[[Page 2144]]

Unified Agenda indicates, among other pieces of information, whether 
a rule imposes unfunded mandates and whether it has federalism 
implications. OFR's Federalregister.gov provides access to the 
officially published Federal Register. Combined, information 
published by all three of these bodies and others provides the user 
with important context about rulemakings.
    As used in this Recommendation, the term ``data 
interoperability'' means that rulemaking data published or housed by 
different entities is connected. Complete data interoperability in 
this context is achieved when a user is able to find all relevant 
information about a rule in one place. Currently, a basic level of 
data interoperability among FDMS/Regulations.gov, RISC, and OFR 
begins when agencies enter certain identifying numbers (key 
identifiers) pertaining to a rule into e-dockets. The three key 
identifiers are: (1) The Regulations.gov Document Number, (2) the 
RIN (described above), and (3) the Federal Register Document Number. 
The Regulations.gov Docket Number is generated by FDMS when an 
agency user creates an e-docket. The RIN is generated when an agency 
requests it from RISC. The Federal Register Document Number is 
assigned by OFR when an agency sends a document to it for 
publication in the Federal Register. Because e-dockets often contain 
more than one document that has been published in the Federal 
Register, there are often two or more Federal Register Document 
Numbers associated with any given rulemaking. When all three key 
identifiers are entered, users can understand the relationships 
among related e-dockets and can have access to the entire lifecycle 
of a rulemaking. If any of these key identifiers are missing, or are 
incorrectly entered, users may have difficulty discerning important 
context about the rulemaking.
    In addition to these other offices, FDMS/Regulations.gov 
interacts, to a limited extent, with commercial search engines. 
Currently, commercial search engines capture materials that have 
appeared on the ``front page'' of Regulations.gov (e.g., ``What's 
Trending'' notices). However, for technical reasons that are beyond 
the scope of this Recommendation, search engines currently do not 
capture the vast majority of materials on Regulations.gov.\9\
---------------------------------------------------------------------------

    \9\ See Cary Coglianese, A Truly ``Top Task'': Rulemaking and 
Its Accessibility on Agency websites, 44 Envtl. L. Rep. 10,660, 
10,661-63 (2014).
---------------------------------------------------------------------------

    Third parties, including commercial search engines, may submit a 
request to the eRulemaking Program for an application programming 
interface (API) key. An API key allows a user to download all 
dockets and documents that appear on Regulations.gov. If a 
commercial search engine were to request and be granted an API key, 
it could therefore have access to all such dockets and documents. By 
working with commercial search engines to capture this data, the 
eRulemaking Program could harness the technological expertise of the 
private sector to make it easier for people to find rulemaking 
materials.

Problems With FDMS/Regulations.gov

    Many users of Regulations.gov have found that the system does 
not allow them to consistently and reliably search for and find 
particular e-dockets and access supporting materials and other 
relevant information about rulemakings.\10\
---------------------------------------------------------------------------

    \10\ See Farina, supra note 8, at 285-86.
---------------------------------------------------------------------------

    One reason it is difficult to search for and find particular e-
dockets is because agencies sometimes create multiple e-dockets for 
the same rulemaking.\11\ For example, if an agency moves its 
rulemaking action from an NPRM to a final rule, the agency sometimes 
creates a separate e-docket for the final rule, instead of 
maintaining a single e-docket to which all documents related to the 
rulemaking are assigned. A user who tries to find this proposed rule 
might come across the first e-docket the agency created and conclude 
incorrectly that there was no final rule issued. Sometimes the 
``multiple e-docket'' problem happens because a sub-agency (e.g., 
the Occupational Safety and Health Administration) issued the NPRM 
and created the initial e-docket, and the parent agency (e.g., the 
Department of Labor) issued the final rule and created the second e-
docket. In any case, there are often at least two e-dockets, each 
containing documents that are part of a single rulemaking. At best, 
this is confusing. At worst, it misleads users as to the status of 
the rulemaking if their searches do not locate both e-dockets and 
enable them to recognize the relationship between them.
---------------------------------------------------------------------------

    \11\ See eRulemaking Program, Improving Electronic Dockets on 
Regulations.gov and the Federal Docket Management System: Best 
Practices for Federal Agencies 8 (Nov. 30, 2010).
---------------------------------------------------------------------------

    Another reason it is difficult to search for and find particular 
e-dockets is because the ``Advanced Search'' feature on 
Regulations.gov often does not helpfully narrow down the number of 
results that come up in a search. The purpose of an ``advanced 
search'' is to allow users to search by different filters (e.g., 
date range, type of source, and author), reduce the number of search 
results, and therefore increase the likelihood of finding what they 
are looking for. An advanced search function is especially important 
on Regulations.gov, given the millions of materials, many with 
similar titles, that are in the system.
    However, many of the filters that appear within 
Regulations.gov's ``Advanced Search'' feature do not helpfully 
narrow down the relevant results. A user can search by Document 
Type, with the options listed as ``Notice,'' ``Proposed Rule,'' 
``Rule,'' ``Public Submission,'' and ``Other.'' These options do not 
capture the vast array of rulemaking materials, such as advanced and 
supplemental notices of proposed rulemaking, that are on 
Regulations.gov. Agencies also use these labels inconsistently, 
which further hinders the public's ability to use the Document Type 
filter to successfully locate materials.\12\ Some agencies, for 
example, label an advanced notice of proposed rulemaking as a 
``Notice,'' and others label it as a ``Proposed Rule.'' \13\ 
Additionally, there are Document Subtypes and Docket Subtypes, which 
offer a more comprehensive list of options that some agencies use 
and others do not. The existence of these Subtypes exacerbates the 
problem of inconsistent use and generates more confusion for the 
user of Regulations.gov who is trying to locate relevant results.
---------------------------------------------------------------------------

    \12\ Because of inconsistent use of these labels, users cannot 
easily address broad questions about agency rulemaking practices, 
such as: How often agencies use pre-proposal public information 
gathering processes like notices of inquiry and advanced notices of 
proposed rulemaking, and how often agencies use direct final, 
interim final, and other final-before-comment processes.
    \13\ See Todd Rubin, Regulations.gov and the Federal Docket 
Management System 9 (Dec. 1, 2018) (report to the Admin. Conf. of 
the U.S.), https://www.acus.gov/report/regulationsgov-and-fdms-final-report.
---------------------------------------------------------------------------

    An additional problem with advanced searching is that selecting 
a parent agency as the ``Agency'' does not include results for sub-
agencies. For example, a rule listed by a specific sub-agency (e.g., 
the Bureau of the Census) may not be available when one searches for 
rules issued by the parent agency (e.g., the Department of 
Commerce). Visitors who use the ``Agency'' filter and select a 
parent agency may erroneously conclude that a particular document 
has not been published.
    When users do find relevant e-dockets, they may discover that 
the e-dockets do not always contain supporting materials and Unified 
Agenda information that are visible to the public.\14\ Although 
agencies may have legitimate reasons for not posting some comments 
on Regulations.gov (e.g., concerns about confidential business 
information or copyrighted materials, a high volume of duplicate 
comments, or materials not subject to disclosure under the Freedom 
of Information Act), there are good, practical reasons for agencies 
to include supporting materials within their e-dockets.\15\ Doing so 
likely helps boost the quality of public comments, because the 
public can then better understand the agency's rationale and 
evidentiary support for the rule. Furthermore, if no Unified Agenda 
information appears within the e-docket, members of the public 
cannot easily determine, among other things, whether a rule is 
considered a ``major rule,'' whether it has ``federalism 
implications,'' and whether it affects small entities. The absence 
of this information may diminish the public's ability to comment 
adequately and therefore undermines the E-Government Act of 2002's 
goals of informed public participation and transparency in 
rulemaking.\16\
---------------------------------------------------------------------------

    \14\ See Farina, supra note 8, at 287.
    \15\ See Admin. Conf. of the U.S., Recommendation 2013-4, 
Administrative Record in Informal Rulemaking, 78 FR 41,358 (July 10, 
2013).
    \16\ See E-Government Act of 2002, Public Law 107-347, 206(a), 
116 Stat. 2899, 2915 (amending 44 U.S.C. 3501) (stating that two of 
its purposes are to ``improve performance in the development and 
issuance of agency regulations by using information technology to 
increase access, accountability, and transparency,'' and to 
``enhance public participation in Government by electronic means, 
consistent with [the Administrative Procedure Act].'').
---------------------------------------------------------------------------

    Yet another problem with FDMS/Regulations.gov is that it is not 
seamlessly interoperable with the other two main

[[Page 2145]]

rulemaking sites: Reginfo.gov and Federalregister.gov. For example, 
if an agency user of FDMS neglects to enter the RIN for an e-docket, 
or enters an incorrect RIN, Unified Agenda information will not be 
displayed on Regulations.gov. A user of Federalregister.gov can 
search by whether a rule is ``economically significant,'' but no 
such search option is available on Regulations.gov. Complete 
interoperability among these three sites would allow users to 
seamlessly locate essential context about rulemakings.
    FDMS and Regulations.gov are remarkable achievements, made 
possible by the diligent work of many government officials over many 
years. However, FDMS and Regulations.gov can be improved to allow 
the public, agency officials, and members of Congress to find 
rulemaking materials easily and understand how rulemakings were 
developed.

Recommendation

    1. The eRulemaking Program should work with the Office of the 
Chairman of the Administrative Conference on an ongoing basis to 
help identify and meet user needs in navigating and finding 
materials on Regulations.gov, both in its current form and as it 
continues to evolve.
    2. The default requirement should be for agencies to use one e-
docket for each rulemaking proceeding to the maximum extent 
possible. In instances in which agencies must use more than one e-
docket for a single rulemaking, they should link the related e-
dockets by using relevant identifiers and making clear to users in 
each of the related e-dockets that the e-dockets are linked. The 
eRulemaking Program should offer tools both on Regulations.gov, to 
help users identify instances of related e-dockets, and on the 
Federal Docket Management System, to help agency administrators, 
docket managers, and other agency officials implement the concept of 
one e-docket and highlight any related e-dockets.
    3. The eRulemaking Program should work with the Office of the 
Federal Register, other federal officials, and other experts as 
needed to analyze the current list of Document and Docket Types and 
Subtypes and make any changes to these labels that will facilitate 
consistent use within and across agencies.
    4. The eRulemaking Program, the Office of the Federal Register, 
the Regulatory Information Service Center, and offices that have 
statutory responsibilities related to rulemaking such as the 
National Institute of Standards and Technology, should work to 
achieve data interoperability so that information in e-dockets can 
be connected to other relevant information, reflecting the entire 
lifecycle of a rulemaking proceeding.
    5. The eRulemaking Program should ensure that agencies receive 
prompts that alert them to any e-dockets that do not have supporting 
and related materials. The prompt should remind agencies of their 
legal obligation to include, to the extent practicable, all 
materials that by agency rule or practice are included in the 
rulemaking docket, whether or not submitted electronically.
    6. The eRulemaking Program should work with commercial search 
engines to make its publicly-available data as open, accessible, and 
searchable as possible.
    7. Participating agencies should strive to ensure rulemaking 
comments are posted on Regulations.gov as soon as feasible.
    8. Agencies should indicate in their e-dockets which, if any, 
types of comments were not posted and whether these comments can be 
accessed.

Separate Statement on Administrative Conference Recommendation 2018-6 
by Various Members

    Filed December 21, 2018 [The following statement is submitted by 
Government Member Chai R. Feldblum; Public Members Victoria F. 
Nourse, Anne Joseph O'Connell, Sidney A. Shapiro, and Kathryn A. 
Watts; and Senior Fellows Cynthia R. Farina, Ronald M. Levin, Jerry 
L. Mashaw, Nina A. Mendelson, Richard J. Pierce Jr., Richard L. 
Revesz, and Peter L. Strauss.]
    The preamble to Recommendation 2018-6, Improving Access to 
Regulations.gov's Rulemaking Dockets properly opens with the 
statement that

    As agencies develop regulations, they often seek input from the 
public. In order to submit an informed comment, a member of the 
public needs to be able to at least: (1) Access the proposed rule 
and the agency's justification for it; and (2) access materials upon 
which the agency substantially relied to develop the proposed rule. 
Commenters should also be able to access other comments that may 
have been submitted on the proposed rule in time to submit 
responsive comments, to the extent this is possible.
    Members of the public, especially those who are subject to the 
rule, should be able easily to determine whether further action has 
been taken on the proposed rule and, when a final rule has been 
issued, to access the rule and all materials, including public 
comments, that informed its development. This Recommendation seeks 
to make it easier for members of the public to access these 
materials on Regulations.gov, thereby allowing them to contribute 
more effectively to the rulemaking process and understand their 
regulatory obligations.

    As teachers of Administrative Law, we enthusiastically subscribe to 
these aims. The Recommendation does not promote them as fully as it 
could have, however, because it does not address the absence of 
comments and materials that may be submitted by other government 
agencies, including the Office of Information and Regulatory Affairs 
(OIRA), from the Regulations.gov docket. Some government discussions, 
of course, are pre-decisional policy discussions that the Freedom of 
Information Act (FOIA) permits government agencies to withhold from 
disclosure. But much of the material provided rulemaking agencies in 
other agencies' comments constitutes both data and other matters that 
would have to be disclosed in response to a FOIA request, and 
``materials upon which the agency substantially relied to develop the 
proposed rule.'' Moreover, Executive Order 12,866 and its amendments 
promise the publication of certain OIRA communications, to an extent 
that might not be required under FOIA but nonetheless could contribute 
to the important ends this Recommendation supports. Academic research 
has shown, again and again, that these promises are not being 
fulfilled; Regulations.gov is essentially devoid of the governmental 
agency contributions to rulemaking we are certain have been ongoing, 
and knowledge of which would allow members of the public ``to 
contribute more effectively to the rulemaking process and understand 
their regulatory obligations.''
    In the Assembly's discussion of this Recommendation, this important 
gap was discussed, and the suggestion made that the Recommendation 
should invite the inclusion of government contributions to 
Regulations.gov, at least to the extent that those contributions would 
be subject to disclosure in response to a proper FOIA request. The 
Assembly failed to act on this suggestion after an objection that the 
issue had not been explored at earlier stages of the Conference's 
process. Whatever the merit of that procedural objection, the omission 
is regrettable. We hope that agencies will include these government 
contributions in their rulemaking dockets, so that Regulations.gov may 
better enable the public to ``access materials upon which the agency 
substantially relied to develop the proposed rule . . . [and] other 
comments that may have been submitted on the proposed rule in time to 
submit responsive comments, to the extent this is possible.''
    The members who have joined in this statement are mindful that the 
issue of disclosure of intra-government communications arises in 
multiple contexts. Another such context is the set of additional 
disclosure principles prescribed in Executive Order 12,866. This order 
requires federal agencies and OIRA, following publication or issuance 
of a regulatory action subject to the order, to publish what has been 
submitted to OIRA, to identify any substantive changes between the 
draft submitted to OIRA and the published rule, and to identify those 
changes made at OIRA's suggestion or recommendation. Any such 
disclosures would be a natural, and welcome, element of 
Regulations.gov. These broader issues also remain available as topics 
that the Conference may wish to take up in the future.

[[Page 2146]]

Administrative Conference Recommendation 2018-7

Public Engagement in Rulemaking

Adopted December 14, 2018

    Robust public participation is vital to the rulemaking process. By 
providing opportunities for public input and dialogue, agencies can 
obtain more comprehensive information, enhance the legitimacy and 
accountability of their decisions, and increase public support for 
their rules.\1\ Agencies, however, often face challenges in involving a 
variety of affected interests and interested persons in the rulemaking 
process.
---------------------------------------------------------------------------

    \1\ Michael Sant'Ambrogio & Glen Staszewski, Public Engagement 
with Agency Rulemaking 9-17 (Nov. 19, 2018) (report to the Admin. 
Conf. of the U.S.), https://www.acus.gov/report/public-engagement-rulemaking-final-report.
---------------------------------------------------------------------------

    The Administrative Procedure Act (APA) recognizes the value of 
public participation in rulemaking by requiring agencies to publish a 
notice of a proposed rulemaking (NPRM) in the Federal Register and 
provide interested persons an opportunity to comment on rulemaking 
proposals.\2\ Other statutes, including the Federal Advisory Committee 
Act (FACA) \3\ and Negotiated Rulemaking Act,\4\ describe other means 
to engage representatives of identified interests in the rulemaking 
process. In many rulemakings, however, agencies rely primarily on 
notice-and-comment procedures to solicit public input. Although the 
notice-and-comment process generates important information, agencies 
can sometimes benefit from engaging the public at other points in the 
process and through other methods, particularly as they identify 
regulatory issues and develop potential options before issuing NPRMs.
---------------------------------------------------------------------------

    \2\ 5 U.S.C. 553(b)-(c).
    \3\ Federal Advisory Committee Act, Public Law 92-463, 86 Stat. 
770 (1972) (codified as amended at 5 U.S.C. app. 2).
    \4\ Negotiated Rulemaking Act, Public Law 101-648, 104 Stat. 
4969 (1990) (codified as amended at 5 U.S.C. 561-70).
---------------------------------------------------------------------------

    The Conference has previously adopted several recommendations 
directed at expanding participation in the rulemaking process. These 
previous recommendations address a variety of issues, including 
rulemaking petitions, advisory committees, negotiated rulemaking, 
social media, comment and reply periods, and plain language in 
regulatory drafting.\5\ This Recommendation builds on these past 
recommendations and focuses on supplemental tools agencies can use to 
expand their public engagement.
---------------------------------------------------------------------------

    \5\ See Admin. Conf. of the U.S., Recommendation 2017-3, Plain 
Language in Regulatory Drafting, 82 FR 61,728 (Dec. 29, 2017); 
Admin. Conf. of the U.S., Recommendation 2017-2, Negotiated 
Rulemaking and Other Options for Public Engagement, 82 FR 31,040 
(July 5, 2017); Admin. Conf. of the U.S., Recommendation 2014-6, 
Petitions for Rulemaking, 79 FR 75,117 (Dec. 17, 2014); Admin. Conf. 
of the U.S., Recommendation 2013-5, Social Media in Rulemaking, 78 
FR 76,269 (Dec. 17, 2013); Admin. Conf. of the U.S., Recommendation 
2011-8, Agency Innovations in e-Rulemaking, 77 FR 2264 (Jan. 17, 
2012); Admin. Conf. of the U.S., Recommendation 2011-7, Federal 
Advisory Committee Act: Issues and Proposed Reforms, 77 FR 2261 
(Jan. 17, 2012); Admin. Conf. of the U.S., Recommendation 2011-2, 
Rulemaking Comments, 76 FR 48,791 (Aug. 9, 2011).
---------------------------------------------------------------------------

    For the purposes of this Recommendation, ``public engagement'' 
refers to activities by the agency to elicit input from the public. It 
includes efforts to enhance public understanding of agency rulemaking 
and foster meaningful participation in the rulemaking process by 
members of the public. Because some affected interests and other 
interested persons may not be aware of agency rulemakings or understand 
how to participate, effective public engagement may require agencies to 
undertake deliberate outreach and public education efforts to overcome 
barriers to participation, including geographical, language, resource, 
and other constraints.\6\
---------------------------------------------------------------------------

    \6\ See, e.g., Cary Coglianese, Federal Agency Use of Electronic 
Media in the Rulemaking Process 46-48 (Dec. 5, 2011) (report to the 
Admin. Conf. of the U.S.), https://www.acus.gov/report/final-agency-innovations-report (discussing the ``digital divide'' and differing 
internet usage among a variety of demographics).
---------------------------------------------------------------------------

    Strategic planning focused on public engagement can help agencies 
solicit and obtain valuable information from a greater number of 
affected interests with diverse experiences, information, and views 
throughout the rulemaking process, including experts, individuals, or 
entities with knowledge germane to the proposed rule who do not 
typically participate in the notice-and-comment process.\7\ An agency 
should begin by developing a general policy for public engagement that 
identifies factors or establishes standards for the agency to use to 
design engagement efforts in individual rulemakings. The agency can 
then apply or tailor its general policy to specific rule proposals, 
reflecting the unique purposes, goals, and needs of each rulemaking. 
Well-designed planning for specific rulemakings will include 
consideration of a variety of methods to obtain valuable information 
from diverse sources at various stages during the rulemaking 
process.\8\
---------------------------------------------------------------------------

    \7\ For a discussion of general public engagement policies, see 
Sant'Ambrogio & Staszewski, supra note 1, at 138-43. For examples of 
general public engagement policies, see U.S. Dep't of the Interior, 
Nat'l Park Serv., Director's Order #75A: Civic Engagement and Public 
Involvement Policy (Aug. 30, 2007); Envtl. Prot. Agency, Public 
Involvement Policy of the U.S. Environmental Protection Agency 
(2003).
    \8\ For a discussion of specific public engagement plans for 
individual rulemaking initiatives, see Sant'Ambrogio & Staszewski, 
supra note 1, at 143-49.
---------------------------------------------------------------------------

    Not all rulemakings, however, warrant enhanced public engagement. 
Some rules hold little public salience or address narrow issues, so 
public engagement beyond the notice-and-comment process is unlikely to 
provide the agency with additional relevant information. On the other 
hand, some rules are complex, affect a wide range of interests in a 
variety of ways, or implicate controversial issues. For these rules, 
additional, well-designed public engagement may be worthwhile to obtain 
information from affected interests and other interested persons who 
might not otherwise participate in the rulemaking and encourage more 
useful participation from those who do. Agencies considering enhanced 
public engagement for a particular rule must carefully evaluate many 
factors, including agency resources, rule complexity, and the 
prevalence of otherwise missing information or views, before deciding 
whether to pursue additional outreach. Furthermore, even after agencies 
decide to undertake enhanced public engagement when developing their 
rules, they must decide what methods are best suited to accomplish 
their outreach goals. Each method may offer distinct benefits but come 
with varying costs or other limitations. Agencies should consider how a 
specific method of public engagement will assist them in obtaining the 
type of information and feedback they seek. Agencies should also 
consider the best timing for using a method of public engagement. 
Finally, with whatever public engagement method an agency chooses, it 
should demonstrate a sincere desire to learn from those who participate 
and should display open-mindedness about the relevant issues presented 
by the rulemaking.
    This Recommendation highlights three main methods for supplementing 
the notice-and-comment process. First, agencies can publish ``requests 
for information'' (RFIs) or ``advance notices of proposed rulemaking'' 
(ANPRMs) in the Federal Register to request data, comments, or other 
information on regulatory issues before proceeding with a specific 
regulatory proposal.\9\ Although these two mechanisms are similar, RFIs 
are generally used when an agency is determining whether to

[[Page 2147]]

proceed at all and, if so, what general approach to take.\10\ ANPRMs 
are generally used when the agency has formulated one or more tentative 
regulatory options and seeks input on which option to propose.\11\ RFIs 
and ANPRMs may be particularly beneficial when agencies seek additional 
information to identify areas of concern, compare potential approaches 
to problems, and evaluate and refine regulatory proposals. RFIs and 
ANPRMs provide agencies with additional opportunities to solicit 
information without organizing potentially costly or burdensome face-
to-face engagement efforts.
---------------------------------------------------------------------------

    \9\ Some agencies refer to documents similar to RFIs and ANPRMs 
under other names, including ``notice of inquiry.''
    \10\ For a discussion of the use of RFIs during agenda setting 
and rule development, see id. at 50-52, 65 (discussing the use of 
RFIs by the Department of Energy, the Bureau of Consumer Financial 
Protection, the Internal Revenue Service, and the Pension Benefit 
Guaranty Corporation).
    \11\ For a discussion of the use of ANPRMs, see id. at 78-80. 
For example, the Department of Energy routinely issues ANPRMs to 
solicit public comments on preliminary proposals pursuant to its 
process rule. See id. at 141-43.
---------------------------------------------------------------------------

    Second, agencies may engage in targeted outreach to identify and 
engage affected interests that might not otherwise participate in the 
rulemaking.\12\ RFIs and ANPRMs are useful tools to enhance 
participation early in the rulemaking process. However, RFIs and ANPRMs 
published in the Federal Register may only reach affected interests 
that are already likely to participate in the rulemaking. Targeted 
outreach efforts allow agencies to seek information from individuals 
and entities that may not read the Federal Register or otherwise would 
be unaware of or unable to participate effectively in the notice-and-
comment process. To engage in targeted outreach, an agency identifies 
affected interests that are not likely to participate and undertakes 
efforts to notify those interests of the rulemaking and encourage and 
facilitate their participation. Targeted outreach can take on a variety 
of forms, and agencies tailor these efforts to specific affected 
interests and rules.
---------------------------------------------------------------------------

    \12\ For example, the Forest Service conducted targeted 
outreach, including forums, roundtables, and consultation meetings, 
seeking the input of recreational users of forests, Native American 
tribal communities, and state and local government officials when 
developing its 2012 Planning Rule. See id. at 53.
---------------------------------------------------------------------------

    Third, agencies may also convene meetings of affected interests and 
other interested persons to obtain useful feedback on potential 
regulatory alternatives and elicit information through a process of 
interactive dialogue. Meetings can educate participants and allow them 
to consider and respond to differing views, thereby informing decision-
makers in the process. When all goes well, meetings can foster the 
generation of new ideas and creative solutions that would be missed 
when participants simply assert their existing positions. Meetings also 
can lead to some change in participants' positions in light of a 
greater understanding of others' concerns.
    Agencies must carefully plan meetings to help ensure that they will 
elicit the type of information sought.\13\ An agency can structure a 
meeting to generate open-ended dialogue, allowing participants the 
opportunity to raise their own concerns or issues.\14\ Alternatively, 
an agency can structure a meeting so that the agency's priorities 
dictate the agenda or discussion topics. Although meetings, whether 
designated as workshops, hearings, or listening sessions, can vary in 
their format, they can be structured so that the requirements of FACA 
or the Paperwork Reduction Act (PRA) are not applicable.\15\
---------------------------------------------------------------------------

    \13\ For a discussion of focus groups and listening sessions, 
see id. at 48-54 (discussing the use of focus groups by the National 
Highway Traffic Safety Administration to address public fears about 
airbags and potential labels on tire fuel efficiency), 65-68 
(discussing use of facilitated listening sessions by the Nuclear 
Regulatory Commission), 80-82 (discussing public meetings in general 
and EPA's use of ``shuttle diplomacy'' and technical workshops).
    \14\ For a discussion of different techniques to facilitate 
enhanced deliberation, see id. at 128-138.
    \15\ These methods would not implicate FACA as long as they are 
structured so the group is not collaborating to offer a set of 
proposals to the agency. See, e.g., Judicial Watch, Inc. v. Clinton, 
76 F.3d 1232, 1233 (D.C. Cir. 1996). These methods also would not 
implicate the PRA so long as the agency is not circulating a 
structured set of inquiries. 44 U.S.C. 3502(3) (2012).
---------------------------------------------------------------------------

    Agencies should make information available to the public about 
individual rulemakings and opportunities to participate. The 
availability of this information will help ensure that members of the 
public are adequately informed and can participate meaningfully in 
response to RFIs, ANPRMs, meeting opportunities, and other forms of 
public engagement.\16\ For example, an agency may list such information 
on a dedicated web page or a section of a page on an agency's website. 
Doing so could help that agency inform and engage affected interests 
and other interested persons throughout the rulemaking process.\17\
---------------------------------------------------------------------------

    \16\ For example, the Bureau of Consumer Financial Protection 
posted prototypes of disclosure forms on its website and sought 
targeted feedback when it developed rules governing disclosure 
requirements for home mortgages. See Sant'Ambrogio & Staszewski, 
supra note 1, at 83-84.
    \17\ See generally Recommendation 2011-8, supra note 5.
---------------------------------------------------------------------------

Recommendation

Public Engagement Planning
    1. Agencies should develop and make publicly available general 
policies for public engagement in their rulemakings. An agency's 
general policy should address how the agency will consider factors, 
such as:
    a. the agency's goals and purposes in engaging the public;
    b. The types of individuals or organizations with whom the agency 
seeks to engage, including experts and any affected interests that may 
be absent from or insufficiently represented in the notice-and-comment 
rulemaking process;
    c. how such types of individuals or organizations can be motivated 
to participate;
    d. what types of information the agency seeks from its public 
engagement;
    e. how this information is likely to be obtained;
    f. what the agency will do with the information;
    g. when public engagement should occur; and
    h. the range of methods of public engagement available to the 
agency.
    2. An agency's general policy for public engagement should be used 
to inform public engagement with respect to specific rulemakings. 
Planning for public engagement for specific rules would best take place 
at the earliest feasible part of the rulemaking process.
    3. In determining whether and how to enhance or target public 
engagement prior to the publication of a specific proposed rule, 
agencies should consider factors such as:
    a. The complexity of the rule;
    b. the potential magnitude and distribution of the costs and 
benefits of the rule;
    c. the interests that are likely to be affected and the extent to 
which they are likely to be affected;
    d. the information needed and the potential value of experience or 
expertise from outside the agency;
    e. whether specific forms of enhanced or targeted public engagement 
are likely to provide useful information, including from experts, 
individuals with knowledge germane to the proposed rule who do not 
typically participate in rulemaking, or other individuals with relevant 
views that may not otherwise be expressed;
    f. any challenges involved in obtaining informed participation from 
affected interests or other interested persons likely to have useful 
information, including the challenge of providing rulemaking materials 
in a

[[Page 2148]]

language and form comprehensible to nonexperts whose participation is 
being sought;
    g. whether the rule is likely to be controversial;
    h. the time and resources available for enhanced or targeted public 
engagement as opposed to other uses; and
    i. whether additional legal requirements, such as the Federal 
Advisory Committee Act or the Paperwork Reduction Act, might apply.
    4. Agencies should consider using personnel with public engagement 
training and experience to participate in both the development of their 
general public engagement policies as well as in planning for specific 
rules. Agencies should support or provide opportunities to train 
employees to understand and apply recognized best practices in public 
engagement.

Timing and Methods of Public Engagement

    5. Public engagement should generally occur as early as feasible in 
the rulemaking process, including when identifying problems and setting 
regulatory priorities.
    6. Requests for Information and Advance Notices of Proposed 
Rulemaking.
    a. Agencies should consider using requests for information (RFIs) 
or advance notices of proposed rulemaking (ANPRMs) when they need to:
    i. Gather information or data about the existence, magnitude, and 
nature of a regulatory problem;
    ii. evaluate potential strategies to address a regulatory issue;
    iii. choose between more than one regulatory alternative; or
    iv. develop and refine a proposed rule.
    b. When using RFIs and ANPRMs, agencies should:
    i. Sufficiently convey their receptivity to input;
    ii. pose detailed questions aimed at soliciting the information 
they need; and
    iii. indicate that they are open to input on other questions and 
concerns.
    c. Agencies should review any comments they receive in response to 
RFIs and ANPRMs and, when issuing any proposed rule that follows an RFI 
or ANPRM, explain how these comments informed or influenced the 
development of the subsequent proposal.
    7. Targeted Outreach. When agencies believe that their public 
engagement may not reach all affected interests, they should consider 
conducting outreach that targets experts not already likely to be 
involved, individuals with knowledge germane to the proposed rule who 
do not typically participate in rulemaking, and members of the public 
with relevant views that may not otherwise be represented. These 
targeted outreach efforts should include:
    a. Proactively bringing the rulemaking to the attention of affected 
interests that do not normally monitor the agency's activities;
    b. overcoming or minimizing possible geographical, language, 
resource, or other barriers to participation;
    c. motivating participation by explaining the nature of the 
rulemaking process and how the agency will use public input; or
    d. providing information about the issues and questions raised by 
the rulemaking in an accessible and comprehensible form and manner, so 
that potential participants are able to provide focused, relevant, and 
useful input.
    8. Meetings with Affected Interests and Other Interested Persons.
    a. Agencies should consider convening meetings of affected 
interests and other interested persons to obtain feedback on their 
priorities and potential regulatory alternatives, particularly when 
they are unlikely to obtain the same information from written responses 
to RFIs, ANPRMs, or notices of proposed rulemaking (NPRMs). When 
conducting a meeting, the agency should:
    i. Determine whether to target and invite specific participants or 
open the meeting to any interested member of the general public;
    ii. determine whether to conduct the meeting in person, online, or 
both;
    iii. recruit participants based on the nature of the rule at issue 
and the type of feedback that the agency seeks;
    iv. consider using a trained facilitator or moderator from inside 
or outside the agency, as appropriate;
    v. provide background materials for the participants that clearly 
explain relevant issues and the primary policy alternatives in language 
and form comprehensible to all types of participants the agency seeks 
to engage;
    vi. disseminate questions to participants in advance, including 
either open-ended questions or questions aimed at soliciting specific 
information the agency needs to make informed decisions;
    vii. determine whether and how to structure interactive dialogue 
among participants;
    viii. consider recording the session and making that recording 
publicly available; and
    ix. prepare a summary of the meeting.
    b. Agency representatives should convey their receptivity to input 
during meetings with affected interests and other interested persons.
    c. The agency should consider structuring its meetings in a manner 
to promote enhanced input from affected interests and other interested 
persons.

Public Availability of Rulemaking Information

    9. To support public engagement prior to the publication of the 
NPRM, agencies should consider affirmative steps to make publicly 
available relevant information about the rulemaking, such as by 
creating a dedicated web page. Agencies should seek to make rulemaking 
information comprehensible for individuals and groups that do not 
typically participate in the rulemaking process, such as by using 
audiovisual materials or other media to supplement more traditional 
written information in appropriate situations. Information to make 
available could include:
    a. The status of the rulemaking initiative and opportunities to 
participate in the process;
    b. an explanation of the rulemaking process, the role of public 
participation, and the qualities of a useful comment;
    c. an identification of the issues under consideration and related 
information, presented in forms that are readable and comprehensible by 
non-experts; and
    d. summaries of public engagement efforts, including any 
information received from the public or a description of the impact of 
those efforts.

Administrative Conference Recommendation 2018-8

Public-Private Partnerships

Adopted December 14, 2018

    Federal agencies often participate in public-private partnerships 
(partnerships) to assist in carrying out their missions.\1\ A private-
sector entity

[[Page 2149]]

and the federal government may have a variety of reasons for wanting to 
partner with one another. Both sectors may find, for instance, that a 
partnership with the other allows them to access more resources and 
expertise. Expanded access to such resources and expertise may allow 
them to complement and reinforce their missions, producing outcomes 
with greater impact than they could achieve working entirely 
independently of one another.\2\ Recent government-wide initiatives 
relating to, among other areas, workforce training \3\ and government 
effectiveness,\4\ are centered on partnerships.
---------------------------------------------------------------------------

    \1\ This Recommendation focuses on partnerships that relate to 
social welfare topics, such as health, labor, education, and 
diplomacy. The Recommendation focuses on these kinds of 
partnerships, as opposed to, for example, infrastructure 
partnerships, research and development (R&D) partnerships, and 
activities under the National Technology Transfer and Advancement 
Act, because social welfare topics are areas of expertise for 
agencies involved in an interagency working group convened by the 
Office of the Chairman of the Administrative Conference to develop 
the Guide to Legal Issues Involved in Public-Private Partnerships at 
the Federal Level (described below). Readers who are interested in 
infrastructure partnerships should also consult, among other 
sources, U.S. Dep't. of Treas., Expanding the Market for 
Infrastructure Public-Private Partnerships: Alternative Risk and 
Profit Sharing Approaches to Align Sponsor and Investor Interests 
(Apr. 2015). Those interested in R&D partnerships should also 
consult, among other sources, Albert N. Link, Public/Private 
Partnerships: Innovation Strategies and Policy Alternatives 7-22 
(Springer 2006).
    \2\ See CMTY. P'SHIPS Interagency Policy Comm., Building 
Partnerships: A Best Practices Guide 2 (2013).
    \3\ See Exec. Order No. 13,845, 83 FR 35,099 (July 24, 2018).
    \4\ See Office of Mgmt. & Budget & Gen. Servs. Admin., The Gear 
Center, https://www.performance.gov/GEARcenter.
---------------------------------------------------------------------------

    There is no binding definition of ``public-private partnerships'' 
that spans across all agencies, but an interagency working group has 
defined them as ``collaborative working relationships between the U.S. 
government and non-federal actors in which the goals, structures, and 
roles and responsibilities of each partner, are mutually determined.'' 
\5\
---------------------------------------------------------------------------

    \5\ See CMTY. P'SHIPS Interagency Policy Comm., supra note 2, at 
1 n.1.
---------------------------------------------------------------------------

    There is no bright line distinction between partnerships and other 
forms of collaboration between federal agencies and the private sector, 
but there are certain characteristics that are indicative of a 
partnership. With partnerships, there is continuous, ongoing assessment 
and decision making with respect to the goals and structures of the 
arrangement, the roles and responsibilities of each partner, and the 
risks that each partner assumes. Because of the continuous nature of 
this decision making, there is often a strong alignment of resources: 
That is, both parties to the partnership generally spend their own 
materials, time, and money throughout the course of the partnership, 
without reimbursement from the other partner.
    In other forms of collaboration between agencies and the private 
sector (e.g., procurement contracts), these aspects of the relationship 
are typically determined at a single point in time and memorialized 
through a legally binding instrument such as a contract. Although it is 
possible for a partnership to be formalized through a contract, 
partnerships are far more often formalized through non-binding 
memoranda of understanding (MOUs) or memoranda of agreement (MOAs). 
These instruments are often quite concrete and specific with respect to 
the goals of the partnership, but broad and flexible with respect to 
the roles and responsibilities of the partners and the governance of 
the partnership. They are therefore better suited than contracts for 
formalizing partnerships.
    This Recommendation does not attempt to adopt a definitive 
definition of partnerships, but the foregoing characteristics should 
help agencies identify the types of relationships that fall under the 
partnership umbrella. Ultimately, it is up to agencies to determine 
what relationships qualify as partnerships and under what circumstances 
they should draw upon the recommendations below.\6\
---------------------------------------------------------------------------

    \6\ For examples of relationships that some agencies consider to 
be partnerships, see Occupational Safety & Health Admin., U.S. Dep't 
of Labor, Partnership: An OSHA Cooperative Program, https://www.osha.gov/dcsp/partnerships/; U.S. Dep't of Justice, 
Partnership for Freedom, https://ovc.ncjrs.gov/humantrafficking/announcements.html (recently ended); and U.S. Dep't of State, 
Diplomacy Lab, https://www.state.gov/s/partnerships/ppp/diplab.
---------------------------------------------------------------------------

Development of the Guide to Legal Issues Involved in Public-Private 
Partnerships at the Federal Level

    In the spring of 2017, at the suggestion of the Committee on 
Regulation, the Conference's Office of the Chairman convened dozens of 
federal officials from 19 different agencies who actively work on 
partnerships. Throughout the course of three meetings from July 2017 
through February 2018, and various discussions with individual group 
members, the group collaboratively drafted the Guide to Legal Issues 
Involved in Public-Private Partnerships at the Federal Level 
(Guide).\7\
---------------------------------------------------------------------------

    \7\ See Public-Private Partnerships Working Group, Admin. Conf. 
of the U.S., Office of the Chairman, Guide to Legal Issues Involved 
in Public-Private Partnerships at the Federal Level (Dec. 2018), 
https://www.acus.gov/report/guide-legal-issues-involved-public-private-partnerships-federal-level-final-12-6-2018.
---------------------------------------------------------------------------

    The Guide addresses major legal issues that agencies will likely 
encounter as they participate in partnerships. The Guide also offers a 
definition of ``public-private partnerships,'' briefly discusses a 
previous interagency effort regarding partnerships, highlights 
activities that agencies often undertake as part of partnerships, and 
provides examples of specific partnerships. Finally, the Guide 
discusses issues pertaining to agencies' vetting of potential private 
partners.

Potential Inefficiencies in Vetting Private Entities

    Officials across agencies can benefit from sharing experiences with 
one another regarding partnerships. One issue that has emerged as a 
particularly good candidate for such interagency discussion is how 
agencies vet potential private-sector partners. Agencies vet potential 
private partners to avoid possible conflicts of interest or harm to the 
agency's reputation. Vetting can be a time intensive and potentially 
duplicative enterprise, both for the agencies and for potential private 
partners that are asked to submit information to agencies.\8\
---------------------------------------------------------------------------

    \8\ See InterAction, Partner Vetting Independent Assessment: 
Insufficient Justification for a Global Rollout 17 (2016), available 
at https://www.interaction.org/document/partner-vetting-independent-assessment-insufficient-justification-global-rollout.
---------------------------------------------------------------------------

    Agencies have differing practices with respect to vetting of 
potential private-sector partners. Some agencies have central vetting 
units with officers whose exclusive responsibility is to vet proposed 
private-sector partners and an official whose responsibility is to 
approve partnerships for the entire agency. Other agencies lack a 
central vetting unit and, instead, authorize each of their offices to 
conduct its own vetting. Some of the latter agencies produce resources 
that all staff are directed to use.
    Duplication of vetting happens across agencies (``external 
duplication'') when two or more agencies gather the same information 
about the same potential private partner. Duplication also happens 
within agencies (``internal duplication'') when two or more parts of a 
single agency gather the same information about the same potential 
private partner. Some agencies have developed or are developing 
practices to avoid internal duplication. There do not appear to have 
been robust efforts to avoid external duplication.
    Agencies with a centralized vetting unit are better able to avoid 
internal duplication by maintaining copies of their vetting reports and 
updating those reports rather than starting anew when there is another 
request to partner with that same entity. Some agencies that do not 
have centralized vetting units maintain central databases that allow 
all employees to manage partnerships and upload relevant documents, 
including vetting results. Other employees, as they begin exploring 
potential partnerships, can access these databases and search them for 
past or current partnerships and supporting documentation before 
vetting a potential partner, thereby

[[Page 2150]]

reducing or eliminating duplicative vetting.

Agency Officials Exchanging Best Practices Regarding Partnerships

    An online forum could be structured to allow agency officials to 
exchange best practices on any number of topics involving partnerships, 
such as how to:
     Initiate or create a partnership in a manner that is 
consistent with ethical requirements,
     Evaluate the success of partnerships,
     Structure an internal vetting process (for example, 
whether there should be a central vetting unit, or whether vetting 
should be carried out office by office),
     Develop internal processes to reduce duplication in 
vetting, and
     Resolve complex legal issues encountered during the 
lifecycle of partnerships.
    The forum could also allow agency officials to exchange resources 
with one another, including sample MOUs and MOAs, and checklists or 
worksheets that agencies use when vetting potential private-sector 
partners or structuring partnerships.
    Additionally, while taking into consideration relevant laws and 
protections regarding privacy, ethics, and other restrictions on 
disclosure of personally identifiable information, agencies can 
consider sharing notes about specific private-sector entities that have 
been vetted. These notes may help reduce external duplication by 
allowing agencies to see the results of other agencies' vetting of 
specific entities.
    MAX.gov, a website established by the Office of Management and 
Budget in 2007, can offer such a forum. The website can be accessed 
only by those with a federal government email address. An agency could 
set up an interagency partnership group on MAX.gov that would allow 
agency officials to exchange best practices with respect to 
partnerships and share resources.

Recommendation

    1. All agencies that are considering, or are currently 
participating in, a public-private partnership (partnership) should 
distribute the Guide to Legal Issues Involved in Public-Private 
Partnerships at the Federal Level (Guide) (available at https://www.acus.gov/report/guide-legal-issues-involved-public-private-partnerships-federal-level-final-12-6-2018) to attorneys in their 
general counsels' offices, or other central legal offices, and should 
distribute it to partnership staff throughout the agency.
    2. The Office of the Chairman of the Administrative Conference 
should create a group on MAX.gov titled ``Strategies for Developing and 
Managing Successful Partnerships.'' The group should be structured to 
allow agency officials to exchange best practices with one another 
regarding partnerships. It should also allow agency officials to share 
resources, including sample memoranda of understanding or agreement, 
and checklists or worksheets that agency officials use when vetting 
potential private-sector partners.
    3. All agencies that are considering, or are currently 
participating in, a partnership should encourage staff responsible for 
partnership efforts to join the MAX.gov group and actively participate 
in the discussion topics and uploading of resources. Participation 
should be consistent with protections regarding privacy, ethics, and 
other restrictions on disclosure of personally identifiable information 
and should be undertaken in consultation with the agency's general 
counsel's office or other designated legal office.

[FR Doc. 2019-01284 Filed 2-5-19; 8:45 am]
BILLING CODE 6110-01-P