Adoption of Recommendations, 38927-38934 [2019-16946]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Notices]
[Pages 38927-38934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16946]


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Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / 
Notices

[[Page 38927]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Administrative Conference of the United States adopted 
four recommendations at its Seventy-first Plenary Session. The appended 
recommendations address Agency Guidance Through Interpretive Rules, 
Agency Recruitment and Selection of Administrative Law Judges, Public 
Availability of Agency Guidance Documents, and Revised Model Rules for 
Implementation of the Equal Access to Justice Act.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2019-1, Todd Rubin; 
for Recommendations 2019-2 and 2019-4, Alexandria Tindall Webb; and for 
Recommendation 2019-3, Todd Phillips. 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 Seventy-first Plenary Session, 
held on June 13, 2019, the Assembly of the Conference adopted four 
recommendations.
    Recommendation 2019-1, Agency Guidance Through Interpretive Rules 
identifies ways agencies can offer the public the opportunity to 
propose alternative approaches to those presented in an interpretive 
rule and to encourage, when appropriate, public participation in the 
adoption or modification of interpretive rules. It largely extends the 
best practices for statements of policy adopted in Recommendation 2017-
5, Agency Guidance Through Policy Statements, to interpretive rules, 
with appropriate modifications to account for differences between 
interpretive rules and policy statements.
    Recommendation 2019-2, Agency Recruitment and Selection of 
Administrative Law Judges addresses the processes and procedures 
agencies should establish for exercising their authority under 
Executive Order 13,843 (2018) to hire administrative law judges (ALJs). 
It encourages agencies to advertise ALJ positions in order to reach a 
wide pool of applicants, to publish minimum qualifications and 
selection criteria for ALJ hiring, and to develop policies for the 
review of ALJ applications.
    Recommendation 2019-3, Public Availability of Agency Guidance 
Documents offers best practices for promoting widespread availability 
of guidance documents on agency websites. It urges agencies to develop 
and disseminate internal policies for publishing, tracking, and 
obtaining input on guidance documents; post guidance documents online 
in a manner that facilitates public access; and undertake affirmative 
outreach to notify members of the public of new or updated guidance 
documents.
    Recommendation 2019-4, Revised Model Rules for Implementation of 
the Equal Access to Justice Act revises the Conference's 1986 model 
agency procedural rules for addressing claims under the Act, which 
provides for the award of attorney fees to individuals and small 
businesses that prevail against the government in certain agency 
adjudications. The revisions reflect, among other things, changes in 
law and agency practice since 1986.
    The Appendix below sets forth the full texts of these four 
recommendations. In addition, a Notice of Availability, containing the 
Revised Model Rules referenced in Recommendation 2019-4, is published 
elsewhere in this issue of the Federal Register. 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/71st-plenary-session.

    Dated: August 2, 2019.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2019-1

Agency Guidance Through Interpretive Rules

Adopted June 13, 2019

    The Administrative Procedure Act (APA) exempts policy statements 
and interpretive \1\ rules from its requirements for the issuance of 
legislative rules, including notice and comment.\2\ The Attorney 
General's Manual on the Administrative Procedure Act defines 
``general statements of policy'' as agency statements ``issued . . . 
to advise the public prospectively of the manner in which the agency 
proposes to exercise a discretionary power.'' \3\ The Manual 
similarly defines ``interpretive rules'' as ``rules or statements 
issued by an agency to advise the public of the agency's 
construction of the statutes and rules which it administers.'' \4\ 
Because of the commonalities between policy statements and 
interpretive rules, including their advisory function, many scholars 
and government agencies have more recently adopted the umbrella term 
``guidance'' to refer to both interpretive rules and policy 
statements.\5\
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    \1\ In accordance with standard parlance, this Recommendation 
uses the term ``interpretive'' in place of the APA's word 
``interpretative.''
    \2\ 5 U.S.C. 553(b)(A).
    \3\ Attorney General's Manual on the Administrative Procedure 
Act 30 n.3 (1947).
    \4\ Id.
    \5\ See, e.g., Nicholas R. Parrillo, Federal Agency Guidance: An 
Institutional Perspective (Oct. 12, 2017) (report to the Admin. 
Conf. of the U.S.), https://www.acus.gov/report/agency-guidance-final-report.
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    The Administrative Conference has issued several recommendations 
on policy statements.\6\ The latest one, Recommendation

[[Page 38928]]

2017-5, Agency Guidance Through Policy Statements, offers best 
practices to agencies regarding policy statements. The 
Recommendation advises agencies not to treat policy statements as 
binding on the public and to take steps to make clear to the public 
that policy statements are nonbinding. It also suggests measures 
agencies could take to allow the public to propose alternative 
approaches to those contained in a policy statement and offers 
suggestions on how agencies can involve the public in adopting and 
modifying policy statements.\7\
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    \6\ See, e.g., Admin. Conf. of the U.S., Recommendation 2017-5, 
Agency Guidance Through Policy Statements, 82 FR 61,734 (Dec. 29, 
2017); Admin. Conf. of the U.S., Recommendation 1992-2, Agency 
Policy Statements, 57 FR 30,103 (July 8, 1992); Admin. Conf. of the 
U.S., Recommendation 1976-5, Interpretive Rules of General 
Applicability and Statements of General Policy, 41 FR 56,769 (Dec. 
30, 1976).
    \7\ See Recommendation 2017-5, supra note 6, ] 9.
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    During the discussion of Recommendation 2017-5, the Assembly 
considered whether to extend the recommendations therein to 
interpretive rules. The Assembly decided against doing so, but it 
expressed its views that a follow-on study addressing interpretive 
rules would be valuable.
    This project takes up that charge. Policy statements and 
interpretive rules are similar in that they lack the force of law 
\8\ and are often issued without notice-and-comment proceedings, as 
the APA permits. This similarity suggests that, as a matter of best 
practice, when interested persons disagree with the views expressed 
in an interpretive rule, the agency should allow them a fair 
opportunity to try to persuade the agency to revise or reconsider 
its interpretation. That is the practice that Recommendation 2017-5 
already prescribes in the case of policy statements.\9\ The benefits 
to the public of according such treatment, as well as the potential 
costs to agencies of according it, are largely the same regardless 
of whether a given guidance document is concerned with law, policy, 
or a combination of both.\10\
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    \8\ Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1208 (2015) 
(citing Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) 
(citing the Attorney General's Manual, supra note 3)).
    \9\ Recommendation 2017-5, supra note 6, ] 2; see also 
Recommendation 1992-2, supra note 6, ] II.B.
    \10\ See Blake Emerson & Ronald M. Levin, Agency Guidance 
Through Interpretive Rules: Research and Analysis 33-34 (May 28, 
2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/agency-guidance-through-interpretive-rules-final-report.
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    Recommendation 2017-5 provided that ``[a]n agency should not use 
a policy statement to create a standard binding on the public, that 
is, as a standard with which noncompliance may form an independent 
basis for action in matters that determine the rights and 
obligations of any member of the public.'' \11\ Although the same 
basic idea should apply to interpretive rules, the concept of 
``binding'' effect can give rise to misunderstanding in the context 
of those rules, for several reasons.
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    \11\ Recommendation 2017-5, supra note 6, ] 1.
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    First, interpretive rules often use mandatory language when the 
agency is describing an existing statutory or regulatory 
requirement. Recommendation 2017-5 itself recognized the legitimacy 
of such phrasing.\12\ For this reason, administrative lawyers 
sometimes describe such rules as ``binding.'' That common usage of 
words, however, can lead to confusion: It can impede efforts to make 
clear that interpretive rules should remain nonbinding in a 
different sense, i.e., that members of the public should be accorded 
a fair opportunity to request that such rules be modified, 
rescinded, or waived.
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    \12\ Id. ] 5; accord Office of Mgmt. & Budget, Exec. Office of 
the President, Final Bulletin for Agency Good Guidance Practices, 72 
FR 3,432, 3,440 (Jan. 25, 2007).
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    Second, discussions of the circumstances in which interpretive 
rules may or may not be ``binding'' bring to mind assumptions that 
stem from the case law construing the rulemaking exemption in the 
APA.\13\ Courts and commentators have disagreed about whether, under 
that case law, interpretive rules may be binding on the agency that 
issues them.\14\ Despite this diversity of views, officials 
interviewed for this project did not express the view that they 
would categorically deny private parties the opportunity to seek 
modification, rescission, or waiver of an interpretive rule. In this 
Recommendation, the Administrative Conference addresses only best 
practices and expresses no opinions about how the APA rulemaking 
exemption should be construed. Nevertheless, assumptions derived 
from the APA background can divert attention from consideration of 
what sound principles of administration require, which this 
Recommendation does address.
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    \13\ See 5 U.S.C. 553(b)(A).
    \14\ Emerson & Levin, supra note 10, at 20-23; Parrillo, supra 
note 5, at 23-25; see also Ronald M. Levin, Rulemaking and the 
Guidance Exemption, 70 Admin. L. Rev. 263, 317-19, 346-53 (2018).
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    Third, administrative lawyers currently differ on the question 
of whether interpretive rules are effectively rendered ``binding'' 
when they are reviewed in court under the Auer v. Robbins \15\ 
standard of review, which provides that an agency's interpretation 
of its own regulation becomes of ``controlling weight'' if it is not 
``plainly erroneous or inconsistent with the regulation.'' \16\ The 
question of whether interested persons should be able to ask an 
agency to modify, rescind, or waive an interpretive rule does not 
intrinsically have to turn on what level of deference the courts 
would later accord to the agency's interpretation. Indeed, the 
possibility of judicial deference at the appellate level (under Auer 
or any other standard of review) may augment the challenger's 
interest in raising this interpretive issue at the agency level.\17\ 
Even so, the doctrinal debate over whether an interpretive rule is 
or is not ``binding'' under Auer can direct attention away from 
these practical considerations.
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    \15\ 519 U.S. 452 (1997).
    \16\ Id. at 461; compare Perez, 135 S. Ct. at 1211-12 (Scalia, 
J., concurring in the judgment) (stating that because of ``judge-
made doctrines of deference . . . [a]gencies may now use 
[interpretive] rules not just to advise the public, but also to bind 
them''), with id. at 1208 n.4 (opinion of the Court) (``Even in 
cases where an agency's interpretation receives Auer deference, 
however, it is the court that ultimately decides whether a given 
regulation means what the agency says.''). The Supreme Court is 
currently considering whether to overrule Auer in Kisor v. Wilkie, 
139 S. Ct. 657 (2018) (granting certiorari). For reasons explained 
in the text, the present recommendations do not depend on which view 
of Auer one favors, or on what the Court may decide in Kisor.
    \17\ See Emerson & Levin, supra note 10, at 25.
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    For these reasons, the Administrative Conference has worded the 
initial operative provisions of the Recommendation so that it avoids 
using the phrase ``binding on the public.'' Instead it urges that 
agencies not treat interpretive rules as setting independent 
standards for action and that interested persons should have a fair 
opportunity to seek modification, rescission, or waiver of an 
interpretive rule. In substance, this formulation expresses 
positions that largely correspond with prescriptions that 
Recommendation 2017-5 made regarding policy statements, but it does 
so without implicating unintended associations that the word 
``binding'' might otherwise evoke.
    What constitutes a fair opportunity to contest an interpretive 
rule will depend on the circumstances. Research conducted for 
Recommendation 2017-5 indicated that a variety of factors can deter 
affected persons from contesting guidance documents with which they 
disagree; these factors operate in approximately the same manner 
regardless of whether a policy statement or interpretive rule is 
involved.\18\ Agencies that design procedures for requesting 
reconsideration or modification of both types of guidance should be 
attentive to circumstances that affect the practical ability of 
members of the public to avail themselves of the opportunity to be 
heard. The mere existence of an opportunity to contest an 
interpretive rule through an internal appeal may not be enough to 
afford a ``fair opportunity'' because of the very high process costs 
that pursuing such an appeal could entail.
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    \18\ Parrillo, supra note 5, at 25.
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    At the same time, agencies should also consider governmental 
interests such as the agency's resource constraints and need for 
centralization.\19\ For example, an agency should be able to deal 
summarily with requests that it finds to be obstructive, dilatory, 
or otherwise tendered in apparent bad faith. It should not be 
expected to entertain and respond in detail to repetitive or 
frivolous challenges to the agency's position. Additionally, 
Paragraph 3 recognizes that the need for coordination of multiple 
decision makers in a given program may justify requiring lower-level 
employees to adhere to the agency's interpretive rules.
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    \19\ See Emerson & Levin, supra note 10, at 38-41.
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    The recommendations below pertaining to public participation in 
the formulation of interpretive rules closely track the public 
participation provisions of Recommendation 2017-5. The 
recommendations here have been modified to reflect differences 
between interpretive rules and statements of policy.
    Paragraphs 12 through 15 set forth principles that agencies 
should consider in determining whether and how to invite members of 
the public to suggest alternative approaches or analyses to those 
spelled out in interpretive rules. These paragraphs are largely 
drawn from corresponding provisions

[[Page 38929]]

in Recommendation 2017-5. Interpretive rules that lend themselves to 
alternative approaches include those that lay out several lawful 
options for the public but do not purport to be exhaustive. They may 
also include rules that, in setting forth decisional factors that 
are relevant to the meaning of a statute or regulation, leave open 
the possibility that other decisional factors might also be 
relevant. Typically, such rules speak at a general level, leaving 
space for informal adjustments and negotiation between the agency 
and interested persons \20\ about how the rule should be applied. On 
the other hand, certain kinds of interpretive rules, such as those 
in which an agency has determined that a statutory term has only one 
construction (e.g., rules that take the view that certain conduct is 
categorically required or forbidden), do not lend themselves to such 
flexible treatment.\21\
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    \20\ This Recommendation uses ``interested person'' rather than 
``stakeholder,'' which Recommendation 2017-5, supra note 6, uses. 
The Conference believes that ``interested person'' is more precise 
than ``stakeholder'' and that ``stakeholder,'' as used in 
Recommendation 2017-5, should be understood to mean ``interested 
person.''
    \21\ See Emerson & Levin, supra note 10, at 42-44.
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Recommendation

Recommendations Applicable to All Interpretive Rules

    1. An agency should not use an interpretive rule to create a 
standard independent of the statute or legislative rule it 
interprets. That is, noncompliance with an interpretive rule should 
not form an independent basis for action in matters that determine 
the rights and obligations of any member of the public.
    2. An agency should afford members of the public a fair 
opportunity to argue for modification, rescission, or waiver of an 
interpretive rule. In determining whether to modify, rescind, or 
waive an interpretive rule, an agency should give due regard to any 
reasonable reliance interests.
    3. It is sometimes appropriate for an agency, as an internal 
agency management matter, to direct some of its employees to act in 
conformity with an interpretive rule. But the agency should ensure 
that this does not interfere with the fair opportunity called for in 
Paragraph 2. For example, an interpretive rule could require 
officials at one level of the agency hierarchy to follow the 
interpretive rule, with the caveat that officials at a higher level 
can authorize a modification, rescission, or waiver of that rule. 
Agency review should be available when officials fail to follow 
interpretive rules they are properly directed to follow.
    4. An agency should prominently state, in the text of an 
interpretive rule or elsewhere, that the rule expresses the agency's 
current interpretation of the law but that a member of the public 
will, upon proper request, be accorded a fair opportunity to seek 
modification, rescission, or waiver of the rule.
    5. An interpretive rule should not include mandatory language 
unless the agency is using that language to describe an existing 
statutory or regulatory requirement, or the language is addressed to 
agency employees and will not interfere with the fair opportunity 
called for in Paragraph 2.
    6. An agency should make clear to members of the public which 
agency officials are required to follow an interpretive rule and 
where to go within the agency to seek modification, rescission, or 
waiver from the agency.
    7. An agency should instruct all employees engaged in an 
activity to which an interpretive rule pertains that, although the 
interpretive rule may contain mandatory language, they should 
refrain from making any statements suggesting that an interpretive 
rule may not be contested within the agency. Insofar as any employee 
is directed, as an internal agency management matter, to act in 
conformity with an interpretive rule, that employee should be 
instructed as to the expectations set forth in Paragraphs 2 and 3.
    8. When an agency is contemplating adopting or modifying an 
interpretive rule, it should consider whether to solicit public 
participation, and, if so, what kind, before adopting or modifying 
the rule. Options for public participation include meetings or 
webinars with interested persons, advisory committee proceedings, 
and invitation for written input from the public with or without a 
response. In deciding how to proceed, the agency should consider:
    a. The agency's own procedures for adopting interpretive rules.
    b. The likely increase in useful information available to the 
agency from broadening participation, keeping in mind that non-
regulated persons (regulatory beneficiaries and other interested 
persons) may offer different information than regulated persons and 
that non-regulated persons will often have no meaningful opportunity 
to provide input regarding interpretive rules other than at the time 
of adoption.
    c. The likely increase in rule acceptance from broadening 
participation, keeping in mind that non-regulated persons will often 
have no opportunity to provide input regarding interpretive rules 
other than at the time of adoption, and that rule acceptance may be 
less likely if the agency is not responsive to input from interested 
persons.
    d. Whether the agency is likely to learn more useful information 
by having a specific agency proposal as a focal point for 
discussion, or instead having a more free-ranging and less formal 
discussion.
    e. The practicability of broader forms of participation, 
including invitation for written input from the public, keeping in 
mind that broader participation may slow the adoption of 
interpretive rules and may diminish resources for other agency 
tasks, including issuing interpretive rules on other matters.
    9. If an agency does not provide for public participation before 
adopting or modifying an interpretive rule, it should consider 
offering an opportunity for public participation after adoption or 
modification. As with Paragraph 8, options for public participation 
include meetings or webinars with interested persons, advisory 
committee proceedings, and invitation for written input from the 
public with or without a response.
    10. An agency may make decisions about the appropriate level of 
public participation interpretive rule-by-interpretive rule or by 
assigning certain procedures for public participation to general 
categories of interpretive rules. If an agency opts for the latter, 
it should consider whether resource limitations may cause some 
interpretive rules, if subject to pre-adoption procedures for public 
participation, to remain in draft for substantial periods of time. 
If that is the case, agencies should either (a) make clear to 
interested persons which draft interpretive rules, if any, should be 
understood to reflect current agency thinking; or (b) provide in 
each draft interpretive rule that, at a certain time after 
publication, the rule will automatically either be adopted or 
withdrawn.
    11. All written interpretive rules affecting the interests of 
regulated parties, regulatory beneficiaries, or other interested 
parties should be promptly made available electronically and 
indexed, in a manner in which they may readily be found. 
Interpretive rules should also indicate the nature of the reliance 
that may be placed on them and the opportunities for modification, 
rescission, or waiver of them.

Recommendations Applicable Only to Those Interpretive Rules 
Amenable to Alternative Approaches or Analyses

    12. Interpretive rules that lend themselves to alternative 
approaches or analyses include those that lay out several lawful 
options for the public but do not purport to be exhaustive. They may 
also include rules that, in setting forth decisional factors that 
are relevant to the meaning of a statute or regulation, leave open 
the possibility that other decisional factors might also be 
relevant. Typically, such rules speak at a general level, leaving 
space for informal adjustments and negotiation between the agency 
and interested persons about how the rule should be applied. 
Paragraphs 1-11 above apply with equal force to such rules. However, 
with respect to such rules, agencies should take additional steps to 
promote flexibility, as discussed below.
    13. Agencies should afford members of the public a fair 
opportunity to argue for lawful approaches or analyses other than 
those set forth in an interpretive rule, subject to any binding 
requirements imposed upon agency employees as an internal management 
manner. The agency should explain that a member of the public may 
take a lawful approach different from the one set forth in the 
interpretive rule, request that the agency take such a lawful 
approach, or request that the agency endorse an alternative or 
additional analysis of the rule. The interpretive rule should also 
include the identity and contact information of officials to whom 
such a request should be made. Additionally, with respect to such 
rules, agencies should take further measures to promote such 
flexibility as provided in Paragraph 14.
    14. In order to provide a fair opportunity for members of the 
public to argue for other lawful approaches or analyses, an agency 
should, subject to considerations of practicability and resource 
limitations and the priorities described in Paragraph 15, consider 
additional measures, including the following:

[[Page 38930]]

    a. Promoting the flexible use of interpretive rules in a manner 
that still takes due account of needs for consistency and 
predictability. In particular, when the agency accepts a proposal 
for a lawful approach or analysis other than that set forth in an 
interpretive rule and the approach or analysis seems likely to be 
applicable to other situations, the agency should disseminate its 
decision and the reasons for it to other persons who might make the 
argument, to other affected interested persons, to officials likely 
to hear the argument, and to members of the public, subject to 
existing protections for confidential business or personal 
information.
    b. Assigning the task of considering arguments for approaches or 
analyses other than those in an interpretive rule to a component of 
the agency that is likely to engage in open and productive dialogue 
with persons who make such arguments, such as a program office that 
is accustomed to dealing cooperatively with regulated parties and 
regulatory beneficiaries.
    c. When officials are authorized to take an approach or endorse 
an analysis different from that in an interpretive rule but decline 
to do so, directing appeals of such a refusal to a higher-level 
official.
    d. Investing in training and monitoring of personnel to ensure 
that they: (i) Treat parties' ideas for lawful approaches or 
analyses that are different from those in an interpretive rule in an 
open and welcoming manner; and (ii) understand that approaches or 
analyses other than those in an interpretive rule, if undertaken 
according to the proper internal agency procedures for approval and 
justification, are appropriate and will not have adverse employment 
consequences for them.
    e. Facilitating opportunities for members of the public, 
including through intermediaries such as ombudspersons or 
associations, to propose or support approaches or analyses different 
from those in an interpretive rule and to provide feedback to the 
agency on whether its officials are giving reasonable consideration 
to such proposals.
    15. Because measures to promote flexibility (including those 
listed in Paragraph 14) may take up agency resources, it will be 
necessary to set priorities for which interpretive rules are most in 
need of such measures. In deciding when to take such measures, the 
agency should consider the following, bearing in mind that these 
considerations will not always point in the same direction:
    a. An agency should assign a higher priority to an interpretive 
rule the greater the rule's impact is likely to be on the interests 
of regulated parties, regulatory beneficiaries, and other interested 
parties, either because regulated parties have strong incentives to 
comply with the rule or because the rule practically reduces the 
stringency of the regulatory scheme compared to the status quo.
    b. An agency should assign a lower priority to promoting 
flexibility in the use of a rule insofar as the rule's value to the 
agency and interested persons is primarily consistency rather than 
substantive content.

Administrative Conference Recommendation 2019-2

Agency Recruitment and Selection of Administrative Law Judges

Adopted June 13, 2019

    The Administrative Procedure Act (APA) requires that hearings 
conducted under its main adjudication provisions \1\ (sometimes 
known as ``formal'' hearings) be presided over by the agency itself, 
by ``one or more members of the body which comprises the agency,'' 
or by ``one or more administrative law judges [(ALJs)] appointed 
under'' 5 U.S.C. 3105.\2\ Section 3105, in turn, authorizes ``[e]ach 
agency'' to ``appoint as many [ALJs] as are necessary for 
proceedings required to be conducted in accordance'' with those 
provisions.\3\
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    \1\ 5 U.S.C. 554, 556-57.
    \2\ Id.
    \3\ Id. Sec.  3105.
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    The process for appointing ALJs recently changed as a result of 
Executive Order (E.O.) 13,843.\4\ Until that order was issued, 
agencies could a hire a new ALJ only from a certificate of qualified 
applicants (that is, a list of applicants eligible for hire) 
prepared by the Office of Personnel Management (OPM).\5\ Each 
certificate generally had, for each opening, three applicants 
selected from a much larger register of applicants OPM deemed 
``qualified.'' The ``list of three,'' as it was known, consisted of 
the three highest-scoring applicants based upon, among other things, 
an OPM-administered and -developed examination and panel interview 
process, as well as veterans' status.\6\
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    \4\ Exec. Order No. 13,843, 83 FR 32,755 (July 13, 2018) (issued 
July 10, 2018); see also Memorandum from Jeff T.H. Pon, Dir., Office 
of Pers. Mgmt., to Heads of Exec. Dep'ts and Agencies, Executive 
Order--Excepting Administrative Law Judges from the Competitive 
Service (July 10, 2018), https://chcoc.gov/print/9282 (noting that 
``OPM's regulations continue to govern some aspects of ALJ 
employment'').
    \5\ This was the process for hiring new ALJs. Many agencies 
hired incumbent ALJs from other agencies under a process known as 
``interagency transfer.'' This process no longer exists, but 
agencies are still free to hire ALJs from other agencies using their 
own process.
    \6\ See Admin. Conf. of the U.S., Recommendation 1992-7, The 
Federal Administrative Judiciary, 57 FR 61,759, 61,761 (Dec. 29, 
1992). Qualified veterans received extra points that ``had an 
extremely large impact, given the small range in unadjusted 
scores.'' Id. As the Administrative Conference noted in 1992, 
``application of the veterans' preference has almost always been 
determinative in the ALJ selection system.'' Id.
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    Under E.O. 13,843, newly appointed ALJs were removed from the 
``competitive service,'' and were instead placed in what is known as 
the ``excepted service.'' \7\ As a result, agencies now hire new 
ALJs directly--that is, without OPM's involvement--generally using 
whatever selection criteria and procedures they deem appropriate. 
E.O. 13,843 was premised on two primary bases. The first was the 
need to ``mitigate'' the concern that, after the Supreme Court's 
2018 decision in Lucia v. Securities and Exchange Commission,\8\ the 
OPM-administered process might unduly circumscribe an agency head's 
discretionary hiring authority under the Constitution's Appointments 
Clause.\9\ Lucia held that the Securities and Exchange Commission's 
(SEC) ALJs were officers under the Appointments Clause, with the 
result being that--assuming that the SEC's ALJs are inferior rather 
than principal officers \10\--they must be appointed directly by the 
Commission itself as the head of a department rather than, as was 
being done, by SEC staff.\11\ The second basis was the need to give 
``agencies greater ability and discretion to assess critical 
qualities in ALJ candidates . . . and [such candidates'] ability to 
meet the particular needs of the agency.'' \12\
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    \7\ ``[T]he `excepted service' consists of those civil service 
positions which are not in the competitive service or the Senior 
Executive Service.'' 5 U.S.C. 2103.
    \8\ 138 S. Ct. 2044 (2018).
    \9\ See Exec. Order No. 13,843, supra note 4, Sec.  1.
    \10\ The Lucia majority expressly refrained from deciding 
whether the SEC's ALJs are principal or inferior officers, but did 
note that ``[b]oth the Government and Lucia view the SEC's ALJs as 
inferior officers and acknowledge that the Commission, as a head of 
department, can constitutionally appoint them.'' Lucia, 138 S. Ct. 
at 2051 n.3.
    \11\ See id. This Recommendation takes no position on 
constitutional questions.
    \12\ Exec. Order No. 13,843, supra note 4, Sec.  1.
---------------------------------------------------------------------------

    E.O. 13,843 requires only that ALJs be licensed attorneys. In 
addition, it identifies desirable qualities for ALJs, such as 
appropriate temperament, legal acumen, impartiality, and the ability 
to communicate their decisions, explicitly leaving it, however, to 
each agency to determine its own selection criteria. This 
Recommendation does not address the substantive hiring criteria that 
agencies should employ in selecting among ALJ candidates, though it 
does recommend that agencies publish the minimum qualifications and 
selection criteria for their ALJ positions. The selection criteria 
that an agency adopts might include, for example, litigation 
experience, experience as an adjudicator, experience in dispute 
resolution, experience with the subject-matter that comprises the 
agency's caseload, specialized technical skills, experience with 
case management systems, demonstrated legal research and legal 
writing skills, a dedicated work ethic, and strong leadership and 
communications skills.\13\
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    \13\ See generally Jack M. Beermann and Jennifer L. Mascott, 
Federal Agency ALJ Hiring After Lucia and Executive Order 13843 (May 
29, 2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/final-research-report-federal-agency-alj-hiring-after-lucia-and-eo-13843. This report is based in part upon 
interviews with officials at a number of agencies, including those 
employing the vast majority of ALJs.
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    Each agency must decide not only which selection criteria will 
apply, but also which are mandatory and which are only desirable or 
preferred. Of course, agencies must also ensure that recruitment and 
selection comply with generally applicable legal requirements, such 
as those relating to veterans' preference and equal employment 
opportunity and government-wide initiatives to promote diversity and 
inclusion in the federal workforce.\14\
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    \14\ See, e.g., Exec. Order No. 13,583, 76 FR 52,847 (Aug. 18, 
2011). As far as veterans' preference is concerned, Executive Order 
13,843 provides that ``each agency shall follow the principle of 
veteran preference as far as administratively feasible.'' Exec. 
Order No. 13,843, supra note 4, Sec.  3.

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[[Page 38931]]

    Because the E.O. allows each agency to design its own selection 
procedures, each agency must now decide which of its officials will 
be involved in the selection process, how the process will be 
structured, how vacancies will be announced and otherwise 
communicated to potential applicants, and whether the agency will 
review writing samples or use some other evaluation method.
    This Recommendation is built upon the view that there is no 
``one-size-fits-all'' procedure for appointing ALJs and is designed 
to assist agencies that are in the initial stages of thinking 
through new procedures for appointing ALJs under the E.O.\15\ Each 
agency will have to construct a system that is best suited to its 
particular needs. Doing so will require consideration of, among 
other things, the nature of its proceedings, the size of the 
agency's caseload, and the substance of the relevant statutes and 
the procedural rules involved in an agency's proceedings.
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    \15\ Some agencies have already publicly disseminated guidance. 
See, e.g., Secretary's Order 07-2018, Procedures for Appointments of 
Administrative Law Judges for the Department of Labor, 83 FR 44,307 
(Aug. 30, 2018); U.S. Dep't of Health & Human Serv.'s, 
Administrative Law Judge Appointment Process Under the Excepted 
Service (Nov. 29, 2018), https://www.hhs.gov/sites/default/files/alj-appointment-process.pdf.
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Recommendation

    1. To ensure the widest possible awareness of their 
Administrative Law Judge (ALJ) vacancies and an optimal and broad 
pool of applicants, agencies should announce their vacancies on the 
government-wide employment website (currently operated by the Office 
of Personnel Management as USAJOBS), their own websites, and/or 
other websites that might reach a diverse range of potential ALJ 
applicants. Agencies that desire or require subject-matter, 
adjudicative, or litigation experience should also reach out to 
lawyers who practice in the field or those with prior experience as 
an adjudicator. Each agency should keep the application period open 
for sufficient time to achieve an optimal and broad pool of 
applicants.
    2. Agencies should formulate and publish minimum qualifications 
and selection criteria for ALJ hiring. Those qualifications and 
criteria should include the factors specified in Executive Order 
13,843 and the qualifications the agency deems important for service 
as an ALJ in the particular agency. The notice should distinguish 
between mandatory and desirable criteria.
    3. Agencies should develop policies to review and assess ALJ 
applications. These policies might include the development of 
screening panels to select which applicants to interview, interview 
panels to select which applicants to recommend for appointment, or 
both kinds of panels. If used, such panels could include internal 
reviewers only or both internal and external reviewers, and could 
include overlapping members among the two types of panels or could 
include entirely different members. These policies might include 
procedures to evaluate applicants' writing samples. If used, such 
writing samples could be submitted with the applicants' initial 
applications, as part of a second round of submissions for 
applicants who meet the agencies' qualifications expectations, or as 
part of a proctored writing assignment in connection with an 
interview.
    4. The guidelines and procedures for the hiring of ALJs should 
be designed and administered to ensure the hiring of ALJs who will 
carry out the functions of the office with impartiality and maintain 
the appearance of impartiality.

Administrative Conference Recommendation 2019-3

Public Availability of Agency Guidance Documents

Adopted June 13, 2019

    Among their many activities, government agencies issue guidance 
documents that help explain their programs and policies or 
communicate other important information to regulated entities and 
the public. Members of the public should have ready access to these 
guidance documents so that they can understand how their government 
works and how their government relates to them. Agencies should 
manage their guidance documents consistent with legal requirements 
and principles of governmental transparency and accountability.
    Guidance documents can take many forms.\1\ They include what the 
Administrative Procedure Act (APA) calls ``interpretative rules'' 
and ``general statements of policy,'' which are two types of rules 
that are not required to undergo the notice-and-comment procedures 
applicable to legislative rules.\2\ They may also include other 
materials considered to be guidance documents under other, separate 
definitions adopted by government agencies.\3\ When managing the 
public availability of agency information in implementing this 
Recommendation, agencies should be clear about what constitutes 
guidance and what does not.
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    \1\ To allow agencies flexibility to manage their varied and 
unique types of guidance documents, this Recommendation does not 
seek to provide an all-encompassing definition of guidance 
documents. This Recommendation is addressed, at a minimum, to those 
guidance documents required by law to be published in the Federal 
Register and any other guidance document required by law to be made 
publicly available. See infra notes 4-7 and accompanying text.
    \2\ Interpretative rules and general statements of policy are 
``rules'' under the APA. See 5 U.S.C. 551(4), 553. Although the APA 
does not define these two terms, the Attorney General's Manual on 
the Administrative Procedure Act defines ``interpretative rules'' as 
``rules or statements issued by an agency to advise the public of 
the agency's construction of the statutes and rules which it 
administers,'' and ``general statements of policy'' as ``statements 
issued by an agency to advise the public prospectively of the manner 
in which the agency proposes to exercise a discretionary power.'' 
Attorney General's Manual on the Administrative Procedure Act 30 n.3 
(1947). In accordance with standard parlance, this Recommendation 
uses the term ``interpretive'' in place of the APA's word 
``interpretative.''
    \3\ See Cary Coglianese, Public Availability of Agency Guidance 
Documents (May 15, 2019) (report to the Admin. Conf. of the U.S.), 
https://www.acus.gov/report/consultant-report-public-availability-agency-guidance-documents.
---------------------------------------------------------------------------

    Several laws require agencies to make at least certain guidance 
documents available to the public. The Federal Records Act requires 
agencies to identify ``records of general interest or use to the 
public that are appropriate for public disclosure, and . . . post[] 
such records in a publicly accessible electronic format.'' \4\ The 
Freedom of Information Act (FOIA) requires that agencies publish 
``statements of general policy or interpretations of general 
applicability formulated and adopted by the agency'' in the Federal 
Register.\5\ FOIA also requires that agencies ``make available for 
public inspection in an electronic format . . . [specific] 
statements of policy and interpretations which have been adopted by 
the agency and are not published in the Federal Register,'' as well 
as ``administrative staff manuals and instructions to staff that 
affect a member of the public.'' \6\ Finally, Congress has 
occasionally enacted agency-specific requirements for posting 
guidance documents online. For example, the Food and Drug 
Administration is required to ``maintain electronically and update 
and publish periodically in the Federal Register a list of guidance 
documents'' and to ensure that ``[a]ll such documents [are] made 
available to the public.'' \7\
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    \4\ 44 U.S.C. 3102.
    \5\ 5 U.S.C. 552(a)(1)(D) (emphasis added). To the extent that 
the documents an agency considers guidance would fall within any of 
the nine FOIA exceptions, such as ``records or information compiled 
for law enforcement purposes,'' 5 U.S.C. 552(b)(7), agencies would 
not be required to disclose them.
    \6\ 5 U.S.C. 552(a)(2). ``Agencies often accomplish this 
electronic availability requirement by posting records on their FOIA 
websites in a designated area known as a `FOIA Library.' '' U.S. 
Dep't of Justice, Office of Information Policy, Guide to the Freedom 
of Information Act: Proactive Disclosures 6 (2019 ed.), available at 
https://www.justice.gov/oip/foia-guide/proactive_disclosures/download; see also E-Government Act, Public Law 107-347, 206, 116 
Stat. 2899, 2915 (Dec. 17, 2002) (codified at 44 U.S.C. 3501 note) 
(requiring agencies, to the extent practicable, to publish online 
documents that FOIA requires be published in the Federal Register); 
Small Business Regulatory Enforcement Fairness Act, Public Law 104-
121, 212, 110 Stat. 847, 858 (Mar. 29, 1996) (codified at 5 U.S.C. 
601 note) (requiring agencies to produce a ``small entity compliance 
guide'' for some legislative rules and post those guides ``in an 
easily identified location on the website of the agency'').
    \7\ 21 U.S.C. 371(h)(3).
---------------------------------------------------------------------------

    The Administrative Conference has recommended that various types 
of guidance documents be made available online. Recommendation 2017-
5, Agency Guidance Through Policy Statements, provided that ``[a]ll 
written policy statements affecting the interests of regulated 
parties, regulatory beneficiaries, or other interested parties 
should be promptly made available electronically and indexed, in a 
manner in which they may readily be found.'' \8\

[[Page 38932]]

Recommendation 2019-1 includes identical language directing agencies 
to do the same for interpretive rules.\9\ Similarly, Recommendation 
2018-5, Public Availability of Adjudication Rules, urged agencies to 
``provide updated access on their websites to all sources of 
procedural rules and related guidance documents and explanatory 
materials that apply to agency adjudications.'' \10\
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    \8\ Admin. Conf. of the U.S., Recommendation 2017-5, Agency 
Guidance Through Policy Statements, ] 12, 82 FR 61,728, 61,737 (Dec. 
29, 2017).
    \9\ Admin. Conf. of the U.S., Recommendation 2019-1, Agency 
Guidance Through Interpretive Rules, 84 FR __.
    \10\ Admin. Conf. of the U.S., Recommendation 2018-5, Public 
Availability of Adjudication Rules, ] 1, 84 FR 2142, 2142 (Feb. 6, 
2019).
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    Although many agencies do post guidance documents online, in 
recent years concerns have emerged about how well organized, up to 
date, and easily accessible these documents are to the public. At 
various times, the Office of Management and Budget (OMB) has 
instructed agencies on their management of guidance documents.\11\ 
The United States Government Accountability Office has conducted an 
audit that highlights the management challenges associated with 
agency dissemination of guidance documents online.\12\ Several 
legislative proposals have been introduced (but not enacted) to 
create standards for public disclosure of guidance documents.\13\
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    \11\ For example, OMB Bulletin 07-02 directs Executive Branch 
departments and agencies to provide a current list of significant 
guidance documents in effect on their websites. Office of Mgmt. & 
Budget, Final Bulletin for Agency Good Guidance Practices, 72 FR 
3432 (Jan. 25, 2007); Office of Mgmt. & Budget, Memorandum No. M-07-
07, Issuance of OMB's ``Final Bulletin for Agency Good Guidance 
Practices'' (Jan. 18, 2007), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-07.pdf; see also Office 
of Mgmt. & Budget, Memorandum No. M-19-14, Guidance on Compliance 
with the Congressional Review Act (Apr. 11, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf (calling 
upon both executive and independent regulatory agencies to send 
certain pre-publication guidance materials to the Office of 
Information and Regulatory Affairs).
    \12\ U.S. Gov't Accountability Office, GAO-15-368, Regulatory 
Guidance Processes: Selected Departments Could Strengthen Internal 
Control and Dissemination Practices (2015).
    \13\ The most notable of the pending legislation would require 
agencies to publish guidance documents on their websites and a 
centralized website selected by OMB. See Guidance Out of Darkness 
Act, S. 380, 116th Cong. (2019); S. Rep. No. 116-12 (2019); Guidance 
Out of Darkness Act, H.R. 4809, 115th Cong. (2018); H.R. Rep. No. 
115-972 (2018); see also H.R. 2142, 116th Cong. (2019) (requiring 
the creation of a centralized website for small business compliance 
guides). For other legislation, see Coglianese, supra note 3, at 6-
7.
---------------------------------------------------------------------------

    Agencies should be cognizant that the primary goal of online 
publication is to facilitate access to guidance documents by 
regulated entities and the public. In deciding how to manage the 
availability of their guidance documents, agencies must be mindful 
of how members of the public will find the documents they need. Four 
principles for agencies to consider when developing and implementing 
plans to track and disclose their guidance documents to the public 
include: (a) Comprehensiveness (whether all relevant guidance 
documents are available), (b) currency (whether guidance documents 
are up to date), (c) accessibility (whether guidance documents can 
be easily located by website users), and (d) comprehensibility 
(whether website users are likely to be able to understand the 
information they have located).
    With these principles in mind, this Recommendation calls on 
agencies to consider opportunities for improving the public 
availability of their guidance documents. Each agency must decide 
which guidance documents to post online and how to present them in a 
manner that will ensure their availability and usefulness for 
regulated parties and the public. The Recommendation provides best 
practices to guide agencies to make their guidance documents more 
publicly available. These best practices are intended to be 
adaptable to fit agency-specific circumstances.\14\ The 
Administrative Conference notes that each agency is different, and 
the practices outlined in this Recommendation may be employed with 
flexibility as necessary (perhaps based on factors such as an 
agency's internal structures, available resources, types and volume 
of documents, the parties it regulates, and its end users) so that 
guidance documents are made available to the public in a logical and 
suitably comprehensive manner.
---------------------------------------------------------------------------

    \14\ For example, even the term ``agency'' as used in the 
Recommendation can be construed to address either agencies or sub-
agencies within larger departments. Jennifer L. Selin & David E. 
Lewis, Admin. Conf. of the U.S., Sourcebook of United States 
Executive Agencies 11 (2d ed. 2018), available at https://www.acus.gov/publication/sourcebook-united-states-executive-agencies-second-edition.
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Recommendation

Procedures for Managing Guidance Documents

    1. Agencies should develop written procedures pertaining to 
their internal management of guidance documents.
    a. The procedures should include:
    i. A description of relevant categories or types of guidance 
documents subject to the procedures; and
    ii. examples of specific materials not subject to the 
procedures, as appropriate.
    b. The procedures should address measures to be taken for the:
    i. Development of guidance documents, including any opportunity 
for public comment;
    ii. publication and dissemination of draft or final guidance 
documents; and
    iii. periodic review of existing guidance documents.
    c. Agency procedures should indicate the extent to which any of 
the measures created or identified in response to Paragraph 1(b) 
should vary depending on the type of guidance document or its 
category, as defined by any provisions in agency procedures 
responsive to Paragraph 1(a).
    2. All relevant agency staff should receive training in 
agencies' guidance document management procedures.
    3. Agencies should develop and apply appropriate internal 
controls to ensure adherence to guidance document management 
procedures.
    4. To facilitate internal tracking of guidance documents, as 
well as to help members of the public more easily identify relevant 
guidance documents, agencies should consider assigning unique 
identification numbers to guidance documents covered by their 
written guidance procedures. Once a guidance identification number 
has been assigned to a guidance document, it should appear on that 
document and be used to refer to the document whenever it is listed 
or referenced on the agency's website, in public announcements, or 
in the Federal Register or the Code of Federal Regulations.
    5. Using appropriate metrics, agencies should periodically 
review their guidance document management procedures and their 
implementation in order to assess their performance in making 
guidance documents available as well as to identify opportunities 
for improvement.
    6. Agencies should provide opportunities for public feedback on 
their efforts to promote the public availability of their guidance 
documents.

Guidance Documents on Agency Websites

    7. Agencies should maintain a page on their websites dedicated 
to informing the public about the availability of guidance documents 
and facilitating access to those documents. Such guidance document 
web pages should include:
    a. Agencies' written guidance document management procedures 
pursuant to Paragraph 1, if developed;
    b. Plain language explanations (sometimes known as 
``explainers'') that define guidance documents, explain their legal 
effects, or give examples of different types of guidance documents;
    c. A method for users to find relevant guidance documents, which 
might include:
    i. Comprehensively listing and indexing agency guidance 
documents;
    ii. Displaying links to pages where guidance documents are 
located, which could be organized by topic, type of guidance 
document, agency sub-division, or some other rubric; or
    iii. A dedicated search engine; and
    d. Contact information or a comment form to facilitate public 
feedback related to potentially broken links, missing documents, or 
other errors or issues related to the agency's procedures for the 
development, publication, or disclosure of its guidance documents.
    8. Agencies should provide the public with access to a 
comprehensive set of its guidance documents--either on the dedicated 
guidance document web page or other web pages--in accordance with 
its written procedures.
    a. Agency websites should include, at minimum, (1) all guidance 
documents required by law to be published in the Federal Register 
and (2) all other guidance documents required by law to otherwise be 
made publicly available.
    b. Guidance documents should generally be made available in 
downloadable form.

[[Page 38933]]

    c. Links to downloadable copies of agencies' Small Entity 
Compliance Guides--issued in accordance with the Small Business 
Regulatory Enforcement Fairness Act \15\--should be provided.
---------------------------------------------------------------------------

    \15\ Public Law 104-121, 212, 110 Stat. 847, 858 (Mar. 29, 1996) 
(codified at 5 U.S.C. 601 note).
---------------------------------------------------------------------------

    d. Agency websites should include relevant information for each 
guidance document, such as its title, any corresponding regulatory 
or statutory provision that the guidance document relates to or 
interprets (if applicable), the date of issuance, and any assigned 
identifying number.
    e. Agencies should keep guidance documents on their websites 
current. To the extent a website contains obsolete or modified 
guidance documents, it should include notations indicating that such 
guidance documents have been revised or withdrawn. To the extent 
feasible, each guidance document should be clearly marked within the 
document to show whether it is current and identify its effective 
date, and, if appropriate, its rescission date. If a guidance 
document has been rescinded, agencies should provide a link to any 
successor guidance document.
    9. Although not every agency website will have the same 
population of users, agency websites should be designed to ensure 
that they are as helpful to the end user as possible. In particular, 
agencies should ensure:
    a. Simple words, such as ``guidance,'' are used in describing 
web pages that discuss or list guidance documents;
    b. Agency guidance document web pages are easy to find from 
their website's home page, through such techniques as a linked tab 
or entry in a pull-down menu;
    c. The search engine on agency websites works effectively for 
finding relevant guidance information;
    d. Guidance documents, when listed on web pages, are displayed 
in a manner that helps the public find a particular document, by 
using such techniques as indexing, tagging, or sortable tables; and
    e. Websites displaying guidance documents are kept up to date, 
with any broken links fixed and any amended or withdrawn documents 
clearly labeled as such.
    10. To make guidance documents accessible to users who are 
searching for information elsewhere on agency websites, agencies 
should strive to ensure that clearly labeled links to all guidance 
documents related to specific rules, issues, or programs are easily 
found in the corresponding section of the website where users are 
likely to find that information especially helpful.

Public Notice of Guidance Documents

    11. Agencies should undertake affirmative measures to alert 
interested members of the public to new and revised guidance 
documents. Such measures could include, among other things, 
establishing public email distribution lists to disseminate alerts 
about new or revised guidance documents, using social media to 
disseminate guidance documents and related information, having 
agency staff speak about guidance documents at relevant conferences 
or meetings, or preparing printed pamphlets or other hard-copy 
documents. Even when not required to do so by law, agencies should 
consider publishing information about new or revised guidance 
documents in the Federal Register.
    12. Agencies should consider providing descriptive references 
(such as links, if possible) to relevant guidance documents in 
appropriate sections of the Code of Federal Regulations, stating 
where the public can access the documents.

Administrative Conference Recommendation 2019-4

Revised Model Rules for Implementation of the Equal Access to Justice 
Act

Adopted June 13, 2019

    [Note from the Office of the Chairman: Recommendation 2019-4 
immediately follows; however, the Revised Model Rules for 
Implementation of the Equal Access to Justice Act, which were 
adopted by the Assembly as an appendix to Recommendation 2019-4, are 
published elsewhere in this issue of the Federal Register. Federal 
agencies should consider the Revised Model Rules when adopting or 
revising their own rules in order to promote the uniformity of 
procedure contemplated by the Equal Access to Justice Act, and in 
discharging their obligation to consult with the Chairman of the 
Administrative Conference of the United States under 5 U.S.C. 
504(c)(1).]
    The Equal Access to Justice Act (EAJA), first enacted in 1980, 
authorizes the award of attorney fees and other expenses to certain 
individuals, small businesses, and other entities that prevail 
against the federal government in judicial proceedings and certain 
adversarial agency adjudicative proceedings, when the position of 
the government is not substantially justified.\1\ The stated purpose 
of EAJA is to, among other things, ``diminish the deterrent effect 
of seeking review of, or defending against, governmental action by 
providing'' the award of certain costs and fees against the United 
States.\2\
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    \1\ 5 U.S.C. 504.
    \2\ Equal Access to Justice Act, Public Law 96-481, 202(b)(1), 
94 Stat. 2321, 2325 (1980) (codified as amended at 5 U.S.C. 504 and 
28 U.S.C. 2412).
---------------------------------------------------------------------------

    In the case of agency adjudications, agencies must establish 
``uniform procedures for the submission and consideration of 
applications for an award of fees and other expenses'' ``[a]fter 
consultation with the Chairman of the Administrative Conference of 
the United States.'' \3\ To carry out this statutory charge, the 
Conference's Chairman issued model rules in 1981 to help agencies 
establish uniform procedures for the submission and consideration of 
EAJA applications.\4\ Adoption of these model rules was intended to 
facilitate consultation between agencies and the Chairman of the 
Conference as required by 5 U.S.C. 504.\5\ In 1986, the Chairman 
revised the 1981 model rules following the amendment and 
reauthorization of EAJA.\6\ Numerous agencies adopted the 1981 and 
1986 model rules, including the Federal Trade Commission, the 
Consumer Financial Protection Bureau, the Securities and Exchange 
Commission, and the National Labor Relations Board.\7\
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    \3\ 5 U.S.C. 504(c)(1).
    \4\ Admin. Conf. of the U.S., Equal Access to Justice Act: 
Agency Implementation, 46 FR 32,900 (June 25, 1981).
    \5\ Admin. Conf. of the U.S., Implementation of the Equal Access 
to Justice Act: Requests for Comments on Draft Model Rules, 46 FR 
15,895 (Mar. 10, 1981).
    \6\ Admin. Conf. of the U.S., Model Rules for Implementation of 
the Equal Access to Justice Act: Issuance of Final Revised Model 
Rules, 51 FR 16,659 (May 6, 1986).
    \7\ See Equal Access to Justice Act Implementation Rule, 79 FR 
7,569 (Consumer Fin. Prot. Bureau Feb. 10, 2014) (codified as 
amended at 12 CFR pt. 1071); Equal Access to Justice Rules, 54 FR 
53,050 (Sec. Exch. Comm'n Dec. 27, 1989) (codified as amended at 17 
CFR pt. 200-01); Procedural Rules Implementing Equal Access to 
Justice Act, 51 FR 36,223 (Nat'l Labor Relations Bd. Oct. 9, 1986) 
(codified as amended at 29 CFR pt. 102); Procedural Rules 
Amendments, 51 FR 17,732 (Nat'l Labor Relations Bd. May 15, 1986); 
Procedural Rules; Miscellaneous Revisions and Corrections, 50 FR 
53,302 (Fed. Trade Comm'n Dec. 31, 1985) (codified as amended at 16 
CFR pt. 0-5); Equal Access to Justice Rules, 47 FR 609 (Sec. Exch. 
Comm'n Jan. 6, 1982); Rules Governing Recovery of Awards Under Equal 
Access to Justice Act, 46 FR 48,910 (Fed. Trade Comm'n Oct. 5, 
1981).
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    In light of the amendments to EAJA made since 1986,\8\ as well 
as evolving adjudicative practices since that time, the Conference's 
Chairman decided to review and, as necessary, revise the 1986 model 
rules, just as he recently did in the case of the Model Adjudication 
Rules, which govern agency adjudication procedures generally.\9\ 
Rather than simply revise the rules himself, the Chairman decided to 
put the rules before the membership of the Conference--first through 
an ad hoc committee of all interested members--for review so as to 
assure consideration of as broad a range of views as possible. The 
Conference considered, among other things, EAJA rules that agencies 
have issued since the promulgation of the 1986 model rules. Where 
appropriate, the Conference updated the model rules to reflect 
evolving practice and the latest EAJA amendments and made additional 
revisions to promote greater consistency and clarity. The 
Conference's revised model rules appear in the appendix to this 
Recommendation.
---------------------------------------------------------------------------

    \8\ Act of Jan. 4, 2011, Public Law 111-350, 5, 124 Stat. 3677, 
3841; Small Business Regulatory Enforcement Fairness Act of 1996, 
104 Public Law 121, 231, 110 Stat. 847, 862; Religious Freedom 
Restoration Act of 1993, 103 Public Law 141, 4, 107 Stat. 1488, 
1489; Education and Savings Act of 1988, Public Law 100-647, 6239, 
102 Stat. 3342, 3746.
    \9\ Admin. Conf. of the U.S., Model Adjudication Rules, 83 FR 
49,530 (Oct. 2, 2018).
---------------------------------------------------------------------------

    Substantial changes have been made to the 1986 model rules. They 
include, most notably, the elimination of most of what was Subpart 
A. Subpart A of the 1986 model rules consisted of general provisions 
addressing, among other things, when EAJA applies, eligibility of 
applicants, proceedings covered, standards for awards, allowable 
fees and expenses, rulemaking on maximum rates for attorney fees, 
awards against other agencies,

[[Page 38934]]

and delegations of authority. The Conference recommends the 
elimination of these provisions because they address the substantive 
standard for EAJA awards and other such matters beyond the 
Conference's statutory charge identified above. Other changes to the 
rules, including the addition of a definitions section, have also 
been made to improve their clarity and comprehensibility.

Recommendation

    The 1986 model rules should be replaced with the revised model 
rules for the implementation of the Equal Access to Justice Act that 
appear in the attached appendix. [Note from the Office of the 
Chairman: The appendix to Recommendation 2019-4 is published 
elsewhere in this issue of the Federal Register.]

[FR Doc. 2019-16946 Filed 8-7-19; 8:45 am]
 BILLING CODE 6110-01-P