Adoption of Recommendations, 42678-42684 [2023-14069]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 88, Number 126 (Monday, July 3, 2023)]
[Notices]
[Pages 42678-42684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14069]


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Notices
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This section of the FEDERAL REGISTER contains documents other than rules 
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Federal Register / Vol. 88, No. 126 / Monday, July 3, 2023 / 
Notices

[[Page 42678]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Assembly of the Administrative Conference of the United 
States adopted four recommendations at its hybrid (virtual and in-
person) Seventy-ninth Plenary Session: Proactive Disclosure of Agency 
Legal Materials, Virtual Public Engagement in Agency Rulemaking, Using 
Algorithmic Tools in Retrospective Review of Agency Rules, and Online 
Processes in Agency Adjudication.

FOR FURTHER INFORMATION CONTACT: For Recommendations 2023-1, 2023-2, 
and 2023-3, Kazia Nowacki; and for Recommendation 2023-4, Matthew A. 
Gluth. 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-ninth Plenary 
Session on June 15, 2023, to consider four proposed recommendations and 
conduct other business. All four recommendations were adopted.
    Recommendation 2023-1, Proactive Disclosure of Agency Legal 
Materials. This recommendation identifies statutory reforms that, if 
enacted by Congress, would provide clear standards as to what legal 
materials agencies must publish and where they must publish them 
(whether in the Federal Register, on their websites, or elsewhere). The 
amendments also account for technological developments and correct 
certain statutory ambiguities and drafting errors. The objective of 
these amendments is to ensure that agencies provide ready public access 
to important legal materials in the most efficient way possible.
    Recommendation 2023-2, Virtual Public Engagement in Agency 
Rulemaking. This recommendation identifies best practices to promote 
enhanced transparency, accessibility, and accountability when agencies 
use virtual tools to host public engagement meetings during the 
rulemaking process. It encourages agencies to offer virtual options 
when it would be beneficial to do so and offers best practices for 
structuring virtual public engagements in a way that meets public 
expectations and promotes valuable input for the agency.
    Recommendation 2023-3, Using Algorithmic Tools in Retrospective 
Review of Agency Rules. This recommendation identifies best practices 
for agencies to consider when designing or using artificially 
intelligent or other algorithmic tools to identify rules that are 
outmoded or redundant, contain typographical errors or inaccurate 
cross-references, or might benefit from resolving issues with 
intersecting or overlapping rules or standards. It also discusses how 
agencies can design these tools in a way that promotes transparency, 
public participation, and accountability.
    Recommendation 2023-4, Online Processes in Agency Adjudication. 
This recommendation identifies best practices for developing online 
processes by which private parties, representatives, and other 
participants in agency adjudications can file forms, evidence, and 
briefs; view case materials and status information; receive notices and 
orders; and perform other common adjudicative tasks.
    The Conference based its recommendations on research reports and 
prior history that are posted at: https://www.acus.gov/event/79th-plenary-session.
    The Appendix below sets forth the full texts of each 
recommendation. The Conference will transmit the recommendations to 
affected agencies, Congress, and the Judicial Conference of the United 
States, as appropriate.
    Authority: 5 U.S.C. 595.

    Dated: June 28, 2023.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2023-1

Proactive Disclosure of Agency Legal Materials

Adopted June 15, 2023

    Agencies produce many kinds of legal materials--that is, 
documents that establish, interpret, apply, explain, or address the 
enforcement of legal rights and obligations, along with constraints 
imposed, implemented, or enforced by or upon an agency.\1\ Agency 
legal materials come in many forms, ranging from generally 
applicable rules to orders issued in the adjudication of individual 
cases. Many statutes govern the public disclosure of these 
materials, including the Freedom of Information Act (FOIA),\2\ the 
Federal Register Act,\3\ and the E-Government Act of 2002.\4\ 
Together, these statutes require agencies to proactively disclose 
certain materials, either by publishing them in the Federal Register 
or posting them on their websites. Other materials must be made 
available upon request. Some materials, based on their nature or 
content, are exempt from disclosure.
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    \1\ Bernard W. Bell, Cary Coglianese, Michael Herz, Margaret B. 
Kwoka & Orly Lobel, Disclosure of Agency Legal Materials 5 (May 30, 
2023) (report to the Admin. Conf. of the U.S.).
    \2\ 5 U.S.C. 552.
    \3\ 41 U.S.C. ch. 15.
    \4\ Public Law 107-347, 116 Stat. 2899 (2002).
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    Since its establishment, the Administrative Conference has 
adopted dozens of recommendations encouraging agencies to 
proactively disclose important legal materials, even beyond what the 
law currently requires, and to make them publicly available in a 
readily accessible fashion.\5\ The Conference has identified best

[[Page 42679]]

practices that, in some cases, Congress could implement through 
legislative action.
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    \5\ Recommendations adopted in recent years include: Admin. 
Conf. of the U.S., Recommendation 2022-6, Public Availability of 
Settlement Agreements in Agency Enforcement Proceedings, 88 FR 2312 
(Jan. 13, 2023); 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 2020-
5, Publication of Policies Governing Agency Adjudicators, 86 FR 6622 
(Jan. 22, 2021); Admin. Conf. of the U.S., Recommendation 2019-3, 
Public Availability of Agency Guidance Documents, 84 FR 38931 (Aug. 
8, 2019); Recommendation 2018-5, Public Availability of Adjudication 
Rules, 84 FR 2142 (Feb. 6, 2019); and Recommendation 2017-1, 
Adjudication Materials on Agency Websites, 82 FR 31039 (July 5, 
2017).
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    Considering the principal statutes governing the disclosure of 
agency legal materials, the Conference has also identified 
problems--inconsistencies and uncertainties, for example--that 
Congress should remedy through statutory reforms. Developed at 
different times and for different purposes, these statutes contain 
overlapping requirements that are sometimes difficult to harmonize. 
Some statutes are quite old--the Federal Register Act, for example, 
dates from 1935--and technological developments and organizational 
changes have rendered certain provisions outdated. Some statutory 
provisions are vague, which has led to litigation over their meaning 
and to differing agency practices.\6\
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    \6\ See generally Bell et al., supra note 1.
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    To ensure that agencies provide ready public access to important 
legal materials in the most efficient manner, this Recommendation 
identifies several statutory reforms that, if enacted by Congress, 
would provide clear standards as to what legal materials agencies 
must publish in the Federal Register, post on their websites, or 
otherwise proactively disclose. The Conference recognizes that these 
statutory reforms would impose additional initial and ongoing costs 
on agencies. At the same time, proactive disclosure of agency legal 
materials may save staff time or money through a reduction in the 
volume of FOIA requests or printing costs, or an increase in the 
speed with which agency staff will be able to respond to remaining 
FOIA requests. In assigning responsibilities for overseeing the 
development and implementation of the proactive disclosure plans and 
for overseeing the agency's compliance with all legal requirements 
for the proactive disclosure of agency legal materials, agencies may 
wish to consider existing officials and the potential for 
overlapping or shared responsibilities.\7\
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    \7\ For example, 5 U.S.C. 552(j) requires agencies to designate 
a Chief FOIA Officer.
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    This Recommendation should not be considered as an exhaustive 
catalog of useful reforms. For example, it does not address whether 
the exemptions from FOIA's general disclosure requirements \8\ 
should be amended or recommend actions that may be at odds with 
FOIA. The statutory reforms proposed in this Recommendation 
therefore would not require agencies to proactively disclose matters 
exempted or excluded from FOIA's general disclosure requirements, 
including ``inter-agency or intra-agency memorandums or letters that 
would not be available by law to a party other than an agency in 
litigation with the agency.'' Congress should also consider 
timeframes for implementation of the proactive disclosure 
recommendations, whether for newly created or preexisting agency 
legal materials.
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    \8\ 5 U.S.C. 552(b).
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    Nothing in this Recommendation should be interpreted to 
constitute the Conference's interpretation of the statutes governing 
the disclosure of agency legal materials. Any recommendation that a 
statutory provision be amended to ``provide'' something does not 
necessarily mean that the law does not already require it. Nor 
should this Recommendation be read as superseding the Conference's 
many previous recommendations on the disclosure of agency legal 
materials. In the absence of congressional action, the Conference 
encourages agencies to adopt the best practices identified in this 
Recommendation and its many previous recommendations.

Recommendation

Proactive Disclosure of Agency Legal Materials

    1. Congress should amend 5 U.S.C. 552(a)(2) to provide, subject 
to Paragraph 2 of this Recommendation and the exemptions and 
exclusions in 5 U.S.C. 552(b) and (c), that each agency make 
available on its website:
    a. Final opinions and orders issued in adjudications that are 
governed by 5 U.S.C. 554 and 556-557 or otherwise issued after a 
legally required opportunity for an evidentiary hearing. Each agency 
should proactively disclose any such opinion or order regardless of 
whether the agency designates the opinion or order as precedential, 
published, or other similar designation;
    b. Written documents that communicate to a member of the public 
the agency's decision not to enforce a legal requirement against an 
individual or entity. Such documents may include decisions to grant 
an individual or entity a waiver or exemption, and advisory opinions 
that apply generally applicable legal requirements to specific facts 
or explain how the agency will exercise its discretion in particular 
cases;
    c. Written legally binding opinions and memoranda issued by or 
under the authority of its chief legal officers;
    d. Settlement agreements to which the agency is a party;
    e. Memoranda of understanding, memoranda of agreement, and other 
similar inter-agency or inter-governmental agreements that affect a 
member of the public;
    f. Any operative agency delegations of legal authority;
    g. Any operative orders of succession for agency positions whose 
occupants must be appointed by the President with the advice and 
consent of the Senate; and
    h. Any statutory or agency designations of first assistant 
positions to positions whose occupants must be appointed by the 
President with the advice and consent of the Senate.
    2. Congress should provide in 5 U.S.C. 552 that an agency may 
promulgate regulations providing that it will not proactively 
disclose some records described in Paragraph 1 of this 
Recommendation, and subject to the exemptions and exclusions in 5 
U.S.C. 552(b) and (c), because individual records in the relevant 
category do not vary considerably in terms of their factual contexts 
or the legal issues they raise, or that proactive disclosure of such 
documents would be misleading. Any such rule should explain which 
records the agency will not proactively disclose and what other 
information (e.g., aggregate data, representative samples), if any, 
the agency will proactively disclose instead to adequately inform 
the public about agency activities.
    3. Congress should provide a mechanism for ensuring that 
agencies:
    a. Develop and post disclosure plans--internal management plans 
and procedures for making legal materials available online on their 
websites; and
    b. Designate an officer or officers responsible for overseeing 
the development and implementation of the proactive disclosure plans 
described in Paragraph 3(a), and for overseeing the agency's 
compliance with all legal requirements for the proactive disclosure 
of agency legal materials.
    4. Because various provisions of the E-Government Act, Public 
Law 107-347, governing proactive disclosure are duplicative, contain 
drafting errors, or are outdated, Congress should amend the statute 
to:
    a. Delete 206(b);
    b. Delete ``and (b)'' in 207(f)(1)(A)(ii); and
    c. Eliminate references to the Interagency Committee on 
Government Information, which no longer exists. Congress should 
instead require that the Office of Management and Budget, after 
consultation with other relevant inter-agency bodies, periodically 
update its guidance on federal agency public websites to ensure that 
agencies present legal materials, required to be disclosed 
proactively, on their websites in a clear, logical, and readily 
accessible fashion.
    5. Congress should provide that each agency should post each of 
its legislative rules, or a link to those rules, on its website, and 
should, to the extent feasible, include links to related agency 
legal materials, such as preambles and other guidance documents 
explaining the rule or significant adjudicative opinions 
interpreting or applying it.

Enforcement of Proactive Disclosure Requirements

    6. Congress should provide that a person may use the process 
described in 5 U.S.C. 552(a)(3) to request that an agency 
proactively disclose certain records when the requestor alleges the 
agency is legally required to proactively disclose the records but 
has not done so.
    7. Congress should provide in 5 U.S.C. 552(a)(4) that when a 
district court finds that an agency has not proactively disclosed 
records when legally required to do so, the reviewing court may 
order the agency to make them available to the general public in the 
manner required by the proactive disclosure provisions of 5 U.S.C. 
552(a). Congress should also provide that a requester must exhaust 
administrative remedies required by 5 U.S.C. 552 before filing a

[[Page 42680]]

complaint in district court to compel an agency to proactively 
disclose records.

Preparation of Proposed Legislation

    8. The Conference's Office of the Chair should prepare and 
submit to Congress proposed statutory changes consistent with this 
Recommendation.

Administrative Conference Recommendation 2023-2

Virtual Public Engagement in Agency Rulemaking

Adopted June 15, 2023

    The law often requires agencies to give interested persons an 
opportunity to participate in rulemakings.\1\ Presidential 
directives, including Executive Order 14,094, Modernizing Regulatory 
Review, also instruct agencies to proactively engage a range of 
interested or affected persons, including underserved communities 
and program beneficiaries.\2\ And as a matter of best practice, the 
Administrative Conference has encouraged agencies to consider 
additional opportunities for public engagement.\3\
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    \1\ See, e.g., 5 U.S.C. 553(c).
    \2\ 88 FR 21879 (Apr. 6, 2023).
    \3\ Admin. Conf. of the U.S., Recommendation 2021-3, Early Input 
on Regulatory Alternatives, 86 FR 36082 (July 8, 2021); Admin. Conf. 
of the U.S., Recommendation 2018-7, Public Engagement in Rulemaking, 
84 FR 2146 (Feb. 6, 2019); Admin. Conf. of the U.S., Recommendation 
2017-2, Negotiated Rulemaking, 82 FR 31040 (July 5, 2017); Admin. 
Conf. of the U.S., Recommendation 2014-6, Petitions for Rulemaking, 
79 FR 75117 (Dec. 17, 2014); Admin. Conf. of the U.S., 
Recommendation 2013-5, Social Media in Rulemaking, 78 FR 76269 (Dec. 
17, 2013); Admin. Conf. of the U.S., Recommendation 2011-8, Agency 
Innovations in E- Rulemaking, 77 FR 2264 (Jan. 17, 2012); Admin. 
Conf. of the U.S., Recommendation 2011-1, Legal Considerations in E-
Rulemaking, 76 FR 48789 (Aug. 9, 2011); Admin. Conf. of the U.S., 
Recommendation 76-3, Procedures in Addition to Notice and the 
Opportunity for Comment in Informal Rulemaking, 41 FR 29654 (July 
19, 1976); Admin. Conf. of the U.S., Recommendation 72-1, Broadcast 
of Agency Proceedings, 38 FR 19791 (July 23, 1973).
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    Interested persons are often able to learn about participation 
opportunities through notice in the Federal Register and participate 
in the rulemaking by submitting written data, views, and arguments, 
typically after the agency has issued a notice of proposed 
rulemaking (NPRM).
    Agencies may also provide opportunities for oral presentation, 
whether before or after an NPRM has been issued. This opportunity 
can take the form of a public hearing, meeting, or listening 
session--what this Recommendation refers to as a ``public rulemaking 
engagement.'' Agencies may provide a public rulemaking engagement 
because a statute, presidential directive, or agency rule or policy 
requires one or because such engagement would improve agency 
decision making and promote public participation in regulatory 
policymaking.\4\ The Conference has encouraged agencies to hold 
public rulemaking engagements when it would be beneficial to do so 
and to explore more effective options for notice, to ensure 
interested persons are aware of and understand regulatory 
developments that affect them. Agencies also directly engage with 
people and organizations that are interested in and affected by 
their rules, and the Conference has encouraged them to do so 
consistent with rules governing the integrity of the rulemaking 
process.\5\
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    \4\ Kazia Nowacki, Virtual Public Engagement in Agency 
Rulemaking 5-6 (May 25, 2023) (report to the Admin. Conf. of the 
U.S.).
    \5\ See Admin. Conf. of the U.S., Recommendation 2014-4, ``Ex 
Parte'' Communications in Informal Rulemaking, 79 FR 35993 (June 25, 
2014).
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    When agencies engage with the public, they must ensure that they 
meet all legal accessibility requirements.\6\ Effective public 
engagement also requires that agencies identify and address barriers 
to participation, including geographical constraints, resource 
limitations, and language barriers. For example, to ensure that all 
people affected by a rulemaking are aware of the rulemaking and 
opportunities to participate, the Conference has recommended that 
agencies conduct outreach that targets members of the public with 
relevant views who do not typically participate in rulemaking or may 
otherwise not be represented.\7\
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    \6\ See, e.g., Rehabilitation Act of 1973, 508, 29 U.S.C. 794d; 
Plain Writing Act of 2010, Public Law 111-274, 124 Stat. 2861; E.O. 
13985, 86 FR 7009 (Jan. 20, 2021); E.O. 13,166, 65 FR 50121 (Aug. 
11, 2000).
    \7\ E.g., Admin. Conf. of the U.S., Recommendation 2021-3, Early 
Public Input on Regulatory Alternatives, paragraph 3, 86 FR 36082-
36083 (July 8, 2021); Admin. Conf. of the U.S., Recommendation 2018-
7, Public Engagement in Rulemaking, paragraph 1(b), 84 FR 2146-2147 
(Feb. 6, 2019).
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    In recent years, and especially during the COVID-19 pandemic, 
agencies increasingly have used widely available, internet-based 
videoconferencing software to engage with the public.\8\ By reducing 
some barriers that people--especially members of historically 
underserved communities--encounter, virtual public engagement can 
help broaden participation in agency rulemakings.\9\ At the same 
time, virtual engagements may present barriers to access for some 
people, such as low-income individuals for whom it may be difficult 
to obtain access to high-quality personal devices or private 
internet services, individuals in rural areas who lack access to 
broadband internet, individuals whose disabilities prevent effective 
engagement in virtual proceedings or make it difficult to set up and 
manage the necessary technology, and individuals with limited 
English proficiency. Some individuals may also have difficulty, feel 
uncomfortable, or lack experience using a personal device or 
internet-based videoconferencing software to participate in an 
administrative proceeding.\10\
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    \8\ This mirrors developments with respect to the use of virtual 
hearings in agency adjudication. See Admin. Conf. of the U.S., 
Recommendation 2021-6, Public Access to Agency Adjudicative 
Proceedings, 87 FR 1715 (Jan. 12, 2022); Admin. Conf. of the U.S., 
Recommendation 2021-4, Virtual Hearings in Agency Adjudication, 86 
FR 36083 (July 8, 2021).
    \9\ Kazia Nowacki, Virtual Public Engagement in Agency 
Rulemaking (May 25, 2023) (report to the Admin. Conf. of the U.S.).
    \10\ Cf. Recommendation 2021-4, supra note 8.
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    This Recommendation encourages agencies to offer virtual options 
when they determine it would be beneficial to hold a public 
rulemaking engagement or directly engage with specific people and 
organizations. It also offers best practices for planning, improving 
notice of, and managing public rulemaking engagements, as well as 
ensuring that members of the public can easily access materials 
related to virtual public rulemaking engagements (e.g., agendas, 
recordings, transcripts) and underlying rulemakings (e.g., draft 
rules, docket materials).
    This Recommendation builds on many previous recommendations of 
the Conference regarding public participation in agency rulemaking, 
including Recommendation 2018-7, Public Engagement in Rulemaking, 
which, among other things, encourages agencies to develop 
comprehensive plans for public engagement in rulemaking, and 
Recommendation 2014-4, ``Ex Parte'' Communications in Informal 
Rulemaking, which offers best practices for engaging with members of 
the public while safeguarding the integrity of agency rulemaking.

Recommendation

Virtual Public Engagement Planning

    1. Agencies that engage in rulemaking should, when feasible and 
appropriate, utilize internet-based videoconferencing software as a 
means of broadening engagement with interested persons in a cost-
effective way, including through outreach that targets members of 
the public with relevant views who do not typically participate in 
rulemaking or may otherwise not be represented. As part of its 
overall policy for public engagement in rulemaking (described in 
Recommendation 2018-7, Public Engagement in Rulemaking), each agency 
should explain how it intends to use internet-based 
videoconferencing to engage with the public.
    2. Each agency should ensure that its policies regarding 
informal communications between agency personnel and individual 
members of the public related to a rulemaking (described in 
Recommendation 2014-4, ``Ex Parte'' Communications in Informal 
Rulemaking) cover communications that take place virtually.
    3. Each agency should prepare and post to a publicly available 
website guidance on the conduct of virtual public rulemaking 
engagements--that is, a meeting, hearing, listening session, or 
other live event that is rulemaking related and open to the general 
public--and ensure employees involved with such engagements are 
familiar with that guidance.
    4. When an agency plans to hold a public rulemaking engagement, 
it should allow for interested persons to observe the engagement 
remotely and, when feasible, provide input and ask questions 
remotely.
    5. When an agency decides to hold a public rulemaking 
engagement, rulemaking personnel should collaborate with personnel 
who oversee communications, public affairs, public engagement, and 
other relevant activities for the agency to ensure the engagement 
reaches the potentially interested members of the public and 
facilitates effective participation from those persons,

[[Page 42681]]

including groups that are affected by the rulemaking and may 
otherwise have been underrepresented in the agency's administrative 
process.

Notice

    6. An agency should include, as applicable, the following 
information in the public notices for a public rulemaking engagement 
with a virtual or remote component:
    a. The date and time of the engagement, at the beginning of the 
notice;
    b. Options for remote attendance, including a direct link or 
instructions to obtain a direct link to the internet-based 
videoconference event and alternative remote attendance options for 
members of the public without access to broadband internet, at the 
beginning of the notice;
    c. A plain-language summary of the rulemaking and description of 
the engagement's purpose and agenda and the nature of the public 
input, if any, the agency is seeking to obtain through the 
engagement;
    d. A link to the web page described in Paragraph 7;
    e. Information about opportunities for members of the public to 
speak during the engagement, including any directions for requesting 
to speak and any moderation policies, such as limits on the time for 
speaking;
    f. The availability of services such as closed captioning, 
language interpretation, and telecommunications relay services and 
access instructions;
    g. The availability and location of a recording, a transcript, a 
summary, or minutes; and
    h. Contact information for a person who can answer questions 
about the engagement or arrange accommodations.
    7. To encourage participation in a public rulemaking engagement, 
the agency should create a dedicated web page for each such 
engagement that includes the information described in Paragraph 6. 
The web page should include, as applicable, a link to:
    a. The internet-based videoconferencing event, its registration 
page, or information for alternative remote attendance options for 
members of the public without access to broadband internet;
    b. The Federal Register notice;
    c. Any materials associated with the engagement, such as an 
agenda, a program, speakers' biographies, a draft rule, the 
rulemaking docket, or questions for participants;
    d. A livestream of the engagement for the public to observe 
while it is occurring; and
    e. Any recording, transcript, summary, or minutes after the 
engagement has ended.
    8. The Office of the Federal Register (OFR) should update the 
Document Drafting Handbook to provide agencies guidance on drafting 
Federal Register notices for public rulemaking engagements with 
virtual or remote components that include the information described 
in Paragraph 6.
    9. OFR and the eRulemaking Program should update the ``Document 
Details'' sidebar on FederalRegister.gov and Regulations.gov to 
include, for any rulemaking in which there is a public rulemaking 
engagement, a link to the agency web page described in Paragraph 7.

Managing Virtual Public Engagements

    10. When feasible, each agency should allow interested persons 
to observe a livestream of the public rulemaking engagement remotely 
and should not require members of the public to register. Agencies 
may want to set a registration deadline for those wishing to speak 
or requiring accommodations.
    11. To manage participants' expectations, an agency should 
communicate the following matters, among others, to participants at 
the beginning of the event:
    a. The purpose and goal of the engagement;
    b. The moderation policies, including those governing speaking 
time limits and whether or why the agency will or will not respond 
to oral statements made by participants;
    c. The management of the public speaking queue;
    d. Whether the chat function, if using an internet-based 
videoconferencing platform, will be disabled or monitored and, if 
monitored, whether the chat will be included in the record;
    e. How participants can access the rulemaking materials 
throughout the meeting; and
    f. Whether the event will be recorded or transcribed and where 
it will be made available.
    12. As agency resources allow, each agency should ensure it has 
adequate support to run public rulemaking engagements, including 
their virtual and other remote components. Adequate support might 
include technological or troubleshooting assistance, a third-party 
moderating service, or a sufficient number of available staff 
members.

Recordings and Transcripts

    13. When an agency holds a public rulemaking engagement, it 
should record, transcribe, summarize, or prepare meeting minutes of 
the engagement unless doing so would adversely affect the 
willingness of public participants to provide input or ask 
questions.
    14. Each agency should, in a timely manner, make any recording, 
transcript, summary, or minutes of a public rulemaking engagement 
available in any public docket associated with the rulemaking and on 
the web page described in Paragraph 7.

Fees

    15. Agencies should not assess fees on the public for virtual 
public engagement.

Administrative Conference Recommendation 2023-3

Using Algorithmic Tools in Retrospective Review of Agency Rules

Adopted June 15, 2023

    Retrospective review is the process by which agencies assess 
existing rules and decide whether they need to be revisited. 
Consistent with longstanding executive-branch policy, the 
Administrative Conference has endorsed the practice of retrospective 
review of agency rules (including those that incorporate standards 
by reference), encouraged regulatory agencies to cultivate a culture 
of retrospective review, and urged agencies to establish plans to 
conduct retrospective reviews periodically.\1\ The Conference has 
also recognized, however, that agencies often have limited resources 
available to conduct retrospective reviews. To encourage agencies to 
undertake retrospective reviews despite resource limitations, the 
Conference has identified opportunities for agencies to conserve 
resources, for example by taking advantage of internal and external 
sources of information and expertise.\2\
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    \1\ See, e.g., Admin. Conf. of the U.S., Recommendation 2021-2, 
Periodic Retrospective Review, 86 FR 36080 (July 8, 2021); Admin. 
Conf. of the U.S., Recommendation 2017-6, Learning from Regulatory 
Experience, 82 FR 61783 (Dec. 29, 2017); Admin. Conf. of the U.S., 
Recommendation 2014-5, Retrospective Review of Agency Rules, 79 FR 
75114 (Dec. 17, 2014); Admin. Conf. of the U.S., Recommendation 
2011-5, Incorporation by Reference, 77 FR 2257 (Jan. 17, 2012); 
Recommendation 95-3, Review of Existing Agency Regulations, 60 FR 
43108 (Aug. 18, 1995).
    \2\ Admin. Conf. of the U.S., Recommendation 2014-5, 
Retrospective Review of Agency Rules, 79 FR 75114 (Dec. 17, 2014).
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    New technologies may offer additional opportunities for agencies 
to conserve resources and conduct more robust retrospective review 
in a cost-effective manner. Among these, algorithmic tools may 
enable agencies to automate some tasks associated with retrospective 
review. An algorithmic tool is a computerized process that uses a 
series of rules or inferences drawn from data to transform specified 
inputs into outputs to make decisions or support decision making.\3\ 
The use of such tools may also help agencies identify issues that 
they otherwise might not detect. The General Services Administration 
(GSA) and several other agencies have already begun experimenting 
with the use of algorithmic tools to conduct some tasks in service 
of retrospective review or similar functions.\4\
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    \3\ Algorithmic tools include, but are not limited to, 
applications that use artificial intelligence techniques.
    \4\ Catherine M. Sharkey, Algorithmic Retrospective Review of 
Agency Rules (May 3, 2023) (report to the Admin. Conf. of the U.S.).
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    Although algorithmic tools hold out the promise of lowering the 
cost of completing governmental tasks and improving the quality, 
consistency, and predictability of agencies' decisions, agencies' 
use of algorithmic tools also raises important concerns.\5\ 
Statutes, executive orders, and agency policies highlight many such 
concerns.\6\ In a prior Statement, the Conference itself described 
concerns about transparency (especially given the

[[Page 42682]]

proprietary nature of some artificial intelligence (AI) systems), 
harmful bias, technical capacity, procurement, data usage and 
storage, privacy, security, and the full or partial displacement of 
human decision making and discretion that may arise when agencies 
rely on AI tools.\7\ There are also practical challenges associated 
with the development and use of agency-specific algorithmic tools 
that may lead agencies to rely on the algorithmic tools developed 
and used by GSA and other agencies. These challenges include the 
potentially high startup costs associated with developing or 
procuring them, the need to develop internal capacity and expertise 
to use them appropriately, related needs in staffing and training, 
and the need for ongoing maintenance and oversight.
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    \5\ David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey & 
Mariano-Florentino Cu[eacute]llar, Government by Algorithm: 
Artificial Intelligence in Federal Administrative Agencies (Feb. 
2020) (report to the Admin. Conf. of the U.S.).
    \6\ See, e.g., AI Training Act, Public Law 117-207, 136 Stat. 
2237 (Oct. 17, 2022); E.O. 14091, Further Advancing Racial Equity 
and Support for Underserved Communities Through the Federal 
Government, 88 FR 10825 (Feb. 16, 2023); E.O. 13960, Promoting the 
Use of Trustworthy Artificial Intelligence in the Federal 
Government, 85 FR 78939 (Dec. 3, 2020); E.O. 13859, Maintaining 
American Leadership in Artificial Intelligence, 84 FR 3967 (Feb. 11, 
2019).
    \7\ Admin. Conf. of the U.S., Statement #20, Agency Use of 
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021).
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    The Conference recognizes that agencies may be able to leverage 
algorithmic tools to more efficiently, cost-effectively, and 
accurately identify rules (including those that incorporate 
standards by reference) that are outmoded or redundant, contain 
typographic errors or inaccurate cross-references, or might benefit 
from resolving issues with intersecting or overlapping rules or 
standards. Because agencies have only recently begun using 
algorithmic tools to support retrospective review, this 
Recommendation does not address the potential use of those tools to 
perform more complex tasks--such as identifying rules that may need 
to be modified, strengthened, or eliminated to better achieve 
statutory goals or reduce regulatory burdens--for which the 
potential risks and benefits are still unclear and which may raise 
additional issues regarding agency decision making, including those 
highlighted above. This Recommendation identifies best practices for 
agencies to acquire, use, and assess algorithmic tools for 
retrospective review in a way that accords with applicable legal 
requirements and promotes accuracy, efficiency, transparency, and 
accountability. To encourage coordination and collaboration across 
the executive branch, this Recommendation also encourages GSA to 
continue to explore options for developing, acquiring, and using 
algorithmic tools to support retrospective review and share its 
findings and capabilities with other agencies, and the Office of 
Management and Budget to provide guidance on the use of these tools 
to support retrospective review.

Recommendation

    1. Agencies should assess whether they can use algorithmic tools 
to more efficiently, cost-effectively, and accurately identify rules 
(including those that incorporate standards by reference) that are 
outmoded or redundant, contain typographic errors or inaccurate 
cross-references, or might benefit from resolving issues with 
intersecting or overlapping rules or standards.
    2. When agencies contemplate using an algorithmic tool to 
support retrospective review, they should consider whether it would 
be most efficient, cost-effective, and accurate to develop a new 
tool in-house, implement a tool developed and made available by 
another agency, or procure a tool from a commercial vendor or 
contractor. In making this determination, agencies should assess 
whether there is an existing tool that meets their needs and, in so 
doing, consult with other agencies that have experience using 
algorithmic tools to support retrospective review. If there is no 
such tool, agencies should consider whether they have sufficient in-
house expertise and capacity to develop an adequate tool.
    3. Agencies should ensure that agency personnel who use 
algorithmic tools to support retrospective review have adequate 
training on the capabilities and risks of those tools and that 
regulatory decision makers carefully assess the output before 
relying on it.
    4. To promote transparency and build internal expertise, 
agencies should, when developing or selecting an algorithmic tool to 
support retrospective review, consider open-source options and those 
that would maximize interoperability with other government systems. 
Agencies should ensure that key information about the algorithmic 
tool's development, operation, and use is available to agency 
personnel and the public.
    5. When agencies publish retrospective review plans and 
descriptions of specific retrospective reviews, as described in 
Recommendation 2021-2, Periodic Retrospective Review, they should 
disclose whether, and if so, explain how, they plan to use or used 
algorithmic tools to support retrospective review. Additionally, 
when agencies incorporate retrospective reviews in their Learning 
Agendas and Annual Evaluation Plans, as described in Recommendation 
2021-2, they should include information about the use of algorithmic 
tools.
    6. When the analysis deriving from a retrospective review using 
an algorithmic tool will influence a new rulemaking, agencies should 
be transparent about their use of the tool and explain how the tool 
contributed to the decision to develop the new rule.
    7. Agencies should share their experiences with each other in 
using these tools. To manage risk and monitor internal processes, 
agencies should consider developing their own internal evaluation 
and oversight mechanisms for algorithmic tools used in retrospective 
review, both for initial approval of a tool and, as applicable, for 
regular oversight of the tool.
    8. The General Services Administration should continue to 
explore options for developing, acquiring, and using algorithmic 
tools to support retrospective review and share its findings and 
capabilities with other agencies.
    9. The Office of Management and Budget should provide guidance 
on the use of algorithmic tools to support retrospective review.

Administrative Conference Recommendation 2023-4

Online Processes in Agency Adjudication

Adopted June 15, 2023

    Millions of people each year navigate adjudication systems 
administered by federal agencies to, among other actions, access 
benefits and services, answer charges of legal noncompliance, and 
settle disputes with third parties. Individuals participating in 
these systems often expend substantial time and resources completing 
forms, submitting evidence and arguments, and monitoring their 
cases, while agencies expend substantial time and resources 
processing submissions, managing dockets, and providing case 
updates.
    To improve accuracy, efficiency, and accessibility, and fulfill 
legal obligations to develop electronic business processes,\1\ 
agencies increasingly have deployed online processes by which 
parties, their representatives, and other interested persons can 
perform routine tasks such as filing, serving, and viewing forms, 
briefs, evidence, and other case records or materials.\2\ These 
processes range from simple email-based systems to robust online 
self-help portals that allow users to update contact information, 
communicate with agencies, complete forms, submit and view case 
records or materials, and perform other tasks. These processes 
ideally link with agencies' own electronic case management 
systems,\3\ which serves also to reduce the time agency staff spend 
receiving paper records, converting them into an electronic format, 
and associating them with case files.
---------------------------------------------------------------------------

    \1\ See, e.g., 21st Century Integrated Digital Experience Act, 
Public Law 115-336, 132 Stat. 5025 (2018); E.O. 14058, 86 FR 71357 
(Dec. 16, 2021); OMB, Exec. Off. of the President, M-19-21, 
Memorandum for Heads of Executive Departments and Agencies, 
Transition to Electronic Records (June 28, 2019); OMB, Exec. Off. of 
the President, M-23-07, Memorandum for Heads of Executive 
Departments and Agencies, Update to Transition to Electronic Records 
(Dec. 23, 2022); OMB, Exec. Off. of the President, Circular No. A-
11, Sec. 280 (2020).
    \2\ Matthew A. Gluth, Online Processes in Agency Adjudication 
(May 24, 2023) (report to the Admin. Conf. of the U.S.).
    \3\ See Admin. Conf. of the U.S., Recommendation 2018-3, 
Electronic Case Management in Federal Administrative Adjudication, 
83 FR 30683 (June 29, 2018).
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    If properly deployed, these processes make adjudication systems 
easier to use and more accessible to the public, reduce the 
administrative burden on agency staff, and increase the accuracy of 
information collected during adjudication. However, these processes 
can also pose significant risks, including increased burdens due to 
poor design, exposure of agencies' computer systems to malware and 
other security threats, and ongoing costs of maintenance and 
upgrades. In designing and implementing online processes, agencies 
should not only address these risks but also ensure that they meet 
all legal accessibility requirements.\4\ In addition, agencies 
should

[[Page 42683]]

make user resources available in languages other than English.\5\
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    \4\ See, e.g., Rehabilitation Act of 1973, 508, 29 U.S.C. 794d; 
Plain Writing Act of 2010, Public Law 111-274, 124 Stat. 2861; E.O. 
13985, 86 FR 7009 (Jan. 25, 2021).
    \5\ See, e.g., E.O. 13166, 65 FR 50121 (Aug. 11, 2000).
---------------------------------------------------------------------------

    Examples of agencies with online adjudication processes include 
the Social Security Administration, Department of Veterans Affairs, 
and U.S. Citizenship and Immigration Services, which have launched 
robust customer service portals that let parties perform tasks at 
many stages of adjudication from case initiation through appeal. 
Others have only recently begun to develop online processes, 
particularly in response to office closures during the COVID-19 
pandemic.
    This Recommendation encourages agencies to develop online 
processes and provides best practices for agencies to consider when 
doing so. Of course, agencies have different needs, serve different 
communities, and have different resources available to them. 
Further, what works best for one agency may not be appropriate for 
another. This Recommendation identifies steps that agencies can 
consider at any stage of developing online processes to improve the 
accuracy, efficiency, and accessibility of their adjudication 
systems.

Recommendation

Accessing Online Processes in Adjudication Systems

    1. Agencies' online processes should work effectively with 
relevant electronic case management systems (eCMS) and agency 
websites where adjudication materials are made publicly available.
    2. Agencies should develop online self-help portals that allow 
users, as applicable and when feasible, to:
    a. Update contact information, including email addresses, phone 
numbers, and physical addresses;
    b. Complete and submit forms;
    c. File briefs, evidence, and other documents;
    d. Receive service of documents, including documents filed by 
other parties and agency notices and orders;
    e. View and download case documents;
    f. Make payments (e.g., filing fees, application fees, civil 
penalties);
    g. Schedule meetings, conferences, hearings, and other 
appointments;
    h. Access virtual appointments;
    i. View case status information and information about deadlines, 
appointments, and wait times, when agencies can reliably predict 
them;
    j. Receive reminders about upcoming deadlines and appointments; 
and
    k. Receive notifications about new documents, status changes, 
and other developments in their cases.
    3. Online self-help portals should allow different 
functionality, with appropriate permissions, for different types of 
users, including agency staff and contractors, parties, intervenors, 
representatives and their staff, amici curiae, and the public.
    4. Agencies should ensure online self-help portals employ 
security mechanisms, such as firewalls and encryption, to protect 
sensitive user information and maintain the system's integrity. 
Agencies should also ensure self-help portals employ mechanisms to 
authenticate users when necessary. Agencies that authenticate users 
by requiring them to register for and log in to online self-help 
portals should allow users to use Login.gov or other universal 
logins used by government agencies. These security mechanisms should 
not compromise the ability of non-authenticated users to access 
public documents.

Electronic Filing and Forms

    5. Agencies should permit, and consider requiring, parties to 
file documents electronically.
    If agencies require electronic filing, they should implement 
exceptions for when electronic filing would be impossible or 
impracticable or a party has demonstrated good cause for using an 
alternative means of submission.
    6. Agencies should ensure that their processes for electronic 
filing allow users, as applicable and when feasible, to:
    a. File documents in batches;
    b. File documents of a large enough size to encompass common 
filings;
    c. File documents in multiple file formats, except that users 
should be required to file documents in a format that cannot be 
edited, such as Portable Document Format (PDF), unless a specific 
procedure requires parties to submit documents that can be edited 
(e.g., a proposed order);
    d. Notify the agency that documents being filed contain legally 
protected or other sensitive information; and
    e. Notify the agency that documents are being filed under seal 
or in camera.
    7. Agencies without an eCMS should allow participants in an 
adjudication to file briefs, exhibits, and other documents 
electronically by emailing them to a designated agency email 
address, uploading them to a web-accessible file-hosting service, or 
transferring them to the agency using a secure file transfer 
protocol (SFTP).
    8. Agencies with an eCMS should develop tools that can be used 
to submit documents directly into the eCMS. These tools should 
require users to provide, or allow the system to capture, 
information about their submission, such as document type, purpose, 
or date, which would be stored as structured metadata in the eCMS, 
so long as it would not be confusing or burdensome for users.
    9. Agencies with an eCMS should consider developing application 
programming interfaces (APIs) that allow users, such as 
representatives, who use their own eCMS to transfer data directly 
and securely between a user's eCMS and the agency's eCMS, without 
needing to use a self-help portal as an intermediary.
    10. Agencies that have forms or templates for use in 
adjudications (e.g., applications, appointment of representative, 
hearing requests, requests for agency appellate review, subpoena 
requests) should post PDF versions of the forms or templates on 
their websites and allow users to complete, sign, and submit them 
electronically. Agencies should adapt frequently used forms as web-
based forms that users can complete and submit using a web browser. 
When feasible, web-based forms should:
    a. Be prepopulated with information about a user or case that 
the agency already has collected in an eCMS or other database; and
    b. Be based on prepopulated data and previous responses, 
requiring users to answer only questions that are relevant to them.
    11. Except when explicitly prohibited by statute, agencies 
should allow participants in adjudications to sign documents 
electronically and, as applicable, accept as valid electronic 
signatures:
    a. A form or document submitted through an agency's online self-
help portal while registered for and logged in to the portal;
    b. A cryptographic digital signature;
    c. A scanned or other graphical representation of a handwritten 
signature;
    d. A conformed signature (e.g., ``/s/Jane Doe''); and
    e. An email used to transmit the document.
    12. Agencies should consider whether to review some or all 
electronically filed documents before associating them with a case 
file. For example, agencies should ensure that documents are 
associated with the correct case file, that they comport with agency 
rules, and that they do not disclose legally protected or other 
sensitive information, such as when a party files or requests to 
file a document under seal or in camera.

Electronic Service

    13. Agencies should allow electronic service, except when 
electronic service would be impossible or impracticable or a party 
has good cause for needing alternative means of delivery.
    14. Agencies with an eCMS should provide automated service 
through notice when a document has been filed through the web 
portal.
    15. Agencies without an eCMS should allow parties to serve 
documents to other parties electronically, such as by emailing 
documents to other parties. Agencies that allow parties to submit 
documents using a file-hosting service or SFTP should ensure that 
all parties are notified when new documents become available.

Management of Sensitive Documents

    16. Agencies that redact legally protected or other sensitive 
information from documents before making them available to other 
parties or publicly available should clarify whether parties should 
submit redacted versions of documents or whether the agency will 
make the necessary redactions.

Scheduling, Notifications, and Reminders

    17. Agencies should provide an online tool for parties to 
schedule meetings, conferences, hearings, and other appointments 
efficiently and at times that are reasonably convenient for all 
participants.
    18. Agencies with an eCMS should provide automatic notifications 
or reminders to users about important events and developments, such 
as when (a) a new document has been submitted and is available to 
view; (b) an agency notice or order is available to view; (c) the 
case status changes; (d) a meeting, conference, hearing, or other 
appointment is scheduled or upcoming; and (e) a filing deadline is 
approaching. Notifications and

[[Page 42684]]

reminders should be available in an online self-service portal and 
sent by email and/or by text message, according to user preferences.

Developing and Improving Online Processes

    19. When designing and implementing online processes, especially 
before making them mandatory, agencies should consult potential 
users and relevant stakeholders, including parties, representatives, 
adjudicators and adjudicative staff, agency personnel who represent 
the government in adjudicative proceedings, and personnel who 
provide customer service or oversee customer experience functions 
for the agency. Agencies should also continuously solicit feedback 
from users on their online processes, for example through online 
surveys and listening sessions, and should use that feedback to 
identify and prioritize improvements.
    20. When designing or working with a contractor to design their 
online processes, agencies should create systems that can be 
expanded to incorporate new technologies without requiring 
replacement.
    21. Agencies should ensure that their online processes function 
on multiple platforms including, when practicable, mobile devices.

Guidance, Training, and Outreach

    22. Agencies should update their rules of practice to permit or, 
when appropriate, require the use of online processes.
    23. Agencies should develop self-help materials (e.g., 
instruction manuals, reference guides, instructional videos) and, if 
needed, hold training sessions to help agency personnel and the 
public understand how to use the agency's online processes. 
Materials intended for the public should be posted in an appropriate 
location on the agency's website and made accessible through any 
online self-help portal.
    24. Agencies should conduct public outreach if needed to 
encourage parties and representatives to use their online processes, 
even prior to making an online process mandatory.
    25. Agencies should make staff available to assist all users of 
the agency's online processes, including agency personnel, and 
should inform users when such assistance is available (e.g., during 
normal business hours).

[FR Doc. 2023-14069 Filed 6-30-23; 8:45 am]
BILLING CODE 6110-01-P