Adoption of Recommendations, 56276-56286 [2024-14981]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Notices]
[Pages 56276-56286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14981]


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Federal Register / Vol. 89, No. 131 / Tuesday, July 9, 2024 / 
Notices

[[Page 56276]]



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) Eighty-first Plenary Session: Choice of Forum for Judicial 
Review of Agency Rules, Individualized Guidance, Senate-Confirmed 
Officials and Administrative Adjudication, and Managing Congressional 
Constituent Service Inquiries.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2024-1, Kazia 
Nowacki; Recommendation 2024-2, Benjamin Birkhill; Recommendation 2024-
3, Matthew Gluth; and Recommendation 2024-4, Conrad Dryland. 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 Eighty-first Plenary 
Session on June 13, 2024, to consider four proposed recommendations and 
conduct other business. All four recommendations were adopted. In 
addition, three separate statements, which are permitted under ACUS's 
bylaws, were filed by various ACUS members regarding Recommendation 
2024-3, Senate-Confirmed Officials and Administrative Adjudication.
    Recommendation 2024-1, Choice of Forum for Judicial Review of 
Agency Rules. This recommendation provides that, when drafting a 
statute that provides for judicial review of agency rules, Congress 
ordinarily should provide that rules promulgated using notice-and-
comment procedures are subject to direct review by a court of appeals. 
The recommendation also identifies common statutory ambiguities that 
Congress should avoid in drafting new or amending existing statutes 
that provide for judicial review of agency actions.
    Recommendation 2024-2, Individualized Guidance. This recommendation 
offers practices to promote fairness, accuracy, and efficiency in 
agency processes for providing written guidance in response to requests 
for advice from members of the public. Among other topics, it will 
address processes for members of the public to request guidance from 
agencies; agency practices for drafting responses to guidance requests, 
including the personnel involved and mechanisms to ensure accuracy and 
consistency; the public availability of individualized guidance 
documents; and the extent to which members of the public can rely on 
legal interpretations and policy statements made in individualized 
guidance documents.
    Recommendation 2024-3, Senate-Confirmed Officials and 
Administrative Adjudication. This recommendation examines, as a legal 
and practical matter, whether, when, how, and how often agency heads 
and other Senate-confirmed officials participate in the adjudication of 
cases across a range of federal administrative programs. For agencies 
that have decided to provide or are considering providing for 
participation by Senate-confirmed officials in the adjudication of 
individual cases, the recommendation identifies principles and 
practicalities that agencies should consider in structuring such 
participation and provides best practices for developing and 
communicating relevant policies regarding such participation.
    Recommendation 2024-4, Managing Congressional Constituent Service 
Inquiries. This recommendation identifies best practices for agencies 
to promote quality, efficiency, and timeliness in their procedures for 
managing and responding to congressional constituent service inquiries. 
Among other topics, it addresses the proper scope, content, internal 
dissemination, and public availability of such procedures; how agencies 
can use technology to streamline their management and resolution of 
constituent service inquiries; how agencies should adopt and evaluate 
constituent service-specific performance goals; and strategies for 
improving communication with congressional offices and staff.
    The Conference based its recommendations on research reports and 
prior history that are posted at: https://www.acus.gov/event/81st-plenary-session.
    Authority: 5 U.S.C. 595.

    Dated: July 2, 2024.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2024-1

Choice of Forum for Judicial Review of Agency Rules

Adopted June 13, 2024

    Final rules adopted by federal agencies are generally subject to 
review in the federal courts.\1\ In a series of recommendations 
adopted in the 1970s, 1980s, and 1990s, the Administrative 
Conference sought to identify principles to guide Congress in 
choosing the appropriate forum for judicial review of agency rules. 
The most significant was Recommendation 75-3, The Choice of Forum 
for Judicial Review of Administrative Action, which recommended 
that, in the case of rules adopted after notice and comment, 
Congress

[[Page 56277]]

generally should provide for direct review in the courts of appeals 
whenever ``an initial district court decision respecting the 
validity of the rule will ordinarily be appealed'' or ``the public 
interest requires prompt, authoritative determination of the 
validity of the rule.'' \2\ Subsequent recommendations opposed 
altering the ordinary rules governing venue in district court 
actions against the United States,\3\ set forth a principle for 
determining when it is appropriate to give the Court of Appeals for 
the District of Columbia Circuit exclusive jurisdiction to review 
agency rules,\4\ and offered guidance to Congress on the factors it 
should consider in determining whether to assign responsibility for 
review to a specialized court.\5\ The Conference also addressed the 
choice of forum for judicial review of rules adopted under specific 
statutes.\6\
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    \1\ See 5 U.S.C. 702. This Recommendation does not address 
judicial review of adjudicative orders, including those that 
announce principles with rule-like effect or agency actions 
regarding petitions for rulemaking. Additionally, the Recommendation 
does not address suits challenging agency delay or inaction in 
promulgating rules. See Telecomms. Rsch. & Action Ctr. v. Fed. 
Commc'ns Comm'n, 750 F.2d 70, 72 (D.C. Cir. 1984); see generally 
Joseph W. Mead, Choice of Forum for Judicial Review of Agency Rules 
(May 9, 2024) (report to the Admin. Conf. of the U.S.).
    \2\ 40 FR 27926 (July 2, 1975).
    \3\ Admin. Conf. of the U.S., Recommendation 82-3, Federal Venue 
Provisions Applicable to Suits Against the Government, 47 FR 30706 
(July 15, 1982).
    \4\ Id.
    \5\ Admin. Conf. of the U.S., Recommendation 91-9, Specialized 
Review of Administrative Action, 56 FR 67143 (Dec. 30, 1991).
    \6\ Admin. Conf. of the U.S., Recommendation 76-4, Judicial 
Review Under the Clean Air Act and Federal Water Pollution Control 
Act, 41 FR 56767 (Dec. 30, 1976); Admin. Conf. of the U.S., 
Recommendation 91-5, Facilitating the Use of Rulemaking by the 
National Labor Relations Board, 56 FR 33851 (July 24, 1991).
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    Several years ago, the Conference undertook a study to identify 
and review all statutory provisions in the United States Code 
governing judicial review of federal agency rules and adjudicative 
orders.\7\ Based on that initiative, ACUS adopted Recommendation 
2021-5, Clarifying Statutory Access to Judicial Review of Agency 
Action,\8\ which recommended that Congress address statutory 
provisions that create unnecessary obstacles to judicial review or 
overly complicate the process of judicial review. That 
Recommendation also prompted questions regarding ``whether Congress 
should specify where judicial review should be sought with regard to 
agency actions that are not currently the subject of any specific 
judicial review statute.'' \9\
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    \7\ See Jonathan R. Siegel, Admin. Conf. of the U.S., Sourcebook 
of Federal Judicial Review Statutes 33 (2021).
    \8\ 86 FR 53262 (Sept. 27, 2021).
    \9\ Id. at 53,262 n.7.
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    In this Recommendation, the Conference revisits the principles 
that should guide Congress in choosing the appropriate forum for 
judicial review of agency rules and in drafting clear provisions 
that govern the choice of forum. While this Recommendation offers 
drafting advice to Congress, agencies may also find it useful in 
responding to congressional requests for technical assistance.\10\
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    \10\ See Admin. Conf. of the U.S., Recommendation 2015-2, 
Technical Assistance by Federal Agencies in the Legislative Process, 
80 FR 78161 (Dec. 16, 2015).
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Determining the Court in Which To Seek Review

    Absent a statute providing otherwise, parties may seek judicial 
review of agency rules in a district court. Although this approach 
may be appropriate in some contexts, direct review by a court of 
appeals is often more appropriate. For one, district court 
proceedings are less necessary when an agency has already compiled 
an administrative record that is adequate for judicial review and 
further appeal of a district-court decision is likely. Allowing 
parties to choose the district court in which to seek review also 
creates opportunities for forum shopping to a greater extent than 
when review is sought in a court of appeals.\11\ For these and other 
reasons, Congress has in many contexts provided for direct review of 
agency rules in the courts of appeals. And in a minority of 
statutes, Congress has required parties to seek review in a single, 
specified tribunal.
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    \11\ See Mead, supra note 1; Admin. Conf. of the U.S., 
Recommendation 80-5, Eliminating or Simplifying the ``Race to the 
Courthouse'' in Appeals from Agency Action, 45 FR 84954 (Dec. 24, 
1980).
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    In this Recommendation, the Conference generally reaffirms its 
earlier recommendations that Congress ordinarily should provide for 
direct review of agency rules by a court of appeals. The Conference 
believes that this principle is particularly important for rules 
promulgated through public notice and opportunity for comment. Such 
procedures produce a record that is conducive to review by an 
appeals court without need for additional development or 
factfinding, and drawing the line at rules promulgated after public 
notice and opportunity for comment provides a relatively clear 
jurisdictional rule.

Avoiding Drafting Ambiguities

    Courts have faced two sources of ambiguity in interpreting 
choice-of-forum provisions which this Recommendation addresses.\12\ 
First, some statutes specify the forum for review of ``orders'' 
without specifying the forum for review of ``rules'' or 
``regulations.'' This can lead to uncertainty regarding whether 
``orders'' includes rules, particularly because the Administrative 
Procedure Act defines an ``order'' as any agency action other than a 
rule.\13\ Second, some statutes are unclear as to the forum in which 
a party may file an action challenging the validity of a rule. A 
lack of clarity may result from statutory silence or a choice-of-
forum provision of uncertain scope.
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    \12\ The Committee on Judicial Review, from which this 
Recommendation arose, identified a third source of ambiguity: Many 
statutes are unclear as to whether choice-of-forum provisions 
regarding rules apply only to rules promulgated by an agency or 
whether they apply also to other rule-related actions such as delay 
or inaction in promulgating a rule or the grant or denial of a 
petition for rulemaking. This Recommendation does not address this 
ambiguity. The Committee on Judicial Review has suggested it for 
future study by the Conference.
    \13\ 5 U.S.C. 551(6).
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    This Recommendation urges Congress, in drafting new or amending 
existing provisions governing the choice of forum for the review of 
rules,\14\ to avoid using the term ``orders'' to encompass rules; to 
state clearly the forum in which judicial review of rules is 
available; and to state clearly whether such provisions apply to 
rule-related actions other than the promulgation of a rule.
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    \14\ This Recommendation provides advice to Congress in drafting 
future statutes. It should not be read to address existing statutes.
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Recommendation

    1. When drafting a statute that provides for judicial review of 
agency rules, Congress ordinarily should provide that rules 
promulgated using notice-and-comment procedures are subject to 
direct review by a court of appeals.
    2. When drafting a statute that provides for judicial review of 
agency actions, Congress should state explicitly whether actions 
taken under the statute are subject to review by a district court 
or, instead, subject to direct review by a court of appeals. If 
Congress intends to establish separate requirements for review of 
rules, as distinguished from other agency actions, it should refer 
explicitly to ``rules'' and not use the term ``orders'' to include 
rules.

Administrative Conference Recommendation 2024-2

Individualized Guidance

Adopted June 13, 2024

    Agencies provide written guidance to help explain their programs 
and policies, announce interpretations of legal materials and how 
they intend to exercise their discretion, and communicate other 
important information to regulated entities, regulatory 
beneficiaries, and the broader public. When used appropriately, 
guidance documents--including what the Administrative Procedure Act 
(APA) calls general statements of policy and interpretive rules 
\1\--can be important instruments of administration and of great 
value to agencies and the public. The Administrative Conference has 
adopted numerous recommendations to help agencies use and develop 
guidance documents effectively and appropriately, to make them 
publicly available, and to ensure that such documents are well 
organized, up to date, and easily accessible.\2\
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    \1\ 5 U.S.C. 553(b)(A). Some agencies define or use the term 
``guidance'' to include materials that may not qualify as 
interpretive rules or policy statements under the APA. See Admin. 
Conf. of the U.S., Recommendation 2019-3, Public Availability of 
Agency Guidance Documents, 84 FR 38931 (Aug. 8, 2019).
    \2\ See, e.g., Admin. Conf. of the U.S., Recommendation 2022-3, 
Automated Legal Guidance, 87 FR 39798 (July 5, 2022); Admin. Conf. 
of the U.S., Recommendation 2021-7, Public Availability of 
Inoperative Agency Guidance Documents, 87 FR 1718 (Jan. 12, 2022); 
Recommendation 2019-3, supra note 1; Admin. Conf. of the U.S., 
Recommendation 2019-1, Agency Guidance Through Interpretive Rules, 
84 FR 38,927 (Aug. 8, 2019); Admin. Conf. of the U.S., 
Recommendation 2017-5, Agency Guidance Through Policy Statements, 82 
FR 61734 (Dec. 29, 2017); Admin. Conf. of the U.S., Recommendation 
2014-3, Guidance in the Rulemaking Process, 79 FR 35992 (June 25, 
2014); Admin. Conf. of the U.S., Recommendation 92-2, Agency Policy 
Statements, 57 FR 30103 (July 8, 1992); Admin. Conf. of the U.S., 
Recommendation 76-5, Interpretive Rules of General Applicability and 
Statements of General Policy, 41 FR 56769 (Dec. 30, 1976).

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[[Page 56278]]

    In many federal programs, individuals may request written 
guidance from an agency regarding how the law applies to a 
requester's specific circumstances.\3\ Such ``individualized 
guidance'' goes by a variety of names, including advisory opinions, 
opinion letters, and letters of interpretation.\4\ The Internal 
Revenue Service issues private letter rulings to provide tax law 
advice to taxpayers,\5\ for example, and the Securities and Exchange 
Commission issues no-action letters to provide advice regarding 
whether a product, service, or action may violate federal securities 
law.\6\ In some programs, the provision of individualized guidance 
is authorized by statute; in others, agencies offer individualized 
guidance on their own initiative as a public service.
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    \3\ This Recommendation does not cover guidance that is not 
requested by a member of the public, such as an agency warning 
letter explaining why the agency believes a regulated party is in 
violation of a law or regulation.
    \4\ This Recommendation does not attempt to situate 
individualized guidance within the APA's categories of ``rule,'' 
``order,'' ``license,'' ``sanction,'' or ``relief,'' and it does not 
seek to define agency processes for providing individualized 
guidance as ``rulemaking'' or ``adjudication.'' See 5 U.S.C. 551. 
Individualized guidance is distinguished from declaratory orders, 
which agencies may issue in the context of an adjudication to 
``terminate a controversy or remove uncertainty.'' 5 U.S.C. 554(e). 
Unlike most individualized guidance, declaratory orders are final 
agency actions and legally binding. See Admin. Conf. of the U.S., 
Recommendation 2015-3, Declaratory Orders, 80 FR 78161 (Dec. 16, 
2015).
    \5\ See Admin. Conf. of the U.S., Recommendation 75-5, Internal 
Revenue Service Procedures: Taxpayer Services and Complaints, 41 FR 
3986 (Jan. 27, 1976).
    \6\ See Admin. Conf. of the U.S., Recommendation 70-2, SEC No-
Action Letters Under Section 4 of the Securities Act of 1933, 1 ACUS 
34 (1970).
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    Agency practices vary in several key respects. Some 
individualized guidance is issued in a relatively formal manner 
(such as a signed letter on agency letterhead), while other 
individual guidance may be issued in relatively informal ways (such 
as in the body of an email).\7\ Some individualized guidance is 
reviewed and issued by agency heads or other senior officials, while 
other individualized guidance is prepared and issued by lower-level 
officials. Some individualized guidance has no legally binding 
effect on the agency or requester, while other such guidance may, 
for example, provide the requester with a defense to an agency 
enforcement action.\8\
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    \7\ This Recommendation does not address guidance provided 
orally.
    \8\ See generally Shalini Bhargava Ray, Individualized Guidance 
in the Federal Bureaucracy (June 4, 2024) (report to the Admin. 
Conf. of the U.S.).
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    Individualized guidance offers many benefits. It facilitates 
communication between an agency and requester, reduces uncertainty, 
promotes compliance, spurs useful transactions, and can be faster 
and less costly than other agency actions. For example, agencies may 
provide individualized guidance to help a regulated party better 
understand whether its conduct may be permissible, and this may 
limit the need for future enforcement action. In addition, making 
individualized guidance publicly available can inform other 
interested persons about how the agency evaluates issues that may 
affect them.
    At the same time, individualized guidance may raise concerns. 
Even if an agency does not intend to use individualized guidance to 
bind the public, requesters or others may nevertheless choose to 
follow the guidance strictly to limit the perceived risk of sanction 
in a future agency proceeding. Agencies also risk providing 
inconsistent guidance if they lack appropriate procedures for 
developing and reviewing it. In addition, some members of the public 
may lack equal access to processes for requesting individualized 
guidance or have limited opportunities to participate in processes 
for developing individualized guidance that affects them.
    These benefits can be increased, and these concerns addressed, 
through the best practices identified in this Recommendation. The 
Recommendation encourages agencies, when appropriate, to establish 
procedures for providing individualized guidance to members of the 
public. It identifies procedures agencies should use to process 
requests for such guidance fairly, efficiently, and accurately,\9\ 
and it encourages agencies to make the guidance available to agency 
personnel and the public. It cautions agencies not to treat 
individualized guidance as creating binding standards on the public 
but identifies circumstances in which agencies should consider 
allowing the public to rely on such guidance (that is, circumstances 
in which agencies should consider adhering to guidance that is 
favorable to a person in a subsequent agency proceeding despite the 
nonbinding character of the guidance). It also urges agencies to 
involve their ombuds offices in supplementing or improving guidance 
to the public.\10\ Finally, it addresses circumstances in which 
agencies should use individualized guidance to support development 
of general rules.
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    \9\ Paragraph 7(f) of this Recommendation urges agencies to 
describe any fees they charge for individualized guidance, including 
circumstances where they will waive or reduce such fees. Agencies 
should avoid charging fees for such guidance that would impose undue 
burdens on people of limited means. See Admin. Conf. of the U.S., 
Recommendation 2023-8, User Fees, ] 3, 89 FR 1516 (Jan. 10, 2024) 
(recommending that 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'').
    \10\ See also Admin. Conf. of the U.S., Recommendation 2016-5, 
The Use of Ombuds in Federal Agencies, 81 FR 94316 (Dec. 23, 2016).
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    This Recommendation recognizes the wide variation among the 
programs that agencies administer, the resources available to 
agencies, and the needs and preferences of persons with whom they 
interact. Agencies should account for these differences when 
implementing the best practices below and tailor their 
individualized guidance procedures accordingly.

Recommendation

Individualized Guidance Policies

    1. To the extent of, and in a manner consistent with, their 
resources, priorities, and missions, agencies should respond to 
requests from members of the public for written guidance by 
providing individualized written guidance regarding how the law 
applies to requesters' specific circumstances.
    2. Agencies should not treat individualized guidance as creating 
standards with which noncompliance may form an independent basis for 
action in matters that determine the rights and obligations of any 
member of the public.
    3. Agencies should develop policies regarding whether and when 
it is appropriate to allow a requester or other individual to rely 
on individualized guidance. In so doing, agencies should consider 
factors including:
    a. The applicability of constitutional, statutory, or other 
authorities mandating or prohibiting a party's entitlement to rely 
on such guidance;
    b. The accuracy and completeness of the information the 
requester provided at the time it sought the guidance;
    c. The certainty of the relevant facts and law at the time the 
agency issued the guidance;
    d. Changes in facts or law after initial issuance of the 
guidance;
    e. The formality of the agency's individualized guidance 
procedure, including the position and authority of the agency 
officials involved in developing and issuing the guidance;
    f. Whether a person other than the requester of individualized 
guidance may rely on it, which might depend on the similarity of the 
person's circumstances to the requester's circumstances; and
    g. Whether allowing reliance is necessary to prevent significant 
hardship.
    4. Agencies should explain in individualized guidance provided 
to requesters the extent to which requesters or others can rely on 
that guidance.
    5. Even if agencies do not recognize a right for persons to rely 
on individualized guidance or encourage them to do so, agencies 
should, when appropriate and lawful, minimize hardships on persons 
who nevertheless acted in conformity with the guidance, such as by 
reducing or waiving any penalty for past noncompliance or taking 
enforcement action with solely prospective effect.
    6. Agencies with ombuds offices should provide opportunities for 
members of the public to seek assistance from such offices to 
supplement individualized guidance or to resolve issues related to 
individualized guidance. Agencies should also involve such offices 
in efforts to improve agency policies and procedures related to 
individualized guidance.

Individualized Guidance Procedures

    7. Agencies should develop written procedures for requesting and 
issuing individualized guidance. Agencies should publish such 
procedures in the Federal Register and, as appropriate, codify them 
in the Code of Federal Regulations. Agencies

[[Page 56279]]

should also make the procedures publicly available on their websites 
and, if applicable, in other agency publications. The procedures 
should describe:
    a. How members of the public may submit requests for 
individualized guidance, including the office(s) or official(s) 
responsible for receiving requests;
    b. The type(s) of individualized guidance members of the public 
may request;
    c. Any matters that the agency will not address through 
individualized guidance, including the rationale for not providing 
guidance as to such matters;
    d. The information that the requester should include with the 
request for individualized guidance;
    e. Whether the agency will make individualized guidance and any 
related information (including the identity of the requester and 
information from the request) publicly available as described in 
paragraphs 10 through 13;
    f. Any fees the agency charges for providing individualized 
guidance, as well as any provisions for waivers of, exemptions from, 
or reduced rates for such fees;
    g. Any opportunities for public participation in the preparation 
of individualized guidance;
    h. The manner in which a response to a request for 
individualized guidance will be provided to the requester;
    i. To the extent practicable, the expected timeframe for 
responding to requests for individualized guidance;
    j. Whether requesters may seek review of individualized guidance 
by a higher-level official; and
    k. The agency's policy, developed as described in paragraph 3, 
regarding whether and when it is appropriate for a requester or 
other individual to rely on individualized guidance.
    8. Agencies should develop procedures for agency personnel to 
manage and process requests for individualized guidance, including:
    a. Allowing for electronic submission of, and response to, 
requests;
    b. Creating methods for identifying and tracking requests;
    c. Maintaining past responses to requests in a manner that 
allows agency personnel to identify and consider them when 
developing responses to new requests that present similar or related 
issues; and
    d. Ensuring that relevant personnel receive training in the 
agencies' individualized guidance procedures.
    9. In cases in which members of the public other than the 
requester are likely to have information relevant to the request or 
are likely to be significantly affected by the agency's action, 
agencies should consider soliciting public participation before 
issuing individualized guidance.

Public Availability of Individualized Guidance

    10. Absent substantial countervailing considerations, agencies 
should make publicly available on their websites any individualized 
guidance that affects, or may be of interest to, persons other than 
the requester, including regulated persons and regulatory 
beneficiaries.
    11. When making individualized guidance available on their 
websites, agencies should, as appropriate:
    a. Identify the date, requester, and subject matter of the 
guidance;
    b. Identify the legal authority under which the guidance was 
issued and under what circumstances other parties may rely on the 
guidance; and
    c. Use other techniques to help the public find relevant 
information, such as indexing or tagging individualized guidance by 
general topic area.
    12. When making individualized guidance publicly available, 
agencies should redact any information that is sensitive or 
otherwise protected from disclosure consistent with the Freedom of 
Information Act or other relevant information laws.
    13. Agencies should keep individualized guidance on their 
websites current. If an agency modifies or rescinds a publicly 
available individualized guidance document, it should indicate on 
the face of the document that it has been modified or rescinded and 
direct readers to any successor guidance and any explanation for the 
modification or rescission.

Accessibility of Individualized Guidance Materials

    14. Agencies that provide individualized guidance should 
maintain a page on their websites that provides easy access to the 
procedures described in Paragraph 7, all individualized guidance 
that they make publicly available as described in paragraphs 10 
through 13, and information about electronically submitting a 
request for individualized guidance.

Use of Individualized Guidance in Aid of General Rulemaking

    15. Agencies should periodically review individualized guidance 
to identify matters that may warrant the development of a general 
rule.

Administrative Conference Recommendation 2024-3

Senate-Confirmed Officials and Administrative Adjudication

Adopted June 13, 2024

    Tens of thousands of federal agency officials participate in 
administrative adjudication. Most are members of the career civil 
service hired and supervised under the civil service laws. Several 
thousand, like administrative law judges (ALJs) and some 
administrative judges, are appointed by a department head.\1\ Some, 
like many agency heads, are appointed by the President with the 
advice and consent of the Senate. It is to such ``PAS'' officials 
that federal laws typically assign authority to adjudicate matters, 
and it is PAS officials who--by rule, delegation of authority, and 
the development of norms, practices, and organizational cultures--
work with career civil servants and other officials to structure 
systems of administrative adjudication and oversee their operation, 
ensuring some measure of political accountability.
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    \1\ See Lucia v. SEC, 585 U.S. 237 (2018). Under the 
Constitution's Appointments Clause, art. II section 2, cl. 2, 
``Officers of the United States'' must be appointed through 
presidential nomination and Senate confirmation, except that 
``Congress may by Law vest the Appointment of such inferior 
Officers, as they think proper, in the President alone, in the 
Courts of Law, or in the Heads of Departments.''
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    PAS officials often participate indirectly and directly in 
administrative adjudication. Indirectly, they may establish agency 
subunits and positions responsible for adjudicating cases. They may 
appoint and supervise adjudicators,\2\ and they may appoint and 
supervise, or oversee the appointment and supervision of, other 
adjudicative personnel. PAS officials may coordinate with the 
President and Congress to help ensure that adjudicative subunits 
have the resources they need to adjudicate cases in a fair, 
accurate, consistent, efficient, and timely manner.\3\ PAS officials 
may also establish rules of procedure and practice to structure 
administrative adjudication,\4\ and they may develop substantive 
rules that supply the law in adjudications.
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    \2\ See Lucia, 585 U.S. at 251 (holding that administrative law 
judges employed by the Securities and Exchange Commission are 
``Officers of the United States'' and must be appointed in 
accordance with the Appointments Clause).
    \3\ See Admin. Conf. of the U.S., Recommendation 2023-7, 
Improving Timeliness in Agency Adjudication, 89 FR 1513 (Jan. 10, 
2024); Admin. Conf. of the U.S., Recommendation 2021-10, Quality 
Assurance Systems in Agency Adjudication, 87 FR 1722 (Jan. 12, 
2022).
    \4\ See, e.g., Admin. Conf. of the U.S., Recommendation 2018-5, 
Public Availability of Adjudication Rules, 84 FR 2142 (Feb. 6, 
2019); see also Admin. Conf. of the U.S., Recommendation 2023-5, 
Best Practices for Adjudication Not Involving an Evidentiary 
Hearing, 89 FR 1509 (Jan. 10, 2024); 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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    Additionally, PAS officials may participate directly in 
administrative adjudication, serving as the final, executive-branch 
decision makers in cases arising under the statutes they 
administer.\5\ Although questions regarding whether, when, and how 
PAS officials participate directly in the adjudication of cases are 
not new, they have gained new salience in recent years. Most 
notably, in United States v. Arthrex \6\ the Supreme Court held that 
a statute providing for the administrative resolution of certain 
patent disputes violated the Constitution's Appointments Clause by 
vesting final decisional authority in adjudicators in the U.S. 
Patent and Trademark Office's Patent Trial and Appeal Board, whose 
members are neither PAS officials nor subject to at-will removal. 
The Court remedied the violation by holding unenforceable the 
statutory prohibition on the authority of a PAS official, the 
Director of the U.S. Patent and Trademark Office, to review the 
Board's decisions.
---------------------------------------------------------------------------

    \5\ See Admin. Conf. of the U.S., Recommendation 2020-3, Agency 
Appellate Systems, 86 FR 6618 (Jan. 22, 2021).
    \6\ 594 U.S. 1 (2021).
---------------------------------------------------------------------------

    While Congress has for some programs determined by statute 
whether, when, and how PAS officials participate directly in the 
adjudication of cases, for many programs Congress has given agencies 
the discretion to

[[Page 56280]]

develop procedures and practices that are effective and appropriate 
for the specific programs they administer. This Recommendation 
provides a framework to help agencies develop effective procedures 
and practices, when required or appropriate, for direct 
participation by PAS officials in the adjudication of individual 
cases.
    It does not address whether Congress or agencies should, for 
constitutional or other reasons, provide for direct participation by 
PAS officials in the adjudication of individual cases under specific 
programs. Nor does this recommendation address the broader question 
of whether and when agencies should develop policies through 
rulemaking, adjudication, setting enforcement priorities, or other 
means. Of course, Congress and agencies must pay careful attention 
to such questions and ensure that laws, rules, and policies comport 
with applicable legal requirements.
    To develop effective and appropriate procedures and practices, 
agencies must consider, in addition to applicable constitutional and 
statutory requirements, the characteristics of PAS officials and the 
potential consequences of such characteristics for fair, accurate, 
consistent, efficient, and timely adjudication. While there is wide 
variation among PAS positions and PAS officials, at least five 
characteristics commonly distinguish PAS positions and officials 
from other agency positions and officials, especially career civil 
servants.
    First, as the Administrative Conference has previously noted, 
there are often numerous vacancies in PAS positions.\7\ Frequent 
vacancies exist for several reasons, including delays related to the 
appointments process. When adjudicative functions are assigned to 
PAS positions, vacancies in those positions can affect the 
timeliness of adjudication. At some agencies, for example, vacancies 
or the lack of a quorum have resulted in long delays.\8\
---------------------------------------------------------------------------

    \7\ See Admin. Conf. of the U.S., Recommendation 2019-7, Acting 
Agency Officials and Delegations of Authority, 84 FR 71352 (Dec. 27, 
2019).
    \8\ See Matthew A. Gluth, Jeremy S. Graboyes & Jennifer L. 
Selin, Participation of Senate-Confirmed Officials in Administrative 
Adjudication 40-42 (June 9, 2024) (report to the Admin. Conf. of the 
U.S.).
---------------------------------------------------------------------------

    Second, there is relatively high turnover in PAS positions, and 
PAS officials almost always serve in their positions for a shorter 
time than career civil servants. Thus, PAS officials may lack 
preexisting relationships with agency employees, knowledge of agency 
processes, and the specialized adjudicative expertise that career 
adjudicators develop as a result of their work and experience in 
this area.
    Third, unlike career civil servants who are hired without regard 
to political affiliation, activity, or beliefs,\9\ PAS officials are 
often nominated by the President at least in part because of their 
political affiliation, activity, or beliefs. PAS officials are also 
subject to removal by the President, although a statute may impose 
for-cause or other limitations on their removal. Unlike officials 
appointed by a department head or the President alone, however, PAS 
officials are also confirmed by the Senate, which may make them more 
attentive to Congress than career agency officials. On the one hand, 
such exposure to politics may help ensure that agency decision 
making, including the development of policy through case-by-case 
adjudication, remains publicly accountable. And given their 
relationships with the President, other political appointees, and 
Congress, PAS officials may be well equipped to address systemic 
problems, identified through the adjudication of cases, that require 
intra- or interbranch coordination. On the other hand, the 
involvement of PAS officials in administrative adjudication may 
raise concerns about the impartiality and objectivity of agency 
decision making.\10\
---------------------------------------------------------------------------

    \9\ 5 U.S.C. 2301.
    \10\ See Gluth, Graboyes & Selin, supra note 8 at 45-50.
---------------------------------------------------------------------------

    Fourth, unlike career adjudicators, who are often appointed 
based on prior adjudicative or litigation experience,\11\ PAS 
officials are often appointed for other reasons such as prior 
experience in a particular industry or familiarity with a particular 
policy domain. PAS officials may have better access to substantive, 
subject-matter expertise than other agency decision makers, which 
may improve the quality of policies developed through case-by-case 
adjudication. On the other hand, they may lack experience or 
familiarity with the procedural aspects of administrative 
adjudication.
---------------------------------------------------------------------------

    \11\ See Admin. Conf. of the U.S., Recommendation 2019-2, Agency 
Recruitment and Selection of Administrative Law Judges, 84 FR 38930 
(Aug. 8, 2019).
---------------------------------------------------------------------------

    Fifth, PAS officials often sit atop agency hierarchies, and 
statutes often assign PAS officials, especially the heads of cabinet 
departments, a broad range of responsibilities, potentially 
including the administration of multiple programs and, under any 
given program, multiple functions (e.g., rulemaking, investigation, 
prosecution) in addition to adjudication. Such responsibilities can 
provide PAS officials with a unique opportunity to coordinate 
policymaking within and across programs, promote consistent decision 
making, and gain better awareness of the adjudicative and regulatory 
systems for which they are statutorily responsible. On the other 
hand, because PAS officials often face many competing demands on 
their time, they may have less practical capacity to devote to the 
adjudication of individual cases than other officials whose primary 
function is to adjudicate cases.\12\ Additionally, some have raised 
concerns in certain contexts that the combination of adjudication 
and enforcement functions (investigation and prosecution) in a 
single official may affect the integrity of agency proceedings and 
that the combination of adjudication and rulemaking functions in a 
single official may encourage the resolution of important legal and 
policy issues through case-by-case adjudication, even when general 
rulemaking offers a better mechanism for resolving such issues.\13\
---------------------------------------------------------------------------

    \12\ See Gluth, Graboyes & Selin, supra note 8, at 52-56.
    \13\ See id.
---------------------------------------------------------------------------

    Considering these and other characteristics, and consistent with 
statutory and regulatory requirements, agencies must determine 
whether participation by PAS officials in the adjudication of cases 
provides an effective mechanism for directing and supervising 
systems of administrative adjudication and, if it does, what 
procedures and practices will permit PAS officials to adjudicate 
cases in a manner that best promotes fairness, accuracy, 
consistency, efficiency, and timeliness. The Conference has 
addressed some of these issues in previous recommendations, most 
notably in Recommendation 68-6, Delegation of Final Decisional 
Authority Subject to Discretionary Review by the Agency; \14\ 
Recommendation 83-3, Agency Structures for Review of Decisions of 
Presiding Officers Under the Administrative Procedure Act; \15\ 
Recommendation 2018-4, Recusal Rules for Administrative 
Adjudicators; \16\ Recommendation 2020-3, Agency Appellate Systems; 
\17\ and Recommendation 2022-4, Precedential Decision Making in 
Agency Adjudication.\18\ Recognizing that agencies must consider 
applicable constitutional and statutory requirements and the unique 
characteristics of the programs they administer, this Recommendation 
builds on these earlier recommendations but focuses exclusively on 
identifying best practices to help agencies determine whether, when, 
and how PAS officials should participate directly in the 
adjudication of individual cases.
---------------------------------------------------------------------------

    \14\ 38 FR 19783 (July 23, 1973).
    \15\ 48 FR 57461 (Dec. 30, 1983).
    \16\ 84 FR 2139 (Feb. 6, 2019).
    \17\ 86 FR 6618 (Jan. 22, 2021).
    \18\ 88 FR 2312 (Jan. 13, 2023).
---------------------------------------------------------------------------

Recommendation

Determining Whether and When Officers Appointed by the President With 
the Advice and Consent of the Senate--PAS Officials--Should Participate 
in the Adjudication of Cases

    1. When a statute authorizes a PAS official or collegial body of 
PAS officials to adjudicate matters arising under the statute, and 
such authority is delegable as a constitutional and statutory 
matter, the agency ordinarily should delegate to one or more non-PAS 
adjudicators responsibility for conducting initial proceedings 
(i.e., receiving and evaluating evidence and arguments and issuing a 
decision). PAS officials, individually or as a collegial body, 
should exercise their retained statutory authority to conduct 
initial proceedings ordinarily only if:
    a. A matter is exceptionally significant or broadly 
consequential, and they have the capacity personally to receive and 
evaluate evidence and arguments and issue a decision in a fair, 
accurate, consistent, efficient, and timely manner; or
    b. There are unlikely to be disputed issues of fact, the matter 
to be decided does not require taking much evidence, and resolution 
of the matter turns on qualitative judgments of a broad nature.
    2. When a statute authorizes a PAS official or a collegial body 
of PAS officials to adjudicate matters arising under the statute or 
review lower-level decisions rendered by other adjudicators, and 
such authority is delegable as a constitutional and statutory

[[Page 56281]]

matter, the agency should determine in which types of cases it would 
be beneficial for a PAS official or collegial body of PAS officials 
to review lower-level decisions rendered by other adjudicators and 
in which it would be more appropriate to delegate final decision-
making authority to a non-PAS official (e.g., an agency ``Judicial 
Officer'') or a collegial body of non-PAS officials (e.g., a final 
appellate board). If a PAS official or collegial body of PAS 
officials delegates final decision-making authority to other 
officials, they should adopt mechanisms to ensure adequate direction 
and supervision of decision makers exercising delegated authority. 
Circumstances in which it may be beneficial for an agency to provide 
for review by a PAS official or a collegial body of PAS officials 
include:
    a. Cases that involve legal or factual issues that are 
exceptionally significant or broadly consequential;
    b. Cases that involve a novel or important question of law, 
policy, or discretion, such that direct participation by one or more 
PAS officials would promote centralized or politically accountable 
coordination of policymaking; and
    c. When participation by one or more PAS officials in the 
adjudication of individual cases would promote consistent decision 
making by agency adjudicators.
    3. When it would be beneficial to provide for review by a PAS 
official or a collegial body of PAS officials, the agency should, 
consistent with constitutional and statutory requirements, determine 
the appropriate structure for such review. Structural options 
include:
    a. Providing the only opportunity for administrative review of 
lower-level decisions. This option may be appropriate when caseloads 
are relatively low and individual cases frequently raise novel or 
important questions of law, policy, or discretion.
    b. Delegating first-level review authority to a non-PAS 
official, such as an agency ``Judicial Officer,'' or an appellate 
board and retaining authority to exercise second-level 
administrative review in exceptional circumstances. This option may 
be appropriate when caseloads are relatively high and individual 
cases only occasionally raise novel or important questions of law, 
policy, or discretion or have significant consequences beyond the 
parties to the case.
    c. Delegating final review authority to another PAS official. 
This option may be appropriate, for example, when individuals, by 
virtue of holding another PAS position, have greater access to 
subject-matter expertise or greater capacity to adjudicate cases in 
a fair, accurate, consistent, efficient, and timely manner.
    d. For collegial bodies of PAS officials, delegating first-level 
review authority to a single member or panel, and retaining 
authority for the collegial body as a whole to exercise second-level 
(and final) administrative review. This option may be appropriate 
when a collegial body manages a relatively high caseload and most 
individual cases do not raise novel or important questions of law, 
policy, or discretion or have significant consequences beyond the 
parties to the case.

Initiating Review by PAS Officials

    4. An agency ordinarily should provide that a decision subject 
to review by a PAS official or a collegial body of PAS officials 
becomes final and binding after a specified number of days unless, 
as applicable:
    a. A party or other interested person files a petition for 
review, if a statute entitles a party or other interested person to 
such review;
    b. A PAS official or collegial body of PAS officials exercises 
discretion to review the decision upon petition by a party or other 
interested person;
    c. A PAS official or collegial body of PAS officials exercises 
discretion to review the lower-level decision upon referral by the 
adjudicator or appellate board (as a body or through its chief 
executive or administrative officer) that issued the decision;
    d. A PAS official or collegial body of PAS officials exercises 
discretion to review the decision upon request by a federal official 
who oversees a program impacted by a decision, or his or her 
delegate; or
    e. A PAS official or collegial body of PAS officials exercises 
discretion to review the decision sua sponte.
    5. When a PAS official or collegial body of PAS officials serves 
as a first-level reviewer, an agency should develop a policy for 
determining the circumstances in which such review may be exercised. 
Review may be warranted if there is a reasonable probability that:
    a. The adjudicator who issued the lower-level decision committed 
a prejudicial procedural error or abuse of discretion;
    b. The lower-level decision includes an erroneous finding of 
material fact;
    c. The adjudicator who issued the lower-level decision 
erroneously interpreted the law or agency policy;
    d. The case presents a novel or important issue of law, policy, 
or discretion; or
    e. The lower-level decision presents a recurring issue or an 
issue that agency adjudicators have decided in different ways, and 
the PAS official or officials can resolve the issue more accurately 
and efficiently through precedential decision making.
    6. When a PAS official or collegial body of PAS officials serves 
as a second-level reviewer, an agency should determine the 
circumstances in which such review may be warranted. To avoid 
multilevel review of purely factual issues, the agency should limit 
second-level review by a PAS official or collegial body of PAS 
officials to circumstances in which there is a reasonable 
probability that:
    a. The case presents a novel or important issue of law, policy, 
or discretion; or
    b. The first-level reviewer erroneously interpreted the law or 
agency policy.
    7. When agency rules permit parties or other interested persons 
to file a petition requesting that a PAS official or a collegial 
body of PAS officials review a lower-level decision and review is 
discretionary, the agency should require that petitioners explain in 
the petition why such review is warranted with reference to the 
grounds for review identified in Paragraph 5 or 6, as applicable. 
Agency rules should permit other parties or interested persons to 
respond to the petition or file a cross-petition.
    8. An agency should provide that if a PAS official or collegial 
body of PAS officials, or a delegate, does not exercise discretion 
to grant a petition for review within a set time period, the 
petition is deemed denied.
    9. In determining whether to provide for interlocutory review by 
a PAS official or collegial body of PAS officials of rulings by 
agency adjudicators, an agency should evaluate whether such review 
can be conducted in a fair, accurate, consistent, efficient, and 
timely manner, considering the best practices identified in 
Recommendation 71-1, Interlocutory Appeal Procedures.
    10. When a PAS official or collegial body of PAS officials 
exercises discretion to review a lower-level decision (e.g., by 
granting a petition or accepting a referral), the agency should:
    a. Notify the parties;
    b. Provide a brief statement of the grounds for review; and
    c. Provide the parties a reasonable time to submit written 
arguments.

PAS Official Review Process

    11. A PAS official or collegial body of PAS officials who 
reviews a lower-level decision ordinarily should limit consideration 
to the evidence and legal issues considered by the adjudicator who 
issued that decision. The PAS official or collegial body of PAS 
officials should consider new evidence and legal issues, if at all, 
only if (a) the proponent of new evidence or a new legal issue shows 
that it is material to the outcome of the case and that, despite due 
diligence, it was not available when the record closed, or (b) 
consideration of a new legal issue is necessary to clarify or 
establish agency law or policy. In situation (a), the PAS official 
or collegial body of PAS officials should determine whether it would 
be more effective to consider the new evidence or legal issue or 
instead to remand the case to another adjudicator for further 
development and consideration.
    12. An agency should provide a PAS official or collegial body of 
PAS officials discretion to permit oral argument on their own 
initiative or upon a party's request if doing so would assist the 
PAS official(s) in deciding the matter.
    13. In cases when a PAS official or collegial body of PAS 
officials will decide a novel or important question of law, policy, 
or discretion, the agency should provide the PAS official(s) 
discretion to solicit arguments from interested members of the 
public, for example by inviting amicus participation, accepting 
submission of written comments, or holding a public hearing to 
receive oral comments.

Integrity of the Decision-Making Process

    14. To promote impartiality and the appearance of impartiality, 
each agency at which PAS officials participate in the adjudication 
of individual cases should have a process for determining if 
participation by a particular PAS official in a case would violate 
government-wide or agency-specific ethics standards and hence 
require recusal. Agencies should also have a process for determining 
if participation would raise other significant concerns, and if so,

[[Page 56282]]

determine whether and in what circumstances PAS officials should 
recuse themselves from participating in a case based on those 
concerns.

Coordination of Policymaking and Decision Making by Agency Adjudicators

    15. An agency ordinarily should treat decisions of PAS officials 
as precedential if they address novel or important issues of law, 
policy, or discretion, or if they resolve recurring issues or issues 
that other agency adjudicators have decided in different ways. 
Unless the agency treats all decisions of PAS officials as 
precedential, in determining whether and under what circumstances to 
treat such decisions as precedential, the agency should consider the 
factors listed in Paragraph 2 of Recommendation 2022-4, Precedential 
Decision Making in Agency Adjudication.
    16. Each agency periodically should review petitions for review 
and decisions rendered by PAS officials to determine whether issues 
raised repeatedly indicate that the agency, its adjudicators, or the 
public may benefit from rulemaking or development of guidance.

Adjudicative Support for PAS Officials

    17. When a PAS official or collegial body of PAS officials 
adjudicates individual cases, agencies should assign or delegate 
case-related functions to non-PAS officials, when appropriate, 
including:
    a. Performing routine tasks such as managing dockets and case 
filings; managing proceedings, including the submission of materials 
and the scheduling of oral arguments;
    b. Responding to routine motions;
    c. Dismissing, denying, and granting petitions for review in 
routine circumstances when such action is clearly warranted, for 
example when a petition is untimely, a party requests to withdraw a 
petition, or the parties to a proceeding agree to a settlement;
    d. Conducting the preliminary review of lower-level decisions, 
evidence, and arguments;
    e. Conducting the preliminary evaluation of petitions for review 
and petitions for reconsideration;
    f. Identifying unappealed decisions that may warrant review by a 
PAS official or collegial body of PAS officials;
    g. Encouraging settlement and approving settlement agreements;
    h. Conducting legal and policy research;
    i. Recommending case dispositions;
    j. Preparing draft decisions and orders for review and signature 
by a PAS official or collegial body of PAS officials;
    k. Transmitting decisions and orders to parties and making them 
publicly available; and
    l. Staying decisions and orders pending reconsideration by a PAS 
official or collegial body of PAS officials or judicial review.
    18. When a PAS official or collegial body of PAS officials 
adjudicates individual cases, the agency should determine which 
offices or officials are best suited to perform assigned or 
delegated functions such as those in paragraph 17 in a fair, 
accurate, consistent, efficient, and timely manner. Possibilities 
include:
    a. Adjudicators and staff who serve at an earlier level of 
adjudication;
    b. Full-time appeals counsel;
    c. Advisors to a PAS official;
    d. The chief legal officer or personnel under his or her 
supervision; and
    e. A Clerk or Executive Secretary or personnel supervised by 
such officials.
    In making such determinations, the agency should ensure adequate 
separation between personnel who support a PAS official or collegial 
body of PAS officials in an adjudicative capacity and those who 
support the PAS official(s) in an investigative or prosecutorial 
capacity.

Transparency

    19. Each agency should provide updated access on its website to 
decisions issued by PAS officials, whether or not designated as 
precedential, and associated supporting materials. In posting 
decisions, the agency should redact identifying details to the 
extent required to prevent an unwarranted invasion of personal 
privacy and any information that implicates sensitive or legally 
protected interests involving, among other things, national 
security, law enforcement, confidential business information, 
personal privacy, or minors. In indexing decisions on its website, 
the agency should clearly indicate which decisions are issued by PAS 
officials.
    20. Each agency ordinarily should presume that oral arguments 
and other review proceedings before PAS officials are open to public 
observation. Agencies may choose to close such proceedings, in whole 
or in part, to the extent consistent with applicable law and if 
there is substantial justification to do so, as described in 
Recommendation 2021-6, Public Access to Agency Adjudicative 
Proceedings.

Development and Publication of Procedures for Adjudication by PAS 
Officials

    21. Each agency should publish procedural regulations governing 
the participation of PAS officials in the adjudication of individual 
cases in the Federal Register and codify them in the Code of Federal 
Regulations. These regulations should cover all significant 
procedural matters pertaining to adjudication by PAS officials. In 
addition to those matters identified in Paragraph 2 of 
Recommendation 2020-3, Agency Appellate Systems, such regulations 
should address, as applicable:
    a. Whether and, if so, which PAS officials may participate 
directly in the adjudication of cases;
    b. The level(s) of adjudication (e.g., hearing level, first-
level appellate review, second-level appellate review) at which a 
PAS official or collegial body of PAS officials have or may assume 
jurisdiction of a case (see Paragraphs 1-3);
    c. Events that trigger participation by a PAS official or 
collegial body of PAS officials (see Paragraph 4);
    d. An exclusive, nonexclusive, or illustrative list of 
circumstances in which a PAS official or collegial body of PAS 
officials will or may review a decision or assume jurisdiction of a 
case, if assumption of jurisdiction or review is discretionary (see 
Paragraphs 5-6);
    e. The availability, timing, and procedures for filing a 
petition for review by a PAS official or collegial body of PAS 
officials, including any opportunity for interlocutory review, and 
whether filing a petition is a mandatory prerequisite to judicial 
review (see Paragraphs 7 and 9);
    f. The actions the agency may take upon receiving a petition 
(e.g., grant, deny, or dismiss it), and whether the agency's failure 
to act on a petition within a set period of time constitutes denial 
of the petition (see Paragraph 8);
    g. The form, contents, and timing of notice provided to the 
parties to a case when proceedings before a PAS official or 
collegial body of PAS officials are initiated (see Paragraphs 9-10);
    h. The record for decision making by a PAS official or collegial 
body of PAS officials and the opportunity, if any, to submit new 
evidence or raise new legal issues (see Paragraph 11);
    i. Opportunities for oral argument (see Paragraph 12);
    j. Opportunities for public participation (see Paragraph 13);
    k. The process for determining if participation by a PAS 
official in a case would violate government-wide or agency-specific 
ethics standards (see Paragraph 14);
    l. Circumstances, if any, in which PAS officials should recuse 
themselves from participating in a case for reasons not addressed in 
government-wide or agency-specific ethics standards, and the process 
for determining whether such circumstances are present (see 
Paragraph 14);
    m. The treatment of decisions by PAS officials as precedential 
(see Paragraph 15);
    n. Any significant delegations of authority to agency 
adjudicators; appellate boards; staff attorneys; clerks and 
executive secretaries; other support personnel; and, in the case of 
collegial bodies of PAS officials, members who serve individually or 
in panels consisting of fewer than all members (see Paragraphs 17-
18);
    o. Any delegations of review authority or alternative review 
procedures in effect when a PAS position is vacant or a collegial 
body of PAS officials lacks a quorum; and
    p. The public availability of decisions issued by PAS officials 
and supporting materials, and public access to proceedings before 
PAS officials (see Paragraphs 19-20).
    22. An agency should provide updated access on its website to 
the regulations described in Paragraph 21 and all other relevant 
sources of procedural rules and related guidance documents and 
explanatory materials.

Separate Statement for Administrative Conference Recommendation 2024-3 
by Senior Fellow Christopher J. Walker and Public Member Melissa F. 
Wasserman

Filed June 27, 2024

    We are pleased to see the Administrative Conference adopt such 
an important and timely recommendation concerning best practices for 
agency-head review in administrative adjudication. We write 
separately to address that which the Administrative Conference 
prudentially chose not to: ``whether Congress or agencies

[[Page 56283]]

should, for constitutional or other reasons, provide for direct 
participation by [presidentially appointed, Senate-confirmed (PAS)] 
officials in the adjudication of individual cases under specific 
programs.'' Our answer is yes.
    Elsewhere, we have made the case for why the ``standard model'' 
for agency adjudication does and should include agency-head final 
decisionmaking authority. See Christopher J. Walker & Melissa F. 
Wasserman, The New World of Agency Adjudication, 107 Calif. L. Rev. 
141 (2019). In our view, agency-head review is valuable because it 
assists the agency to make precedential policy, to increase 
consistency in adjudicative outcomes, to gain greater awareness of 
how a regulatory system is functioning, and to make the agency's 
adjudicatory efforts more politically accountable.
    Regardless of whether one is convinced by our normative 
arguments, agency-head review is likely now a constitutional 
requirement. If the Supreme Court did not so conclude in United 
States v. Arthrex, 594 U.S. 1 (2021), it came quite close. And the 
Court is bound to expressly embrace that constitutional rule in the 
near future. Accordingly, it would be wise for every agency--and 
Congress, where statutory fixes are required--to ensure some form of 
direct review by the agency head.
    As agencies (and Congress) revisit adjudication systems in light 
of this constitutional requirement, two parts of the Recommendation 
are worth underscoring.
    First, a constitutional requirement of agency-head final 
decisionmaking authority does not mean the agency head must review 
every decision in every case. Especially in higher-volume 
adjudication systems, agencies should design appellate systems to 
conduct such review, including the issuance of precedential 
decisions where appropriate. See generally Christopher J. Walker, 
Melissa Wasserman & Matthew Lee Wiener, Precedential Decision Making 
in Agency Adjudication (Dec. 6, 2022) (report to the Admin. Conf. of 
the U.S.); Christopher J. Walker & Matthew Lee Wiener, Agency 
Appellate Systems (Dec. 14, 2020) (report to the Admin. Conf. of the 
U.S.). In our view, such delegation of final decisionmaking 
authority would be constitutional under the Supreme Court's evolving 
approach to separation of powers so long as the agency head 
preserves the authority to intervene and issue a final decision when 
necessary.
    Second, it is critical, as the Recommendation advises, that 
``the agency ordinarily should delegate to one or more non-PAS 
adjudicators responsibility for conducting initial proceedings 
(i.e., receiving and evaluating evidence and arguments and issuing a 
decision).'' Although the Administrative Procedure Act allows the 
agency head to preside over an evidentiary hearing, that is not--and 
should not be--the norm. The standard model for agency adjudication 
has two key structural features: the possibility of a final decision 
by a politically accountable agency head, as noted above, and an 
initial hearing and decision by a decisionally independent, tenure-
protected agency adjudicator. See Aaron L. Nielson, Christopher J. 
Walker & Melissa F. Wasserman, Saving Agency Adjudication, 103 Tex. 
L. Rev. (forthcoming 2025).
    This standard model enables a specific method for political 
control of agency adjudication, which is both transparent and 
circumscribed. Importantly, it ensures that an impartial agency 
adjudicator compiles the administrative record and makes the initial 
findings and decision. In a world where the Constitution requires 
political control of final agency adjudication decisions, it becomes 
all the more important that the hearing-level adjudicator bases the 
initial decision on the law and a matter's individual facts--and not 
out of a fear of being fired or otherwise punished for not sharing 
the politics or policy preferences of the agency head.

Separate Statement for Administrative Conference Recommendation 2024-3 
by Public Member John F. Duffy, Joined by Public Members Jennifer B. 
Dickey, Jennifer L. Mascott, and Kate Todd

Filed June 27, 2024

    I respectfully dissent from the promulgation of this 
Recommendation. The Recommendation instructs agencies that, in many 
common circumstances, they ``should'' delegate adjudicative power 
downward into the bureaucracy--i.e., away from officers appointed by 
the President with the advice and consent of the Senate (``PAS 
officials'') and toward agency officials not so appointed (``non-
PAS'' officials). To make matters worse, the Recommendation tells 
agencies that they ``should'' limit review by PAS officials so that 
the lower-level officials will often have the last word in 
adjudicating many issues, including important factual 
determinations.
    The overall tenor of the Recommendation is, in my view, entirely 
too much in favor of pushing responsibility away from top agency 
officials (whose appointment process is controlled by the 
democratically accountable President and Senators) and toward a far 
less accountable set of lower-level officials in the bureaucracy. 
The Recommendation thereby encourages top officials to shun 
responsibility for the decisions of their agencies. In my view, a 
body such as ACUS--which is statutorily charged with helping 
formulate recommendations for action ``by proper authorities'' for 
ensuring that ``Federal responsibilities may be carried out 
expeditiously in the public interest'' (5 U.S.C. 591(1))--should be 
encouraging responsibility, not irresponsibility, at the very 
highest levels of government.
    The Recommendation's encouragement of the downward diffusion of 
power is particularly evident in six paragraphs. First, paragraph 1 
tells agencies that they ``ordinarily should delegate'' to lower-
level officials initial adjudicatory responsibilities, including the 
crucial functions of ``evaluating evidence'' and ``issuing a 
decision.'' Agencies may well be able lawfully to delegate powers 
downward into the bureaucracy, but it merely encourages the shirking 
of responsibility at the top to tell agencies that they ``should''--
indeed, ``should ordinarily''--delegate so as to empower an 
unaccountable or tenuously accountable bureaucracy.
    To make matters worse, paragraph 1 goes further to recommend 
that top-level PAS officials ``should'' exercise initial 
adjudicative authority ``only if'' a case presents one of two 
uncommon circumstances, namely, (i) where the matter is 
``exceptionally significant or broadly consequential'' or (ii) 
``[t]here are unlikely to be disputed issues of fact.'' Thus, the 
suggested limit on top agency officials engaging in crucial 
adjudicatory functions such as ``evaluating evidence'' should be 
limited, outside of ``exceptionally significant or broadly 
consequential'' circumstances, to those cases where there's very 
little adjudication of evidence to do. That's not merely permitting 
higher officials to shun responsibility. It's telling those 
officials that they ``should'' do so and that any attempts to take 
back adjudicatory power from the bureaucratic depths ``should'' 
occur ``only'' in highly unusual and exceptional times.
    Second, paragraph 2 continues the pro-delegation push by 
encouraging agencies to enact policies that, in some class of cases, 
would ``delegate final decision-making authority to a non-PAS 
official (e.g., an agency ``Judicial Officer'') or a collegial body 
of non-PAS officials (e.g., a final appellate board).'' I think the 
class of such cases should be the null set. In fact, legally it is 
the null set. Even where agency rules appear to delegate ``final'' 
decisional power to lower-level officials, such delegations can be 
undone at any time and in any case. Procedural agency rules (i.e., 
those governing ``agency organization, procedure, or practice'') can 
be repealed in the blink of an eye--without either notice-and-
comment rulemaking or a 30-day waiting period to take effect. See 5 
U.S.C. 553(c) & (d). Thus, even if an agency previously enacted 
rules purporting to delegate ``final'' authority to non-PAS 
officers, such a delegation is an illusion because, under the 
Constitution, some PAS officer must ``have the discretion to review 
decisions'' so that ``the President remains responsible for the 
exercise of executive power.'' United States v. Arthrex, 594 U.S. 1, 
27 (2021). Agencies that follow this ACUS Recommendation and purport 
to delegate final power down into the bureaucracy are merely 
misleading the public by disguising the lines of ultimate authority 
that must remain in the control of PAS officers.
    Third, paragraph 5 suffers from a different flaw than the one in 
paragraphs 1 and 2. While paragraphs 1 and 2 encourage agencies to 
delegate responsibility downward, paragraph 5 is insufficiently 
aggressive in instructing agencies when, if power is delegated, 
review by high-level officers should occur. The Recommendation 
states that agencies should promulgate policies concerning where 
such high-level review ``may be exercised'' and that review ``may be 
warranted'' in several circumstances. In my view, the permissive 
word ``may'' is precisely wrong. The paragraph should be phrased in 
terms of ``should'' and not merely ``may.''
    A quick review of the circumstances where the Recommendation 
tells agencies that review ``may be warranted'' demonstrates the 
point. Where a ``lower-level decision includes an erroneous finding 
of material

[[Page 56284]]

fact'' or ``erroneously interpreted the law or agency policy,'' the 
higher-level PAS officers in the agency really should intervene and 
correct the lower-level decision. This ACUS recommendation tells 
high level agency officers that they ``may'' want to review such 
decisions, but it's not really necessary to do so. The paragraph is 
thus consistent with the overall thrust of the Recommendation to 
push power down into the bureaucracy and to diffuse responsibility, 
but it's also utterly inconsistent with a Constitution designed to 
foster transparency, responsibility and accountability at the 
highest levels of the Executive Branch.
    Fourth, paragraph 6 continues the theme of encouraging agencies 
to curtail higher-level review and responsibility. Where PAS 
officers serve as ``second-level'' reviewers, this paragraph 
encourages agencies once again to promulgate policies concerning 
circumstances in which review ``may be warranted,'' and it then 
tells agencies that they ``should'' limit second-level review of 
factual issues to two narrow sets of circumstances: (i) where 
``[t]he case presents a novel or important issue of law, policy, or 
discretion,'' and (ii) where ``[t]he first-level reviewer 
erroneously interpreted the law or agency policy.'' Importantly, 
neither of those two circumstances involve incorrect factual 
determinations.
    Thus, in a garden-variety case in which the lower-level decision 
does not get the law or policy wrong, but the supervising PAS 
officers believes the lower-level decision may be wildly wrong on 
the facts, this paragraph recommends that agencies ``should limit'' 
the review in order to ``avoid multilevel review of purely factual 
issues.'' For a party aggrieved by a lower-level decision that 
poorly adjudicated the facts, this paragraph encourages supervising 
PAS officers to tell the aggrieved party ``too bad--the buck stops 
at the lower-level official.''
    Fifth, while paragraph 11 has a meritorious general goal of 
preventing parties from withholding evidence and arguments from a 
lower-level adjudicator where power is delegated downward, it is too 
restrictive in the set of circumstances in which new matters might 
be considered by the higher-level official. The first sentence of 
the paragraph 11 states the unobjectionable principle that higher-
level officials engaging in review of a lower-level decision 
``ordinarily should limit consideration to the evidence and legal 
issues considered by the adjudicator who issued that decision.'' 
That's ``ordinarily'' a good rule, but the next sentence purports to 
limit exceptions to the ordinary rule to two circumstances ``only.'' 
Indeed, the sentence emphasizes exceptions begrudgingly, stating 
that PAS officials should consider new evidence and legal issues 
``if at all'' only in the two circumstances set forth. Once again, 
the tenor of the Recommendation is to restrict the power of higher-
level officers to limited categories. That's the wrong approach. 
Higher-level officers should be told in clear terms that they bear 
ultimate responsibility for their agencies' actions and that they 
should engage in all the review they deem necessary in order to make 
sure that they are comfortable bearing that responsibility.
    Sixth, paragraph 17 closes out the pro-delegation theme of the 
Recommendation by advising that, even where PAS officers do 
adjudicate individual cases, agencies ``should'' delegate certain 
case-related functions to non-PAS officials. Some of those case-
related functions are truly mechanical, such as ``[t]ransmitting 
decisions and orders to parties and making them publicly 
available,'' but many are much more important, such as 
``[c]onducting legal and policy research,'' ``[r]ecommending case 
dispositions,'' and ``[p]reparing draft decisions and orders for 
review and signature by a PAS official or collegial body of PAS 
officials.'' Research into law and policy and the subsequent 
drafting of decisions are crucial functions of adjudication, and the 
high-level PAS officers in an agency should be afforded the time and 
resources to perform those functions. They should not be relegated 
merely to supplying the ``signature'' to validate decisions 
researched and drafted by others.
    President Harry Truman famously had a sign on his desk reading: 
``The buck stops here!'' See https://www.trumanlibrary.gov/education/trivia/buck-stops-here-sign (setting forth images of 
Truman's wooden desk sign). That principle is not merely folksy 
wisdom; it has constitutional dimension. As the Supreme Court 
recently reaffirmed in United States v. Arthrex, the Take Care 
Clause and other features of Article II require that the President 
be ``responsible for the actions of the Executive Branch'' and that 
he ``cannot delegate [that] ultimate responsibility or the active 
obligation to supervise that goes with it.'' 594 U.S. 1, 11 (2021) 
(internal quotations omitted). A corollary of that principle is 
that, as the Arthrex decision confirms, high-level PAS officers 
cannot be relieved of ``responsibility for the final decisions'' of 
the subordinate officers under their supervision. Id. at 15. In 
short, the tenor of the Arthrex decision is to prevent the diffusion 
of responsibility deep into the bureaucracy. For decisions within an 
Executive agency, the buck has to stop with the PAS officers and, 
ultimately, with the President who has to bear ultimate 
responsibility.
    The thrust of this ACUS Recommendation is the exact reverse of 
those principles. High-level PAS officers are encouraged to push 
down adjudicatory responsibility and then to limit their review of 
the resulting lower-level decisions. That's a charter for the 
diffusion of power in the depths of the bureaucracy, and the very 
opposite of responsible administration within the Executive Branch.

Separate Statement for Administrative Conference Recommendation 2024-3 
by Public Member Jennifer L. Mascott

Filed June 28, 2024

    I signed onto the concerns raised by Professor John Duffy and 
joined by Kate Todd and Jenn Dickey because the Appointments Clause 
requirements of Article II of the U.S. Constitution are an important 
constraint ensuring that government officials exercise authority in 
a way that is accountable back to elected officials and ultimately 
the American public. Therefore, under the Appointments Clause, 
``officers of the United States'' who exercise that authority must 
be selected by the President subject to Senate consent or by the 
President alone, a department head, or a court of law. U.S. Const. 
art. II, section 2, clause 2 (``He . . . shall appoint Ambassadors, 
other public Ministers and Consuls, Judges of the supreme Court, and 
all other Officers of the United States, whose Appointments are not 
herein otherwise provided for, and which shall be established by 
Law: but the Congress may by Law vest the Appointment of such 
inferior Officers, as they think proper, in the President alone, in 
the Courts of Law, or in the Heads of Departments.'').
    This ACUS recommendation inverts that hierarchy by recommending 
that decisions be pushed lower into the administrative bureaucracy 
rather than ensuring that appointed officials must take 
responsibility for the outcomes of executive adjudication. Today the 
United States Supreme Court recognized the importance of this 
democratic accountability structure by removing certain decisions 
from adjudicators within the Securities and Exchange Commission, 
noting that common-law securities fraud claims must be resolved by 
Article III courts with jury trial protections. See SEC v. Jarkesy, 
__S. Ct. __(2024). In instances where common law judicial authority 
is being exercised in adjudication, the Article III presidentially 
appointed judicial, and jury system, must resolve those claims at 
the federal level. In instances of executive adjudication, 
ultimately the President must take responsibility for final outcomes 
by supervising officers whose nomination and appointment he oversees 
and directs. Congress further has a role by constitutionally being 
required to create the offices those decisionmakers fill.
    Therefore, I respectfully dissent from the June 2024 ACUS 
Recommendation addressing the Participation of Senate-Confirmed 
Officials in Administrative Adjudication.

Administrative Conference Recommendation 2024-4

Managing Congressional Constituent Service Inquiries

Adopted June 13, 2024

    Since the country's earliest years, constituent services have 
been a cornerstone of the representational activities of members of 
Congress. Thousands of people each year contact their elected 
representatives for help accessing federal programs or navigating 
adjudicative and other similar administrative processes. Elected 
representatives and their staff often submit requests to federal 
agencies on behalf of their constituents in such situations. This 
Recommendation refers to such requests as constituent service, or 
``casework,'' \1\ requests. In most circumstances, the resolution of 
an individual's issue should not require the assistance of the 
individual's elected

[[Page 56285]]

representative or his or her staff.\2\ However, these casework 
requests often appear to be helpful in ensuring appropriate agency 
action. For agencies, congressional casework requests may reveal 
broader, systemic problems with their policies and procedures. For 
Congress, casework requests may also play an important role in 
oversight of executive-branch agencies, allowing members of Congress 
to gain greater awareness of the operation and performance of the 
programs Congress authorizes and funds.
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    \1\ This Recommendation and the best practices it identifies are 
intended to assist agencies with improving their management and 
resolution of congressional casework requests. Agency management of 
congressional requests directed towards programmatic or policy 
oversight is beyond the scope of this Recommendation.
    \2\ Many agencies provide avenues for members of the public to 
seek assistance or redress of grievances directly from the agency, 
such as through agency ombuds. See Admin. Conf. of the U.S., 
Recommendation 2016-5, The Use of Ombuds in Federal Agencies, 81 FR 
94316 (Dec. 23, 2016).
---------------------------------------------------------------------------

    Today, every member of Congress employs ``caseworkers,'' both in 
Washington, DC, and in local offices, who help constituents with 
requests ranging from the simple, such as assistance with government 
forms, to the complex, such as correcting errors in veterans' 
service records. While nearly all agencies receive congressional 
casework requests, the agencies most frequently contacted include 
the Department of Veterans Affairs, Internal Revenue Service, Social 
Security Administration, Department of State, and U.S. Citizenship 
and Immigration Services.\3\
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    \3\ See Sean J. Kealy, Congressional Constituent Service 
Inquiries 20 (June 5, 2024) (report to the Admin. Conf. of the 
U.S.).
---------------------------------------------------------------------------

    Agencies have developed practices for receiving, processing, and 
responding to requests and interacting with congressional 
caseworkers. There is significant variation in these practices 
across a number of dimensions.
    Organization: Some agencies assign responsibility for managing 
casework requests to a centralized congressional liaison office, 
while others assign that responsibility to regional offices and 
staff that are empowered to work directly with caseworkers located 
in members' state or district offices.
    Technology: Some agencies continue to use ad hoc, legacy systems 
to receive, process, and respond to casework requests, while others 
employ new technologies like internal electronic case management 
systems \4\ and public-facing, web-based portals \5\ to receive, 
process, and respond to casework requests in a more accurate, 
efficient, transparent, and timely manner.
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    \4\ Cf. Admin. Conf. of the U.S., Recommendation 2018-3, 
Electronic Case Management in Federal Administrative Adjudication, 
83 FR 30686 (June 29, 2018).
    \5\ Cf. Admin. Conf. of the U.S., Recommendation 2023-4, Online 
Process in Agency Adjudication, 88 FR 42682 (July 3, 2023).
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    Procedures: Many agencies have developed standard operating 
procedures (SOPs) for managing casework requests and made them 
available to caseworkers and the public. These SOPs vary widely in 
their content, scope, and level of detail. Some agencies have also 
produced handbooks and other informational materials like flowcharts 
and plain-language summaries of their SOPs to educate and assist 
caseworkers.
    Agencies are also subject to differing legal requirements that 
affect when, how, and what agency personnel can communicate to 
congressional caseworkers in responding to a casework request. These 
legal requirements, including the Privacy Act of 1974 and the Health 
Insurance Portability and Accountability Act of 1996 typically bar 
agencies from sharing records or information that contain protected 
or personally identifiable information with congressional 
caseworkers unless the constituent provides an executed expression 
of consent.\6\
---------------------------------------------------------------------------

    \6\ See Kealy supra note 3, at 11-12.
---------------------------------------------------------------------------

    Recognizing the unique and important role that constituent 
services play in agency-congressional relations and congressional 
oversight of federal programs, this Recommendation offers best 
practices to help agencies receive, process, and respond to 
congressional casework requests in an accurate, efficient, 
transparent, and timely manner. Of course, agencies differ with 
respect to the volume of casework requests they receive, the 
communities they serve, their operational needs, their statutory 
requirements, and the resources available to them. This 
Recommendation recognizes that when adopting or reviewing practices 
for receiving, processing, and responding to casework requests and 
interacting with congressional caseworkers, agencies may need to 
tailor these best practices to their unique circumstances.

Recommendation

Adopting Standard Operating Procedures

    1. Agencies, especially those that receive a large volume of 
congressional casework requests, should develop standard operating 
procedures (SOPs) for tracking and managing such requests. Topics 
that SOPs should address include, as appropriate:
    a. The agency office(s) or title(s) of personnel responsible for 
receiving, processing, and responding to congressional casework 
requests and interacting with congressional caseworkers, and the 
responsibilities of such office(s) or personnel;
    b. The procedure by which congressional caseworkers should 
submit casework requests to the agency, including releases, waivers, 
or other documentation required by law;
    c. The procedure by which agency personnel receive, process, and 
respond to requests, including: (i) intra-agency assignments of 
responsibility for the preparation, review, and approval of draft 
responses; (ii) constraints on agency personnel's ability to provide 
information in response to a casework request; (iii) circumstances 
in which a casework request should be elevated for review by program 
or agency leadership; and (iv) the process by which agency personnel 
responsible for handling casework requests communicate with other 
agency personnel, including ombuds, when working to resolve a 
casework request, consistent with ex parte rules;
    d. The agency's use of electronic case management or other 
systems employed for managing casework requests and status updates, 
including the use of a trackable unique identifier such as a docket 
number or case number (see Paragraph 6);
    e. The agency's procedures for monitoring the progress of 
responses to each casework request (see Paragraphs 10-11);
    f. The major legal requirements, if any, that may restrict the 
agency's ability to provide information to a congressional 
caseworker;
    g. The types of communications that the agency provides to 
congressional caseworkers upon receiving a casework request (e.g., a 
notice acknowledging receipt), while processing a request (e.g., 
periodic status updates), and in responding to a request (e.g., a 
letter, email, or other communication that explains action taken by 
the agency to resolve the request);
    h. Circumstances in which agency personnel will prioritize 
certain casework requests, including on a temporary basis to address 
emergencies, and how the agency's processing of prioritized requests 
differs from its handling of non-prioritized requests;
    i. The kinds of assistance or relief that the agency can and 
cannot provide in response to a casework request; and
    j. Performance goals and measures for responding to casework 
requests (see Paragraph 9).
    2. Agencies should make their SOPs on matters described in 
Paragraphs 1(a)-1(i) publicly available on their websites as a 
single, consolidated document along with plain-language materials 
that succinctly summarize them.
    3. Agencies should provide regular training designed for both 
new and experienced agency personnel involved in receiving, 
processing, and responding to congressional casework requests to 
ensure their familiarity and compliance with agency SOPs.

Managing Casework Requests

    4. Agencies should not automatically close out incoming casework 
requests that do not include information or documentation required 
for the request to be processed. Instead, agency personnel should 
notify congressional caseworkers that their submissions are 
incomplete and cooperate with the congressional caseworkers' efforts 
to remedy the deficiency.
    5. When agencies complete a casework request, they should 
provide written notice to the congressional caseworker or office, 
unless the caseworker or office has indicated that no written 
response is necessary.

Using Technology To Streamline Request Management and Resolution

    6. Consistent with their resources, agencies that receive a 
large volume of congressional casework requests should adopt 
systems, such as electronic case management systems and web-based 
portals, to receive, process, and respond to requests in an 
accurate, efficient, transparent, and timely manner. Such systems 
should allow agency personnel to receive, process, and respond to 
casework requests consistent with established SOPs and allow 
managers to monitor the status of requests and evaluate key 
performance goals and measures.
    7. When considering adoption or development of an electronic 
case management system or web-based portal,

[[Page 56286]]

agencies should consult with similarly situated agencies or units 
with particular expertise that may be able to share lessons learned 
during the adoption or development of similar systems.
    8. In developing and modifying electronic case management 
systems and web-based portals, agencies should solicit feedback and 
suggestions for improvement from agency managers and personnel and, 
as appropriate, congressional caseworkers.

Measuring Agency Performance

    9. Agencies should adopt performance goals for processing 
congressional casework requests and, for each goal, objective 
measures that use data collected consistent with Paragraph 10 to 
evaluate whether agency personnel are processing and responding to 
congressional casework requests successfully.
    10. Agencies should collect data (to the extent possible, in a 
structured format) to allow managers to track and evaluate, as 
applicable:
    a. Processing times for casework requests;
    b. The congressional offices or caseworkers from which requests 
originate;
    c. Agency actions taken in response to casework requests;
    d. The nature, timing, and substance of communications between 
agency personnel and members of Congress and their caseworkers 
regarding specific casework requests;
    e. The frequency with which members of Congress and their 
caseworkers resubmit the same request, for example, because the 
agency prematurely closed a previous request without fully 
responding to the caseworker's inquiry, and the reason(s) for the 
resubmission;
    f. Training and other assistance that agency personnel provide 
to members of Congress and their caseworkers regarding casework 
generally;
    g. The identities and roles of agency personnel who work on 
casework requests; and
    h. Any other data the agency determines to be helpful in 
assessing the performance of their processes for receiving, 
processing, and responding to casework requests.
    11. Agencies should evaluate on an ongoing basis whether they 
are meeting performance goals for processing congressional casework 
requests and, as appropriate, identify internal or external factors 
affecting their performance, identify opportunities for improvement, 
and predict future resource needs.
    12. Agencies periodically should reassess performance goals and 
measures, and update them as needed, to ensure that they continue to 
serve as accurate indicators of good performance consistent with 
available resources, agency priorities, and congressional 
expectations. Additionally, agencies periodically should reassess 
their data collection practices and update them as needed to ensure 
managers can track and evaluate performance accurately over time.
    13. Senior agency officials regularly should consider whether 
issues raised in congressional casework requests indicate broader 
policy issues or procedural hurdles facing members of the public 
which the agency should address.

Communicating Effectively With Congress

    14. Agencies should foster strong working relationships with 
congressional caseworkers and maintain open lines of communication 
to provide information to and receive input from caseworkers on 
agency procedures and facilitate efficient resolution of casework 
requests. Options for fostering such relationships include:
    a. Providing a point of contact to whom caseworkers can direct 
questions about individual casework requests or casework generally;
    b. Maintaining a centralized web page on the agency's website, 
consistent with Paragraph 2, where caseworkers can access the 
agency's SOPs; any plain language materials that succinctly 
summarize the agency's SOPs; and any releases, waivers, or other 
documentation that caseworkers must submit with requests;
    c. Providing training or other events--in person in Washington, 
DC, or regionally, or online in a live or pre-recorded format--
through which agency personnel can share information with 
congressional caseworkers about the agency's procedures for 
receiving, processing, and responding to congressional casework 
requests (and, for agencies that frequently receive a high volume of 
casework requests, holding these events regularly and either in 
person or live online, to the extent practicable, in a manner that 
facilitates receipt of user experience feedback);
    d. Participating in training or other casework-focused events 
organized by other agencies and congressional offices, including the 
Office of the Chief Administrative Officer of the House of 
Representatives and the Senate's Office of Education and Training; 
and
    e. Organizing periodic, informal meetings with congressional 
offices and caseworkers with whom the agency regularly interacts to 
answer questions.
    15. Agencies periodically should solicit input and user 
experience-related feedback from congressional caseworkers on the 
timeliness and accuracy of agencies' responses to casework requests.
    16. When communicating with congressional caseworkers in the 
course of receiving, processing, or responding to casework requests, 
agencies should ensure that each communication identifies, as 
appropriate, any applicable legal constraints on the agency's 
ability to provide the information or assistance requested.
    17. Congress should consider directing its training or 
administrative offices, such as the Office of the Chief 
Administrative Officer of the House of Representatives and the 
Senate's Office of Education and Training, to create a web page that 
consolidates links to agencies' SOPs in one place for ready access 
by congressional caseworkers. Agencies should cooperate with any 
such effort, including by alerting the designated offices to any 
changes to the web page at which their SOPs may be accessed.

[FR Doc. 2024-14981 Filed 7-8-24; 8:45 am]
BILLING CODE 6110-01-P