Adoption of Recommendations, 71348-71358 [2019-27930]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Notices]
[Pages 71348-71358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27930]


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Federal Register / Vol. 84, No. 248 / Friday, December 27, 2019 / 
Notices

[[Page 71348]]



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 
five recommendations at its Seventy-second Plenary Session. The 
appended recommendations address: Agency Economists; Independent 
Research by Agency Adjudicators in the internet Age; Acting Agency 
Officials and Delegations of Authority; Public Identification of Agency 
Officials; and Recruiting and Hiring Agency Attorneys.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2019-5, Keith 
Holman; for Recommendation 2019-6, Jeremy Graboyes; for Recommendations 
2019-7 and 2019-8, Bobby Ochoa; and for Recommendation 2019-9, Todd 
Rubin. 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-second Plenary Session, 
held on December 12, 2019, the Assembly of the Conference adopted five 
recommendations.
    Recommendation 2019-5, Agency Economists, addresses the placement 
of economists within rule-writing agencies (e.g., centralized versus 
dispersed throughout the agency) and describes methods for promoting 
high-quality economic analysis within each of the potential 
organizational structures. Each potential structure has strengths and 
weaknesses that can affect the flow of information between economists 
and decision-makers. The recommendation does not endorse any one 
organizational structure over another, but rather identifies steps 
agencies can take to remove structural barriers that can impede the 
communication of objective, consistent, and high-quality economic 
analysis to decision-makers during the rulemaking process.
    Recommendation 2019-6, Independent Research by Agency Adjudicators 
in the internet Age, addresses agency adjudicators' increasing reliance 
on their own factual research--especially internet research--when 
conducting hearings and deciding cases. Though such independent 
research can be an efficient means to acquire facts, it can also raise 
concerns regarding the accuracy of information uncovered and fairness 
to the litigants. The recommendation encourages agencies to develop 
publicly available policies on independent research that identify 
sources of information that are reliable in all cases, set forth 
standards for adjudicators to apply when assessing the reliability of 
other sources, and ensure that litigants have ready access to all 
sources.
    Recommendation 2019-7, Acting Agency Officials and Delegations of 
Authority, offers agencies best practices for promoting greater 
transparency and compliance with the Federal Vacancies Reform Act of 
1998 when a Senate-confirmed position sits vacant. It also addresses 
the use of delegations of authority in response to staffing vacancies. 
It urges agencies to determine whether they are subject to the 
Vacancies Act and, if so, establish compliance processes; improve 
transparency by disclosing on their websites information about acting 
officials and delegations of authority; and provide additional support 
and training to agency officials responsible for Vacancies Act 
compliance.
    Recommendation 2019-8, Public Identification of Agency Officials, 
promotes the public availability of real-time information about high-
level officials leading federal agencies. It encourages agencies to 
publish on their websites basic information about high-level agency 
leaders and identify vacant leadership positions and acting officials. 
It also recommends that the Office of Personnel Management regularly 
publish on its website a list of high-level agency leaders, as well as 
an archival list of former Senate-confirmed presidential appointees.
    Recommendation 2019-9, Recruiting and Hiring Agency Attorneys, 
urges agencies to avail themselves of the flexibilities available to 
them when hiring attorneys and offers best practices for structuring 
their hiring processes. First, it suggests that the Office of Personnel 
Management offer training for agencies on the alternative processes and 
flexibilities available to them when they hire attorneys. Then, among 
other suggestions, it advises agencies to post and disseminate vacancy 
announcements widely when seeking broad applicant pools; draft 
announcements clearly and concisely; communicate to applicants any 
limitations on the number of applicants they will consider; and 
establish policies for reviewing applications and interviewing 
candidates.
    The Appendix below sets forth the full texts of these five 
recommendations. 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.

[[Page 71349]]

    The Conference based these recommendations on research reports that 
are posted at: https://www.acus.gov/meetings-and-events/plenary-meeting/72nd-plenary-session.

    Dated: December 20, 2019.
Shawne C. McGibbon,
General Counsel.

APPENDIX--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE 
UNITED STATES

Administrative Conference Recommendation 2019-5

Agency Economists

Adopted December 12, 2019

    Federal regulatory agencies are subject to various requirements 
to conduct economic analysis when they prepare new regulations. 
Executive Order 12866 \1\ requires that agencies (other than what it 
designates as ``independent regulatory agencies'') \2\ conduct a 
``regulatory impact analysis'' (RIA) for their ``significant 
regulatory actions,'' which include regulations likely to have an 
annual economic impact exceeding $100 million.\3\ The RIAs that 
accompany these regulations explain the potential benefits and costs 
of the planned regulation.\4\ Many of these agencies, along with 
several independent regulatory agencies, are likewise required by 
statutes and other executive orders \5\ to conduct some form of 
economic analysis. The analysis requirements imposed by these 
statutes and executive orders are cross-cutting in certain cases 
(e.g., under the Regulatory Flexibility Act \6\ and the Unfunded 
Mandates Reform Act \7\), and agency- or program-specific in other 
cases.\8\
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    \1\ Exec. Order No. 12866, Regulatory Planning and Review, 58 FR 
51735 (Oct. 4, 1993).
    \2\ It excludes ``independent regulatory agencies''--those 
listed in 44 U.S.C. 3502(5)--from the requirement to prepare an RIA 
for their rulemakings. See Exec. Order No. 12866, supra note 1 Sec.  
3(b). These independent agencies include most regulatory boards and 
commissions (e.g., the National Labor Relations Board, the Federal 
Energy Regulatory Commission, and the Consumer Product Safety 
Commission).
    \3\ Id. Sec.  3(f)(1). ``Significant regulatory action'' also 
includes any regulatory action that will (a) adversely affect the 
economy or segments of the economy, (b) interfere with another 
agency's actions, (c) materially alter the budget or affect required 
transfer payments, or (d) raise novel legal or policy issues arising 
out of legal mandates. Id. Sec. Sec.  3(f)(2)-(4).
    \4\ Id. Sec.  6(a)(3)(B).
    \5\ See, e.g., Exec. Order No. 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629 (Feb. 11, 1994), Exec. Order No. 13132, 
Federalism, 64 FR 43255 (Aug. 10, 1999), Exec. Order No. 13272, 
Proper Consideration of Small Entities in Agency Rulemakings, 67 FR 
53461 (Aug. 13, 2002).
    \6\ 5 U.S.C. 601-612.
    \7\ 2 U.S.C. 1501 et seq.
    \8\ See e.g., 7 U.S.C. 19(a) (Commodity Futures Trading 
Commission), 15 U.S.C. 77b(b) (Securities Exchange Commission), 15 
U.S.C. 2058(f) (Consumer Product Safety Commission); see also Curtis 
Copeland, Regulatory Analysis Requirements: A Review and 
Recommendations for Reform (Mar. 3, 2012) (report to the Admin. 
Conf. of the U.S.), https://www.acus.gov/report/curtis-copelands-report-regulatory-analysis-requirements. All federal agencies, 
moreover, must participate in a regulatory planning process that 
requires a preliminary impact analysis developed at least in part by 
agency economists. See Exec. Order No. 12866, supra note 1, Sec.  
4(c).
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    The regulatory economic analysis agencies produce can be an 
extremely valuable tool for anticipating and evaluating the likely 
consequences of proposed and final regulations and informing agency 
decisions.\9\ Several Conference recommendations have sought to 
improve the quality and transparency of agency regulatory economic 
analysis.\10\ The Conference has not, however, addressed the 
organizational structure \11\ of the economic analysis function.\12\
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    \9\ The basic elements of this analysis include (1) an 
assessment of the need for the proposed action, (2) an examination 
of alternative approaches, and (3) an evaluation of the benefits and 
costs--quantitative and qualitative--of the proposed action and the 
main alternatives. See Office of Mgmt. & Budget, Exec. Office of the 
President, OMB Circular A-4, Regulatory Analysis (2003). An agency's 
economic analysis sometimes assesses other potential results of a 
regulation, such as cost-effectiveness, economic feasibility, or 
distributional consequences.
    \10\ See, e.g., Admin Conf. of the U.S., Recommendation 2018-7, 
Public Engagement in Rulemaking, 84 FR 2139 (Feb. 6, 2019); Admin 
Conf. of the U.S., Recommendation 2013-2, Benefit-Cost Analysis at 
Independent Regulatory Agencies, 78 FR 41352 (July 10, 2013); Admin 
Conf. of the U.S., Recommendation 2012-1, Regulatory Analysis 
Requirements, 77 FR 47801 (Aug. 10, 2012); Admin. Conf. of the U.S., 
Recommendation 88-7, Valuation of Human Life in Regulatory 
Decisionmaking, 53 FR 39586 (Oct. 11, 1988); Admin. Conf. of the 
U.S., Recommendation 85-2, Agency Procedures for Performing 
Regulatory Analysis of Rules, 50 FR 28364 (July 12, 1985).
    \11\ The way agencies structure their economic impact analyses 
can, for example, be influenced by executive orders. Executive Order 
12866 requires that agencies designate a Regulatory Policy Officer 
who ``shall be involved at each stage of the regulatory process to 
foster the development of effective, innovative, and least 
burdensome regulations and to further the principles set forth in 
this Executive Order.'' Exec. Order No. 12866, supra note 1, Sec.  
6(a)(2); see also Exec. Order No. 13777, Enforcing the Regulatory 
Reform Agenda, 82 FR 12285 2(a) (Mar. 1, 2017) (requiring agencies 
to designate a Regulatory Reform Officer and a Regulatory Reform 
Task Force to ``oversee the implementation of regulatory reform 
initiatives and policies'').
    \12\ An early Conference study by then-Professor Stephen Breyer 
advocated for a more prominent role for economists in agencies and 
erecting a centralized apparatus for review of economic analysis (a 
proposal that came to fruition with the creation of the Office of 
Information and Regulatory Affairs (OIRA). Stephen G. Breyer, Role 
of Economic Analysis in the Regulatory Agencies 126, 129 (Oct. 12, 
1973) (report to the Admin. Conf. of the U.S.).
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    At present, some agencies \13\ task a centralized unit of 
economists with conducting all regulatory economic analyses 
(``functional'' organization). Examples include the Federal 
Communications Commission's Office of Economics and Analytics and 
the Federal Trade Commission's Bureau of Economics.\14\ Both units 
are independent of the offices that write regulations, but they 
conduct economic analyses to inform decisions about regulations. At 
other agencies, economists are distributed amongst an agency's 
program divisions, working alongside other rule development staff 
(``divisional'' organization). At the Department of Energy, for 
example, the economists who produce RIAs that accompany regulations 
work under the supervision of the program offices that write the 
regulations. Still other agencies have economists distributed 
through various program divisions, as in the divisional mode of 
organization, but also have economists in a central office that 
reviews draft regulations and the accompanying economic analyses 
(``hybrid'' organization). Examples of hybrid organizations include 
the National Center for Environmental Economics at the Environmental 
Protection Agency, the Office of the Chief Economist in the 
Department of Agriculture, and the Director of Regulatory Analysis 
in the Office of the General Counsel at the Department of 
Transportation.\15\ Of course, an agency may have multiple distinct 
entities tasked with performing economic analysis, and each such 
entity may fall under a different organizational heading. This is 
especially true with large or geographically widespread agencies.
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    \13\ As used in this Recommendation, the term ``agency'' refers 
to the specific governmental unit that conducts the regulatory 
analysis, rather than to a parent agency (e.g., the Occupational 
Safety and Health Administration rather than the Department of 
Labor). Of course, when the parent agency is itself issuing a 
regulation, the term ``agency'' is intended to encompass it.
    \14\ Jerry Ellig, Agency Economists 13, 21 (Sept. 3, 2019) 
(report to the Admin. Conf. of the U.S.) https://www.acus.gov/report/final-report-agency-economists.
    \15\ Id. at 30.
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    Each of these structures has inherent strengths and weaknesses. 
For instance, a functional organization may limit the number of day-
to-day interactions that economists have with rule-writers, lawyers, 
and other non-economists within the agency, whereas a divisional 
organization may impair the objectivity of economic analysis if the 
economists seek to avoid conflict with their non-economist 
supervisors. Decision-making authorities, practices, and procedures 
can be crafted to support the strengths and mitigate the weaknesses 
of the chosen organizational structure. The challenge for each 
agency is to find the blend of organizational structure, practices, 
and procedures that will enable the agency to successfully fulfill 
its economic analysis objectives.
    This Recommendation offers factors for agencies to consider in 
designing their economic analysis programs. It does not recommend 
that agencies should afford greater or lesser prominence to 
economics as compared to any other discipline in the rule 
development process. It also does not address whether agencies 
should adopt any form of organization over another and recognizes 
that each agency will want to tailor its economic analysis program 
to fit its individual needs. Rather, it focuses on ways to ensure 
that structure, practices, and procedures complement each other, 
forming a coherent system for producing high-quality economic 
analysis that informs regulatory decisions

[[Page 71350]]

and is consistent with the elements set forth in relevant executive 
orders, Office of Management and Budget guidance (e.g., Executive 
Order 12866 and OMB Circular A-4), and both agency-specific and 
cross-cutting statutes that require economic analysis.

Recommendation

Agency Consideration of Structure and Function of Economists

    1. Agencies that conduct regulatory impact analysis or another 
form of economic analysis should consider whether their existing 
organizational structure for economists allows the agency to produce 
objective, consistent, and high-quality economic analysis. 
Regulatory Policy Officers (or analogous agency officials) should 
meet with relevant decision makers to assess the organizational 
structure's contribution to the quality and use of economic 
analysis.
    2. In reviewing their organizational structures, agencies should 
consider how best to allow and encourage their economists to develop 
objective analysis consistent with best professional practice to 
ensure compliance with all analytic requirements (such as those 
contained in Executive Order 12866 and Office of Management and 
Budget Circular A-4). The organizational structure should also 
promote the flow of information among decision makers, rule-writers, 
economists, and other rule development staff as early in the 
decision-making process as feasible. Relevant organizational 
structures that agencies may wish to consider include the following.
    a. Functional organizations, which have a centralized economics 
unit and tend to have the following strengths and weaknesses:
    (1) This structure may enable economists to produce more 
objective, consistent, and high-quality analysis due to greater 
independence, collaboration with peers, economies of scale, ongoing 
professional development, and recruiting advantages; and
    (2) This structure may result in economists being physically 
separated from day-to-day events in the program offices, thereby 
causing them to be less informed about critical details of pending 
regulatory issues. The physical separation may also create 
impediments to collaboration.
    b. Divisional organizations, which locate economists in program 
offices and tend to have the following strengths and weaknesses:
    (1) This structure can allow economists to produce analysis that 
is closely focused on program-specific regulatory issues and can 
facilitate earlier involvement in the development of regulations; 
and
    (2) Economists working within this structure may feel pressure 
to produce less objective analysis in order to support program 
office decisions, and they may have fewer opportunities to develop 
professional skills through interaction with economists located in 
other offices.
    c. Hybrid organizations, which locate economists in program 
offices but also have a centralized economic review function and 
tend to have the following strengths and weaknesses:
    (1) This structure may combine the benefits of divisional 
organization with a centralized quality control function and 
expanded opportunities for skill development; and
    (2) Economists working in program offices may still be 
marginalized by other rule development staff and face career 
disincentives to informing the central economics office when they 
disagree with the quality or objectivity of a regulatory analysis.
    3. Agencies that are standing up a new economic analysis unit or 
that are considering restructuring an existing economic analysis 
unit may wish to evaluate these potential strengths and weaknesses 
in deciding what type of structure to adopt. Agencies should further 
consider taking specific steps to promote high-quality, objective 
economic analysis. Although these steps may be associated with 
specific organizational structures, they may also generally apply to 
the development of economic analyses across all organizational 
structures.
    4. The following steps can be taken to minimize the risks 
associated with walling off economists in an independent unit, which 
are especially likely to emerge when an agency has adopted a 
functional structure.
    a. The agency should consider including economists on 
multidisciplinary regulatory development teams, along with other 
rule development staff, from the outset;
    b. The agency should provide economists with a process to ensure 
their analysis is provided to higher-level decision makers; and
    c. The agency should provide an avenue for the head of the 
economics office to express concerns about the quality of economic 
analysis to the agency head.
    5. The following steps can be taken to minimize the risks 
associated with diluting economists' influence by dispersing them 
through the agency, which are especially likely to emerge when an 
agency has adopted a divisional structure.
    a. The agency should ensure that the supervisory structure does 
not create disincentives for economists to offer objective economic 
analysis;
    b. The agency, to the extent feasible, should empower a central 
economics office at the agency level to:
    (1) Serve as a quality check on economic analyses developed by 
the program offices;
    (2) In coordination with agency Regulatory Policy Officers (or 
analogous agency officials), standardize and disseminate high-
quality analytical methods; and
    (3) Conduct longer-term research and development to inform 
future regulatory proceedings.
    c. The agency should provide an avenue for the head of the 
economics office to express concerns about the quality of economic 
analysis to the agency head.

Recommendations Applicable to All Organizational Forms

    6. To promote meaningful consideration of economic analysis 
early in the decision-making process, agencies should consider 
developing guidance clarifying that economists will be involved in 
regulatory development before significant decisions about the 
regulation are made. Agencies should make this guidance publicly 
available by posting it on their websites.
    7. Agencies seeking to apply economic analysis in the rulemaking 
process should involve their relevant economic units in the process 
of developing agency regulatory plans and budgets under applicable 
executive orders in order to promote meaningful consideration of 
economic analysis while a rule is being shaped.
    8. Agency Regulatory Policy Officers or other analogous agency 
officials seeking to apply economic analysis in the rulemaking 
process should collaborate with agency economists to articulate 
relevant analytical methods and offer training, workshops, and 
assistance in economic analysis to others within the agency.

Administrative Conference Recommendation 2019-6

Independent Research by Agency Adjudicators in the Internet Age

Adopted December 12, 2019

    A fundamental characteristic of agency adjudications that 
incorporate a legally required evidentiary hearing is the existence 
of an exclusive record for decision making.\1\ The exclusive record 
in adjudications regulated by the formal-hearing provisions of the 
Administrative Procedure Act (APA) consists of the ``transcript of 
testimony and exhibits, together with all papers and requests filed 
in the proceeding.'' \2\ Many other adjudications in which an 
evidentiary hearing is required by statute, regulation, or executive 
order, though not governed by those provisions of the APA, also rely 
on an exclusive record similarly constituted.\3\ The exclusive 
record principle seeks to ensure that parties know and can meet the 
evidence against them; promotes accurate, evidence-based decision 
making; and facilitates administrative and judicial review.
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    \1\ See Michael Asimow, Evidentiary Hearings Outside the 
Administrative Procedure Act 20-21 (Nov. 10, 2016) (report to the 
Admin. Conf. of the U.S.), available at https://www.acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.
    \2\ 5 U.S.C. 556(e).
    \3\ Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary 
Hearings Not Required by the Administrative Procedure Act, ] 1, 81 
FR 94314, 94315 (Dec. 23, 2016). The Conference's recent 
recommendations divided adjudications into three categories: Those 
governed by the APA's formal-hearing provisions (referred to as Type 
A in the report accompanying Recommendation 2016-4); those that 
incorporate a legally required evidentiary hearing not regulated by 
the APA's formal-hearing provisions (referred to as Type B); and 
those not subject to a legally required evidentiary hearing 
(referred to as Type C). This Recommendation addresses only the 
first two categories.
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    Although an exclusive record consists primarily of materials 
submitted by the parties to a proceeding, it may be appropriate or 
beneficial in certain circumstances for adjudicators to use 
information obtained through their own and their staffs' independent 
research. An ``adjudicator,'' as used in this Recommendation, means 
any agency official or employee, acting either individually or 
collectively, who presides over a legally required evidentiary 
hearing or provides administrative review following an evidentiary 
hearing.

[[Page 71351]]

    ``Independent research,'' as used in this Recommendation, refers 
to an adjudicator's search for, consideration of, or reliance on 
factual materials, on his or her own initiative, for purposes of 
resolving a proceeding pending before the agency.\4\
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    \4\ This definition does not include an adjudicator's search 
for, consideration of, or reliance on materials submitted by a party 
or an interested member of the public or adduced with a party's 
participation. Nor does it include the use of legal research 
materials traditionally consulted by an agency's adjudicators, such 
as statutes; agency rules, orders, and notices; and decisions of 
courts and administrative agencies.
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    This definition encompasses a diverse range of practices. 
Official notice offers the most familiar use of independent research 
practice. Official notice, which is the administrative corollary of 
judicial notice, permits an adjudicator to accept a fact as true 
without requiring a party to prove the fact through the introduction 
of evidence.\5\ In appropriate circumstances, an adjudicator may do 
so on his or her own motion based on information identified through 
independent research.\6\
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    \5\ 5 U.S.C. 556(e); 2 Kristin E. Hickman & Richard J. Pierce, 
Jr., Administrative Law Treatise Sec.  9.6 (6th ed. 2019).
    \6\ See Ohio Bell Tel. Co. v. Pub. Utilities Comm'n, 301 U.S. 
292, 300-06 (1937).
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    In addition, independent research is sometimes used, for 
example, to learn background information in preparation for a 
hearing, define terms, assess a party's or witness's credibility, 
determine an expert's qualifications, assess the reliability of an 
expert's opinion, or interpret or evaluate existing evidence. The 
facts identified through independent research may be adjudicative 
(i.e., ``the facts of the particular case'') or legislative (i.e., 
``those which have relevance to legal reasoning and the lawmaking 
process'').\7\
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    \7\ Fed. R. Evid. 201(a) advisory committee's note.
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    Congress, courts, agencies, and scholars have long debated the 
extent to which agency adjudicators may and should conduct 
independent research.\8\ While some forms of independent research 
are firmly rooted in longstanding agency practices, others have 
proven more controversial in certain circumstances. The growth of 
the internet has amplified this debate in recent years as 
adjudicators now have quicker and easier access to vastly greater 
amounts of information.\9\ Information that is now available to 
adjudicators includes online versions of print publications and 
public records, as well as newer forms of information such as openly 
editable encyclopedias, blogs, social media, and personal and 
professional websites.
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    \8\ See Final Report of the Attorney General's Committee on 
Administrative Procedure 71-73 (1941); Kenneth Culp Davis, Official 
Notice, 62 Harv. L. Rev. 537 (1949).
    \9\ See generally Jeremy Graboyes, Independent Research by 
Agency Adjudicators in the internet Age 8-11 (Oct. 31, 2019) (report 
to the Admin. Conf. of the U.S.), available at https://www.acus.gov/report/final-report-independent-research-agency-adjudicators-internet-age.
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    Although information available on the internet can be just as 
reliable as information available in print publications, the nature 
of internet publication can make it more difficult for adjudicators 
to determine the authenticity and reliability of certain internet 
information. Moreover, the impermanence of web publication may 
affect the compilation of an exclusive record for administrative and 
judicial review.
    Various sources of law may govern independent research by agency 
adjudicators. Perhaps the most important is constitutional due 
process. With regard to official notice, in particular, the Supreme 
Court has held that an agency must offer parties a reasonable 
opportunity to rebut an officially noticed fact.\10\ Constitutional 
due process also generally requires that an adjudicator be 
impartial.\11\ Whether an act of independent research will affect an 
adjudicator's impartiality or raise doubts about the integrity of a 
proceeding may depend on the specific features of an agency's 
adjudicatory program.\12\
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    \10\ Ohio Bell Tel. Co., 301 U.S. at 300-06.
    \11\ Admin. Conf. of the U.S., Recommendation 2018-4, Recusal 
Rules for Administrative Adjudicators, 84 FR 2139 (Feb. 6, 2019); 
Louis J. Virelli III, Recusal Rules for Administrative Adjudicators 
7-8 (Nov. 30, 2018) (report to the Admin. Conf. of the U.S.), 
available at https://www.acus.gov/report/final-report-recusal-rules-administrative-adjudicators.
    \12\ See Recommendation 2018-4, supra note 11, ] 3.
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    The APA also governs some aspects of independent research in 
adjudications conducted according to its formal-hearing provisions. 
For example, with respect to official notice, the APA provides that 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence of record, a party is entitled, 
on timely request, to an opportunity to show the contrary.'' \13\ 
The APA specifies that a party is entitled to ``conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.'' \14\ The APA generally prohibits an employee who presides 
at the reception of evidence from ``consult[ing] a person or party 
on a fact in issue, unless on notice and opportunity for all parties 
to participate.'' \15\ Unless an exception applies, the APA also 
generally prohibits an employee who participates or advises in the 
decision or review of a decision from performing an investigative or 
prosecutorial function in the same or a factually related case.\16\
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    \13\ 5 U.S.C. 556(e).
    \14\ Id. Sec.  556(d).
    \15\ Id. Sec.  554(d).
    \16\ Id.
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    Additional legal requirements may derive from agency-specific 
statutes; agency rules of procedure, practice, and evidence; and 
agency precedential decisions. Even when independent research would 
be legally acceptable, policy considerations--such as the need for 
accuracy, consistency, and administrative efficiency in agency 
decision making--may counsel in favor of or against its exercise.
    Because adjudications vary widely in their purpose, scope, 
complexity, and effects, a categorical approach to independent 
research across federal adjudications is neither practicable nor 
desirable. Some adjudications are adversarial; others are non-
adversarial. In some contexts, the government brings an action 
against a private party; in others, a private party petitions the 
government, or the government resolves a dispute between private or 
public parties. A few agencies apply the Federal Rules of Evidence, 
others use it as a guide, and others have developed evidentiary 
rules to suit their specific need.\17\ Adjudicators in some contexts 
have an affirmative duty to develop the record or assist 
unrepresented parties; adjudicators in other contexts have no such 
obligation. Some adjudicators play an active role questioning 
parties and witnesses and calling experts; others do not. 
Adjudicators vary in the degree to which they are viewed as subject-
matter experts and the extent to which they have access to the 
expertise of agency policymakers.
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    \17\ Admin. Conf. of the U.S., Recommendation 86-2, Use of 
Federal Rules of Evidence in Federal Agency Adjudications, 51 FR 
25642 (July 16, 1986). The APA provides only that ``the agency as a 
matter of policy shall provide for the exclusion of irrelevant, 
immaterial, or unduly repetitious evidence.'' 5 U.S.C. 556(d).
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    This Recommendation encourages agencies to develop appropriate 
policies to address independent research conducted by adjudicators. 
The policies could take different forms depending on the 
circumstances. In some circumstances, an agency may consider 
publishing a legislative rule.\18\ In other circumstances, an agency 
guidance document, including an interpretive rule or general 
statement of policy within the meaning of the APA, may be 
suitable.\19\ An agency may intend for its policy to confer an 
important procedural right on private parties and bind the agency. 
Alternatively, it may intend for its policy only to facilitate 
internal agency processes and not bind the agency except, perhaps, 
in cases in which noncompliance results in substantial prejudice to 
a private party.\20\ The appropriate form of an agency's policy on 
independent research will depend on its substance and intended 
effect and on the unique circumstances of the agency's adjudicatory 
program.
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    \18\ Legislative rules dealing with agency organization, 
procedure, or practice are exempt from notice-and-comment 
requirements. 5 U.S.C. 553(b)(A). See generally Admin. Conf. of the 
U.S., Recommendation 92-1, The Procedural and Practice Rule 
Exemption from the APA Notice-and-Comment Rulemaking Requirements, 
57 FR 30102 (July 8, 1992).
    \19\ 5 U.S.C. 553(a); see generally Admin. Conf. of the U.S., 
Recommendation 2019-3, Public Availability of Agency Guidance 
Documents, 84 FR 38931 (Aug. 8, 2019); Admin. Conf. of the U.S., 
Recommendation 2019-1, Agency Guidance Through Interpretive Rules, 
84 FR 38927 (Aug. 8, 2019); Admin. Conf. of the U.S., Recommendation 
2018-5, Public Availability of Adjudication Rules, 84 FR 2142 (Feb. 
6, 2019); Admin. Conf. of the U.S., Recommendation 2017-5, Agency 
Guidance Through Policy Statements, 82 FR 61734 (Dec. 29, 2017).
    \20\ See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 
532, 539 (1970).
---------------------------------------------------------------------------

    Although the emphasis of this Recommendation is the particular 
phenomenon of independent internet research, its recommended best 
practices apply equally to independent research by other means.

[[Page 71352]]

Recommendation

    Independent research by adjudicators, especially that conducted 
on the internet, could have unintended results, such as actual or 
perceived bias, factual errors or misunderstandings, or 
inefficiencies. Therefore, agencies, to the extent permitted by law, 
should consider implementing the following best practices in 
consultation with adjudicators.
    1. If agencies identify reliable sources or categories of 
sources that they determine would be generally appropriate for 
adjudicators to independently consult, they should publicly 
designate those sources or categories of sources.
    2. When agencies designate sources that are appropriate for 
independent research, they should consider clearly identifying and, 
when possible, providing access to the source on their websites.\21\ 
Agencies should ensure that they maintain the most current version 
of all sources that they host on their websites. If agencies provide 
hyperlinks to sources that are hosted on websites not maintained by 
the agency, they should ensure that the hyperlinks remain current 
and accurate.
---------------------------------------------------------------------------

    \21\ Agencies should be mindful of copyright protections when 
they provide access to sources on their websites. See, e.g., Am. 
Soc'y for Testing & Materials v. Public.Resource.Org, 896 F.3d 437 
(D.C. Cir. 2018). There may be steps agencies can take to ensure 
copyrighted materials will be reasonably available to interested 
members of the public. Cf. Admin. Conf. of the U.S., Recommendation 
2011-5, Incorporation by Reference, ] 3, 77 FR 2257, 2258 (Jan. 17, 
2012).
---------------------------------------------------------------------------

    3. If agencies permit adjudicators to independently consult 
sources that are not specifically designated, they should establish 
publicly available policies to help adjudicators assess the 
authenticity and reliability of information. Agencies should include 
indicia of authenticity and reliability, particularly with respect 
to internet information, that adjudicators may consider if they 
choose to consult outside sources. Examples of such indicia include:
    a. Whether the information was authored by an identifiable and 
easily authenticated institutional or individual author who is 
considered an expert or reputable authority on the subject;
    b. Whether the information references other authorities that 
help to corroborate its accuracy;
    c. Whether the meaning and significance of the information is 
clear;
    d. Whether the information is published in a final format rather 
than as a draft or in a publicly editable format;
    e. Whether the information is current or bears a date as of 
which the information was accurate;
    f. Whether the owner or administrator of the website on which 
the information appears is easily authenticated and is a recognized 
authority or resource;
    g. Whether information that appears on the website undergoes 
editorial or peer review;
    h. Whether other reliable resources contain the same information 
or cite the original information as reliable or authoritative; and
    i. Whether the information is thorough, materially supported, 
internally consistent, and analytically persuasive.
    If agencies have identified sources or categories of sources 
that they determine are not appropriate for adjudicators to 
independently consult, they should publicly designate those sources 
or categories of sources.
    4. Agencies should promulgate rules on official notice that 
specify the procedures that adjudicators must follow when an agency 
decision rests on official notice of a material fact. The rules 
should ensure that parties, upon timely request, are provided a 
reasonable opportunity to rebut the fact; rebut an inference drawn 
from the fact; and supplement, explain, or give different 
perspective to the fact. The precise nature and timing of an 
opportunity for rebuttal may depend on factors such as whether a 
fact is general or specific to the parties, whether a factual 
finding or an inference drawn from a fact is subject to reasonable 
dispute, whether a fact is central or peripheral to the 
adjudication, and whether a fact is noticed for the first time 
before or at a hearing or in an initial or appellate decision.
    5. If agencies intend that specific procedures will apply when 
adjudicators use independently obtained information for purposes 
other than official notice of a material fact, such as for 
background purposes, they should clarify the distinction between 
official notice and other uses of information independently obtained 
by an adjudicator and describe the applicable procedures, if any. In 
particular, agencies should consider distinguishing use of 
traditional legal research materials from factual research; and 
material facts from facts that are not material, such as background 
facts.
    6. Agency policies should specify when adjudicators must 
physically or electronically put independently obtained materials, 
especially internet materials, in an administrative record and 
explain what procedures adjudicators should follow to do so to 
ensure they preserve materials in a stable, permanent form. Agencies 
should ensure that such policies are consistent with other agency 
rules of procedure.
    7. Agencies should identify those policies that are intended to 
confer an important procedural right on private parties, 
noncompliance with which may give rise to grounds for administrative 
or judicial review, and those that do not and are intended only to 
facilitate internal agency processes.
    8. When adjudicators conduct independent research using sources 
that are not available to parties on or through an agency website, 
they should make those sources available to the parties by 
alternative means.
    9. Agencies or agency adjudicators, as appropriate, should take 
steps to ensure that adjudicative staff are aware of agency policies 
on independent research, particularly with respect to independent 
internet research.

Administrative Conference Recommendation 2019-7

Acting Agency Officials and Delegations of Authority

Adopted December 12, 2019

    The federal government relies on both political appointees and 
career civil servants to operate effectively. Federal law provides 
for over 1,200 agency positions whose occupants must be appointed by 
the President with the advice and consent of the Senate (PAS 
positions).\1\ But there are often numerous vacancies in these 
positions--not only at the start of every administration, but also 
at other times, including after initial appointees leave and 
particularly during the final months of a President's tenure.\2\ 
Government officials routinely vacate offices before a successor has 
been chosen. Research has shown that PAS positions in executive 
departments and agencies are not staffed with Senate-confirmed or 
recess appointees one-fifth of the time.\3\ These pervasive 
vacancies exist for several reasons, including increasing delays 
related to the presidential-nomination and Senate-confirmation 
process.
---------------------------------------------------------------------------

    \1\ Sen. Comm. on Homeland Sec. & Gov't Affairs, 114th Cong., 
United States Government Policy and Supporting Positions 216 (The 
Plum Book) (Comm. Print 2016), available at https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf.
    \2\ Anne Joseph O'Connell, Acting Agency Officials and 
Delegations of Authority 1 (Dec. 1, 2019) (report to the Admin. 
Conf. of the U.S.), https://www.acus.gov/report/final-report-acting-agency-officials.
    \3\ Id. at 16 (citing Anne Joseph O'Connell, Brookings Inst., 
Staffing Federal Agencies: Lessons from 1981-2016 (2017)).
---------------------------------------------------------------------------

    Vacancies in PAS and other high-level positions may lead to 
agency inaction, generate confusion among nonpolitical personnel, 
and lessen public accountability.\4\ At many agencies, acting 
officials can temporarily fill the positions. Indeed, between 
January 20, 1981, and July 19, 2019, there were 168 confirmed 
cabinet secretaries, 3 recess-appointed cabinet secretaries, and 145 
acting cabinet secretaries. In other words, acting officials 
constituted 46% of all the top leaders in this period, though many 
of these interim officials served for short periods. Acting 
officials are also prevalent in lower-level positions throughout the 
federal government. Similarly, in response to vacancies, agency 
leadership often can lawfully delegate certain duties that would 
otherwise be done by a PAS or other high-ranking official to other 
officials within the agency.
---------------------------------------------------------------------------

    \4\ Anne Joseph O'Connell, Vacant Offices: Delays in Staffing 
Top Agency Positions, 82 S. Cal. L. Rev. 913, 920-21 (2008).
---------------------------------------------------------------------------

    The Federal Vacancies Reform Act of 1998 (Vacancies Act) \5\ 
provides for temporary leadership primarily in single-headed 
executive departments and agencies. When it applies, the Vacancies 
Act specifies who can serve in an acting capacity, for how long, and 
in what positions. Congress has also enacted other agency-specific 
statutes to address vacancies, which sometimes provide the exclusive 
succession process. Unfortunately, navigating these statutes can be 
challenging because their requirements are often complex, and it can 
be technologically difficult to provide required reports. Currently, 
the government offers no formal training programs to agencies on the 
Vacancies Act, other vacancy-related statutes,

[[Page 71353]]

or delegations of authority in response to staffing vacancies.\6\
---------------------------------------------------------------------------

    \5\ 5 U.S.C. 3341-3349d.
    \6\ The Department of Justice's Office of Legal Counsel provided 
substantial guidance on the Act in 1999, on which agencies continue 
to rely. See Guidance on Application of Federal Vacancies Reform Act 
of 1998, 23 Op. O.L.C. 60 (1999); see also O'Connell, Acting Agency 
Officials, supra note 2, at 38, 41 (describing interviews with 
agency officials and noting agencies' continued reliance on OLC 
guidance from 1999). Certain portions of the 1999 Guidance have been 
superseded. See, e.g., Designation of Acting Associate Attorney 
General, 25 Op. O.L.C. 177, 179 (2001) (concluding that question 13 
of the 1999 Guidance was incorrect in concluding that a first 
assistant could only serve as an acting officer under section 
3345(a)(1) if he or she had served as first assistant before the 
vacancy arose); NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) 
(holding that the prohibition in section 3345(b) on acting service 
during a nomination is not limited to first assistants, contrary to 
OLC's conclusion in question 15 of the 1999 Guidance).
---------------------------------------------------------------------------

    The stakes for compliance, however, can be high. Under the 
Vacancies Act, for instance, certain actions taken by an acting 
official not serving under its terms ``shall have no force or 
effect'' and may be susceptible to legal challenge.\7\ Even if the 
agency does not face legal challenge, moreover, it could receive a 
formal violation letter from the Government Accountability Office 
(GAO). The Vacancies Act requires agencies to report vacancies, 
nominations, and acting officials in covered positions to the 
Comptroller General; the Comptroller General is charged with 
reporting violations of the time limits to various House and Senate 
Committees, the President, and the Office of Personnel 
Management.\8\
---------------------------------------------------------------------------

    \7\ 5 U.S.C. 3348(d)(1); O'Connell, Acting Agency Officials, 
supra note 2, at 3 n.8. Some positions are excluded from this 
provision. See 5 U.S.C. 3348(e).
    \8\ 5 U.S.C. 3349(b).
---------------------------------------------------------------------------

The Vacancies Act

    Under the Vacancies Act, acting officials generally may come 
from three categories of government officials: (1) First assistants 
to the vacant positions; (2) Senate-confirmed officials designated 
by the President; and (3) certain senior agency officials designated 
by the President.\9\ The ``first assistant'' to the vacant job is 
the default acting official.\10\ The Vacancies Act provides two main 
alternatives to the first assistant for acting service, but the 
President must actively select them. First, ``the President (and 
only the President) may direct'' another Senate-confirmed official--
within the agency or outside it--to serve as the acting 
official.\11\ Second, ``the President (and only the President)'' may 
select ``an officer or employee'' who has not been Senate-confirmed 
to serve in an acting capacity, but only if that person has worked 
in the agency for at least 90 days during the year-long period 
before the vacancy arose and earns a salary at the GS-15 level or 
higher.\12\
---------------------------------------------------------------------------

    \9\ Id. Sec.  3345(a); see also NLRB v. SW Gen., Inc., 137 S. 
Ct. 929, 936 (2017); O'Connell, Acting Agency Officials, supra note 
2, at 5. There is a fourth category of allowed acting officials 
involving holdover appointees: An official serving a fixed term in a 
covered agency, who may stay in that position in an acting capacity 
after the term expires if the President has nominated her or him to 
an additional term. 5 U.S.C. 3345(c)(1); see also O'Connell, Acting 
Agency Officials, supra note 2, at 5 n.24.
    \10\ 5 U.S.C. 3345(a)(1).
    \11\ Id. Sec.  3345(a)(2).
    \12\ Id. Sec.  3345(a)(3).
---------------------------------------------------------------------------

    Acting officials can typically serve and use the title 
``acting'' for 210 days from the vacancy's start.\13\ If the vacancy 
exists when a new President enters office, or occurs within the next 
60 days, the limit extends to 300 days. Nominations also extend 
these limits: An acting official can continue serving through two 
pending nominations to the vacant job. If the nomination is rejected 
or returned to the President under Senate rules, a new 210-day 
period of permitted tenure begins from the date of rejection or 
return. In other words, an acting official could conceivably serve 
for 210 (or 300) days before there is a nomination, during the 
pendency of a first nomination, for 210 days after that nomination 
is returned, during the pendency of a second nomination, and for a 
final 210 days if the second nomination is returned as well.\14\ 
These extensions require careful tracking of nominations and Senate 
actions.
---------------------------------------------------------------------------

    \13\ Id. Sec.  3346(a)(1).
    \14\ O'Connell, Acting Agency Officials, supra note 2, at 7. The 
time limits do not apply when the vacancy has been ``caused by 
sickness.'' 5 U.S.C. 3346(a); see also Guidance on Application of 
Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 66-67 (1999) 
(noting that an ``acting officer may continue to serve until the 
sick PAS officer recovers'' and is able to resume performing the 
office's functions and duties).
---------------------------------------------------------------------------

    After the time limits established by the Vacancies Act have 
passed, agencies have continued to perform the functions of the 
vacant offices through delegations of authority, often by the agency 
head.\15\ If the duties of the Senate-confirmed position are not 
exclusive to a job--by statute or regulation--they can typically be 
delegated to a lower-level official. Even if some duties are 
exclusive to a position, its other duties have been reassigned, 
leaving the delegate with nearly the same power as an acting 
official.
---------------------------------------------------------------------------

    \15\ O'Connell, Acting Agency Officials, supra note 2, at 11-12; 
see also id. at 13-15 (identifying several constitutional and 
statutory issues concerning delegation beyond the scope of this 
Recommendation).
---------------------------------------------------------------------------

    The Vacancies Act requires the head of each executive agency to 
report certain information about vacancies in covered offices and 
notify the Comptroller General of the United States and each House 
of Congress.\16\ The GAO, headed by the Comptroller General, 
currently receives this information in hard copy. The GAO maintains 
these reports in an online searchable database.\17\
---------------------------------------------------------------------------

    \16\ 5 U.S.C. 3349(a).
    \17\ O'Connell, Acting Agency Officials, supra note 2, at 51-59.
---------------------------------------------------------------------------

Agency-Specific Statutes

    In addition to the Vacancies Act, Congress has also enacted 
various agency-specific statutes that, when applicable, may provide 
for temporary leadership, including for chairpersons at some 
independent regulatory commissions.\18\ Some statutes may provide 
the exclusive mechanism for agency succession, whereas other 
statutes may provide a non-exclusive mechanism.\19\ Because these 
agency-specific statutes vary, it is difficult to draw cross-cutting 
conclusions about them. Their existence, however, further 
complicates the use of acting officials and delegations.
---------------------------------------------------------------------------

    \18\ Id. at 9-10; see also id. at 13-14 (identifying the legal 
issue of the applicability of the Vacancies Act in many of these 
circumstances where an agency-specific succession statute exists, 
which is beyond the scope of this Recommendation).
    \19\ Id. at 9.
---------------------------------------------------------------------------

The Need for Increased Transparency and Training on Vacancies Act 
Requirements

    As the foregoing description shows, how and when agencies can 
use acting officials or delegated authority can be complicated. 
There is often confusion about which positions and agencies the 
Vacancies Act applies to and how the Act interacts with other 
agency-specific statutes. Technological shortcomings also make 
compliance with agency reporting obligations difficult. Some 
agencies have raised concerns that ``[a]lthough the forms are 
online, the agency must download them, fill them out, and send them 
in hard copy to the GAO (and to Congress).'' \20\ Agencies also vary 
in how transparent they are about their use of acting officials and 
delegations of authority. Some agencies do not disclose publicly 
acting titles and delegations of authority,\21\ and there is 
currently no good source for comprehensive information about acting 
officials.
---------------------------------------------------------------------------

    \20\ Id. at 59.
    \21\ Id. at 44-46, 64-66. Although some agencies lack disclosure 
policies, some agencies have a practice of publishing permanent or 
standing delegations in the Federal Register or on the agency's 
website. Id. at 65; see also Jennifer Nou, Subdelegating Powers, 117 
Colum. L. Rev. 473, 502-03 (2017) (contrasting agency practices at 
SEC and EPA).
---------------------------------------------------------------------------

    The goals of this Recommendation are to promote compliance with 
the Vacancies Act and agency-specific succession statutes and, 
consistent with the Conference's recent efforts to promote access to 
agency information,\22\ to improve transparency regarding the use of 
acting officials and agency delegations of authority in response to 
staffing vacancies. This Recommendation does not purport to address 
any legal questions that may arise in the application of the 
Vacancies Act.
---------------------------------------------------------------------------

    \22\ See, e.g., Admin. Conf. of the U.S., Recommendation 2019-3, 
Public Availability of Agency Guidance Documents, 84 FR 38931 (Aug. 
8, 2019); Admin. Conf. of the U.S., Recommendation 2018-6, Improving 
Access to Regulations.gov's Rulemaking Dockets, 84 FR 2139 (Feb. 6, 
2019); Admin. Conf. of the U.S., Recommendation 2018-5, Public 
Availability of Adjudication Rules, 84 FR 2142 (Feb. 6, 2019); 
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication 
Materials on Agency websites, 82 FR 31039 (July 5, 2017). Earlier 
Conference recommendations in accord include Admin. Conf. of the 
U.S., Recommendation 89-8, Agency Practices and Procedures for the 
Indexing and Public Availability of Adjudicatory Decisions, 54 FR 
53495 (Dec. 29, 1989).
---------------------------------------------------------------------------

    This Recommendation is a companion to Recommendation 2019-8, 
Public Identification of Agency Officials, which encourages federal 
agencies and the Office of Personnel Management to publish and 
maintain on their websites real-time

[[Page 71354]]

information about a broad range of high-level agency officials.\23\
---------------------------------------------------------------------------

    \23\ Admin. Conf. of the U.S., Recommendation 2019-8, Public 
Identification of Agency Officials, _ FR ___ (__).
---------------------------------------------------------------------------

Recommendation

Acting Officials Under the Vacancies Act

    1. Agencies should determine if they are subject to the Federal 
Vacancies Reform Act (Vacancies Act).
    2. Agencies with at least one presidentially appointed, Senate-
confirmed (PAS) position covered by the Vacancies Act should 
establish processes and procedures to comply with the Act. Agencies 
should consider assigning responsibility for compliance with the 
Vacancies Act to a position within the agency, rather than a 
particular person, and identify that position on its website.
    3. Agencies with at least one PAS position covered by the 
Vacancies Act should ensure that officials responsible for 
compliance with the Vacancies Act have adequate training.
    a. Officials assigned to track time limits should understand the 
Senate confirmation process (including the likelihood of multiple 
returns) and how to access important dates (official submission 
dates of nomination, returns, etc.).
    b. Agencies should, when needed, coordinate with the Government 
Accountability Office (GAO) on their reporting requirements.
    c. A government agency (such as the Office of Government Ethics, 
the Department of Justice's Office of Legal Counsel, the GAO, or the 
Office of Personnel Management) or other organization should provide 
government-wide training on these issues. Agencies should avail 
themselves of this training.
    4. For PAS positions covered by the Vacancies Act but not 
addressed in a presidential order of succession, agencies should 
formally name and disclose a first assistant position.
    a. If there are multiple deputy positions to a covered position, 
agencies should specify which deputy position is the first assistant 
position.
    b. In the description of each first assistant position, agencies 
should explain that the first assistant is the default acting 
official under the Vacancies Act.
    5. Agencies with at least one vacant PAS position covered by the 
Vacancies Act should communicate the requirements of the Act to the 
relevant acting official(s).
    6. Agencies with at least one vacant PAS position covered by the 
Vacancies Act should disclose on their websites the names of acting 
officials and the officials' start dates, and the legal provision 
under which the appointment was made. If a vacancy is not filled by 
an acting officer and the agency has identified an official to 
perform the delegable functions of the office, the agency should 
disclose that official on its website.

Acting Officials Outside the Vacancies Act

    7. Agencies that have PAS positions that are not covered by the 
Vacancies Act and for which Congress has provided some alternative 
mechanism for designating acting officials (e.g., acting 
chairperson) should, to the extent applicable, apply the foregoing 
recommendations 2 through 6.

Succession Planning

    8. Agencies should consider having clear and easily accessible 
orders of succession on their websites for PAS positions.

Delegations of Authority Related to Staffing Vacancies

    9. Agencies should determine which functions and duties, if any, 
are exclusive to each PAS position and which of the nonexclusive 
functions and duties, if any, should be delegated in response to 
staffing vacancies.
    10. To the extent reasonably possible, agencies should make 
their delegations of authority in response to staffing vacancies in 
PAS positions easily accessible to the public.

GAO's Role Under the Vacancies Act

    11. The GAO should consider changing its reporting system so 
that agencies can report information online for vacancies, acting 
officials (including start and end dates), and nominations.

Administrative Conference Recommendation 2019-8

Public Identification of Agency Officials

Adopted December 12, 2019

    Presidential appointees and the members of the Senior Executive 
Service (SES) who perform significant leadership responsibilities 
sit at the highest levels of federal agencies.\1\ In December 2016, 
the federal government included 1,242 Senate-confirmed, 
presidentially appointed positions (PAS positions) and 472 other 
presidentially appointed positions (PA positions).\2\ The SES 
included 8,156 individuals in 2016 (7,321 career SES, 737 noncareer 
SES, and 96 limited-term/limited-emergency SES), many of whom act as 
agency leaders.\3\ This group of agency officials helps direct a 
federal workforce of more than two million employees.\4\
---------------------------------------------------------------------------

    \1\ This Recommendation uses the Administrative Procedure Act's 
definition of ``agency.'' 5 U.S.C. 551(1).
    \2\ Sen. Comm. on Homeland Sec. & Gov't Affairs, 114th Cong., 
United States Government Policy and Supporting Positions 216 (The 
Plum Book) (Comm. Print 2016), available at https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf.
    \3\ Off. of Personnel Mgmt., 2016 Senior Executive Service 
Report 3 (2017), available at https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/reports-publications/ses-summary-2016.pdf.
    \4\ Bobby Ochoa, Listing Agency Officials 1, 6-8, 48 (Nov. 13, 
2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/final-report-listing-agency-officials.
---------------------------------------------------------------------------

    PAS officials often lead federal agencies, and they are often 
the most visible political appointees.\5\ These officials are 
nominated by the President and confirmed by the Senate. PAS 
positions are part of the Executive Schedule, which prescribes the 
basic pay schedule and salaries of most presidential appointees.\6\ 
These officials are among the highest-paid civilian government 
officials,\7\ and a number of statutes and regulations establish 
special rules, obligations, and restrictions on their activities.\8\
---------------------------------------------------------------------------

    \5\ Ochoa, supra note 4, at 7-8.
    \6\ 5 U.S.C. 5311 et seq.; see also Off. of Personnel Mgmt., 
Presidential Transition Guide to Federal Human Resources Management 
Matters 19 (2016), available at https://www.opm.gov/about-us/our-people-organization/office-of-the-director/executive-secretariat/presidential-transition-guide-2016.pdf.
    \7\ See 2019 Executive & Senior Level Employee Pay Tables, Off. 
Of Personnel Mgmt., https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2019/executive-senior-level/ (last visited Nov. 
22, 2019) (Salary Table No. 2019-EX, listing salaries ranging from 
Level V at $156,000 to Level I at $213,600).
    \8\ See, e.g., 18 U.S.C. 207 (establishing various 
communications restrictions on former government officials, 
including additional restrictions on certain ``very senior 
personnel'' and certain restrictions relating to foreign entities); 
the Hatch Act, 5 U.S.C. 7321 et seq. (prescribing rules regulating 
political activities of federal employees and establishing special 
provisions and exemptions applicable to PAS officials); 5 CFR 
2634.202 (describing persons required to file public financial 
disclosure reports); 5 CFR 2636.303 (describing noncareer officials 
subject to fifteen-percent limitation on outside earned income); 5 
CFR 2638.305 (describing additional ethics briefing required for PAS 
appointees within 15 days of appointment).
---------------------------------------------------------------------------

    The President directly appoints PA officials. These positions 
are typically located within the Executive Office of the President, 
advisory committees, and certain agencies.\9\ PA positions are not 
part of the General Schedule pay system, and they may fall within 
the scope of several other pay systems, including the Executive 
Schedule.\10\ Similar to Senate-confirmed officials, PA officials 
may also be subject to special rules, obligations, and restrictions 
on their activities, and they also typically resign during a 
presidential transition.\11\
---------------------------------------------------------------------------

    \9\ The Plum Book, supra note 2, at 213-16. Those PA officials 
within the Executive Office of the President are outside the scope 
of this Recommendation.
    \10\ Ochoa, supra note 4, at 8, 11.
    \11\ OPM, Presidential Transition Guide, supra note 6, at 7.
---------------------------------------------------------------------------

    The SES is a government-wide personnel system covering senior 
management, supervisory, and top-level policy positions in most 
federal agencies, and these positions are not part of the General 
Schedule pay system.\12\ These SES officials often direct and 
monitor the activities of agencies; supervise the work of federal 
employees; exercise ``important policy-making, policy-determining, 
or other executive functions[;]'' and are held accountable for the 
success of programs and projects.\13\ Approximately half

[[Page 71355]]

of SES positions are reserved for career employees, and the other 
half are classified as general SES positions, which may be filled by 
a career appointee, a political appointee, a limited-emergency 
appointee, or a limited-term appointee.\14\ The Office of Personnel 
Management (OPM) allots and closely regulates the total number of 
SES positions for each agency.\15\ By law, the number of political 
appointees may not exceed ten percent of government-wide SES 
positions and may not exceed twenty-five percent of a single 
agency's total SES positions.\16\
---------------------------------------------------------------------------

    \12\ The Plum Book, supra note 2, at 217-18; 5 U.S.C. 3131 et 
seq.; Jennifer L. Selin & David E. Lewis, Admin. Conf. of the U.S., 
Sourcebook of United States Executive Agencies 64, 67-68 (2d ed. 
2018), available at https://www.acus.gov/publication/sourcebook-united-states-executive-agencies-second-edition. There are other, 
also significant government officials that do not fall within the 
PAS, PA, or SES. See Ochoa, supra note 4, at 4-14. For purposes of 
this Recommendation, we have focused on PAS, PA, and SES officials 
because the PAS and PA are presidential appointments and the SES is 
the government-wide personnel system for leadership positions. This 
Recommendation does not address other executive personnel systems. 
See, e.g., 5 U.S.C. 3132 (listing exclusions).
    \13\ 5 U.S.C. 3132(a)(2).
    \14\ The Plum Book, supra note 2, at 217; Ochoa, supra note 4, 
at 6-7.
    \15\ The Plum Book, supra note 2, at 217-18; 5 U.S.C. 3132 et 
seq.; Selin & Lewis, supra note 12, at 67.
    \16\ 5 U.S.C. 3134.
---------------------------------------------------------------------------

    The public often learns the identities of cabinet secretaries, 
heads of other agencies, and a handful of other very high-ranking 
officials, if only through news coverage of the individuals. But the 
public knows far less about the next layers of the executive branch, 
in part because information can be difficult to locate in a 
centralized, updated, and comprehensive format.\17\ A recent report 
by the U.S. Government Accountability Office concluded that ``there 
is no single source of data on political appointees serving in the 
executive branch that is publicly available, comprehensive, and 
timely.'' \18\ Much of this information is available in private-
sector publications, but they are expensive and not readily 
available to the public.
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    \17\ U.S. Gov't Accountability Office, GAO-19-249, Government-
Wide Political Appointee Data and Some Ethics Oversight Procedures 
at Interior and SBA Could Be Improved 10-14 (2019), available at 
https://www.gao.gov/assets/700/697593.pdf; Ochoa, supra note 4, at 
1, 40-42, 50-51.
    \18\ GAO, Government-Wide Political Appointee Data, supra note 
17 (summarizing ``What GAO Found'').
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    To be sure, various resources, including United States 
Government Policy and Supporting Positions (the so-called ``Plum 
Book''),\19\ the Official Congressional Directory,\20\ and the 
United States Government Manual,\21\ provide periodic snapshots of 
the occupants of certain high-level agency positions. But these 
publications serve distinct purposes and objectives and, in all 
events, given turnover, can quickly become out-of-date.\22\ 
Likewise, although OPM maintains extensive lists of federal 
employees, those lists are not readily available to the public.\23\ 
Finally, although some agencies provide current information about 
high-ranking officials on their websites, practices vary 
significantly.\24\ Detailed information about appointment terms, 
vacant offices, acting officials, and delegated authority is often 
even more difficult to find.\25\
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    \19\ The Plum Book, supra note 2.
    \20\ United States Congress, Joint Commission on Printing, 
Official Congressional Directory: 115th Congress (2017).
    \21\ Nat'l Archives & Rec. Admin., The United States Government 
Manual (2016).
    \22\ See GAO, Government-Wide Political Appointee Data, supra 
note 17, at 13 (``Until the names of political appointees and their 
position, position type, agency or department name, start and end 
dates are publicly available at least quarterly, it will be 
difficult for the public to access comprehensive and reliable 
information.''); Ochoa, supra note 4, at 19-39.
    \23\ See Ochoa, supra note 4, at 46-49. OPM's data from agencies 
is based on the person, rather than based on the specific position 
or job. As a result, the agency stops sending information about a 
person and their position when they separate from an agency. With 
respect to PAS, PA, and SES officials, OPM's data includes 
information about the name, agency, job title, start date, and type 
of appointment (PAS, PA, career SES, noncareer SES, limited-term 
SES, and limited-emergency SES). For these data-related reasons--and 
because agencies are best positioned to make determinations about 
which SES officials perform significant leadership 
responsibilities--the Recommendation to OPM includes all SES 
officials. OPM's workforce information-reporting function under 
Civil Service Rule 9 excludes certain agencies and positions. 5 CFR 
9.1, 9.2.
    \24\ Ochoa, supra note 4, at 40-42.
    \25\ See, e.g., Anne Joseph O'Connell, Acting Agency Officials 
and Delegations of Authority 16-18 (Dec. 1, 2019) (report to the 
Admin. Conf. of the U.S.), https://www.acus.gov/report/final-report-acting-agency-officials (describing significant data-quality 
issues).
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    Knowing the identities of those who help lead federal agencies 
is important for promoting transparency and facilitating public 
participation in the work of government.\26\ For instance, members 
of the public (including reporters and academic researchers), 
congressional members and staff, White House officials, and 
officials at other federal and state agencies all sometimes have 
reasons to know this information.\27\
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    \26\ See GAO, Government-Wide Political Appointee Data, supra 
note 17, at 13; Ochoa, supra note 4, at 3.
    \27\ See GAO, Government-Wide Political Appointee Data, supra 
note 17, at 13. The Conference has previously addressed related 
issues. In 1968, the Conference recommended changes to the U.S. 
Government Organization Manual, specifically pointing out 
deficiencies with the ``narrative text submitted'' by agencies and 
encouraging agencies to improve these entries. Admin. Conf. of the 
U.S., Recommendation 68-2, U.S. Government Organization Manual (Dec. 
11, 1968). This Recommendation goes much further, offering specific 
recommendations for making agency information publicly available.
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    One of this Recommendation's purposes is to advance the 
Conference's recent efforts to promote greater access to relevant 
agency information.\28\ This Recommendation is a companion to 
Recommendation 2019-7, Acting Agency Officials and Delegations of 
Authority, which promotes compliance with the Federal Vacancies 
Reform Act of 1998 and other agency-specific succession statutes and 
encourages federal agencies to improve transparency regarding the 
use of acting officials and agency delegations of authority in 
response to staffing vacancies.\29\
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    \28\ See, e.g., Admin. Conf. of the U.S., Recommendation 2019-3, 
Public Availability of Agency Guidance Documents, 84 FR 38931 (Aug. 
8, 2019); Admin. Conf. of the U.S., Recommendation 2018-6, Improving 
Access to Regulations.gov's Rulemaking Dockets, 84 FR 2139 (Feb. 6, 
2019); Admin. Conf. of the U.S., Recommendation 2018-5, Public 
Availability of Adjudication Rules, 84 FR 2142 (Feb. 6, 2019); 
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication 
Materials on Agency websites, 82 FR 31039 (July 5, 2017). Earlier 
Conference recommendations in accord include Admin. Conf. of the 
U.S., Recommendation 89-8, Agency Practices and Procedures for the 
Indexing and Public Availability of Adjudicatory Decisions, 54 FR 
53495 (Dec. 29, 1989).
    \29\ Admin. Conf. of the U.S., Recommendation 2019-7, Acting 
Agency Officials and Delegations of Authority, _ FR ___ (____).
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Recommendation

Recommendations Applicable to Agencies Generally

    1. Agencies should display on their websites updated information 
about each PAS and PA position, and any SES position that is 
assigned significant leadership responsibilities, including the name 
and contact information of the current or acting official, as well 
as whether it is a PAS, PA, or SES position (and, if SES, whether it 
is a career or noncareer position). Vacancies for such positions 
should also be displayed.

Recommendations Applicable to the Office of Personnel Management

    2. The Office of Personnel Management (OPM) should regularly 
publish data about PAS, PA, and SES officials (preferably on a 
monthly basis) on a public website and ensure the information is 
easily accessible. This data should include the following fields, if 
applicable, for each listed PAS, PA, and SES official: Name (first 
and last); Agency; Job Title; Start Date; and Type of Appointment.
    3. OPM should create a separate list of former PAS officials to 
the extent feasible.

Administrative Conference Recommendation 2019-9

Recruiting and Hiring Agency Attorneys

Adopted December 12, 2019

    Attorneys serve crucial roles within federal agencies. They 
defend agencies in litigation, draft regulations, investigate 
complaints, and resolve legal issues surrounding information 
disclosure, among their many functions. Attorneys support nearly all 
the operations of agencies, helping to ensure their fair and lawful 
functioning. Therefore, it is critical that agencies hire a corps of 
highly qualified attorneys.\1\
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    \1\ The Administrative Conference addressed hiring practices 
with respect to administrative law judges (ALJs) in Recommendation 
2019-2, Agency Recruitment and Selection of Administrative Law 
Judges, 84 FR 38930 (Aug. 8, 2019).
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    This Recommendation offers best practices for the recruitment 
and hiring of federal agency attorneys in the excepted service 
(explained below), who comprise the majority of attorneys in the 
federal government.\2\ The laws applicable to excepted service 
hiring of attorneys are more flexible than those applicable to 
hiring other federal employees. This Recommendation suggests ways 
agencies can structure their recruitment and hiring to use these 
flexibilities to attract highly qualified attorneys.
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    \2\ U.S. Gov't Accountability Office, GAO-16-521, Federal 
Hiring: OPM Needs to Improve Management and Oversight of Hiring 
Authorities (2016).
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Background on Federal Personnel Law

    Title 5 of the U.S. Code creates three categories of civil 
service positions: (1)

[[Page 71356]]

Competitive service, (2) excepted service, and (3) senior executive 
service. Most civil service positions are in the competitive 
service. The attorney positions addressed in this Recommendation \3\ 
are in the excepted service. As explained below, however, they are 
not subject to most of the rules governing the hiring of excepted 
service positions.
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    \3\ Those holding these positions are often referred to as 
``0905 attorneys'' in reference to the occupational series that the 
Office of Personnel Management assigns to those attorneys who are in 
the General Schedule pay system. Many agencies use ``0905'' to refer 
to attorneys performing equivalent functions in other statutory pay 
systems. All such attorneys are within the scope of this 
Recommendation. This Recommendation does not apply, however, to (a) 
attorney positions provided for in titles of the U.S. Code other 
than Title 5, (b) attorney positions in the senior executive 
service, and (c) licensed attorneys who serve in non-attorney 
positions.
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    Agencies that wish to fill a position in the competitive service 
must generally offer all U.S. citizens and nationals the opportunity 
to compete in a public and open examination.\4\ The procedures that 
agencies must follow include (1) posting a vacancy announcement on 
USAJobs.gov, the federal jobs portal (hereinafter ``USAJobs''); (2) 
using minimum qualifications to determine who is qualified and 
eligible to be rated for an agency assessment; (3) formally 
assigning numerical ratings to qualified applicants and selecting 
among the top three candidates; \5\ (4) adhering to detailed 
procedures for giving veterans and certain family members of 
veterans priority consideration; and (5) hiring only from lists of 
candidates prepared by OPM or, if OPM has delegated this function to 
an agency, by the agency's own human resources (HR) office (formally 
called a ``delegated examining unit''). For most excepted service 
appointments, the rules are generally the same as the above except 
that agencies need not post an announcement on USAJobs or use OPM-
generated minimum qualifications.\6\
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    \4\ 5 U.S.C. 3304-3319; Civil Service Rule II, VII (5 CFR 2.1, 
7.3).
    \5\ Alternatively, agencies may adopt a system in which they 
establish two or more rating categories (e.g., ``unqualified,'' 
``qualified,'' and ``highly qualified'') and place each applicant 
into one of the categories. Agencies may not offer employment to any 
candidate in a lower category before they offer it to a candidate in 
a higher category. See 5 U.S.C. 3319.
    \6\ See 5 U.S.C. 3320; 5 CFR 302.103 et seq.
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    Although attorney positions are placed in the excepted service, 
OPM regulations further exempt agencies from having to formally rank 
applicants, use detailed procedures for giving preference to 
veterans and eligible family members, and hire from lists of 
candidates prepared by the agency.\7\ The result is that the laws 
governing the hiring process for attorney positions are generally 
much less restrictive than those governing the hiring process for 
competitive and other excepted service positions.
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    \7\ See 5 CFR 302.101(c).
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    There are, however, some legal requirements to which agencies 
must adhere when hiring attorneys. Agencies may not, among other 
things, make hiring decisions based on protected characteristics 
(e.g., race, sex, or national origin), nepotism, political 
affiliation, whistleblower activities, or other factors unrelated to 
the candidate's ability to perform the work.\8\ Agencies also must 
``follow the [statutory] principle of veteran preference as far as 
administratively feasible and, on the request of a qualified and 
available [veteran or eligible family member of a veteran who is not 
selected] . . . furnish him/her with the reasons for his/her 
nonselection.'' \9\
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    \8\ See 5 U.S.C. 2302. Among other restrictions on agencies' 
hiring practices, agencies must not recruit in a way that results in 
an unlawful disparate impact based on race, sex, or certain other 
protected characteristics under federal law. See 42 U.S.C. 2000e-
2(k)(1)(A).
    \9\ 5 CFR 302.101(c).
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Practices in Hiring Attorneys

Distinguishing Between Optional and Mandatory Hiring Practices

    Many agencies adopt additional hiring practices that are not 
legally required. They include involving HR officials in screening 
out applicants based on substantive criteria (e.g., nature of legal 
experience) and posting announcements exclusively on USAJobs without 
further disseminating them.\10\ Although some agencies undertake 
these practices knowing they are optional, other agencies adopt them 
because HR and hiring officials mistakenly believe they are legally 
required.\11\ A possible reason is that, in 1993, OPM stopped 
publishing the Federal Personnel Manual, a compendium of guidance 
that served as a reference guide for agencies. Successor 
publications have taken the form of discrete handbooks and operating 
manuals that are not updated frequently.
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    \10\ See Todd Phillips & Todd Rubin, Recruiting and Hiring 
Agency Attorneys 18 (report to the Admin. Conf. of the U.S.), 
www.acus.gov/report/recruiting-and-hiring-agency-attorneys-final-report (Dec. 4, 2019).
    \11\ Id.
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Considering Whether To Attract Broad or Discrete Applicant Pools

    Agencies may benefit from availing themselves of the flexibility 
the law affords them in hiring attorneys by using different 
practices in different situations. Sometimes agencies may wish to 
attract broad applicant pools, in which case they will typically 
benefit from posting an announcement in locations likely to reach a 
large number of qualified potential candidates. Agencies that wish 
to do so may decide to post the position on USAJobs. There is, 
however, a monetary cost to posting on USAJobs, and posting an 
announcement solely on USAJobs without further dissemination may not 
produce the optimal applicant pool. At other times, agencies might 
wish to attract discrete candidate pools, consisting of, for 
example, attorneys who previously worked for the agency, former 
legal interns, presidential management fellows, or highly 
recommended candidates. This might be the case when, for example, an 
agency requires a unique set of skills. In such cases, agencies may 
not want to post or broadcast an announcement (which the law 
generally permits).\12\
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    \12\ Recruitment ``should be from qualified individuals from 
appropriate sources in an endeavor to achieve a work force from all 
segments of society.'' 5 U.S.C. 2301(b)(1).
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Drafting Announcements

    Whatever approach agencies take, it is important that their job 
announcements are written clearly and in a way designed to attract 
qualified applicants. Too often, however, attorney vacancy 
announcements contain dense language and descriptions of job 
responsibilities that are difficult to decipher.\13\ This problem 
can arise when hiring officials send announcements to HR after they 
draft the position's description. Once HR employees receive the 
announcements, they sometimes insert language that does not apply to 
hiring attorneys (e.g., language applicable only to competitive 
service hiring). In addition, when HR employees post the 
announcement through a talent acquisition system (i.e., a system 
that allows government officials to post vacancy announcements and 
track applicants on USAJobs), the HR officials may select generic 
agency-developed job vacancy announcement templates, which populate 
language that may be incorrect or inapplicable to the hiring of 
attorneys. If HR officials do not remove or correct that language, 
the announcements can be confusing or incorrect for specialized 
positions such as attorneys. Hiring officials might not realize that 
inapplicable language has been inserted until after the 
announcements have been posted.
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    \13\ For examples of such announcements, see Phillips & Rubin, 
supra note 10, at 28-30.
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    Resources exist to help agencies draft position announcements in 
plain language, including Administrative Conference Recommendation 
2017-3, Plain Language in Regulatory Drafting,\14\ and the Federal 
Plain Language Guidelines.\15\
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    \14\ Admin. Conf. of the U.S., Recommendation 2017-3, Plain 
Language in Regulatory Drafting, 82 FR 61728 (Dec. 29, 2017).
    \15\ Plain Language Action & Information Network, Federal Plain 
Language Guidelines (Rev. ed. 2011), https://www.plainlanguage.gov/guidelines/.
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Recruiting Interns and Using Honors Programs

    Agencies' recruitment efforts might include recruiting former 
interns to work as attorneys. Hiring these candidates allows 
agencies to employ those who have previously worked in the agency 
and have proved that they can successfully carry out the agency's 
work. Such hiring is akin to summer associate programs at some law 
firms, in which firms hire students to work for the summer after 
their second year of law school and then, after observing the 
students' work, may offer them permanent employment upon graduation.
    Agencies, however, cannot extend an offer of employment as an 
attorney to an applicant until after he or she has been admitted to 
a bar, which can take nearly a year or longer after graduation from 
law school. If an agency wishes to hire an applicant for an attorney 
position before he or she has been admitted to a bar, the agency 
must hire him or her as a ``law clerk trainee.'' The law clerk 
trainee position is a temporary excepted service appointment in 
which a candidate for an attorney position could serve while waiting

[[Page 71357]]

to be admitted to a bar. The appointment can last no more than 14 
months.\16\
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    \16\ 5 CFR 213.3102(d).
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    Some agencies regularly use the law clerk trainee hiring 
authority by hiring through honors programs, which are generally 
two-year employment and training programs for recent law school 
graduates. Applicants generally apply to an honors program in their 
final year of law school or during a clerkship and, if they are 
accepted, may join the agency as a ``law clerk trainee'' if they are 
not yet admitted to a bar. Licensed attorneys supervise law clerk 
trainees in honors programs until they are admitted to a bar, at 
which time they may be appointed to attorney positions.

Accruing Merit Systems Protection Board (MSPB) Rights

    Once an attorney is hired, he or she must, in general, 
continuously serve for two years (or one year, if the person is a 
veteran or an eligible family member of a veteran) before accruing 
the right to challenge a removal before the MSPB.\17\ Supervisors 
may evaluate the appointee's performance during this period and 
decide whether to retain the appointee.
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    \17\ See 5 U.S.C. 7511. In the competitive service, adverse 
action rights accrue at the end of a probationary or trial period, 
or after completion of one year of current continuous service under 
other than a temporary appointment limited to one year or less. 5 
CFR 315.803.
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Hiring Procedures for Non-ALJ Adjudicators

    The Administrative Conference recognizes that specific attorney 
positions may require additional procedures to screen for certain 
attributes. One important example arises when an agency hires an 
adjudicator other than an administrative law judge (ALJ). Non-ALJ 
adjudicators, like ALJs, must demonstrate an ability to discharge 
the duties of an adjudicator with impartiality.\18\ There may be 
additional procedures agencies need to adopt to screen for this 
attribute and others specific to attorneys hired as non-ALJ 
adjudicators.
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    \18\ See Admin. Conf. of the U.S., Recommendation 2018-4, 
Recusal Rules for Administrative Adjudicators, 84 FR 2139 (Feb. 6, 
2019).
---------------------------------------------------------------------------

Recommendation

Ensuring Agencies Know Which Procedures Are Required and Which Are 
Optional

    1. The Office of Personnel Management (OPM), in conjunction with 
the Merit Systems Protection Board (MSPB) and the Office of Special 
Counsel as necessary, should offer, and agencies should request, 
training on the minimum procedural requirements in statutes, 
regulations, and executive orders for hiring attorneys. That 
training should, in particular, clarify the distinction between 
hiring attorneys and hiring other kinds of employees and explain the 
alternative processes and flexibilities available for hiring 
attorneys. Such training could take any number of forms, including 
providing written materials and in-person presentations and 
webinars.

Helping Agencies Recruit Qualified Applicants

    2. When hiring attorneys, agencies should recognize that they 
have flexibility in recruiting. They should recognize that, among 
other things, they can employ recruitment strategies designed to 
reach either a broad or narrow pool of applicants as they deem 
appropriate.
    3. When seeking broad applicant pools for attorney positions, 
agencies should post vacancy announcements in multiple locations 
where they are likely to reach qualified applicants. Options for 
posting include agencies' own websites, job recruiting websites, or 
USAJobs.gov, the federal hiring portal. In addition to posting 
announcements, agencies should widely disseminate such announcements 
to a variety of sources, such as bar associations, other 
professional legal associations, law school career offices, 
professional listservs, former and current agency employees and 
interns, other agencies, and other professional networks.
    4. When seeking narrower applicant pools, agencies should 
consider limiting the posting of vacancy announcements to the 
agencies' websites and specialized forums.

Drafting Vacancy Announcements

    5. Agencies should ensure that hiring officials take the lead in 
drafting and reviewing final vacancy announcements for agency 
attorney positions.
    6. Attorney vacancy announcements should be written in plain 
language, adhering closely to the principles in Administrative 
Conference Recommendation 2017-3, Plain Language in Regulatory 
Drafting, and the Federal Plain Writing Guidelines.
    7. Announcements should specify exactly and clearly which 
documents are required to constitute a complete application; 
distinguish between mandatory and desirable criteria; and include 
under mandatory criteria only essential elements, such as bar 
membership and citizenship status.
    8. Announcements should not include language that is applicable 
only to competitive service positions or that is otherwise 
inapplicable to attorney positions.
    9. If agencies intend not to consider additional applications 
after receiving a certain number, the announcement should so 
indicate and specify the limit.
    10. Agencies should recognize that they have the option of 
requiring a conventional r[eacute]sum[eacute] from applicants 
instead of requiring applicants to create a USAJobs 
r[eacute]sum[eacute]. Agencies that require a conventional 
r[eacute]sum[eacute] should so state in the vacancy announcement.
    11. If, after drafting a vacancy announcement, hiring officials 
send the announcement to human resources (HR) officials to be posted 
on USAJobs or elsewhere, hiring officials should collaborate with HR 
officials to review and approve the final version of the 
announcement exactly as it will appear to the public. Hiring 
officials should review the announcement to ensure that it is 
consistent with Paragraphs 6 through 10 before it is posted.
    12. Hiring officials should continue to review open-ended or 
long-term vacancy announcements to ensure they do not become 
outdated.

Improving OPM's Talent Acquisition System

    13. OPM should instruct agencies that HR users developing job 
vacancy announcement templates in the talent acquisition system used 
to post announcements on USAJobs and to track applications must 
specify exactly and clearly which documents are required to 
constitute a complete application; distinguish between mandatory and 
desirable criteria; and include under mandatory criteria only 
essential elements, such as bar membership and citizenship status, 
as specified in Paragraph 7.
    14. OPM should clearly inform agencies to exclude from their 
vacancy announcement templates any language inapplicable to attorney 
hiring.
    15. OPM should include a link on its talent acquisition system 
to the Plain Language Guidelines and to Administrative Conference 
Recommendation 2017-3, Plain Language in Regulatory Drafting, and 
encourage agencies to apply all relevant provisions to their 
drafting of vacancy announcements, as specified in Paragraph 6.
    16. OPM should make clear in the instructions for its talent 
acquisition system that agencies have the option of requiring 
applicants to submit a conventional r[eacute]sum[eacute] instead of 
a r[eacute]sum[eacute] generated by USAJobs.

Evaluating Applicants for Attorney Positions

    17. Agencies should develop policies or processes governing how 
attorney applications will be reviewed and assessed. These policies 
or processes may include creating teams to select applicants for 
interviews or recommend applicants for appointment.
    18. Agency leadership should decide which responsibilities HR 
officials should have in evaluating applications. If HR officials 
will screen applicants, hiring officials should determine the 
screening criteria and clearly communicate them to the screeners.
    19. If feasible, agencies should ensure applicants are notified 
when their applications have been received and when the agency has 
made a hiring decision.
    20. Supervisors should be aware that most newly hired attorneys 
accrue the right to challenge removal before the MSPB after two 
years (or one year, if the person is a veteran or an eligible family 
member of a veteran). HR officials should send reminders to 
supervisors approximately three to six months before such rights 
accrue for any given attorney.

Using Law Clerk Trainee Positions and Honors Programs To Hire Attorneys

    21. Agencies with honors programs should encourage successful 
interns to apply to them. Agencies without honors programs should 
consider hiring high-performing legal interns after graduation but 
before they have been admitted to a bar, using the authority to hire 
a law clerk trainee who can be appointed to an attorney position 
upon admission to a bar.

[[Page 71358]]

Ensuring Impartiality of Attorneys Hired as Non-Administrative Law 
Judge (ALJ) Adjudicators

    22. Agencies' guidelines and procedures for hiring attorneys who 
will act as non-ALJ adjudicators should be designed and administered 
to ensure that those hired will act impartially and maintain the 
appearance of impartiality, as suggested in Recommendation 2018-4, 
Recusal Rules for Administrative Adjudicators.

[FR Doc. 2019-27930 Filed 12-26-19; 8:45 am]
 BILLING CODE 6110-01-P