Adoption of Recommendations, 1509-1517 [2024-00302]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 89, Number 7 (Wednesday, January 10, 2024)]
[Notices]
[Pages 1509-1517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00302]


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Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / 
Notices

[[Page 1509]]



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) Eightieth Plenary Session: Best Practices for Adjudication Not 
Involving an Evidentiary Hearing, Identifying and Reducing Burdens on 
the Public in Administrative Processes, Improving Timeliness in Agency 
Adjudication, and User Fees.

FOR FURTHER INFORMATION CONTACT: For Recommendations 2023-5 and 2023-6, 
Matthew Gluth; Recommendation 2023-7, Lea Robbins; and Recommendation 
2023-8, Kazia Nowacki. 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 Eightieth Plenary 
Session on December 14, 2023, to consider four proposed recommendations 
and conduct other business. All four recommendations were adopted.
    Recommendation 2023-5, Best Practices for Adjudication Not 
Involving an Evidentiary Hearing. This recommendation examines the wide 
range of procedures that agencies use when adjudicating cases in 
programs in which there is no legally required opportunity for an 
evidentiary hearing. It offers a set of broadly applicable best 
practices that account for the diversity of matters that agencies 
decide through truly informal adjudication and promote fairness, 
accuracy, and efficiency.
    Recommendation 2023-6, Identifying and Reducing Burdens on the 
Public in Administrative Processes. This recommendation examines best 
practices, such as public engagement, that agencies can use to identify 
unnecessary burdens that members of the public face when they engage 
with administrative programs or participate in administrative 
processes. It also recommends strategies agencies can use to reduce 
unnecessary burdens, such as simplifying processes, digitizing 
services, and collaborating with other agencies and nongovernmental 
organizations.
    Recommendation 2023-7, Improving Timeliness in Agency Adjudication. 
This recommendation examines strategies--including procedural, 
technological, personnel, and other reforms--that agencies have used or 
might use to address backlogs or delays in administrative adjudication. 
It identifies best practices to help agencies devise plans to promote 
timeliness in administrative adjudication, in accord with principles of 
fairness, accuracy, and efficiency.
    Recommendation 2023-8, User Fees. This recommendation provides best 
practices for agencies and Congress to consider in designing and 
implementing user fees in administrative programs. It addresses how 
Congress and agencies might determine when user fees are appropriate; 
how agencies might determine fair and reasonable user fees for specific 
programs, including whether there are reasons for waivers, exemptions, 
or reduced rates; when and how agencies should engage with the public 
in determining or modifying user fees; and how agencies should review 
their user fee programs.
    The Conference based its recommendations on research reports and 
prior history that are posted at: https://www.acus.gov/event/80th-plenary-session.
    Authority: 5 U.S.C. 595.

    Dated: January 4, 2024.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2023-5

Best Practices for Adjudication Not Involving an Evidentiary Hearing

Adopted December 14, 2023

    Federal administrative adjudication takes many forms.\1\ Many 
adjudications include a legally required opportunity for an 
evidentiary hearing--that is, a proceeding ``at which the parties 
make evidentiary submissions and have an opportunity to rebut 
testimony and arguments made by the opposition.'' \2\ Such 
proceedings also follow the exclusive record principle, in which the 
decision maker is confined to considering ``evidence and arguments 
from the parties produced during the hearing process (as well as 
matters officially noticed) when determining factual issues.'' \3\
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    \1\ The term ``adjudication'' as used in this Recommendation 
refers to the process for formulating an order that is ``a decision 
by government officials made through an administrative process to 
resolve a claim or dispute between a private party and the 
government or between two private parties arising out of a 
government program.'' Michael Asimow, Admin. Conf. of the U.S., 
Federal Administrative Adjudication Outside the Administrative 
Procedure Act 8 (2019).
    \2\ Asimow, supra note 1, at 10.
    \3\ Asimow, supra note 1, at 10. The Administrative Conference 
has used the term ``Type A adjudications'' to refer to adjudications 
that include an opportunity for a legally required evidentiary 
hearing that is covered by the formal adjudication provisions of the 
Administrative Procedure Act (APA), 5 U.S.C. 554, 556-557. The 
Conference has used the term ``Type B adjudications'' to refer to 
adjudications that include an opportunity for a legally required 
evidentiary hearing that is not covered by the APA's formal 
adjudication provisions. See Admin. Conf. of the U.S., 
Recommendation 2016-4, Evidentiary Hearings Not Required by the 
Administrative Procedure Act, 81 FR 94314 (Dec. 23, 2016).
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    In many federal administrative adjudications, however, no 
constitutional provision, statute, regulation, or executive order 
grants parties the right to an evidentiary hearing.\4\ Proceedings 
of this type include many agency decisions regarding grants, 
licenses, or permits; immigration and naturalization; national 
security; the

[[Page 1510]]

regulation of banks and other financial matters; requests for 
records under the Freedom of Information Act; land-use requests; and 
a wide variety of other matters.\5\
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    \4\ The Conference has used the term ``Type C'' adjudication to 
refer to adjudications that are not subject to a legally required 
evidentiary hearing. See id.
    \5\ Michael Asimow, Fair Procedure in Informal Adjudication 7 
(Dec. 5, 2023) (report to the Admin. Conf. of the U.S.).
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    There are many policy reasons why adjudications might be 
conducted without a legally required opportunity for an evidentiary 
hearing, though such reasons are beyond the scope of this 
Recommendation. The stakes in disputes resolved through such 
adjudications vary widely, but whether the stakes are low or high, 
each decision matters to the parties. For those involved in or 
familiar with these adjudications, the most important factor in 
their view of government may be the way these decisions are made. 
Accordingly, decision making in such adjudications should be 
accurate, efficient, and both fair and perceived to be fair, 
regardless of the stakes involved.
    Adjudications without an evidentiary hearing differ in 
fundamental ways from those that include a legally required 
opportunity for an evidentiary hearing. In adjudications of all 
types, a decision maker conducts an investigation and issues an 
initial, preliminary, or proposed decision. In adjudications that 
include an evidentiary hearing, if the private party does not 
acquiesce in that decision, the party is entitled to an evidentiary 
hearing before a neutral decision maker who, after considering the 
evidence and arguments, issues a decision. Typically, the private 
party also can seek review of that decision within the agency, often 
by the agency head or officials exercising authority delegated by 
the agency head. By contrast, in adjudications without an 
evidentiary hearing, often the same decision maker who issued the 
initial, proposed, or preliminary decision issues the decision, 
normally after considering input from the affected party. Typically, 
that party is entitled to seek review of that decision by a 
different decision maker within the agency. These fundamental 
differences are reflected in this Recommendation.
    No uniform set of procedures applies to all adjudications 
without evidentiary hearings, nor could one be devised. Some 
characteristics are common, however. Such adjudications often allow 
for document exchanges and submission of research studies, oral 
arguments, public hearings, conferences with staff, interviews, 
negotiations, examinations, and inspections. Agencies that engage in 
such adjudications typically employ dispute resolution methodologies 
without the procedures typical of evidentiary hearings, such as the 
opportunity to cross examine witnesses, the prohibition of ex parte 
communications, the separation of adjudicative functions from 
investigative and prosecutorial functions, and the exclusive record 
principle.
    While not subject to the requirement that a decision be preceded 
by an evidentiary hearing, adjudications without evidentiary 
hearings may be subject to other legal requirements. The Due Process 
Clause of the Constitution's Fifth Amendment may require certain 
minimum procedures for such adjudications that involve 
constitutionally protected interests in life, liberty, or 
property.\6\ In addition, agencies conducting such adjudications 
typically must observe certain general provisions of the 
Administrative Procedure Act (APA)--in particular 5 U.S.C. 555 \7\ 
and 558--and are subject to other generally applicable statutes and 
regulations addressing the conduct of federal employees, rights of 
representation,\8\ ombuds,\9\ and other matters.\10\ The procedures 
employed by agencies conducting these adjudications may also be 
subject to agency-specific statutes and procedural regulations. 
Finally, judicial review is available for many such adjudications.
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    \6\ See Mathews v. Eldridge, 424 U.S. 319 (1976); Brock v. 
Roadway Express, Inc., 481 U.S. 252, 262-63 (1987) (applying Mathews 
principles in a Type C context); Goss v. Lopez, 415 U.S. 565 (1975) 
(discussing minimal procedures required for short-term suspension 
from public school).
    \7\ See PBG Corp. v. LTV Corp. 496 U.S. 633 (1990).
    \8\ See Asimow, supra note 55, at 36, for a discussion of the 
right to representation before agencies, including the right to lay 
representation under many agencies' regulations.
    \9\ See Admin. Conf. of the U.S., Recommendation 2016-5, The Use 
of Ombuds in Federal Agencies, 81 FR 94316 (Dec. 23, 2016).
    \10\ See Asimow, supra note 55, at 33.
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    Statutorily required procedures and judicial review, however, 
may be insufficient to ensure fairness, accuracy, and efficiency in 
adjudications without an evidentiary hearing. Due process, the APA, 
and other sources of law external to the agency often do not 
specifically prescribe the details of agency procedures, and 
judicial review may be unrealistic because the costs of such review 
exceed the value of the interests at stake.\11\ For these reasons, 
agency-adopted policies offer the best mechanism for establishing 
procedural protections for parties, promoting fairness and 
participant satisfaction, and facilitating the efficient and 
effective functioning of these adjudications. The public 
availability of such rules also facilitates external oversight.
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    \11\ Id. at 46.
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    This Recommendation identifies a set of best practices for 
adjudications without an evidentiary hearing and encourages agencies 
to implement them through their regulations and guidance documents. 
Many agencies conducting such adjudications already follow these 
best practices. This Recommendation recognizes that agencies 
adjudicate a wide range of matters, have different adjudicatory 
needs and available resources, and are subject to different legal 
requirements. What works best for one agency may not work for 
another. Agencies must take into account their own unique 
circumstances when implementing the best practices that follow. 
Accordingly, agencies adopting or modifying procedures for 
adjudication without an evidentiary hearing should tailor these best 
practices to their individual systems.

Recommendation

Notice of Proposed Action

    1. Agencies conducting adjudications without evidentiary 
hearings should notify parties of the initial, proposed, or 
preliminary decision, including the reasons for that decision.
    2. Such notice should provide sufficient detail and be given in 
sufficient time to allow parties to contest the initial, proposed, 
or preliminary decision and submit evidence to support their 
position. This notice should provide parties with the following 
information, when applicable:
    a. Whether the agency provides a second chance to achieve 
compliance;
    b. The manner by which the party can submit additional evidence 
and argument to influence the agency's initial, proposed, or 
preliminary decision;
    c. The amount of time before further agency action will be 
taken; and
    d. Whether and, if so, how parties may access materials in the 
agency's case file.

Opportunity To Submit Evidence and Argument

    3. Agencies should allow parties in adjudications without 
evidentiary hearings to furnish decision makers with evidence and 
arguments. Depending on the stakes involved, the types of issues 
involved, and the agency's caseload and adjudicatory resources, the 
process for furnishing evidence and argument may include written 
submissions or oral presentations and the opportunity to rebut 
adverse information. Agencies should make such opportunities 
available in a manner that permits people with disabilities and 
people with limited English proficiency to take advantage of them.
    4. If credibility issues are presented, the party should be 
permitted an opportunity to rebut adverse information.

Representation

    5. When feasible, agencies should allow participants in their 
adjudications without evidentiary hearings to be represented by a 
lawyer or a lay person with relevant expertise.
    6. Particularly for self-represented parties, agencies should 
not prevent participants in their adjudications without evidentiary 
hearings from obtaining assistance or support from friends, family 
members, or other individuals in presenting their case.
    7. Agencies should make their proceedings as accessible as 
possible to self-represented parties by providing plain-language 
resources, such as frequently asked questions (FAQs), and other 
appropriate assistance, such as offices dedicated to helping the 
public navigate agency programs.

Decision Maker Impartiality

    8. Agencies should tailor neutrality standards appropriately to 
adjudications without evidentiary hearings, which may be conducted 
by decision makers who engage in their own investigations or 
participate in investigative teams and may have prior involvement in 
the matter.
    9. Consistent with government ethics requirements, agencies 
should require the recusal of employees engaged in adjudications 
without evidentiary hearings who have financial or other conflicts 
of interest in matters they are investigating or deciding.

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    10. Agencies should require recusal of employees who reasonably 
may be viewed as not impartial.
    11. When adjudications without evidentiary hearings involve 
serious sanctions, agencies should consider adopting internal 
separation of investigative or prosecutorial functions and 
adjudicatory functions.

Statement of Reasons

    12. Agencies conducting adjudications without evidentiary 
hearings should provide oral or written statements of reasons that 
follow federal plain-language guidelines setting forth the rationale 
for the decision, including the factual and other bases for it. The 
level of detail in the statement should be consistent with the 
stakes involved in the adjudication.

Administrative Review

    13. Agencies should provide for administrative review of their 
decisions by higher-level decision makers or other reviewers unless 
it is impracticable because of high caseload, lack of available 
staff, or time constraints, or because of low stakes.

Procedural Regulations

    14. Agency regulations should specify the procedures for each 
adjudication without an evidentiary hearing the agency conducts. 
Consistent with Recommendation 92-1, The Procedural and Practice 
Rule Exemption from the APA Notice-and-Comment Rulemaking 
Requirements, agencies should voluntarily use notice-and-comment 
rulemaking for the adoption of significant procedural regulations 
unless the costs outweigh the benefits of doing so.
    15. Agencies should ensure their regulations, guidance 
documents, staff manuals, procedural instructions, and FAQs 
addressing their adjudications without evidentiary hearings follow 
federal plain-language guidelines and are easily accessible on the 
agency's website.
    16. Agencies should ensure that their notices, statements, 
procedural instructions, FAQs, and other documents that contain 
important information about their adjudications without evidentiary 
hearings are made available in languages understood by people who 
frequently appear before the agency.

Ombuds

    17. Agencies with an ombuds program should ensure that their 
ombuds are empowered to handle complaints about adjudications 
without evidentiary hearings.
    18. Agencies without an ombuds program should consider 
establishing one, particularly if their adjudications without 
evidentiary hearings have sufficient caseloads, significant stakes, 
or significant numbers of unrepresented parties. The establishment 
and standards of such programs should follow the best practices 
identified in Recommendation 2016-5, The Use of Ombuds in Federal 
Agencies.
    19. Agencies with smaller caseloads, lower stakes, or lack of 
available staff should consider sharing an ombuds program with other 
similarly situated agencies to address any resource constraints.
    20. Agencies that choose not to establish or share an ombuds 
program should provide alternative procedures for allowing parties 
to submit feedback or complaints, such as through an agency portal 
or dedicated email address.

Quality Assurance

    21. Agencies conducting adjudications without evidentiary 
hearings should establish methods for assessing and improving the 
quality of their decisions to promote accuracy, efficiency, 
fairness, the perception of fairness, and other goals relevant to 
those adjudications in accordance with Recommendation 2021-10, 
Quality Assurance Systems in Agency Adjudication. Depending on the 
caseload, stakes, and available resources, such methods may include 
formal quality assessments and informal peer review on an individual 
basis, sampling and targeted case selection on a systemic basis, and 
case management systems with data analytics and artificial 
intelligence tools.

Administrative Conference Recommendation 2023-6

Identifying and Reducing Burdens on the Public in Administrative 
Processes

Adopted December 14, 2023

    Each year, millions of people navigate administrative processes 
to access benefits and services and otherwise engage with government 
programs to help themselves and their families. These processes can 
be extraordinarily complex. Additionally, processes can vary 
significantly across and within government agencies. These 
variations can make it especially hard when members of the public 
need to access multiple programs at the same time, for example 
during key life events such as retirement, birth of a child, or 
unexpected disaster.
    Navigating these processes requires time and effort to learn 
both about programs and how to access them. Complying with these 
processes also requires significant work, such as completing forms, 
obtaining and submitting information, and possibly traveling to in-
person interviews or hearings. Efforts to comply can result in 
stress, stigma, frustration, fear, or other psychological harms. 
These costs--which may be described as learning, compliance, and 
psychological costs, respectively--can be collectively understood as 
administrative burden.\1\
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    \1\ Pamela Herd, Donald Moynihan & Amy Widman, Identifying and 
Reducing Burdens in Administrative Processes 4 (Oct. 4, 2023) 
(report to the Admin. Conf. of the U.S.). This Recommendation uses 
both ``administrative burden'' and ``administrative burdens.'' The 
singular is intended to capture the idea of burden as a theoretical 
concept; the plural reflects the fact that, in practice, burdens are 
multiple rather than singular. See Pamela Herd & Donald Moynihan, 
Administrative Burden: Policymaking by Other Means 1, 269 (2018); 
see also Burden Reduction Initiative, Off. of Info. & Regul. Affs., 
Off. of Mgmt. & Budget, Exec. Off. of the President, https://www.whitehouse.gov/omb/information-regulatory-affairs/burden-reduction-initiative (last visited Dec. 14, 2023).
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    Administrative burdens significantly affect whether and how the 
public accesses a wide range of government programs, including those 
related to veterans benefits and services, student financial aid, 
Social Security benefits, health care, disaster assistance, tax 
credits, nutrition assistance, housing assistance, and unemployment 
insurance. These burdens can be exacerbated when programs are not 
wholly administered by the federal government but in partnership 
with state, local, or tribal governments. Although some level of 
administrative burden may be necessary--to establish eligibility for 
programs with sufficient accuracy or to prevent fraud--research 
shows the cumulative effect of this burden hinders the ability of 
agencies to achieve their missions. Billions of dollars in 
government benefits go unclaimed every year,\2\ and administrative 
burdens are a key reason.\3\ Administrative burdens do not fall 
equally on all members of the public but fall disproportionately on 
certain members of historically underserved communities (including 
persons with disabilities),\4\ the elderly, persons with limited 
English proficiency, and persons with poor physical or mental 
health.\5\ Reducing administrative burden, while also taking into 
account other important public values such as program integrity, can 
make government work better for everyone.
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    \2\ Off. of Info. & Regul. Affs., Off. of Mgmt. & Budget, Exec. 
Off. of the President, Tackling the Time Tax: How the Federal 
Government is Reducing Burdens to Accessing Critical Benefits and 
Services 9 (2023).
    \3\ See Herd et al., supra note 1, at 15-17.
    \4\ Exec. Order No. 13,985, 86 FR 7009 (Jan. 20, 2021).
    \5\ Tackling the Time Tax, supra note 2, at 10; see also Herd & 
Moynihan, supra note 1, at 105, 134-135, 157-162, 264; Herd et al., 
supra note 1, at 10-12.
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    Various authorities govern how federal agencies identify and 
reduce administrative burdens. The Paperwork Reduction Act (PRA) has 
long required agencies to identify burdens associated with 
information they collect from the public and explain why those 
burdens are necessary to administer their programs.\6\ Office of 
Management and Budget (OMB) Circular A-11 emphasizes the importance 
of customer life experiences \7\ and human-centered design \8\ in 
how agencies

[[Page 1512]]

manage organizational performance to improve service delivery.
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    \6\ 44 U.S.C. 3501-3521.
    \7\ Customer life experiences are experiences that require 
members of the public to navigate government services across 
multiple programs, agencies, or levels of government. Off. of Mgmt. 
& Budget, Exec. Off. of the President, OMB Circular A-11, 
Preparation, Submission, and Execution of the Budget (2023). As 
explained in Part 6 Sec.  280.16, OMB will manage the selection of a 
limited number of customer life experiences to prioritize for 
government-wide action in line with the President's Management 
Agenda. See also Exec. Order No. 14,058, 86 FR 71357 (Dec. 16, 
2021).
    \8\ OMB Circular A-11, supra note 7, Sec.  280.1. Human-centered 
design is a technique to understand administrative process from the 
user's perspective and then use those insights to adjust processes 
to better match human capacities. Herd et al., supra note 1, at 22. 
Journey mapping is a related concept that involves documenting each 
step that an individual takes when engaging with an administrative 
process in order to better understand the process and where 
individuals struggle with it. Id.
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    While some administrative burdens are imposed by Congress or by 
state law, federal agencies have an important role to play in 
reducing the burdens they impose when administering their programs. 
Agencies employ numerous strategies to reduce those burdens, 
including simplifying processes, improving access for persons with 
limited English proficiency and persons with disabilities, expanding 
the availability of online (instead of solely in-person) processes, 
and establishing ombuds offices to assist those experiencing 
burdens.\9\ In addition, agencies have achieved success in reducing 
burdens by establishing devoted customer experience (CX) teams that 
have sufficient policy knowledge and authority within the agency to 
be effective.\10\
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    \9\ See Herd et al., supra note 1, at 28; see also Tackling the 
Time Tax, supra note 2, at 48-49; White House Legal Aid Interagency 
Roundtable, Access to Justice through Simplification (2022); Admin. 
Conf. of the U.S., Recommendation 2016-5, The Use of Ombuds in 
Federal Agencies, 81 FR 94316 (Dec. 23, 2016).
    \10\ Herd et al., supra note 1, at 26. Under Executive Order 
14,058, the term ``customer'' refers to any individual, business, or 
organization that interacts with an agency or program, and the term 
``customer experience'' refers to the public's perceptions of and 
overall satisfaction with interactions with an agency, product, or 
service. See 86 FR at 71358. This Recommendation uses the term 
``customer'' following its use in that Executive Order, 
notwithstanding the debate regarding the appropriateness of 
referring to members of the public as ``customers.'' See, e.g., Does 
DHS Really Have Customers?, U.S. Dep't of Homeland Sec., https://www.dhs.gov/news/2022/06/23/does-dhs-really-have-customers (last 
visited Dec. 14, 2023).
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    Collaboration within and between federal agencies, and between 
federal agencies and state, local, and tribal governments, is also 
essential for burden reduction. Interagency data sharing that is 
consistent with the Fair Information Practice Principles \11\ and 
all relevant law and policy, especially when used in conjunction 
with simplifying onerous processes or eliminating unnecessary ones, 
can also reduce administrative burdens.\12\ In addition to 
collaboration across the government, federal agency partnerships 
with non-governmental third parties (such as legal aid organizations 
and others) also play a crucial role in agency efforts to reduce 
burden. Third parties assist agencies by providing information about 
how processes can be improved to serve the public better and by 
directly assisting members of the public who interact with 
government programs.\13\
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    \11\ Fair Information Practice Principles (FIPPs), Fed. Priv. 
Council, Off. of Mgmt. & Budget, Exec. Off. of the President, 
https://www.fpc.gov/resources/fipps (last visited Dec. 14, 2023).
    \12\ See Herd et al., supra note 1, at 18, 29-31; see also 
Tackling the Time Tax, supra note 2, at 36, 41.
    \13\ See Herd et al., supra note 1, at 46; see also Admin. Conf. 
of the U.S. & Legal Servs. Corp., Forum, Assisting Parties in 
Federal Administrative Adjudication (2023); Admin. Conf. of the 
U.S., Recommendation 2021-9, Regulation of Representatives in Agency 
Adjudicative Proceedings, 87 FR 1721 (Jan. 12, 2022).
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    This Recommendation provides best practices for agencies to use 
in identifying and reducing unnecessary administrative burdens. 
Building on previous recommendations of the Conference,\14\ this 
Recommendation provides specific consultative techniques agencies 
should use to gather information from individual members of the 
public to gain a fuller and more accurate understanding of 
administrative burdens. The Recommendation encourages the use of 
online processes and offers other techniques to simplify and 
streamline processes and to make information about processes more 
accessible. The Recommendation also identifies broad organizational 
and collaborative tools agencies should employ in their burden 
reduction efforts, including outlining how agency leadership and 
staff \15\ should engage with burden reduction initiatives within 
their agencies and across the government. The primary focus of 
burden reduction efforts should be with those federal agencies that 
have frequent or consequential interactions with the public. The 
tools discussed are intended to reduce burdens on the public and not 
become a reporting burden on agencies for which they are less 
relevant.
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    \14\ See, e.g., Admin. Conf. of the U.S., Recommendation 2023-4, 
Online Processes in Agency Adjudication, 88 FR 42681 (July 3, 2023); 
Admin. Conf. of the U.S., Recommendation 2023-2, Virtual Public 
Engagement in Agency Rulemaking, 88 FR 42680 (July 3, 2023); 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 2019-3, Public Availability of Agency Guidance 
Documents, 84 FR 38931 (Aug. 8, 2019); Admin. Conf. of the U.S., 
Recommendation 2018-7, Public Engagement in Rulemaking, 86 FR 2146 
(Feb. 6, 2019); Admin. Conf. of the U.S., Recommendation 2017-3, 
Plain Language in Regulatory Drafting, 82 FR 61728 (Dec. 29, 2017); 
Admin. Conf. of the U.S., Recommendation 2016-6, Self-Represented 
Parties in Administrative Hearings, 81 FR 94319 (Dec. 23, 2016).
    \15\ For the purposes of this Recommendation, agency leadership 
and staff include a wide range of stakeholders such as general 
counsels, chief information officers, chief risk officers, and chief 
data officers, as well as ombuds and officials responsible for 
compliance with laws such as the Privacy Act (5 U.S.C. 552a) and the 
PRA.
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    This Recommendation also includes a recommendation directed to 
OMB that builds on OMB's prior actions directed at reducing burdens. 
It recommends that OMB provide agencies with additional guidance for 
measurement and consideration of administrative burden and forgone 
benefits and services, as well as provide additional guidance on 
agencies' consideration of the potential advantages and 
disadvantages of administrative data sharing. This guidance could 
take many forms, including written guidance or agency-specific or 
government-wide training. In addition, again building on past 
recommendations of the Conference and related implementation 
efforts,\16\ this Recommendation encourages OMB to provide agencies 
with additional guidance on the use of flexibilities under the PRA 
to conduct CX research. It also includes a recommendation to 
Congress that, when developing new legislation that establishes or 
affects administrative programs, it should provide express statutory 
authority for agencies to share data where beneficial for achieving 
the goals of the legislation.
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    \16\ See also Admin. Conf. of the U.S., Recommendation 2018-1, 
Paperwork Reduction Act Efficiencies, 83 FR 30683 (June 29, 2018); 
Admin. Conf. of the U.S., Recommendation 2012-4, Paperwork Reduction 
Act, 77 FR 47808 (Aug. 10, 2012).
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Recommendation

Burden Identification and Reduction Principles

    1. Federal agencies should seek to identify and reduce 
administrative burdens that the public faces when interacting with 
government programs.
    2. Agencies' efforts to identify and reduce burdens should take 
into account the experiences and perspectives of members of the 
public who interact with government programs.
    3. Because members of the public often interact with multiple 
government agencies and programs during key life experiences, such 
as retirement, birth of a child, or unexpected disaster, agency and 
program officials should collaborate to identify and reduce burdens 
that would predictably arise during those experiences.
    4. When undertaking efforts to identify and reduce burdens, 
agencies should consider the effects on other important public 
values, including program integrity.

Burden Identification Strategies

    5. Agencies should adopt procedures for consulting with members 
of the public who interact with government programs to better inform 
agency officials about the nature of the burdens their processes 
impose. In seeking to do so, agencies should try to identify and 
consult with those who may face disproportionate burdens in 
accessing agency programs. Agencies should employ multiple 
consultative techniques, including:
    a. Client outreach, such as surveys and focus groups;
    b. Requests for public comment;
    c. Complaint portals available on agency websites;
    d. Consultation with agency staff who work with the public, 
including agency ombuds or public advocate staff; and
    e. Consultation with nongovernmental organizations, advocacy 
groups, and other members of the private sector (such as 
representatives, program navigators who help members of the public 
engage with governmental processes, and social workers) who assist 
members of the public.
    6. To help identify burdens, agencies should use the information 
obtained through such consultation to identify the procedures 
members of the public face, and resulting burdens, at each step in 
the process.
    7. To determine agencies' authority to reduce burdens, agencies 
should trace the legal or operational source of identified burdens 
to determine whether they are imposed by statute or by regulation, 
guidance, or agency practice, at the federal or state level.
    8. Agencies should, to the extent feasible, estimate and 
quantify any learning, compliance, or psychological costs of 
interacting with their programs. These costs

[[Page 1513]]

include the time it takes to learn about programs and how to access 
them, the work it takes to comply with program requirements, and the 
stress or stigma resulting from engaging with administrative 
programs, as well as forgone benefits or services.

Burden Reduction Strategies

    9. Agencies should periodically review their administrative 
processes to identify opportunities to simplify them by, as 
appropriate:
    a. Limiting the number of steps in processes;
    b. Reducing the length of required forms;
    c. Limiting documentation requirements, where possible;
    d. Eliminating notary requirements and substituting unsworn 
statements under penalty of perjury; and
    e. Expanding access to persons with limited English proficiency 
and persons with disabilities.
    10. Agencies should allow the public to interact with government 
programs using online processes while still retaining in-person 
processes when necessary to ensure access to benefits and services. 
In particular, agencies should, when possible:
    a. Create alternatives (such as digital or telephonic 
signatures) for requirements for ``wet'' signatures;
    b. Allow members of the public to use universal logins used by 
government agencies;
    c. Allow members of the public to interact with agencies by 
telephone or video conference rather than requiring in-person 
appointments; and
    d. Make agency websites and processes accessible on mobile 
devices.
    11. When permitted by law, agencies should reduce steps members 
of the public must take to receive benefits or services by using 
information in the government's possession to determine program 
eligibility, prepopulate enrollment forms, or automatically select 
the most beneficial program options for members of the public unless 
they decide to opt out.
    12. Agencies should make information about their programs as 
easy as possible to find and understand, proactively provide 
information to members of the public about their eligibility for 
benefits and services, and allow members of the public to 
expeditiously access records pertaining to themselves when required 
for obtaining benefits and services.
    13. Agencies should timely provide information in plain language 
and, when appropriate and feasible, in multiple languages to ensure 
members of the public can understand and use the information.
    14. Agencies should increase the availability of assistance for 
members of the public interacting with their programs, beyond 
continuing to enable members of the public to rely on assistance 
from other persons such as family or friends, by:
    a. Working with legal aid organizations and others who provide 
pro bono or ``low'' bono (below market rate but not free) services 
to increase availability of representation;
    b. Establishing rules authorizing accredited or qualified 
nonlawyer representatives to practice before the agency; and
    c. Expanding the use of agency staff, including front-line 
staff, ombuds, and public advocates, as well as government-sponsored 
and -supported entities designed to help members of the public 
navigate government processes.
    15. Agencies should identify unnecessary administrative burdens 
that are required by statutes in their Supporting Statements under 
the Paperwork Reduction Act (PRA) and in their annual proposed 
legislative program submissions to the Office of Management and 
Budget (OMB) under OMB Circular A-19.

Agency Organization

    16. Political appointees, senior executives, and other agency 
leaders should prioritize burden identification strategies and 
reduction efforts, using their leadership positions to articulate 
burden reduction goals for agency staff and outline commitments for 
achieving them, particularly when such commitments require 
collaboration between agency units. Agencies should connect their 
burden reduction goals to their strategic planning and reporting 
goals under the Government Performance and Results Act.
    17. Agencies should identify whether they have particular 
programs or functions that involve interaction with the public. 
Agencies with such programs should assemble a team devoted to 
improving the experiences that these members of the public have when 
interacting with the agency, often referred to as customer 
experience (CX) teams. CX teams should have thorough knowledge of 
relevant agency programs. Senior career staff should partner with 
one or more political appointees to provide CX teams with sufficient 
authority within the agency to accomplish their goals.
    18. Agencies should include their general counsels and other 
relevant staff with statutory responsibilities related to burden 
reduction (for example, privacy officers and PRA officers) in such 
reduction efforts as early as possible in order to facilitate agency 
efforts to maximize burden reduction.

Agency Collaboration

    19. Federal agencies should expand efforts to collaborate with 
other entities to maximize burden reduction. In particular, program 
and legal staff should collaborate with their chief data officer and 
other relevant officials on ways to share data across federal 
agencies and between federal and state agencies, consistent with the 
Fair Information Practice Principles and all relevant law and 
policy, in order to:
    a. Increase outreach to members of the public who may be 
eligible for administrative programs;
    b. Reduce requirements for forms and documentation; and
    c. Under certain conditions, provide for automatic enrollment 
and renewal.
    20. Agencies should work with their chief data officers and 
other relevant officials in cross-agency working groups to share 
information about best practices for reducing burden and using data-
sharing agreements.

Roles for OMB and Congress

    21. OMB should provide agencies with additional guidance, 
potentially including models and training, to inform agency:
    a. Measurement and consideration of administrative burden and 
forgone benefits and services, such as in regulatory impact 
analyses;
    b. Examination of the potential legal or policy advantages and 
disadvantages of administrative data sharing, in particular 
providing additional positive examples of data sharing; and
    c. Use of flexibilities under the PRA to make it easier for 
agencies to conduct CX research and to improve agency service 
delivery.
    22. When developing legislation that establishes or affects 
administrative programs, Congress should provide express statutory 
authority for agencies to share data where doing so would further 
the goals of the legislation and not cause undue harm to other 
legislative purposes or critical privacy interests.

Administrative Conference Recommendation 2023-7

Improving Timeliness in Agency Adjudication

Adopted December 14, 2023

    It is often said that justice delayed is justice denied. Indeed, 
one rationale underlying the adjudication of many types of cases by 
executive branch agencies is that they often can decide them more 
quickly through administrative methods than the courts can through 
judicial methods.
    Federal agencies adjudicate millions of cases each year, 
including applications for benefits and services, applications for 
licenses and permits, and enforcement actions against persons 
suspected of violating the law. Members of the public depend on the 
timely adjudication of their cases. Delayed adjudication, especially 
given the possible added time of judicial review, can have 
significant consequences, particularly for members of historically 
underserved communities.
    The time it takes an agency to decide a case depends on, among 
other variables, the evidentiary and procedural demands of the case, 
the volume of cases pending before the agency, and the resources 
available to the agency to adjudicate cases. Many factors can affect 
these variables, such as the funds appropriated by Congress, which 
directly impact the resources that agencies can allocate to 
adjudication. Other factors include the establishment and expansion 
of programs by Congress, economic and demographic changes, trends in 
federal employment affecting agencies' ability to recruit and retain 
personnel involved in adjudication, disruptions to agency 
operations, such as the COVID-19 pandemic, and agency organizational 
structures and procedures.\1\ When delays or backlogs increase, 
agencies frequently face pressure from parties, representatives, 
Congress, the media, and others to process and decide cases more 
promptly.
---------------------------------------------------------------------------

    \1\ Jeremy S. Graboyes & Jennifer L. Selin, Improving Timeliness 
in Agency Adjudication (Dec. 11, 2023) (report to the Admin. Conf. 
of the U.S.).
---------------------------------------------------------------------------

    Agencies rely on a wide range of procedural, organizational, 
personnel,

[[Page 1514]]

technological, and other initiatives to promote timeliness and to 
respond to concerns about timeliness when they arise. The 
Administrative Conference has adopted many recommendations 
identifying specific methods that agencies have used or might use to 
improve timeliness. One of its earliest recommendations encourages 
agencies to collect and analyze case processing data to ``develop 
improved techniques fitted to [their] particular needs to reduce 
delays'' and measure the effectiveness of those techniques.\2\ Later 
recommendations address options including:
---------------------------------------------------------------------------

    \2\ Admin. Conf. of the U.S., Recommendation 69-1, Compilation 
of Statistics on Administrative Proceedings by Federal Departments 
and Agencies, 38 FR 19784 (July 23, 1973).
---------------------------------------------------------------------------

     Delegation of final decisional authority subject to 
discretionary review by the agency head; \3\
---------------------------------------------------------------------------

    \3\ Admin. Conf. of the U.S., Recommendation 68-6, Delegation of 
Final Decisional Authority Subject to Discretionary Review by the 
Agency, 38 FR 19783 (July 23, 1973); see also 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 83-3, 
Agency Structures for Review of Decisions of Presiding Officers 
Under the Administrative Procedure Act, 48 FR 57461 (Dec. 30, 1983).
---------------------------------------------------------------------------

     Use of precedential decision making by appellate 
decision makers; \4\
---------------------------------------------------------------------------

    \4\ Admin. Conf. of the U.S., Recommendation 2022-4, 
Precedential Decision Making in Agency Adjudication, 88 FR 2312 
(Jan. 13, 2023).
---------------------------------------------------------------------------

     Adoption of procedures for summary judgment \5\ and 
prehearing discovery; \6\
---------------------------------------------------------------------------

    \5\ Admin. Conf. of the U.S., Recommendation 70-3, Summary 
Decision in Agency Adjudication, 38 FR 19785 (July 23, 1973).
    \6\ Admin. Conf. of the U.S., Recommendation 70-4, Discovery in 
Agency Adjudication, 38 FR 19786 (July 23, 1973).
---------------------------------------------------------------------------

     Use of a broad suite of active case management 
techniques; \7\
---------------------------------------------------------------------------

    \7\ Admin. Conf. of the U.S., Recommendation 86-7, Case 
Management as a Tool for Improving Agency Adjudication, 51 FR 46989 
(Dec. 30, 1986).
---------------------------------------------------------------------------

     Implementation of electronic case management and 
publicly accessible online processes; \8\
---------------------------------------------------------------------------

    \8\ Admin. Conf. of the U.S., Recommendation 2023-4, Online 
Processes in Agency Adjudication, 88 FR 42681 (July 3, 2023); Admin. 
Conf. of the U.S., Recommendation 2018-3, Electronic Case Management 
in Federal Administrative Adjudication, 83 FR 30686 (June 29, 2018).
---------------------------------------------------------------------------

     Establishment of quality assurance systems; \9\
---------------------------------------------------------------------------

    \9\ Admin. Conf. of the U.S., Recommendation 73-3, Quality 
Assurance Systems in the Adjudication of Claims of Entitlement to 
Benefits or Compensation, 38 FR 16840 (June 27, 1973); Admin. Conf. 
of the U.S., Recommendation 2021-10, Quality Assurance Systems in 
Agency Adjudication, 87 FR 1722 (Jan. 12, 2022).
---------------------------------------------------------------------------

     Development of reasonable time limits or step-by-step 
time goals for agency action; \10\
---------------------------------------------------------------------------

    \10\ Recommendation 86-7, supra note 7, ] 7; Admin. Conf. of the 
U.S., Recommendation 78-3, Time Limits on Agency Actions, 43 FR 
27509 (June 26, 1978).
---------------------------------------------------------------------------

     Use of alternative dispute resolution (ADR) techniques; 
\11\
---------------------------------------------------------------------------

    \11\ Admin. Conf. of the U.S., Recommendation 86-3, Agencies' 
Use of Alternative Means of Dispute Resolution, 51 FR 25643 (July 
16, 1986); see also 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 87-5, Arbitration in Federal 
Programs, 52 FR 23635 (June 24, 1987).
---------------------------------------------------------------------------

     Use of simplified or expedited procedures in 
appropriate cases; \12\
---------------------------------------------------------------------------

    \12\ Admin. Conf. of the U.S., Recommendation 90-6, Use of 
Simplified Proceedings in Enforcement Actions Before the 
Occupational Safety and Health Review Commission, 55 FR 53271 (Dec. 
28, 1990); Recommendation 86-7, supra note 7, ] 3.
---------------------------------------------------------------------------

     Use of remote hearings; \13\
---------------------------------------------------------------------------

    \13\ Admin. Conf. of the U.S., Recommendation 2021-4, Virtual 
Hearings in Agency Adjudication, 86 FR 36083 (July 8, 2021); Admin. 
Conf. of the U.S., Recommendation 2014-7, Best Practices for Using 
Video Teleconferencing for Hearings, 79 FR 75114 (Dec. 17, 2014); 
Admin. Conf. of the U.S., Recommendation 2011-4, Agency Use of Video 
Hearings: Best Practices and Possibilities for Expansion, 76 FR 
48795 (Aug. 9, 2011); Admin. Conf. of the U.S., Recommendation 86-7, 
supra note 7.
---------------------------------------------------------------------------

     Aggregation of similar claims; \14\ and
---------------------------------------------------------------------------

    \14\ Admin. Conf. of the U.S., Recommendation 2016-2, 
Aggregation of Similar Claims in Agency Adjudication, 81 FR 40260 
(June 21, 2016); Recommendation 86-7, supra note 7, ] 9.
---------------------------------------------------------------------------

     Use of personnel management strategies.\15\
---------------------------------------------------------------------------

    \15\ Recommendation 86-7, supra note 7, ] 1.
---------------------------------------------------------------------------

    These recommendations remain valuable resources for policymakers 
charged with promoting and improving timeliness in agency 
adjudication. As technologies develop, policymakers also are 
increasingly looking to artificial intelligence and other advanced 
algorithmic tools to streamline or automate time-consuming, error-
prone, or resource-intensive processes.\16\
---------------------------------------------------------------------------

    \16\ Cf. David Freeman Engstrom et al., Government by Algorithm: 
Artificial Intelligence in Federal Administrative Agencies 38, 45 
(2020) (report to the Admin. Conf. of the U.S.); Admin. Conf. of the 
U.S., Statement #20, Agency Use of Artificial Intelligence, 86 FR 
6616 (Jan. 22, 2021); see also Exec. Order No. 14,110, 88 FR 75191 
(Nov. 1, 2023).
---------------------------------------------------------------------------

    At the same time, no single method will promote timeliness at 
all agencies in all circumstances. Each agency has its own mission, 
serves different communities, adjudicates according to a distinct 
set of legal requirements, has different resources available to it, 
and faces different operational realities. Moreover, in promoting 
timely adjudication, agencies must remain sensitive to other values 
of administrative adjudication such as decisional quality, 
procedural fairness, consistency, transparency, customer service, 
and equitable treatment. Building on earlier recommendations, this 
Recommendation provides a general framework that agencies and 
Congress can use to both foster an organizational culture of 
timeliness in agency adjudication in accord with principles of 
fairness, accuracy, and efficiency and devise plans to address 
increased caseloads, delays, backlogs, and other timeliness concerns 
when they arise.

Recommendation

Information Collection

    1. Agencies should ensure their electronic or other case 
management systems are collecting data necessary for accuracy in 
monitoring and detecting changes in case processing times at all 
levels of their adjudication systems (e.g., initial level, hearing 
level, appellate review level), identify the causes of changes in 
case processing times, and devise methods to promote or improve 
timeliness without adversely affecting decisional quality, 
procedural fairness, or other objectives. Agencies should identify 
the kinds of data or records that Congress, media representatives, 
researchers, or other interested persons frequently request to 
ensure that agency personnel responsible for responding to such 
requests can do so in an efficient manner. Agencies should ensure 
that electronic or other case management systems track the following 
information:
    a. The number of proceedings of each type pending, commenced, 
and concluded during a standard reporting period (e.g., week, month, 
quarter, year) within and across different levels of their 
adjudication systems;
    b. The current status of each case pending at every level of 
their adjudication systems; and
    c. For each case, the number of days required to meet critical 
case processing milestones within and across different levels of 
their adjudication systems.
    2. To meet organizational goals and obtain information about 
expectations for adjudication timelines, agencies should communicate 
regularly with interested persons within and outside the agency. In 
addition to formal engagements, agencies should provide ongoing 
opportunities for interested persons within and outside the agency 
to provide feedback and suggestions. Methods for obtaining such 
information include:
    a. Surveys of interested persons within and outside the agency;
    b. Listening sessions and other meetings;
    c. Requests for information published in the Federal Register;
    d. Online feedback forms; and
    e. Use of ombuds.

Performance Goals and Standards

    3. Agencies should adopt organizational performance goals that 
encourage and provide clear expectations for timeliness. Performance 
goals may take several forms, including goals contained in agency 
strategic plans, guidelines establishing time limits for concluding 
cases, and policies instituting step-by-step time goals. In 
developing organizational performance goals for timeliness, agencies 
should:
    a. Use the information described in Paragraphs 1 and 2 to 
develop goals that are reasonable and objective;
    b. Encourage interested persons within and outside the agency to 
participate in the development of such goals; and
    c. Periodically reevaluate such goals to ensure they (i) 
continue to be reasonable; (ii) encourage and provide clear 
expectations for timeliness; and (iii) do not adversely affect 
decisional quality or the fairness or integrity of proceedings.
    4. When agencies use timeliness or productivity measures in 
appraising the performance of employees, as defined in 5 U.S.C. 
4301, and members of the Senior Executive Service, or in setting 
timeliness or productivity expectations for administrative law 
judges, who are not subject to performance appraisals, agencies 
should:

[[Page 1515]]

    a. Use the information described in Paragraphs 1 and 2 to 
develop measures or expectations that are reasonable and objective 
and provide clear expectations for timeliness;
    b. Encourage interested persons within and outside the agency, 
including employees to whom the measures or expectations apply, to 
participate in the development of such measures or expectations;
    c. Ensure measures or expectations reflect tasks within the 
control of individual employees;
    d. Ensure measures or expectations take into account the range 
of case types and tasks performed by individual employees as well as 
resources (e.g., staff support, technology) at their disposal;
    e. For employees who decide cases, ensure measures or 
expectations do not lead them to decide cases in a particular way;
    f. For all employees, ensure measures or expectations do not 
lead them to take actions that would adversely affect decisional 
quality or the fairness or integrity of proceedings; and
    g. Periodically reevaluate such measures or expectations.

Organizational, Procedural, Technological, and Case Management 
Techniques

    The Administrative Conference has adopted many recommendations, 
listed in the Preamble, that identify organizational, procedural, 
technological, and case management techniques that agencies should 
use, in appropriate circumstances, to promote timeliness in 
adjudication or respond to increased caseloads, delays, backlogs, 
and other timeliness concerns. Agencies should also implement the 
following best practices, as appropriate:
    5. Agencies should narrow disputes and resolve cases at the 
lowest possible level of their adjudication systems and, at each 
level, use the least time- and resource-intensive processes 
available and appropriate to the circumstances, such as informal 
prehearing procedures, alternative dispute resolution, streamlined 
procedures, or decision making on the written record.
    6. As appropriate, agencies should adopt procedures for (i) 
resolving multiple cases in a single proceeding, such as the 
aggregation of similar claims; and (ii) resolving recurring legal or 
factual issues, such as precedential decision making or substantive 
rulemaking.
    7. Agencies should adopt processes for screening cases at intake 
to (i) resolve procedural issues as early as possible; (ii) identify 
cases that may be appropriate for less time- and resource-intensive 
processes, such as those described in Paragraphs 5 and 6; (iii) 
identify cases that can be resolved quickly because they are legally 
and factually straightforward; and (iv) identify cases that should 
be prioritized or expedited.
    8. Agencies should adopt procedures that standardize the 
allocation of tasks among adjudicators, managers, staff attorneys, 
and paralegal support staff.
    9. Agencies should review and update as necessary their Human 
Capital Operating Plans (5 CFR pt. 250) to ensure their hiring and 
position management needs are aligned properly with their 
operational goals for adjudication.
    10. Agencies should automate routine tasks that do not require a 
significant exercise of discretion when automation will not 
adversely affect quality or program integrity. Such tasks may 
include receiving filings and evidence, establishing new case files, 
associating records with case files, de-duplicating records, 
assigning cases to agency personnel for action, screening cases as 
described in Paragraph 7, and generating and releasing standardized 
correspondence.
    11. Agencies should outsource routine tasks that do not require 
a significant exercise of discretion--such as transcribing, scanning 
records, or mailing correspondence--when it would be more efficient 
and cost-effective for a contractor to perform them and there are no 
legal or policy reasons to assign the tasks to agency personnel 
(e.g., restrictions on access to sensitive personal or national 
security information).
    12. Agencies should adopt rules and policies that reflect best 
practices for case management, including evidentiary development, 
motions practice, intervention, extensions of time, decision 
writing, and methods for encouraging prompt action and discouraging 
undue delay by parties. At the same time, agencies should ensure 
that adjudicators, managers, and support staff have sufficient 
flexibility to manage individual cases fairly, accurately, and 
efficiently, and test alternative case management techniques that 
may reveal new best practices. Agencies should periodically 
reevaluate such rules and policies, using the information described 
in Paragraphs 1 and 2, to ensure they continue to reflect best 
practices for case management and provide relevant personnel with 
sufficient flexibility to manage individual cases and test 
alternative case management techniques.
    13. Agencies should establish organizational units, supervisory 
structures, and central and field operations that reinforce 
timeliness and facilitate appropriate communication among agency 
personnel involved in adjudication at all levels of an adjudication 
system.
    14. Agencies should update public websites and electronic case 
management systems so that they are able to handle the volume of 
current and future cases efficiently and effectively.

Strategic Planning

    15. Agencies should engage in evidence-based and transparent 
strategic planning to anticipate and address concerns about 
timeliness, including increased caseloads, delays, and backlogs. In 
undertaking such strategic planning, agencies should:
    a. Use the information described in Paragraphs 1 and 2 to 
identify case processing trends such as geographical or temporal 
variations in case intake or case processing times, assess the 
causes of timeliness concerns, and identify points at all levels of 
their adjudication systems that are causing delays;
    b. Review previous efforts to address timeliness concerns to 
understand what initiatives have been attempted and which have been 
effective;
    c. Consider a wide range of options for improving timeliness in 
the adjudication process without adversely affecting decisional 
quality, procedural fairness, program integrity, or other 
objectives. Options may include organizational, procedural, 
technological, case management, and other techniques, including 
those identified in previous Conference recommendations and 
Paragraphs 5-14;
    d. Engage in candid discussions with adjudicators, managers, and 
support staff at all levels of their adjudication systems, as well 
as interested persons outside the agency, regarding the benefits, 
costs, and risks associated with different options for improving 
timeliness;
    e. Develop proposed plans for addressing timeliness concerns, 
and solicit feedback on the plans from interested persons within and 
outside of the agency;
    f. Consider pilot studies and demonstration projects before 
implementing interventions broadly to test the effectiveness of 
different interventions and identify unintended consequences; and
    g. Designate a senior official responsible for coordinating the 
activities described in this Paragraph.

Coordination and Collaboration

    16. Agencies should facilitate communication between components 
involved in their adjudication systems and other components that 
carry out functions necessary for timely adjudication, such as those 
that oversee information technology, human resources, budget 
planning, office space, and procurement.
    17. Agencies should coordinate, as appropriate, with the 
President and Congress by providing information on recommended 
legislative changes and appropriations that would promote timeliness 
generally or address ongoing timeliness concerns.
    18. Agencies should partner with federal entities such as the 
Chief Information Officers Council, the U.S. Digital Service, the 
General Services Administration, and the Office of Personnel 
Management to develop and implement best practices for leveraging 
information technology, human capital, and other resources to 
promote or improve timeliness.
    19. Unless precluded by law or otherwise inappropriate, agencies 
should share information with each other about their experiences 
with and practices for promoting timeliness generally and addressing 
ongoing timeliness concerns. The Office of the Chair of the 
Administrative Conference should provide for the interchange of such 
information, as authorized by 5 U.S.C. 594(2).
    20. Agencies should develop partnerships with relevant legal 
service providers, other nongovernmental organizations, and state 
and local government agencies that advocate for or provide 
assistance to individuals who participate as parties in agency 
adjudications.
    21. Agencies should make informational materials available to 
adjudicators, managers, staff attorneys, and paralegal support 
staff. Agencies should conduct regular training sessions for such 
personnel on best practices for fair, accurate, and efficient case 
management.

[[Page 1516]]

Communication and Transparency

    22. Agencies should provide parties and representatives with 
resources to help them navigate their adjudication systems, 
understand procedural alternatives that may expedite decision making 
in appropriate cases, and learn about best practices for efficient 
and effective advocacy before the agency. Such resources may include 
informational materials (e.g., documents written in plain language 
and available in languages other than English, short videos, 
decision trees, and visualizations), navigator programs, and 
counseling for self-represented parties.
    23. As early as possible and at key points throughout the 
adjudication process, agencies should provide self-represented 
parties with plain-language materials informing them of (i) their 
right to be represented by an attorney or qualified nonlawyer legal 
service provider; (ii) potential benefits of representation; and 
(iii) options for obtaining representation.
    24. Agencies should publicly identify case management priorities 
and procedures that have been adopted to improve timeliness and may 
result in parties' cases being identified for aggregation, 
expedition, or similar alternative techniques.
    25. Agencies should publicly disclose (i) average processing 
times and aggregate processing data for claims pending, commenced, 
and concluded during a standard reporting period; (ii) any deadlines 
or processing goals for adjudicating cases; and (iii) information 
about the agency's plans for and progress in addressing timeliness 
concerns. Agencies should consider whether and to what extent they 
should disclose such information pertaining to agency subcomponents.
    26. When agencies use timeliness or productivity measures in 
appraising the performance of employees, as defined in 5 U.S.C. 
4301, and members of the Senior Executive Service, or in setting 
timeliness or productivity expectations for administrative law 
judges, who are not subject to performance appraisals, they should 
disclose such measures or expectations publicly and explain how they 
were developed. For employees who are subject to performance 
appraisal, agencies should disclose publicly (i) how they use such 
measures to appraise employees, and (ii) whether employees are 
eligible for incentive awards based on timeliness or productivity.

Consideration for Congress

    27. As set forth in Recommendation 78-3, Time Limits on Agency 
Actions, Congress ordinarily should not impose statutory time limits 
on agency adjudication. If Congress does consider imposing time 
limits on adjudication by a particular agency, it should first seek 
information from the agency and interested persons. If Congress does 
decide to impose time limits, it should do so only after determining 
that the benefits of such limits outweigh the costs. If Congress 
then decides time limits are necessary or warranted, it should 
require agencies to adopt reasonable time limits or, in rare 
circumstances, impose such limits itself. In setting any statutory 
time limits, Congress should:
    a. Recognize that preexisting statutory or regulatory frameworks 
or special circumstances (e.g., a sudden substantial increase in an 
agency's caseload or the complexity of the issues in a particular 
case) may justify an agency's failure to conclude a case within the 
proposed statutory time limit;
    b. State expressly what should occur if the agency does not meet 
its statutory deadline;
    c. State expressly whether affected persons may or may not 
enforce the time limit through judicial action and, if so, the 
nature of the relief available for this purpose; and
    d. Consider the need to increase agency resources to enable the 
agency to meet its statutory deadline.

Administrative Conference Recommendation 2023-8

User Fees

Adopted December 14, 2023

    Federal agencies charge user fees as part of many programs. For 
purposes of this Recommendation, a federal agency ``user fee'' is 
(1) any fee assessed by an agency for a good or service that the 
agency provides to the party paying the fee, as well as (2) any fee 
collected by an agency from an entity engaged in, or seeking to 
engage in, activity regulated by the agency, either to support a 
specific regulatory service provided to that entity or to support a 
regulatory program that at least in part benefits the entity.\1\ 
User fees serve many purposes, for example, to shift the costs of a 
program from taxpayers to those persons or entities whom the program 
directly benefits, to supplement general revenue, or to incentivize 
or discourage certain behavior.
---------------------------------------------------------------------------

    \1\ Erika Lietzan, User Fee Programs: Design Choices and 
Processes 6 (Nov. 9, 2023) (report to the Admin. Conf. of the U.S.).
---------------------------------------------------------------------------

    Agencies have assessed user fees since this country was founded. 
In 1952, Congress enacted the Independent Offices Appropriations Act 
(IOAA), giving agencies broad authority to charge user fees in 
connection with specific goods or services that benefit identifiable 
persons or entities.\2\ The Bureau of the Budget, the predecessor to 
the Office of Management and Budget (OMB), issued Circular A-25 in 
1959 to implement the IOAA. Since 1982, when the President's Private 
Sector Survey on Cost Control urged expanded application of user 
fees, Congress and agencies increasingly have relied on user fees, 
instead of or in addition to general revenue, to fund federal 
programs.
---------------------------------------------------------------------------

    \2\ 31 U.S.C. 9701.
---------------------------------------------------------------------------

    In 1987, the Administrative Conference adopted Recommendation 
87-4, User Fees, which identified basic principles for Congress and 
agencies to consider in establishing user fee programs and setting 
fee levels. Recommendation 87-4 stated that a ``government service 
for which a user fee is charged should directly benefit fee 
payers.'' It also identified principles intended to allocate 
government goods and services efficiently and fairly.\3\
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    \3\ 52 FR 23634 (June 24, 1987).
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    There have been significant developments since ACUS last 
addressed this topic in 1987. Congress and agencies have continued 
to expand the collection of and reliance on user fees,\4\ and OMB 
revised Circular A-25 in 2017 to update federal policy regarding 
fees assessed for government services, resources, and goods; provide 
information on which activities are subject to user fees and the 
basis for setting user fees; and provide guidance for implementing 
and collecting user fees.
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    \4\ See Lietzan, supra note 1, at 3.
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    Today, user fee programs serve many purposes and vary 
significantly in their design. Some are established by a specific 
statute. Such statutes may specify the fee amount, provide a formula 
for calculating fees, or prescribe a standard for the agency to use 
in establishing reasonable fees (e.g., full or partial cost 
recovery). Some statutory authorizations are permanent, while others 
sunset and require periodic reauthorization. Other programs are 
established by agencies on their own initiative under the IOAA or 
other authority. Some fees are transactional, while others are paid 
on a periodic basis. Some fees are set to achieve economic 
efficiency, while others are set to advance other values, goals, and 
priorities. Other statutes impose requirements that apply to a user 
fees program unless Congress specifies otherwise; one example is the 
Miscellaneous Receipts Act, which requires that money received by 
the government from any source be deposited into the U.S. 
Treasury.\5\
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    \5\ 31 U.S.C. 3302.
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    When designing user fee programs, Congress and agencies must 
also consider possible negative consequences such as the potential 
for fees to adversely affect the quality of agency decision making 
or its appearance of impartiality; their potential to affect the 
behavior of private persons and entities in unintended ways; the 
impact of the fees on low-income people, members of historically 
underserved communities, and small businesses and other small 
entities; the agency's revenue stability; and congressional 
oversight. The Conference consistently has emphasized the potential 
for public engagement to help policymakers obtain more comprehensive 
information, enhance the legitimacy of their decisions, and increase 
public support for their decisions.\6\
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    \6\ Cf. Admin. Conf. of the U.S., Recommendation 2018-7, Public 
Engagement in Agency Rulemaking, 84 FR 2146 (Feb. 6, 2019); see also 
Admin. Conf. of the U.S., Office of the Chair, Statement of 
Principles for Public Engagement in Agency Rulemaking (rev. Sept. 1, 
2023); Admin. Conf. of the U.S., Recommendation 2023-2, Virtual 
Public Engagement in Agency Rulemaking, 88 FR 42680 (July 3, 2023); 
Admin. Conf. of the U.S., Recommendation 2021-3, Early Input on 
Regulatory Alternatives, 86 FR 36082 (July 8, 2021).
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    Given expanded reliance on user fees, the development of new 
models for user fee programs, and updated guidance on user fees from 
OMB, the Conference decided to revisit the subject. This 
Recommendation represents the Conference's current views on the 
objectives, design, and implementation of user fee programs by 
Congress and agencies, and supplements and updates Recommendation 
87-4.\7\
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    \7\ This Recommendation does not address what constitutional 
limits, if any, may apply to fee-supported agency activities even 
when congressionally approved.

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[[Page 1517]]

Recommendation

General Considerations

    1. In creating or modifying user fees, Congress or agencies, as 
appropriate, should identify the purpose(s) of an agency's user fee 
program, such as shifting the costs of a program from taxpayers to 
those persons or entities whom the program benefits, supplementing 
general revenue, or incentivizing or discouraging certain behavior. 
Congress or agencies also should consider whether or not there are 
reasons for waivers, exemptions, or reduced rates.
    2. When establishing a user fee-funded program, especially one 
with a novel fee structure and one that collects fees from regulated 
entities, Congress or agencies, as appropriate, should consider 
whether any feature of the program might inappropriately affect or 
be perceived as inappropriately affecting agency decision making and 
whether any steps should be taken to mitigate those effects.
    3. Congress or agencies, as appropriate, should consider whether 
a user fee may have a negative or beneficial effect on the behavior 
of individuals and entities subject to that fee. Congress or 
agencies also should consider whether the user fee might have other 
public benefits, such as promoting equity, reducing barriers to 
market entry, incentivizing desirable behavior, or producing some 
other socially beneficial outcome, or might have other public costs. 
Congress or agencies, as appropriate, should set forth procedures 
for waiving or reducing user fees that would cause undue hardship 
for low-income individuals, members of historically underserved 
communities, small businesses, and other small entities.
    4. Congress or agencies, as appropriate, should ensure user fees 
are not disproportionate in relation to government costs or to the 
benefits that users receive.

Considerations for Congress

    5. When Congress enacts a specific statute, separate from the 
Independent Offices Appropriations Act, authorizing an agency to 
collect user fees, it should specify, as applicable:
    a. The manner for setting fee levels. Congress should either 
determine the amount of the fee, with or without adjustment for 
inflation, set a formula for calculating it, or alternatively give 
the agency discretion to determine the appropriate fee (e.g., to 
achieve a particular purpose or to recover some or all of the costs 
of providing a good or service or administering a program);
    b. Any circumstances in which the agency may or must charge a 
fee or, conversely, may or must waive or reduce the fee amount. 
Congress should determine whether it is appropriate to reduce or 
eliminate fees for certain individuals or entities to promote 
equity, reduce barriers to market entry, incentivize desirable 
behavior, or produce some other socially beneficial outcome;
    c. Any required minimum process for setting or modifying fees, 
either through the notice-and-comment rulemaking process set forth 
in 5 U.S.C. 553 or an alternative process, including requirements 
for public engagement;
    d. Any authorizations, limitations, or prescriptions pertaining 
to the manner in which the agency may collect fees;
    e. Any required process for enforcing the obligation to pay user 
fees and any penalties for failure to pay required fees, including 
interest (specifying rates);
    f. The availability of collected fees. Congress should determine 
whether or not the fees collected by the agency should be deposited 
in the U.S. Treasury, consistent with the Miscellaneous Receipts 
Act, 31 U.S.C. 3302, and made available to the agency only after 
appropriation;
    g. The period during which the agency may expend collected fees. 
Should Congress determine that, for reasons of revenue stability, 
collected fees should remain available to the agency, it should 
consider, for reasons of oversight, whether they should only be 
available for a limited period or subject to other requirements or 
limitations;
    h. Any authorizations or prescriptions for the uses for which 
the agency may expend collected fees;
    i. Any requirement that the agency periodically review its user 
fees and any required method(s) for doing so (e.g., comparing fee 
amounts with corresponding costs or recalculating fees based on new 
developments and information); and
    j. Whether the authority granted under the statute sunsets.
    6. Whenever Congress decides to create a new statutory user fee 
program, it should reach out to relevant agencies for technical 
assistance early in the legislative drafting process and it should 
consider input from interested persons.
    7. Congress should maintain oversight of agencies that operate 
user fee programs, such as through the appropriations process or 
authorizing legislation that specifies the purpose, time, and 
availability for money collected through user fee programs.

Considerations for Agencies

    8. When an agency establishes a new user fee program or sets 
fees under an existing program, it should follow the rulemaking 
requirements of 5 U.S.C. 553 unless Congress has specified 
otherwise. In engaging with interested members of the public, 
agencies should follow the best practices suggested in 
Recommendations 2018-7, Public Engagement in Rulemaking, 2021-3, 
Early Input on Regulatory Alternatives, and 2023-2, Virtual Public 
Engagement in Agency Rulemaking.
    9. Agencies should communicate clearly to the public the 
purpose(s) of their user fee programs, the nature of the fee setting 
process, and the uses for which the agency expends collected fees. 
Agencies also should be transparent with and engage the public when 
conducting activities that may affect the design of their user fee 
programs or the level of their fees, for instance by inviting public 
participation at early stages such as during cost and demand 
forecasting and budget formulation.
    10. Agencies should maintain an easy-to-find page on their 
websites describing their user fee-funded programs, identifying and 
explaining the fees, describing any waivers or exemptions available, 
identifying the uses for which the agency expends collected fees, 
and providing links to supporting resources, such as the governing 
sections of the United States Code and the Code of Federal 
Regulations, and recent notices in the Federal Register.
    11. Agencies should conduct regular reviews, consistent with 
Recommendation 2021-2, Periodic Retrospective Review, of their user 
fee programs to ensure the programs are meeting their purposes and 
that the fee levels are appropriate. Agencies also should assess 
other resulting consequences or effects of the programs, such as 
those described in Paragraphs 2, 3, and 4.

[FR Doc. 2024-00302 Filed 1-9-24; 8:45 am]
BILLING CODE 6110-01-P