Adoption of Recommendations, 2312-2316 [2023-00628]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Notices]
[Pages 2312-2316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00628]


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Federal Register / Vol. 88, No. 9 / Friday, January 13, 2023 / 
Notices

[[Page 2312]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Assembly of the Administrative Conference of the United 
States adopted three recommendations at its hybrid (virtual and in-
person) Seventy-eighth Plenary Session: Precedential Decision Making in 
Agency Adjudication, Regulatory Enforcement Manuals, and Public 
Availability of Settlement Agreements in Agency Enforcement 
Proceedings.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2022-4, Matthew 
Gluth; and for Recommendations 2022-5 and 2022-6, Alexandra Sybo. For 
each of these recommendations the address and telephone number are: 
Administrative Conference of the United States, Suite 706 South, 1120 
20th Street NW, Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov.
    The Assembly of the Conference met during its Seventy-eighth 
Plenary Session on December 15, 2022, to consider three proposed 
recommendations and conduct other business. All three recommendations 
were adopted.
    Recommendation 2022-4, Precedential Decision Making in Agency 
Adjudication. This recommendation identifies best practices on the use 
of precedential decisions in agency adjudication. It addresses whether 
agencies should issue precedential decisions and, if so, according to 
what criteria; what procedures agencies should follow to designate 
decisions as precedential and overrule previously designated decisions; 
and how agencies should communicate precedential decisions internally 
and publicly. It also recommends that agencies codify their procedures 
for precedential decision making in their rules of practice.
    Recommendation 2022-5, Regulatory Enforcement Manuals. This 
recommendation identifies best practices for agencies regarding the use 
and availability of enforcement manuals--that is, documents that 
provide agency personnel with a single, authoritative resource for 
enforcement-related statutes, rules, and policies. It recommends that 
agencies present enforcement manuals in a clear, logical, and 
comprehensive fashion; periodically review and update them as needed; 
ensure enforcement personnel can easily access them; and consider 
making manuals, or portions of manuals, publicly available.
    Recommendation 2022-6, Public Availability of Settlement Agreements 
in Agency Enforcement Proceeding. This recommendation identifies best 
practices for providing public access to settlement agreements reached 
during administrative enforcement proceedings. It recommends that 
agencies develop policies addressing when to post such agreements on 
their websites; provides factors for agencies to consider in 
determining which agreements to post on their websites; and identifies 
best practices for presenting settlement agreements in a clear, 
logical, and accessible manner without disclosing sensitive or 
otherwise protected information.
    The Conference based its recommendations on research reports and 
prior history that are posted at: https://www.acus.gov/meetings-and-events/plenary-meeting/78th-plenary-session.
    Authority: 5 U.S.C. 595.

    Dated: January 10, 2023.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2022-4

Precedential Decision Making in Agency Adjudication

Adopted December 15, 2022

    It is a tenet of our system of justice that like cases be 
treated alike. Agencies use many different mechanisms to ensure such 
consistency, predictability, and uniformity when adjudicating cases, 
including designating some or all of their appellate decisions as 
precedential.\1\ Agencies can also use precedential decision making 
to communicate how they interpret legal requirements or intend to 
exercise discretionary authority, as well as to increase efficiency 
in their adjudicative systems.\2\
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    \1\ Other mechanisms include rulemaking, quality assurance 
programs, appellate review, aggregate decision making, and 
declaratory orders. See, e.g., Admin. Conf. of the U.S., 
Recommendation 2021-10, Quality Assurance Systems in Agency 
Adjudication, 87 FR 1722 (Jan. 12, 2022); Admin. Conf. of the U.S., 
Recommendation 2020-3, Agency Appellate Systems, 86 FR 6618 (Jan. 
22, 2021); Admin. Conf. of the U.S., Recommendation 2016-2, 
Aggregation of Similar Claims in Agency Adjudication, 81 FR 40260 
(June 21, 2016); Admin. Conf. of the U.S., Recommendation 2015-3, 
Declaratory Orders, 80 FR 78161 (Dec. 16, 2015).
    \2\ See Christopher J. Walker, Melissa Wasserman & Matthew Lee 
Wiener, Precedential Decision Making in Agency Adjudication (Dec. 6, 
2022) (report to the Admin. Conf. of the U.S.).
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    An agency's decision is precedential when an agency's 
adjudicators must follow the decision's holding unless the precedent 
is distinguishable or until it is overruled. Many agencies use some 
form of precedential decision making. Some agencies treat all agency 
appellate decisions as precedential, while others treat only some 
appellate decisions as precedential. Additionally, some agencies 
highlight nonprecedential decisions that may be useful to 
adjudicators by labeling them ``informative,'' ``notable,'' or a 
similar term.\3\ In any of these cases, precedential decisions can 
come from an agency head or heads, adjudicators exercising the 
agency's authority to review hearing-level decisions, adjudicators 
who review hearing-level decisions but whose decisions are subject 
to (usually discretionary) agency-head review, or adjudicators other 
than the agency head who have statutory authority to issue final 
decisions. Rarely do hearing-level adjudicators issue precedential 
decisions.
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    \3\ See id. at 28, 37 & app. G (discussing the use of ``adopted 
decisions'' at the U.S. Citizenship and Immigration Services).

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[[Page 2313]]

    This Recommendation provides best practices for agencies in 
considering whether and how to use precedential decisions in their 
adjudicative systems. It begins by recommending that agencies 
determine whether they issue appellate decisions that may lend 
themselves to use as precedent and, if they do, whether to treat all 
or some appellate decisions as precedential. For agencies that treat 
only some decisions as precedential, the Recommendation sets forth 
criteria for deciding which ones to treat as such, and it identifies 
procedures for agencies to consider using when designating decisions 
as precedential, such as the solicitation of public input.
    For agencies that use some form of precedential decision making, 
this Recommendation provides best practices for identifying 
decisions which are precedential and making information about such 
decisions available internally and to the public. Some of these 
practices build on the Freedom of Information Act's requirement that 
agencies post on their websites all final orders and opinions and 
its general prohibition against agencies relying on, using, or 
citing an order or opinion as precedent against a private party if 
it has not been indexed and posted online.\4\
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    \4\ See 5 U.S.C. 552(a)(2)(A).
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    The Recommendation concludes by urging agencies to address their 
use of, and procedures for, precedential decision making in 
procedural rules published in the Federal Register and Code of 
Federal Regulations.

Recommendation

Use of Precedential Decision Making

    1. Agencies should determine whether, and if so when, to treat 
their appellate decisions as precedential, meaning that an 
adjudicator must follow the decision's holding in subsequent cases, 
unless the facts of the decision are distinguishable or until the 
holding is overruled. In determining whether to treat all, some, or 
no appellate decisions as precedential, agencies should consider:
    a. The extent to which they issue decisions that would be useful 
as precedent and are written in a form that lends itself to use as 
precedent;
    b. The extent to which they issue decisions that mainly concern 
only case-specific factual determinations or the routine application 
of well-established policies, rules, and interpretations to case-
specific facts; and
    c. The extent to which they issue such a large volume of 
decisions that adjudicators cannot reasonably be expected to 
identify those which should control future decisions.
    2. Agencies that treat only some appellate decisions as 
precedential should consider treating a decision as precedential if 
it:
    a. Addresses an issue of first impression;
    b. Clarifies or explains a point of law or policy that has 
caused confusion among adjudicators or litigants;
    c. Emphasizes or calls attention to an especially important 
point of law or policy that has been overlooked or inconsistently 
interpreted or applied;
    d. Clarifies a point of law or policy by resolving conflicts 
among, or by harmonizing or integrating, disparate decisions on the 
same subject;
    e. Overrules, modifies, or distinguishes existing precedential 
decisions;
    f. Accounts for changes in law or policy, whether resulting from 
a new statute, federal court decision, or agency rule;
    g. Addresses an issue that the agency must address on remand 
from a federal court; or
    h. May otherwise serve as a necessary, significant, or useful 
guide for adjudicators or litigants in future cases.
    3. Agencies should not prohibit parties from citing 
nonprecedential decisions in written or oral arguments.
    4. Agencies should consider identifying nonprecedential 
decisions that may be useful to adjudicators by designating them 
``informative,'' ``notable,'' or a similar term.

Processes and Procedures for Designating Precedential Decisions

    5. Agencies' procedures for designating decisions as 
precedential should not be unduly time consuming or resource 
intensive.
    6. Prior to designating an appellate decision as precedential, 
agencies should consider soliciting input from appellate 
adjudicators not involved in deciding the case.
    7. Agencies should consider implementing procedures by which 
appellate adjudicators can issue precedential decisions to resolve 
important questions that arise during hearing-level proceedings. 
Options include procedures by which, on an interlocutory basis or 
after a hearing-level decision has been issued:
    a. Hearing-level adjudicators may certify specific questions in 
cases or refer entire cases for precedential decision making;
    b. Appellate adjudicators on their own motion may review 
specific questions in cases or entire cases for precedential 
decision making; and
    c. Parties may request that appellate adjudicators review 
specific questions in cases or entire cases for precedential 
decision making.
    8. Agencies should consider establishing a process by which 
adjudicators, other agency officials, parties, and the public can 
request that a specific nonprecedential appellate decision be 
designated as precedential.
    9. Agencies should consider soliciting amicus participation or 
public comments in cases in which they expect to designate a 
decision as precedential, particularly in cases of significance or 
high interest. That could be done, for example, by publishing a 
notice in the Federal Register and on their websites, and by 
directly notifying those persons likely to be especially interested 
in the matter. In determining whether amicus participation or public 
comments would be valuable in a particular case, agencies should 
consider the extent to which the case addresses broad policy 
questions whose resolution requires consideration of general or 
legislative facts as opposed to adjudicative facts particular to the 
parties.
    10. When an agency rejects or disavows the holding of a 
precedential decision, it should expressly overrule the decision, in 
whole or in part as the circumstances dictate, and explain why it is 
doing so.

Availability of Precedential Decisions

    11. Agencies that treat only some appellate decisions as 
precedential should clearly identify precedential decisions as such. 
Such agencies should also identify those precedential decisions in 
digests and indexes that agencies make publicly available.
    12. Agency websites, as well as any agency digests and indexes 
of decisions, should clearly indicate when a precedential decision 
has been overruled or modified.
    13. Agencies should ensure that precedential decisions are 
effectively communicated to their adjudicators.
    14. Agencies should update any manuals, bench books, or other 
explanatory materials to reflect developments in law or policy 
effected through precedential decisions.
    15. Agencies should consider posting on their websites brief 
summaries of precedential decisions, a digest of precedential 
decisions, and an index, organized topically, of precedential 
decisions.
    16. Subject to available resources, agencies should consider 
tracking, on their own or in coordination with commercial databases, 
and making available to agency officials and the public the 
subsequent history of precedential decisions, including whether they 
have been remanded, set aside, modified following remand by a 
federal court, or superseded by statute or other agency action, such 
as a rule.

Rules on Precedential Decision Making

    17. As part of their rules of practice, published in the Federal 
Register and codified in the Code of Federal Regulations, agencies 
should adopt rules regarding precedential decision making. These 
rules should:
    a. State whether all, some, or none of the agency's appellate 
decisions are treated as precedential;
    b. Describe the criteria and process for designating decisions 
as precedential, if the agency considers some but not all of its 
decisions as precedential;
    c. Specify who has authority to designate decisions as 
precedential, if the agency considers some but not all of its 
decisions as precedential;
    d. Explain the legal effect of precedential decisions in 
subsequent cases;
    e. Define any terms the agency uses to identify useful 
nonprecedential decisions, such as ``informative'' or ``notable,'' 
and describe the criteria and process for designating these 
decisions;
    f. Explain for what purposes a party may cite a nonprecedential 
decision, and how the agency will treat it;
    g. Describe any opportunities for amicus or other public 
participation in precedential decision making; and
    h. Explain how precedential decisions are clearly identified as 
precedential, how they are identified when overturned, and how they 
are made available to the public.
    18. Agencies should use clear and consistent terminology in 
their rules relating to precedential decisions. Agencies that 
distinguish between ``published'' decisions and ``nonpublished'' or 
``unpublished'' decisions (or some other such terminology) should 
identify in their rules of practice the

[[Page 2314]]

relationship between these terms and the terms ``precedential'' and 
``nonprecedential.''
    19. Agencies should consider soliciting public input when they 
materially revise existing or adopt new procedural regulations on 
the subjects addressed above, unless the costs outweigh the benefits 
of doing so in a particular instance.

Administrative Conference Recommendation 2022-5

Regulatory Enforcement Manuals

Adopted December 15, 2022

    Many agencies are responsible for detecting, investigating, and 
prosecuting potential violations of the laws they administer. 
Statutes and agency rules govern the exercise of agencies' 
enforcement authority and direct the activities of enforcement 
personnel. Agencies' policies: (a) explain and interpret relevant 
statutes and rules; (b) establish standards, priorities, and 
procedures for detecting and investigating suspected violations, 
issuing complaints against suspected violators, and prosecuting 
cases before an administrative body or a federal court; (c) describe 
how enforcement staff interact with other agency personnel and 
persons outside the agency; and (d) set forth processes for 
soliciting and receiving complaints about alleged violations from 
members of the public.
    Many agencies have developed documents, often called 
``enforcement manuals,'' that provide their personnel with a single, 
comprehensive resource regarding enforcement-related laws and 
policies. Enforcement manuals provide a way for agencies to 
effectively communicate such policies, which would otherwise be 
dispersed within a voluminous body of separate documents, and to 
ensure that agency enforcement is internally consistent, fair, 
efficient, effective, and legally sound.\1\ Although enforcement 
manuals do not necessarily bind agencies as a whole, it is also 
sometimes appropriate for agencies, as an internal agency management 
matter, to direct enforcement personnel to act in conformity with an 
enforcement manual.\2\
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    \1\ See Jordan Perkins, Regulatory Enforcement Manuals 1, 9 
(Dec. 9, 2022) (report to the Admin. Conf. of the United States).
    \2\ See Admin. Conf. of the U.S., Recommendation 2017-5, Agency 
Guidance Through Policy Statements, ] 3, 82 FR 61734, 61736 (Dec. 
29, 2017).
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    Enforcement manuals can also be a useful, practical resource for 
the public. The Freedom of Information Act (FOIA) requires agencies 
to post on their websites ``administrative staff manuals and 
instructions to staff that affect a member of the public.'' \3\ 
Although several courts of appeals have held that this provision 
does not apply to some portions of enforcement manuals,\4\ by 
providing public access to them, agencies can improve awareness of 
and compliance with relevant policies while promoting transparency 
more generally.
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    \3\ 5 U.S.C. 552(a)(2)(C).
    \4\ See, e.g., Smith v. NTSB, 981 F.2d 1326 (D.C. Cir. 1993); 
Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973).
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    Enforcement manuals may contain information that agencies should 
not disclose. Disclosure of some portions of enforcement manuals 
might, for example, enable persons to circumvent the law by 
revealing forms of noncompliance that will not lead to investigation 
or enforcement. Accordingly, FOIA exempts from disclosure records or 
information that ``would disclose techniques and procedures for law 
enforcement investigations or prosecutions'' or ``guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law.'' \5\ FOIA 
also allows agencies to withhold records that fall within the 
attorney work-product privilege. This exemption may encompass 
information provided to enforcement personnel about litigation 
strategies and legal theories, the disclosure of which could 
adversely affect the integrity of adversarial proceedings.\6\ 
Agencies cannot rely on these exemptions reflexively, however. Since 
2016, agencies may withhold information under FOIA only if they 
``reasonably foresee that disclosure would harm an interest 
protected by'' an exemption or if disclosure is prohibited by 
law.\7\ In other circumstances, agencies should disclose their 
enforcement manuals, or at least the non-exempt portions of the 
manual.
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    \5\ Id. Sec.  552(b)(7)(E).
    \6\ See ACLU of N. Cal. v. U.S. DOJ, 880 F.3d 473, 486-88 (9th 
Cir. 2018); Nat'l Ass'n of Crim. Def. Lawyers v. U.S. DOJ Exec. Off. 
for U.S. Attys., 844 F.3d 246, 254 (D.C. Cir. 2016).
    \7\ 5 U.S.C. 552(a)(8)(A).
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    This Recommendation offers agencies best practices for 
developing, managing, and disseminating enforcement manuals. It 
builds on several recommendations the Administrative Conference has 
previously adopted regarding the development, management, and 
dissemination of agency procedural rules and guidance documents.\8\ 
In offering these recommendations, the Conference recognizes that 
enforcement manuals may not be appropriate for all agencies, given 
differences in the volume and complexity of documents that govern 
their enforcement activities, resources available to agencies, and 
the differing informational needs of persons affected by or 
interested in agency enforcement activities.
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    \8\ See Admin. Conf. of the U.S., Recommendation 2021-7, Public 
Availability of Inoperative Agency Guidance Documents, 87 FR 1718 
(Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 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); Recommendation 
2017-5, supra note 2.
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Recommendation

Developing Enforcement Manuals

    1. Subject to available resources, agencies responsible for 
investigating and prosecuting potential violations of the laws that 
they administer should develop an enforcement manual--that is, a 
document that provides personnel a single, comprehensive resource 
for enforcement-related statutes, rules, and policies--if doing so 
would improve the communication of enforcement-related policies to 
agency personnel and promote the fair and efficient performance of 
enforcement functions consistent with established policies.
    2. In developing enforcement manuals, agencies should consider, 
among other things:
    a. Identifying the office or individual within the agency under 
whose name and authority the manual is being issued;
    b. Identifying which offices within the agency are directed to 
act in conformity with the manual;
    c. Describing the manual's purpose, scope, and organization;
    d. Describing the manual's legal effect, including a disclaimer, 
if applicable, that the manual does not bind the agency as a whole;
    e. Identifying the statutes and rules that govern the agency's 
enforcement activities;
    f. Identifying any ``safe harbors'' (i.e., conduct that does not 
trigger agency enforcement actions);
    g. Describing criteria for selecting among options available to 
the agency to compel remedial action, procedures for formally 
initiating agency adjudicative or judicial proceedings, and criteria 
for making criminal referrals;
    h. Identifying the office or individual within the agency that 
is empowered to receive, and potentially to act on, any complaint 
that the agency personnel who are conducting an investigation or 
other enforcement action are engaging in unlawful or inappropriate 
conduct;
    i. Describing procedures for soliciting and receiving 
information about alleged violations from persons outside the 
agency;
    j. Identifying criteria used to classify the severity of alleged 
violations, recommend or assess penalties or other remedies, or 
prioritize investigations or prosecutions;
    k. Describing procedures for conducting investigations, 
inspections, audits, or similar processes;
    l. Describing policies governing communications between 
enforcement personnel and other agency personnel, the subjects of 
enforcement actions, and other persons outside the agency;
    m. Explaining procedures for determining if records or 
information are legally protected from unauthorized disclosure, and 
procedures for handling such records or information;
    n. Addressing when agency personnel may publicly disclose 
information about an enforcement proceeding, such as by issuing a 
press release, and the nature of information that may be disclosed;
    o. Identifying guidelines for both informally adjudicating and 
negotiating settlements with the subjects of enforcement actions; 
and
    p. Explaining how and by whom the manual is developed, 
periodically reviewed for accuracy, and updated.
    3. Agencies should ensure that the contents of enforcement 
manuals are presented in a clear, logical, and comprehensive 
fashion, and include a table of contents and an index.

Managing Enforcement Manuals

    4. Agencies should periodically review their enforcement manuals 
and update them

[[Page 2315]]

as needed to ensure that they accurately reflect current law and 
policies. When agencies update their enforcement manuals, the 
manuals should prominently display the date of the update and 
identify what changes were made.
    5. Agencies with enforcement manuals should develop procedures 
for reviewing and keeping them up to date. These procedures should 
address:
    a. How often the enforcement manual, in whole or in part, is 
reviewed for accuracy and updated if necessary;
    b. Which office or individual within the agency is responsible 
for periodically reviewing the enforcement manual, in whole or in 
part; and
    c. How and by whom changes to the enforcement manual are 
drafted, reviewed, approved, and implemented.
    6. To ensure that enforcement personnel can easily access 
current versions of enforcement manuals, agencies should make 
enforcement manuals available in a searchable, electronic format in 
an appropriate location on an internal network.
    7. Agencies should solicit feedback on their enforcement manuals 
from their personnel and consider that feedback in reviewing and 
revising their manuals.

Disseminating Enforcement Manuals to the Public

    8. Agencies should make their enforcement manuals, or portions 
of their manuals, publicly available on their websites when doing so 
would improve public awareness of relevant policies and compliance 
with legal requirements or promote transparency more generally, and 
if they have adequate resources available to ensure publicly 
available enforcement manuals remain up to date. Agencies should not 
include information in publicly available versions of enforcement 
manuals that would reflect litigation strategies or legal theories, 
the disclosure of which would adversely affect the integrity of 
adversarial proceedings, or enable persons to circumvent the law.
    9. When agencies post publicly available versions of enforcement 
manuals, they should post the manuals in an easily identified 
location on their websites, in a user-friendly format, and with an 
introduction sufficient to ensure that potentially interested 
persons--including members of historically underserved communities, 
who may be unfamiliar with the existence, purpose, and legal effect 
of enforcement manuals--can easily find and use them.
    10. When agencies issue or revise publicly available enforcement 
manuals, they should provide notice to the public of such actions, 
for example by placing a notice on the agency's website, issuing a 
press release, making an announcement on social media, or publishing 
a notice of availability in the Federal Register.
    11. Agencies that make enforcement manuals publicly available 
should solicit feedback on them, from persons interested in or 
affected by agency enforcement proceedings, including possibly in a 
public forum and through direct outreach.

Administrative Conference Recommendation 2022-6

Public Availability of Settlement Agreements in Agency Enforcement 
Proceedings

Adopted December 15, 2022

    Many statutes grant administrative agencies authority to 
adjudicate whether persons have violated the law and, for those 
found to have done so, order them to pay a civil penalty, provide 
specific relief, or take some other remedial action.\1\ Some 
administrative enforcement proceedings result in a final agency 
adjudicative decision. But in many, perhaps most, such proceedings, 
a settlement is reached, either before or after an adjudication is 
formally initiated.\2\
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    \1\ This Recommendation addresses only settlements reached in 
administrative enforcement proceedings, not those reached in federal 
court cases brought by agencies. For purposes of this 
Recommendation, ``enforcement proceedings'' is used broadly to 
include both investigative and trial-like adjudicative proceedings, 
whether the parties to the proceeding include the agency or instead 
only non-agency parties. The Administrative Conference addressed 
settlement agreements reached in court cases in Recommendation 2020-
6, Agency Litigation Webpages, 86 FR 6624 (Jan. 22, 2021).
    \2\ Michael Asimow, Greenlighting Administrative Prosecution: 
Checks and Balances on Charging Decisions 1 (Jan. 21, 2022) (report 
to the Admin. Conf. of the U.S.).
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    Settlements can play an important role in administrative 
enforcement proceedings by allowing parties to resolve disputes more 
efficiently and effectively. Indeed, both the Administrative 
Procedure Act and Administrative Dispute Resolution Act (ADRA) 
recognize the importance of settlements in resolving enforcement 
proceedings,\3\ and the Administrative Conference has similarly 
recommended that agencies consider using alternative means of 
dispute resolution.\4\
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    \3\ See 5 U.S.C. 554(c)(2), 556(c)(6)-(8), 571-584.
    \4\ See, e.g., Admin. Conf. of the U.S., Recommendation 2016-4, 
Evidentiary Hearings Not Required by the Administrative Procedure 
Act, ]] 8, 12, 81 FR 94314, 94315 (Dec. 23, 2016); Admin. Conf. of 
the U.S., Recommendation 88-5, Agency Use of Settlement Judges, 53 
FR 26030 (July 11, 1988); Admin. Conf. of the U.S., Recommendation 
86-8, Acquiring the Services of ``Neutrals'' for Alternative Means 
of Dispute Resolution, 51 FR 46990 (Dec. 30, 1986); Admin. Conf. of 
the U.S., Recommendation 86-3, Agencies' Use of Alternative Means of 
Dispute Resolution, 51 FR 25643 (July 16, 1986).
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    Unlike final orders and opinions issued in the adjudication of 
cases, settlement agreements ordinarily do not definitively resolve 
disputed factual and legal matters, authoritatively decide whether a 
violation has taken place, or establish binding precedent. 
Nevertheless, public access to settlement agreements can be 
desirable for several reasons. First, disclosure of settlement 
agreements can help regulated entities and the general public 
understand how the agency interprets the laws and regulations it 
enforces and exercises its enforcement authority. Second, public 
access to settlement agreements can help promote accountable and 
transparent government. The public has an interest in evaluating how 
agencies enforce the law and use public funds. By disclosing how 
agencies interact with different regulated entities, public access 
may also help guard against bias. Third, high-profile settlements, 
such as those that involve large dollar amounts or require changes 
in business practices, often attract significant public interest. 
Fourth, the terms of a settlement agreement may also affect the 
interests of third parties, such as consumers, employees, or local 
communities.\5\
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    \5\ See Elysa Dishman, Public Availability of Settlement 
Agreements in Agency Enforcement Proceedings 1, 6-7 (Nov. 30, 2022) 
(report to the Admin. Conf. of the U.S.).
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    However valuable public access to settlement agreements might 
be, federal law generally does little to mandate their proactive 
disclosure. Generally applicable statutes such as the Freedom of 
Information Act (FOIA) and ADRA typically require disclosure only 
when members of the public specifically request the agreements in 
which they are interested. They do not generally require proactive 
disclosure on agency websites, as FOIA does for final adjudicative 
orders and opinions.\6\ Nevertheless, many agencies do post 
settlement agreements on their websites.\7\
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    \6\ See 5 U.S.C. 552(a)(2).
    \7\ See Dishman, supra note 5, at 21.
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    There may, of course, be reasons for agencies not to proactively 
disclose settlement agreements. Settlement agreements, or 
information contained within them, may be exempted or protected from 
disclosure. Confidential commercial information, for example, is 
exempted from disclosure under FOIA.\8\ In addition, the promise of 
confidentiality may encourage candor, help parties to achieve 
consensus, and yield more efficient resolution of disputes. And as a 
practical matter, there may be little public interest in large 
volumes of factually and legally similar settlement agreements, such 
that the costs to agencies of proactively disclosing them, 
especially costs associated with redacting sensitive or protected 
information, might outweigh the benefits of proactive disclosure to 
the public.
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    \8\ 5 U.S.C. 552(b)(4); see also Food Mktg. Inst. v. Argus 
Leader Media, 588 U.S. _, 139 S. Ct. 2356 (2019); compare Seife v. 
FDA, 43 F.4th 231 (2d. Cir. 2022), with Am. Small Bus. League v. 
U.S. Dep't of Def., 411 F. Supp. 3d 824, 836 (N.D. Cal. 2019).
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    This Recommendation encourages agencies to develop policies that 
recognize the benefits of proactively disclosing settlement 
agreements in administrative enforcement proceedings and account for 
countervailing interests. It builds on several other recommendations 
of the Administrative Conference that encourage agencies to 
proactively disclose other important materials related to the 
adjudication of cases, including orders and opinions, supporting 
records, adjudication rules and policies, and litigation 
materials.\9\ In offering the best

[[Page 2316]]

practices that follow, the Conference recognizes that settlement 
agreements vary widely in many respects, including in their terms, 
their effects on the interests of third parties, and the degree of 
public interest they attract. It also recognizes that not all 
agencies can bring the same resources to bear in providing public 
access to settlement agreements.
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    \9\ See Recommendation 2020-6, supra note 1; Admin. Conf. of the 
U.S., Recommendation 2020-5, Publication of Policies Governing 
Agency Adjudicators, 86 FR 6622 (Jan. 22, 2021); Admin. Conf. of the 
U.S., Recommendation 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).
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Recommendation

    1. To inform regulated entities and the general public about 
administrative enforcement, agencies should develop policies 
addressing whether and when to post on their websites settlement 
agreements reached in administrative enforcement proceedings--that 
is, those proceedings in which a civil penalty or other coercive 
remedy was originally sought against a person for violating the law. 
Settlement agreements addressed in these policies should include 
those reached both before and after adjudicative proceedings are 
formally initiated.
    2. In determining which settlement agreements to post on its 
website, an agency should consider factors including the extent to 
which:
    a. Disclosure would help regulated entities and the general 
public understand how the agency interprets the laws and regulations 
it enforces and exercises its enforcement authority;
    b. Disclosure would promote accountability and transparency, 
such as by allowing the public to evaluate agency administrative 
enforcement and use of public funds, and help guard against bias;
    c. Particular types of settlement agreements are likely to 
attract public interest;
    d. Disclosure might deter regulated entities from reaching 
settlements and resolving disputes expeditiously;
    e. Disclosure, even after redaction or anonymization, would 
adversely affect sensitive or legally protected interests involving, 
among other things, national security, law enforcement, confidential 
business information, personal privacy, or minors; and
    f. Disclosure would impose significant administrative costs on 
the agency or, conversely, whether it would save the agency time or 
money by reducing the volume of requests for disclosure.
    3. An agency that chooses generally not to post individual 
settlement agreements on its website--for example because certain 
agreements are required by statute to be confidential or do not vary 
considerably in terms of their factual contexts or the legal issues 
they raise--should consider other means to provide information about 
settlements, including by posting on its website:
    a. A form or template commonly used for settlement agreements;
    b. A representative sample of settlement agreements;
    c. Settlement agreements that entail especially significant 
legal issues;
    d. Settlement agreements that, because of their facts, are 
likely to attract significant public interest;
    e. A summary of each settlement or settlement trends; and
    f. A sortable or searchable database that lists information 
about settlement agreements, such as case types, dates, case 
numbers, parties, and key terms.
    4. When an agency posts settlement agreements or information 
about settlement agreements on its website, it should redact any 
information that is sensitive or otherwise protected from 
disclosure, and redact identifying details to the extent required to 
prevent an unwarranted invasion of personal privacy.
    5. An agency posting settlement agreements on its website should 
do so in a timely manner.
    6. An agency should present settlement agreements or information 
about settlement agreements on its website in a clear, logical, and 
readily accessible fashion. In so doing, the agency should consider 
providing access to the settlement agreements or information about 
them through:
    a. A web page dedicated to agency enforcement activities that is 
easily accessed from the agency's homepage, site map, and site 
index;
    b. A web page dedicated to an individual enforcement proceeding, 
such as a docket web page, that also includes any associated 
materials (e.g., case summaries, press releases, related 
adjudication materials, links to any related actions); and
    c. A search engine that allows users to easily locate settlement 
agreements and sort, narrow, or filter them by case type, date, case 
number, party, and keyword.
    7. When an agency posts settlement agreements on its website, it 
should include a statement that settlement agreements are provided 
only for informational purposes.

[FR Doc. 2023-00628 Filed 1-12-23; 8:45 am]
BILLING CODE 6110-01-P