Adoption of Recommendations
| Published date | 27 December 2019 |
| Citation | 84 FR 71348 |
| Record Number | 2019-27930 |
| Section | Notices |
| Court | Administrative Conference Of The United States |
Federal Register, Volume 84 Issue 248 (Friday, December 27, 2019)
[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Notices]
[Pages 71348-71358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27930]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
Federal Register / Vol. 84, No. 248 / Friday, December 27, 2019 /
Notices
[[Page 71348]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Administrative Conference of the United States adopted
five recommendations at its Seventy-second Plenary Session. The
appended recommendations address: Agency Economists; Independent
Research by Agency Adjudicators in the internet Age; Acting Agency
Officials and Delegations of Authority; Public Identification of Agency
Officials; and Recruiting and Hiring Agency Attorneys.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2019-5, Keith
Holman; for Recommendation 2019-6, Jeremy Graboyes; for Recommendations
2019-7 and 2019-8, Bobby Ochoa; and for Recommendation 2019-9, Todd
Rubin. For each of these actions the address and telephone number are:
Administrative Conference of the United States, Suite 706 South, 1120
20th Street NW, Washington, DC 20036; Telephone 202-480-2080.
SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C.
591-596, established the Administrative Conference of the United
States. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by Federal agencies and makes
recommendations to agencies, the President, Congress, and the Judicial
Conference of the United States for procedural improvements (5 U.S.C.
594(1)). For further information about the Conference and its
activities, see www.acus.gov. At its Seventy-second Plenary Session,
held on December 12, 2019, the Assembly of the Conference adopted five
recommendations.
Recommendation 2019-5, Agency Economists, addresses the placement
of economists within rule-writing agencies (e.g., centralized versus
dispersed throughout the agency) and describes methods for promoting
high-quality economic analysis within each of the potential
organizational structures. Each potential structure has strengths and
weaknesses that can affect the flow of information between economists
and decision-makers. The recommendation does not endorse any one
organizational structure over another, but rather identifies steps
agencies can take to remove structural barriers that can impede the
communication of objective, consistent, and high-quality economic
analysis to decision-makers during the rulemaking process.
Recommendation 2019-6, Independent Research by Agency Adjudicators
in the internet Age, addresses agency adjudicators' increasing reliance
on their own factual research--especially internet research--when
conducting hearings and deciding cases. Though such independent
research can be an efficient means to acquire facts, it can also raise
concerns regarding the accuracy of information uncovered and fairness
to the litigants. The recommendation encourages agencies to develop
publicly available policies on independent research that identify
sources of information that are reliable in all cases, set forth
standards for adjudicators to apply when assessing the reliability of
other sources, and ensure that litigants have ready access to all
sources.
Recommendation 2019-7, Acting Agency Officials and Delegations of
Authority, offers agencies best practices for promoting greater
transparency and compliance with the Federal Vacancies Reform Act of
1998 when a Senate-confirmed position sits vacant. It also addresses
the use of delegations of authority in response to staffing vacancies.
It urges agencies to determine whether they are subject to the
Vacancies Act and, if so, establish compliance processes; improve
transparency by disclosing on their websites information about acting
officials and delegations of authority; and provide additional support
and training to agency officials responsible for Vacancies Act
compliance.
Recommendation 2019-8, Public Identification of Agency Officials,
promotes the public availability of real-time information about high-
level officials leading federal agencies. It encourages agencies to
publish on their websites basic information about high-level agency
leaders and identify vacant leadership positions and acting officials.
It also recommends that the Office of Personnel Management regularly
publish on its website a list of high-level agency leaders, as well as
an archival list of former Senate-confirmed presidential appointees.
Recommendation 2019-9, Recruiting and Hiring Agency Attorneys,
urges agencies to avail themselves of the flexibilities available to
them when hiring attorneys and offers best practices for structuring
their hiring processes. First, it suggests that the Office of Personnel
Management offer training for agencies on the alternative processes and
flexibilities available to them when they hire attorneys. Then, among
other suggestions, it advises agencies to post and disseminate vacancy
announcements widely when seeking broad applicant pools; draft
announcements clearly and concisely; communicate to applicants any
limitations on the number of applicants they will consider; and
establish policies for reviewing applications and interviewing
candidates.
The Appendix below sets forth the full texts of these five
recommendations. The Conference will transmit the recommendations to
affected agencies, Congress, and the Judicial Conference of the United
States, as appropriate. The recommendations are not binding, so the
entities to which they are addressed will make decisions on their
implementation.
[[Page 71349]]
The Conference based these recommendations on research reports that
are posted at: https://www.acus.gov/meetings-and-events/plenary-meeting/72nd-plenary-session.
Dated: December 20, 2019.
Shawne C. McGibbon,
General Counsel.
APPENDIX--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES
Administrative Conference Recommendation 2019-5
Agency Economists
Adopted December 12, 2019
Federal regulatory agencies are subject to various requirements
to conduct economic analysis when they prepare new regulations.
Executive Order 12866 \1\ requires that agencies (other than what it
designates as ``independent regulatory agencies'') \2\ conduct a
``regulatory impact analysis'' (RIA) for their ``significant
regulatory actions,'' which include regulations likely to have an
annual economic impact exceeding $100 million.\3\ The RIAs that
accompany these regulations explain the potential benefits and costs
of the planned regulation.\4\ Many of these agencies, along with
several independent regulatory agencies, are likewise required by
statutes and other executive orders \5\ to conduct some form of
economic analysis. The analysis requirements imposed by these
statutes and executive orders are cross-cutting in certain cases
(e.g., under the Regulatory Flexibility Act \6\ and the Unfunded
Mandates Reform Act \7\), and agency- or program-specific in other
cases.\8\
---------------------------------------------------------------------------
\1\ Exec. Order No. 12866, Regulatory Planning and Review, 58 FR
51735 (Oct. 4, 1993).
\2\ It excludes ``independent regulatory agencies''--those
listed in 44 U.S.C. 3502(5)--from the requirement to prepare an RIA
for their rulemakings. See Exec. Order No. 12866, supra note 1 Sec.
3(b). These independent agencies include most regulatory boards and
commissions (e.g., the National Labor Relations Board, the Federal
Energy Regulatory Commission, and the Consumer Product Safety
Commission).
\3\ Id. Sec. 3(f)(1). ``Significant regulatory action'' also
includes any regulatory action that will (a) adversely affect the
economy or segments of the economy, (b) interfere with another
agency's actions, (c) materially alter the budget or affect required
transfer payments, or (d) raise novel legal or policy issues arising
out of legal mandates. Id. Sec. Sec. 3(f)(2)-(4).
\4\ Id. Sec. 6(a)(3)(B).
\5\ See, e.g., Exec. Order No. 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629 (Feb. 11, 1994), Exec. Order No. 13132,
Federalism, 64 FR 43255 (Aug. 10, 1999), Exec. Order No. 13272,
Proper Consideration of Small Entities in Agency Rulemakings, 67 FR
53461 (Aug. 13, 2002).
\6\ 5 U.S.C. 601-612.
\7\ 2 U.S.C. 1501 et seq.
\8\ See e.g., 7 U.S.C. 19(a) (Commodity Futures Trading
Commission), 15 U.S.C. 77b(b) (Securities Exchange Commission), 15
U.S.C. 2058(f) (Consumer Product Safety Commission); see also Curtis
Copeland, Regulatory Analysis Requirements: A Review and
Recommendations for Reform (Mar. 3, 2012) (report to the Admin.
Conf. of the U.S.), https://www.acus.gov/report/curtis-copelands-report-regulatory-analysis-requirements. All federal agencies,
moreover, must participate in a regulatory planning process that
requires a preliminary impact analysis developed at least in part by
agency economists. See Exec. Order No. 12866, supra note 1, Sec.
4(c).
---------------------------------------------------------------------------
The regulatory economic analysis agencies produce can be an
extremely valuable tool for anticipating and evaluating the likely
consequences of proposed and final regulations and informing agency
decisions.\9\ Several Conference recommendations have sought to
improve the quality and transparency of agency regulatory economic
analysis.\10\ The Conference has not, however, addressed the
organizational structure \11\ of the economic analysis function.\12\
---------------------------------------------------------------------------
\9\ The basic elements of this analysis include (1) an
assessment of the need for the proposed action, (2) an examination
of alternative approaches, and (3) an evaluation of the benefits and
costs--quantitative and qualitative--of the proposed action and the
main alternatives. See Office of Mgmt. & Budget, Exec. Office of the
President, OMB Circular A-4, Regulatory Analysis (2003). An agency's
economic analysis sometimes assesses other potential results of a
regulation, such as cost-effectiveness, economic feasibility, or
distributional consequences.
\10\ See, e.g., Admin Conf. of the U.S., Recommendation 2018-7,
Public Engagement in Rulemaking, 84 FR 2139 (Feb. 6, 2019); Admin
Conf. of the U.S., Recommendation 2013-2, Benefit-Cost Analysis at
Independent Regulatory Agencies, 78 FR 41352 (July 10, 2013); Admin
Conf. of the U.S., Recommendation 2012-1, Regulatory Analysis
Requirements, 77 FR 47801 (Aug. 10, 2012); Admin. Conf. of the U.S.,
Recommendation 88-7, Valuation of Human Life in Regulatory
Decisionmaking, 53 FR 39586 (Oct. 11, 1988); Admin. Conf. of the
U.S., Recommendation 85-2, Agency Procedures for Performing
Regulatory Analysis of Rules, 50 FR 28364 (July 12, 1985).
\11\ The way agencies structure their economic impact analyses
can, for example, be influenced by executive orders. Executive Order
12866 requires that agencies designate a Regulatory Policy Officer
who ``shall be involved at each stage of the regulatory process to
foster the development of effective, innovative, and least
burdensome regulations and to further the principles set forth in
this Executive Order.'' Exec. Order No. 12866, supra note 1, Sec.
6(a)(2); see also Exec. Order No. 13777, Enforcing the Regulatory
Reform Agenda, 82 FR 12285 2(a) (Mar. 1, 2017) (requiring agencies
to designate a Regulatory Reform Officer and a Regulatory Reform
Task Force to ``oversee the implementation of regulatory reform
initiatives and policies'').
\12\ An early Conference study by then-Professor Stephen Breyer
advocated for a more prominent role for economists in agencies and
erecting a centralized apparatus for review of economic analysis (a
proposal that came to fruition with the creation of the Office of
Information and Regulatory Affairs (OIRA). Stephen G. Breyer, Role
of Economic Analysis in the Regulatory Agencies 126, 129 (Oct. 12,
1973) (report to the Admin. Conf. of the U.S.).
---------------------------------------------------------------------------
At present, some agencies \13\ task a centralized unit of
economists with conducting all regulatory economic analyses
(``functional'' organization). Examples include the Federal
Communications Commission's Office of Economics and Analytics and
the Federal Trade Commission's Bureau of Economics.\14\ Both units
are independent of the offices that write regulations, but they
conduct economic analyses to inform decisions about regulations. At
other agencies, economists are distributed amongst an agency's
program divisions, working alongside other rule development staff
(``divisional'' organization). At the Department of Energy, for
example, the economists who produce RIAs that accompany regulations
work under the supervision of the program offices that write the
regulations. Still other agencies have economists distributed
through various program divisions, as in the divisional mode of
organization, but also have economists in a central office that
reviews draft regulations and the accompanying economic analyses
(``hybrid'' organization). Examples of hybrid organizations include
the National Center for Environmental Economics at the Environmental
Protection Agency, the Office of the Chief Economist in the
Department of Agriculture, and the Director of Regulatory Analysis
in the Office of the General Counsel at the Department of
Transportation.\15\ Of course, an agency may have multiple distinct
entities tasked with performing economic analysis, and each such
entity may fall under a different organizational heading. This is
especially true with large or geographically widespread agencies.
---------------------------------------------------------------------------
\13\ As used in this Recommendation, the term ``agency'' refers
to the specific governmental unit that conducts the regulatory
analysis, rather than to a parent agency (e.g., the Occupational
Safety and Health Administration rather than the Department of
Labor). Of course, when the parent agency is itself issuing a
regulation, the term ``agency'' is intended to encompass it.
\14\ Jerry Ellig, Agency Economists 13, 21 (Sept. 3, 2019)
(report to the Admin. Conf. of the U.S.) https://www.acus.gov/report/final-report-agency-economists.
\15\ Id. at 30.
---------------------------------------------------------------------------
Each of these structures has inherent strengths and weaknesses.
For instance, a functional organization may limit the number of day-
to-day interactions that economists have with rule-writers, lawyers,
and other non-economists within the agency, whereas a divisional
organization may impair the objectivity of economic analysis if the
economists seek to avoid conflict with their non-economist
supervisors. Decision-making authorities, practices, and procedures
can be crafted to support the strengths and mitigate the weaknesses
of the chosen organizational structure. The challenge for each
agency is to find the blend of organizational structure, practices,
and procedures that will enable the agency to successfully fulfill
its economic analysis objectives.
This Recommendation offers factors for agencies to consider in
designing their economic analysis programs. It does not recommend
that agencies should afford greater or lesser prominence to
economics as compared to any other discipline in the rule
development process. It also does not address whether agencies
should adopt any form of organization over another and recognizes
that each agency will want to tailor its economic analysis program
to fit its individual needs. Rather, it focuses on ways to ensure
that structure, practices, and procedures complement each other,
forming a coherent system for producing high-quality economic
analysis that informs regulatory decisions
[[Page 71350]]
and is consistent with the elements set forth in relevant executive
orders, Office of Management and Budget guidance (e.g., Executive
Order 12866 and OMB Circular A-4), and both agency-specific and
cross-cutting statutes that require economic analysis.
Recommendation
Agency Consideration of Structure and Function of Economists
1. Agencies that conduct regulatory impact analysis or another
form of economic analysis should consider whether their existing
organizational structure for economists allows the agency to produce
objective, consistent, and high-quality economic analysis.
Regulatory Policy Officers (or analogous agency officials) should
meet with relevant decision makers to assess the organizational
structure's contribution to the quality and use of economic
analysis.
2. In reviewing their organizational structures, agencies should
consider how best to allow and encourage their economists to develop
objective analysis consistent with best professional practice to
ensure compliance with all analytic requirements (such as those
contained in Executive Order 12866 and Office of Management and
Budget Circular A-4). The organizational structure should also
promote the flow of information among decision makers, rule-writers,
economists, and other rule development staff as early in the
decision-making process as feasible. Relevant organizational
structures that agencies may wish to consider include the following.
a. Functional organizations, which have a centralized economics
unit and tend to have the following strengths and weaknesses:
(1) This structure may enable economists to produce more
objective, consistent, and high-quality analysis due to greater
independence, collaboration with peers, economies of scale, ongoing
professional development, and recruiting advantages; and
(2) This structure may result in economists being physically
separated from day-to-day events in the program offices, thereby
causing them to be less informed about critical details of pending
regulatory issues. The physical separation may also create
impediments to collaboration.
b. Divisional organizations, which locate economists in program
offices and tend to have the following strengths and weaknesses:
(1) This structure can allow economists to produce analysis that
is closely focused on program-specific regulatory issues and can
facilitate earlier involvement in the development of regulations;
and
(2) Economists working within this structure may feel pressure
to produce less objective analysis in order to support program
office decisions, and they may have fewer opportunities to develop
professional skills through interaction with economists located in
other offices.
c. Hybrid organizations, which locate economists in program
offices but also have a centralized economic review function and
tend to have the following strengths and weaknesses:
(1) This structure may combine the benefits of divisional
organization with a centralized quality control function and
expanded opportunities for skill development; and
(2) Economists working in program offices may still be
marginalized by other rule development staff and face career
disincentives to informing the central economics office when they
disagree with the quality or objectivity of a regulatory analysis.
3. Agencies that are standing up a new economic analysis unit or
that are considering restructuring an existing economic analysis
unit may wish to evaluate these potential strengths and weaknesses
in deciding what type of structure to adopt. Agencies should further
consider taking specific steps to promote high-quality, objective
economic analysis. Although these steps may be associated with
specific organizational structures, they may also generally apply to
the development of economic analyses across all organizational
structures.
4. The following steps can be taken to minimize the risks
associated with walling off economists in an independent unit, which
are especially likely to emerge when an agency has adopted a
functional structure.
a. The agency should consider including economists on
multidisciplinary regulatory development teams, along with other
rule development staff, from the outset;
b. The agency should provide economists with a process to ensure
their analysis is provided to higher-level decision makers; and
c. The agency should provide an avenue for the head of the
economics office to express concerns about the quality of economic
analysis to the agency head.
5. The following steps can be taken to minimize the risks
associated with diluting economists' influence by dispersing them
through the agency, which are especially likely to emerge when an
agency has adopted a divisional structure.
a. The agency should ensure that the supervisory structure does
not create disincentives for economists to offer objective economic
analysis;
b. The agency, to the extent feasible, should empower a central
economics office at the agency level to:
(1) Serve as a quality check on economic analyses developed by
the program offices;
(2) In coordination with agency Regulatory Policy Officers (or
analogous agency officials), standardize and disseminate high-
quality analytical methods; and
(3) Conduct longer-term research and development to inform
future regulatory proceedings.
c. The agency should provide an avenue for the head of the
economics office to express concerns about the quality of economic
analysis to the agency head.
Recommendations Applicable to All Organizational Forms
6. To promote meaningful consideration of economic analysis
early in the decision-making process, agencies should consider
developing guidance clarifying that economists will be involved in
regulatory development before significant decisions about the
regulation are made. Agencies should make this guidance publicly
available by posting it on their websites.
7. Agencies seeking to apply economic analysis in the rulemaking
process should involve their relevant economic units in the process
of developing agency regulatory plans and budgets under applicable
executive orders in order to promote meaningful consideration of
economic analysis while a rule is being shaped.
8. Agency Regulatory Policy Officers or other analogous agency
officials seeking to apply economic analysis in the rulemaking
process should collaborate with agency economists to articulate
relevant analytical methods and offer training, workshops, and
assistance in economic analysis to others within the agency.
Administrative Conference Recommendation 2019-6
Independent Research by Agency Adjudicators in the Internet Age
Adopted December 12, 2019
A fundamental characteristic of agency adjudications that
incorporate a legally required evidentiary hearing is the existence
of an exclusive record for decision making.\1\ The exclusive record
in adjudications regulated by the formal-hearing provisions of the
Administrative Procedure Act (APA) consists of the ``transcript of
testimony and exhibits, together with all papers and requests filed
in the proceeding.'' \2\ Many other adjudications in which an
evidentiary hearing is required by statute, regulation, or executive
order, though not governed by those provisions of the APA, also rely
on an exclusive record similarly constituted.\3\ The exclusive
record principle seeks to ensure that parties know and can meet the
evidence against them; promotes accurate, evidence-based decision
making; and facilitates administrative and judicial review.
---------------------------------------------------------------------------
\1\ See Michael Asimow, Evidentiary Hearings Outside the
Administrative Procedure Act 20-21 (Nov. 10, 2016) (report to the
Admin. Conf. of the U.S.), available at https://www.acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.
\2\ 5 U.S.C. 556(e).
\3\ Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary
Hearings Not Required by the Administrative Procedure Act, ] 1, 81
FR 94314, 94315 (Dec. 23, 2016). The Conference's recent
recommendations divided adjudications into three categories: Those
governed by the APA's formal-hearing provisions (referred to as Type
A in the report accompanying Recommendation 2016-4); those that
incorporate a legally required evidentiary hearing not regulated by
the APA's formal-hearing provisions (referred to as Type B); and
those not subject to a legally required evidentiary hearing
(referred to as Type C). This Recommendation addresses only the
first two categories.
---------------------------------------------------------------------------
Although an exclusive record consists primarily of materials
submitted by the parties to a proceeding, it may be appropriate or
beneficial in certain circumstances for adjudicators to use
information obtained through their own and their staffs' independent
research. An ``adjudicator,'' as used in this Recommendation, means
any agency official or employee, acting either individually or
collectively, who presides over a legally required evidentiary
hearing or provides administrative review following an evidentiary
hearing.
[[Page 71351]]
``Independent research,'' as used in this Recommendation, refers
to an adjudicator's search for, consideration of, or reliance on
factual materials, on his or her own initiative, for purposes of
resolving a proceeding pending before the agency.\4\
---------------------------------------------------------------------------
\4\ This definition does not include an adjudicator's search
for, consideration of, or reliance on materials submitted by a party
or an interested member of the public or adduced with a party's
participation. Nor does it include the use of legal research
materials traditionally consulted by an agency's adjudicators, such
as statutes; agency rules, orders, and notices; and decisions of
courts and administrative agencies.
---------------------------------------------------------------------------
This definition encompasses a diverse range of practices.
Official notice offers the most familiar use of independent research
practice. Official notice, which is the administrative corollary of
judicial notice, permits an adjudicator to accept a fact as true
without requiring a party to prove the fact through the introduction
of evidence.\5\ In appropriate circumstances, an adjudicator may do
so on his or her own motion based on information identified through
independent research.\6\
---------------------------------------------------------------------------
\5\ 5 U.S.C. 556(e); 2 Kristin E. Hickman & Richard J. Pierce,
Jr., Administrative Law Treatise Sec. 9.6 (6th ed. 2019).
\6\ See Ohio Bell Tel. Co. v. Pub. Utilities Comm'n, 301 U.S.
292, 300-06 (1937).
---------------------------------------------------------------------------
In addition, independent research is sometimes used, for
example, to learn background information in preparation for a
hearing, define terms, assess a party's or witness's credibility,
determine an expert's qualifications, assess the reliability of an
expert's opinion, or interpret or evaluate existing evidence. The
facts identified through independent research may be adjudicative
(i.e., ``the facts of the particular case'') or legislative (i.e.,
``those which have relevance to legal reasoning and the lawmaking
process'').\7\
---------------------------------------------------------------------------
\7\ Fed. R. Evid. 201(a) advisory committee's note.
---------------------------------------------------------------------------
Congress, courts, agencies, and scholars have long debated the
extent to which agency adjudicators may and should conduct
independent research.\8\ While some forms of independent research
are firmly rooted in longstanding agency practices, others have
proven more controversial in certain circumstances. The growth of
the internet has amplified this debate in recent years as
adjudicators now have quicker and easier access to vastly greater
amounts of information.\9\ Information that is now available to
adjudicators includes online versions of print publications and
public records, as well as newer forms of information such as openly
editable encyclopedias, blogs, social media, and personal and
professional websites.
---------------------------------------------------------------------------
\8\ See Final Report of the Attorney General's Committee on
Administrative Procedure 71-73 (1941); Kenneth Culp Davis, Official
Notice, 62 Harv. L. Rev. 537 (1949).
\9\ See generally Jeremy Graboyes, Independent Research by
Agency Adjudicators in the internet Age 8-11 (Oct. 31, 2019) (report
to the Admin. Conf. of the U.S.), available at https://www.acus.gov/report/final-report-independent-research-agency-adjudicators-internet-age.
---------------------------------------------------------------------------
Although information available on the internet can be just as
reliable as information available in print publications, the nature
of internet publication can make it more difficult for adjudicators
to determine the authenticity and reliability of certain internet
information. Moreover, the impermanence of web publication may
affect the compilation of an exclusive record for administrative and
judicial review.
Various sources of law may govern independent research by agency
adjudicators. Perhaps the most important is constitutional due
process. With regard to official notice, in particular, the Supreme
Court has held that an agency must offer parties a reasonable
opportunity to rebut an officially noticed fact.\10\ Constitutional
due process also generally requires that an adjudicator be
impartial.\11\ Whether an act of independent research will affect an
adjudicator's impartiality or raise doubts about the integrity of a
proceeding may depend on the specific features of an agency's
adjudicatory program.\12\
---------------------------------------------------------------------------
\10\ Ohio Bell Tel. Co., 301 U.S. at 300-06.
\11\ Admin. Conf. of the U.S., Recommendation 2018-4, Recusal
Rules for Administrative Adjudicators, 84 FR 2139 (Feb. 6, 2019);
Louis J. Virelli III, Recusal Rules for Administrative Adjudicators
7-8 (Nov. 30, 2018) (report to the Admin. Conf. of the U.S.),
available at https://www.acus.gov/report/final-report-recusal-rules-administrative-adjudicators.
\12\ See Recommendation 2018-4, supra note 11, ] 3.
---------------------------------------------------------------------------
The APA also governs some aspects of independent research in
adjudications conducted according to its formal-hearing provisions.
For example, with respect to official notice, the APA provides that
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence of record, a party is entitled,
on timely request, to an opportunity to show the contrary.'' \13\
The APA specifies that a party is entitled to ``conduct such cross-
examination as may be required for a full and true disclosure of the
facts.'' \14\ The APA generally prohibits an employee who presides
at the reception of evidence from ``consult[ing] a person or party
on a fact in issue, unless on notice and opportunity for all parties
to participate.'' \15\ Unless an exception applies, the APA also
generally prohibits an employee who participates or advises in the
decision or review of a decision from performing an investigative or
prosecutorial function in the same or a factually related case.\16\
---------------------------------------------------------------------------
\13\ 5 U.S.C. 556(e).
\14\ Id. Sec. 556(d).
\15\ Id. Sec. 554(d).
\16\ Id.
---------------------------------------------------------------------------
Additional legal requirements may derive from agency-specific
statutes; agency rules of procedure, practice, and evidence; and
agency precedential decisions. Even when independent research would
be legally acceptable, policy considerations--such as the need for
accuracy, consistency, and administrative efficiency in agency
decision making--may counsel in favor of or against its exercise.
Because adjudications vary widely in their purpose, scope,
complexity, and effects, a categorical approach to independent
research across federal adjudications is neither practicable nor
desirable. Some adjudications are adversarial; others are non-
adversarial. In some contexts, the government brings an action
against a private party; in others, a private party petitions the
government, or the government resolves a dispute between private or
public parties. A few agencies apply the Federal Rules of Evidence,
others use it as a guide, and others have developed evidentiary
rules to suit their specific need.\17\ Adjudicators in some contexts
have an affirmative duty to develop the record or assist
unrepresented parties; adjudicators in other contexts have no such
obligation. Some adjudicators play an active role questioning
parties and witnesses and calling experts; others do not.
Adjudicators vary in the degree to which they are viewed as subject-
matter experts and the extent to which they have access to the
expertise of agency policymakers.
---------------------------------------------------------------------------
\17\ Admin. Conf. of the U.S., Recommendation 86-2, Use of
Federal Rules of Evidence in Federal Agency Adjudications, 51 FR
25642 (July 16, 1986). The APA provides only that ``the agency as a
matter of policy shall provide for the exclusion of irrelevant,
immaterial, or unduly repetitious evidence.'' 5 U.S.C. 556(d).
---------------------------------------------------------------------------
This Recommendation encourages agencies to develop appropriate
policies to address independent research conducted by adjudicators.
The policies could take different forms depending on the
circumstances. In some circumstances, an agency may consider
publishing a legislative rule.\18\ In other circumstances, an agency
guidance document, including an interpretive rule or general
statement of policy within the meaning of the APA, may be
suitable.\19\ An agency may intend for its policy to confer an
important procedural right on private parties and bind the agency.
Alternatively, it may intend for its policy only to facilitate
internal agency processes and not bind the agency except, perhaps,
in cases in which noncompliance results in substantial prejudice to
a private party.\20\ The appropriate form of an agency's policy on
independent research will depend on its substance and intended
effect and on the unique circumstances of the agency's adjudicatory
program.
---------------------------------------------------------------------------
\18\ Legislative rules dealing with agency organization,
procedure, or practice are exempt from notice-and-comment
requirements. 5 U.S.C. 553(b)(A). See generally Admin. Conf. of the
U.S., Recommendation 92-1, The Procedural and Practice Rule
Exemption from the APA Notice-and-Comment Rulemaking Requirements,
57 FR 30102 (July 8, 1992).
\19\ 5 U.S.C. 553(a); see generally Admin. Conf. of the U.S.,
Recommendation 2019-3, Public Availability of Agency Guidance
Documents, 84 FR 38931 (Aug. 8, 2019); Admin. Conf. of the U.S.,
Recommendation 2019-1, Agency Guidance Through Interpretive Rules,
84 FR 38927 (Aug. 8, 2019); Admin. Conf. of the U.S., Recommendation
2018-5, Public Availability of Adjudication Rules, 84 FR 2142 (Feb.
6, 2019); Admin. Conf. of the U.S., Recommendation 2017-5, Agency
Guidance Through Policy Statements, 82 FR 61734 (Dec. 29, 2017).
\20\ See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S.
532, 539 (1970).
---------------------------------------------------------------------------
Although the emphasis of this Recommendation is the particular
phenomenon of independent internet research, its recommended best
practices apply equally to independent research by other means.
[[Page 71352]]
Recommendation
Independent research by adjudicators, especially that conducted
on the internet, could have unintended results, such as actual or
perceived bias, factual errors or misunderstandings, or
inefficiencies. Therefore, agencies, to the extent permitted by law,
should consider implementing the following best practices in
consultation with adjudicators.
1. If agencies identify reliable sources or categories of
sources that they determine would be generally appropriate for
adjudicators to independently consult, they should publicly
designate those sources or categories of sources.
2. When agencies designate sources that are appropriate for
independent research, they should consider clearly identifying and,
when possible, providing access to the source on their websites.\21\
Agencies should ensure that they maintain the most current version
of all sources that they host on their websites. If agencies provide
hyperlinks to sources that are hosted on websites not maintained by
the agency, they should ensure that the hyperlinks remain current
and accurate.
---------------------------------------------------------------------------
\21\ Agencies should be mindful of copyright protections when
they provide access to sources on their websites. See, e.g., Am.
Soc'y for Testing & Materials v. Public.Resource.Org, 896 F.3d 437
(D.C. Cir. 2018). There may be steps agencies can take to ensure
copyrighted materials will be reasonably available to interested
members of the public. Cf. Admin. Conf. of the U.S., Recommendation
2011-5, Incorporation by Reference, ] 3, 77 FR 2257, 2258 (Jan. 17,
2012).
---------------------------------------------------------------------------
3. If agencies permit adjudicators to independently consult
sources that are not specifically designated, they should establish
publicly available policies to help adjudicators assess the
authenticity and reliability of information. Agencies should include
indicia of authenticity and reliability, particularly with respect
to internet information, that adjudicators may consider if they
choose to consult outside sources. Examples of such indicia include:
a. Whether the information was authored by an identifiable and
easily authenticated institutional or individual author who is
considered an expert or reputable authority on the subject;
b. Whether the information references other authorities that
help to corroborate its accuracy;
c. Whether the meaning and significance of the information is
clear;
d. Whether the information is published in a final format rather
than as a draft or in a publicly editable format;
e. Whether the information is current or bears a date as of
which the information was accurate;
f. Whether the owner or administrator of the website on which
the information appears is easily authenticated and is a recognized
authority or resource;
g. Whether information that appears on the website undergoes
editorial or peer review;
h. Whether other reliable resources contain the same information
or cite the original information as reliable or authoritative; and
i. Whether the information is thorough, materially supported,
internally consistent, and analytically persuasive.
If agencies have identified sources or categories of sources
that they determine are not appropriate for adjudicators to
independently consult, they should publicly designate those sources
or categories of sources.
4. Agencies should promulgate rules on official notice that
specify the procedures that adjudicators must follow when an agency
decision rests on official notice of a material fact. The rules
should ensure that parties, upon timely request, are provided a
reasonable opportunity to rebut the fact; rebut an inference drawn
from the fact; and supplement, explain, or give different
perspective to the fact. The precise nature and timing of an
opportunity for rebuttal may depend on factors such as whether a
fact is general or specific to the parties, whether a factual
finding or an inference drawn from a fact is subject to reasonable
dispute, whether a fact is central or peripheral to the
adjudication, and whether a fact is noticed for the first time
before or at a hearing or in an initial or appellate decision.
5. If agencies intend that specific procedures will apply when
adjudicators use independently obtained information for purposes
other than official notice of a material fact, such as for
background purposes, they should clarify the distinction between
official notice and other uses of information independently obtained
by an adjudicator and describe the applicable procedures, if any. In
particular, agencies should consider distinguishing use of
traditional legal research materials from factual research; and
material facts from facts that are not material, such as background
facts.
6. Agency policies should specify when adjudicators must
physically or electronically put independently obtained materials,
especially internet materials, in an administrative record and
explain what procedures adjudicators should follow to do so to
ensure they preserve materials in a stable, permanent form. Agencies
should ensure that such policies are consistent with other agency
rules of procedure.
7. Agencies should identify those policies that are intended to
confer an important procedural right on private parties,
noncompliance with which may give rise to grounds for administrative
or judicial review, and those that do not and are intended only to
facilitate internal agency processes.
8. When adjudicators conduct independent research using sources
that are not available to parties on or through an agency website,
they should make those sources available to the parties by
alternative means.
9. Agencies or agency adjudicators, as appropriate, should take
steps to ensure that adjudicative staff are aware of agency policies
on independent research, particularly with respect to independent
internet research.
Administrative Conference Recommendation 2019-7
Acting Agency Officials and Delegations of Authority
Adopted December 12, 2019
The federal government relies on both political appointees and
career civil servants to operate effectively. Federal law provides
for over 1,200 agency positions whose occupants must be appointed by
the President with the advice and consent of the Senate (PAS
positions).\1\ But there are often numerous vacancies in these
positions--not only at the start of every administration, but also
at other times, including after initial appointees leave and
particularly during the final months of a President's tenure.\2\
Government officials routinely vacate offices before a successor has
been chosen. Research has shown that PAS positions in executive
departments and agencies are not staffed with Senate-confirmed or
recess appointees one-fifth of the time.\3\ These pervasive
vacancies exist for several reasons, including increasing delays
related to the presidential-nomination and Senate-confirmation
process.
---------------------------------------------------------------------------
\1\ Sen. Comm. on Homeland Sec. & Gov't Affairs, 114th Cong.,
United States Government Policy and Supporting Positions 216 (The
Plum Book) (Comm. Print 2016), available at https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf.
\2\ Anne Joseph O'Connell, Acting Agency Officials and
Delegations of Authority 1 (Dec. 1, 2019) (report to the Admin.
Conf. of the U.S.), https://www.acus.gov/report/final-report-acting-agency-officials.
\3\ Id. at 16 (citing Anne Joseph O'Connell, Brookings Inst.,
Staffing Federal Agencies: Lessons from 1981-2016 (2017)).
---------------------------------------------------------------------------
Vacancies in PAS and other high-level positions may lead to
agency inaction, generate confusion among nonpolitical personnel,
and lessen public accountability.\4\ At many agencies, acting
officials can temporarily fill the positions. Indeed, between
January 20, 1981, and July 19, 2019, there were 168 confirmed
cabinet secretaries, 3 recess-appointed cabinet secretaries, and 145
acting cabinet secretaries. In other words, acting officials
constituted 46% of all the top leaders in this period, though many
of these interim officials served for short periods. Acting
officials are also prevalent in lower-level positions throughout the
federal government. Similarly, in response to vacancies, agency
leadership often can lawfully delegate certain duties that would
otherwise be done by a PAS or other high-ranking official to other
officials within the agency.
---------------------------------------------------------------------------
\4\ Anne Joseph O'Connell, Vacant Offices: Delays in Staffing
Top Agency Positions, 82 S. Cal. L. Rev. 913, 920-21 (2008).
---------------------------------------------------------------------------
The Federal Vacancies Reform Act of 1998 (Vacancies Act) \5\
provides for temporary leadership primarily in single-headed
executive departments and agencies. When it applies, the Vacancies
Act specifies who can serve in an acting capacity, for how long, and
in what positions. Congress has also enacted other agency-specific
statutes to address vacancies, which sometimes provide the exclusive
succession process. Unfortunately, navigating these statutes can be
challenging because their requirements are often complex, and it can
be technologically difficult to provide required reports. Currently,
the government offers no formal training programs to agencies on the
Vacancies Act, other vacancy-related statutes,
[[Page 71353]]
or delegations of authority in response to staffing vacancies.\6\
---------------------------------------------------------------------------
\5\ 5 U.S.C. 3341-3349d.
\6\ The Department of Justice's Office of Legal Counsel provided
substantial guidance on the Act in 1999, on which agencies continue
to rely. See Guidance on Application of Federal Vacancies Reform Act
of 1998, 23 Op. O.L.C. 60 (1999); see also O'Connell, Acting Agency
Officials, supra note 2, at 38, 41 (describing interviews with
agency officials and noting agencies' continued reliance on OLC
guidance from 1999). Certain portions of the 1999 Guidance have been
superseded. See, e.g., Designation of Acting Associate Attorney
General, 25 Op. O.L.C. 177, 179 (2001) (concluding that question 13
of the 1999 Guidance was incorrect in concluding that a first
assistant could only serve as an acting officer under section
3345(a)(1) if he or she had served as first assistant before the
vacancy arose); NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017)
(holding that the prohibition in section 3345(b) on acting service
during a nomination is not limited to first assistants, contrary to
OLC's conclusion in question 15 of the 1999 Guidance).
---------------------------------------------------------------------------
The stakes for compliance, however, can be high. Under the
Vacancies Act, for instance, certain actions taken by an acting
official not serving under its terms ``shall have no force or
effect'' and may be susceptible to legal challenge.\7\ Even if the
agency does not face legal challenge, moreover, it could receive a
formal violation letter from the Government Accountability Office
(GAO). The Vacancies Act requires agencies to report vacancies,
nominations, and acting officials in covered positions to the
Comptroller General; the Comptroller General is charged with
reporting violations of the time limits to various House and Senate
Committees, the President, and the Office of Personnel
Management.\8\
---------------------------------------------------------------------------
\7\ 5 U.S.C. 3348(d)(1); O'Connell, Acting Agency Officials,
supra note 2, at 3 n.8. Some positions are excluded from this
provision. See 5 U.S.C. 3348(e).
\8\ 5 U.S.C. 3349(b).
---------------------------------------------------------------------------
The Vacancies Act
Under the Vacancies Act, acting officials generally may come
from three categories of government officials: (1) First assistants
to the vacant positions; (2) Senate-confirmed officials designated
by the President; and (3) certain senior agency officials designated
by the President.\9\ The ``first assistant'' to the vacant job is
the default acting official.\10\ The Vacancies Act provides two main
alternatives to the first assistant for acting service, but the
President must actively select them. First, ``the President (and
only the President) may direct'' another Senate-confirmed official--
within the agency or outside it--to serve as the acting
official.\11\ Second, ``the President (and only the President)'' may
select ``an officer or employee'' who has not been Senate-confirmed
to serve in an acting capacity, but only if that person has worked
in the agency for at least 90 days during the year-long period
before the vacancy arose and earns a salary at the GS-15 level or
higher.\12\
---------------------------------------------------------------------------
\9\ Id. Sec. 3345(a); see also NLRB v. SW Gen., Inc., 137 S.
Ct. 929, 936 (2017); O'Connell, Acting Agency Officials, supra note
2, at 5. There is a fourth category of allowed acting officials
involving holdover appointees: An official serving a fixed term in a
covered agency, who may stay in that position in an acting capacity
after the term expires if the President has nominated her or him to
an additional term. 5 U.S.C. 3345(c)(1); see also O'Connell, Acting
Agency Officials, supra note 2, at 5 n.24.
\10\ 5 U.S.C. 3345(a)(1).
\11\ Id. Sec. 3345(a)(2).
\12\ Id. Sec. 3345(a)(3).
---------------------------------------------------------------------------
Acting officials can typically serve and use the title
``acting'' for 210 days from the vacancy's start.\13\ If the vacancy
exists when a new President enters office, or occurs within the next
60 days, the limit extends to 300 days. Nominations also extend
these limits: An acting official can continue serving through two
pending nominations to the vacant job. If the nomination is rejected
or returned to the President under Senate rules, a new 210-day
period of permitted tenure begins from the date of rejection or
return. In other words, an acting official could conceivably serve
for 210 (or 300) days before there is a nomination, during the
pendency of a first nomination, for 210 days after that nomination
is returned, during the pendency of a second nomination, and for a
final 210 days if the second nomination is returned as well.\14\
These extensions require careful tracking of nominations and Senate
actions.
---------------------------------------------------------------------------
\13\ Id. Sec. 3346(a)(1).
\14\ O'Connell, Acting Agency Officials, supra note 2, at 7. The
time limits do not apply when the vacancy has been ``caused by
sickness.'' 5 U.S.C. 3346(a); see also Guidance on Application of
Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 66-67 (1999)
(noting that an ``acting officer may continue to serve until the
sick PAS officer recovers'' and is able to resume performing the
office's functions and duties).
---------------------------------------------------------------------------
After the time limits established by the Vacancies Act have
passed, agencies have continued to perform the functions of the
vacant offices through delegations of authority, often by the agency
head.\15\ If the duties of the Senate-confirmed position are not
exclusive to a job--by statute or regulation--they can typically be
delegated to a lower-level official. Even if some duties are
exclusive to a position, its other duties have been reassigned,
leaving the delegate with nearly the same power as an acting
official.
---------------------------------------------------------------------------
\15\ O'Connell, Acting Agency Officials, supra note 2, at 11-12;
see also id. at 13-15 (identifying several constitutional and
statutory issues concerning delegation beyond the scope of this
Recommendation).
---------------------------------------------------------------------------
The Vacancies Act requires the head of each executive agency to
report certain information about vacancies in covered offices and
notify the Comptroller General of the United States and each House
of Congress.\16\ The GAO, headed by the Comptroller General,
currently receives this information in hard copy. The GAO maintains
these reports in an online searchable database.\17\
---------------------------------------------------------------------------
\16\ 5 U.S.C. 3349(a).
\17\ O'Connell, Acting Agency Officials, supra note 2, at 51-59.
---------------------------------------------------------------------------
Agency-Specific Statutes
In addition to the Vacancies Act, Congress has also enacted
various agency-specific statutes that, when applicable, may provide
for temporary leadership, including for chairpersons at some
independent regulatory commissions.\18\ Some statutes may provide
the exclusive mechanism for agency succession, whereas other
statutes may provide a non-exclusive mechanism.\19\ Because these
agency-specific statutes vary, it is difficult to draw cross-cutting
conclusions about them. Their existence, however, further
complicates the use of acting officials and delegations.
---------------------------------------------------------------------------
\18\ Id. at 9-10; see also id. at 13-14 (identifying the legal
issue of the applicability of the Vacancies Act in many of these
circumstances where an agency-specific succession statute exists,
which is beyond the scope of this Recommendation).
\19\ Id. at 9.
---------------------------------------------------------------------------
The Need for Increased Transparency and Training on Vacancies Act
Requirements
As the foregoing description shows, how and when agencies can
use acting officials or delegated authority can be complicated.
There is often confusion about which positions and agencies the
Vacancies Act applies to and how the Act interacts with other
agency-specific statutes. Technological shortcomings also make
compliance with agency reporting obligations difficult. Some
agencies have raised concerns that ``[a]lthough the forms are
online, the agency must download them, fill them out, and send them
in hard copy to the GAO (and to Congress).'' \20\ Agencies also vary
in how transparent they are about their use of acting officials and
delegations of authority. Some agencies do not disclose publicly
acting titles and delegations of authority,\21\ and there is
currently no good source for comprehensive information about acting
officials.
---------------------------------------------------------------------------
\20\ Id. at 59.
\21\ Id. at 44-46, 64-66. Although some agencies lack disclosure
policies, some agencies have a practice of publishing permanent or
standing delegations in the Federal Register or on the agency's
website. Id. at 65; see also Jennifer Nou, Subdelegating Powers, 117
Colum. L. Rev. 473, 502-03 (2017) (contrasting agency practices at
SEC and EPA).
---------------------------------------------------------------------------
The goals of this Recommendation are to promote compliance with
the Vacancies Act and agency-specific succession statutes and,
consistent with the Conference's recent efforts to promote access to
agency information,\22\ to improve transparency regarding the use of
acting officials and agency delegations of authority in response to
staffing vacancies. This Recommendation does not purport to address
any legal questions that may arise in the application of the
Vacancies Act.
---------------------------------------------------------------------------
\22\ See, e.g., Admin. Conf. of the U.S., Recommendation 2019-3,
Public Availability of Agency Guidance Documents, 84 FR 38931 (Aug.
8, 2019); Admin. Conf. of the U.S., Recommendation 2018-6, Improving
Access to Regulations.gov's Rulemaking Dockets, 84 FR 2139 (Feb. 6,
2019); Admin. Conf. of the U.S., Recommendation 2018-5, Public
Availability of Adjudication Rules, 84 FR 2142 (Feb. 6, 2019);
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication
Materials on Agency websites, 82 FR 31039 (July 5, 2017). Earlier
Conference recommendations in accord include Admin. Conf. of the
U.S., Recommendation 89-8, Agency Practices and Procedures for the
Indexing and Public Availability of Adjudicatory Decisions, 54 FR
53495 (Dec. 29, 1989).
---------------------------------------------------------------------------
This Recommendation is a companion to Recommendation 2019-8,
Public Identification of Agency Officials, which encourages federal
agencies and the Office of Personnel Management to publish and
maintain on their websites real-time
[[Page 71354]]
information about a broad range of high-level agency officials.\23\
---------------------------------------------------------------------------
\23\ Admin. Conf. of the U.S., Recommendation 2019-8, Public
Identification of Agency Officials, _ FR ___ (__).
---------------------------------------------------------------------------
Recommendation
Acting Officials Under the Vacancies Act
1. Agencies should determine if they are subject to the Federal
Vacancies Reform Act (Vacancies Act).
2. Agencies with at least one presidentially appointed, Senate-
confirmed (PAS) position covered by the Vacancies Act should
establish processes and procedures to comply with the Act. Agencies
should consider assigning responsibility for compliance with the
Vacancies Act to a position within the agency, rather than a
particular person, and identify that position on its website.
3. Agencies with at least one PAS position covered by the
Vacancies Act should ensure that officials responsible for
compliance with the Vacancies Act have adequate training.
a. Officials assigned to track time limits should understand the
Senate confirmation process (including the likelihood of multiple
returns) and how to access important dates (official submission
dates of nomination, returns, etc.).
b. Agencies should, when needed, coordinate with the Government
Accountability Office (GAO) on their reporting requirements.
c. A government agency (such as the Office of Government Ethics,
the Department of Justice's Office of Legal Counsel, the GAO, or the
Office of Personnel Management) or other organization should provide
government-wide training on these issues. Agencies should avail
themselves of this training.
4. For PAS positions covered by the Vacancies Act but not
addressed in a presidential order of succession, agencies should
formally name and disclose a first assistant position.
a. If there are multiple deputy positions to a covered position,
agencies should specify which deputy position is the first assistant
position.
b. In the description of each first assistant position, agencies
should explain that the first assistant is the default acting
official under the Vacancies Act.
5. Agencies with at least one vacant PAS position covered by the
Vacancies Act should communicate the requirements of the Act to the
relevant acting official(s).
6. Agencies with at least one vacant PAS position covered by the
Vacancies Act should disclose on their websites the names of acting
officials and the officials' start dates, and the legal provision
under which the appointment was made. If a vacancy is not filled by
an acting officer and the agency has identified an official to
perform the delegable functions of the office, the agency should
disclose that official on its website.
Acting Officials Outside the Vacancies Act
7. Agencies that have PAS positions that are not covered by the
Vacancies Act and for which Congress has provided some alternative
mechanism for designating acting officials (e.g., acting
chairperson) should, to the extent applicable, apply the foregoing
recommendations 2 through 6.
Succession Planning
8. Agencies should consider having clear and easily accessible
orders of succession on their websites for PAS positions.
Delegations of Authority Related to Staffing Vacancies
9. Agencies should determine which functions and duties, if any,
are exclusive to each PAS position and which of the nonexclusive
functions and duties, if any, should be delegated in response to
staffing vacancies.
10. To the extent reasonably possible, agencies should make
their delegations of authority in response to staffing vacancies in
PAS positions easily accessible to the public.
GAO's Role Under the Vacancies Act
11. The GAO should consider changing its reporting system so
that agencies can report information online for vacancies, acting
officials (including start and end dates), and nominations.
Administrative Conference Recommendation 2019-8
Public Identification of Agency Officials
Adopted December 12, 2019
Presidential appointees and the members of the Senior Executive
Service (SES) who perform significant leadership responsibilities
sit at the highest levels of federal agencies.\1\ In December 2016,
the federal government included 1,242 Senate-confirmed,
presidentially appointed positions (PAS positions) and 472 other
presidentially appointed positions (PA positions).\2\ The SES
included 8,156 individuals in 2016 (7,321 career SES, 737 noncareer
SES, and 96 limited-term/limited-emergency SES), many of whom act as
agency leaders.\3\ This group of agency officials helps direct a
federal workforce of more than two million employees.\4\
---------------------------------------------------------------------------
\1\ This Recommendation uses the Administrative Procedure Act's
definition of ``agency.'' 5 U.S.C. 551(1).
\2\ Sen. Comm. on Homeland Sec. & Gov't Affairs, 114th Cong.,
United States Government Policy and Supporting Positions 216 (The
Plum Book) (Comm. Print 2016), available at https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf.
\3\ Off. of Personnel Mgmt., 2016 Senior Executive Service
Report 3 (2017), available at https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/reports-publications/ses-summary-2016.pdf.
\4\ Bobby Ochoa, Listing Agency Officials 1, 6-8, 48 (Nov. 13,
2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/final-report-listing-agency-officials.
---------------------------------------------------------------------------
PAS officials often lead federal agencies, and they are often
the most visible political appointees.\5\ These officials are
nominated by the President and confirmed by the Senate. PAS
positions are part of the Executive Schedule, which prescribes the
basic pay schedule and salaries of most presidential appointees.\6\
These officials are among the highest-paid civilian government
officials,\7\ and a number of statutes and regulations establish
special rules, obligations, and restrictions on their activities.\8\
---------------------------------------------------------------------------
\5\ Ochoa, supra note 4, at 7-8.
\6\ 5 U.S.C. 5311 et seq.; see also Off. of Personnel Mgmt.,
Presidential Transition Guide to Federal Human Resources Management
Matters 19 (2016), available at https://www.opm.gov/about-us/our-people-organization/office-of-the-director/executive-secretariat/presidential-transition-guide-2016.pdf.
\7\ See 2019 Executive & Senior Level Employee Pay Tables, Off.
Of Personnel Mgmt., https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2019/executive-senior-level/ (last visited Nov.
22, 2019) (Salary Table No. 2019-EX, listing salaries ranging from
Level V at $156,000 to Level I at $213,600).
\8\ See, e.g., 18 U.S.C. 207 (establishing various
communications restrictions on former government officials,
including additional restrictions on certain ``very senior
personnel'' and certain restrictions relating to foreign entities);
the Hatch Act, 5 U.S.C. 7321 et seq. (prescribing rules regulating
political activities of federal employees and establishing special
provisions and exemptions applicable to PAS officials); 5 CFR
2634.202 (describing persons required to file public financial
disclosure reports); 5 CFR 2636.303 (describing noncareer officials
subject to fifteen-percent limitation on outside earned income); 5
CFR 2638.305 (describing additional ethics briefing required for PAS
appointees within 15 days of appointment).
---------------------------------------------------------------------------
The President directly appoints PA officials. These positions
are typically located within the Executive Office of the President,
advisory committees, and certain agencies.\9\ PA positions are not
part of the General Schedule pay system, and they may fall within
the scope of several other pay systems, including the Executive
Schedule.\10\ Similar to Senate-confirmed officials, PA officials
may also be subject to special rules, obligations, and restrictions
on their activities, and they also typically resign during a
presidential transition.\11\
---------------------------------------------------------------------------
\9\ The Plum Book, supra note 2, at 213-16. Those PA officials
within the Executive Office of the President are outside the scope
of this Recommendation.
\10\ Ochoa, supra note 4, at 8, 11.
\11\ OPM, Presidential Transition Guide, supra note 6, at 7.
---------------------------------------------------------------------------
The SES is a government-wide personnel system covering senior
management, supervisory, and top-level policy positions in most
federal agencies, and these positions are not part of the General
Schedule pay system.\12\ These SES officials often direct and
monitor the activities of agencies; supervise the work of federal
employees; exercise ``important policy-making, policy-determining,
or other executive functions[;]'' and are held accountable for the
success of programs and projects.\13\ Approximately half
[[Page 71355]]
of SES positions are reserved for career employees, and the other
half are classified as general SES positions, which may be filled by
a career appointee, a political appointee, a limited-emergency
appointee, or a limited-term appointee.\14\ The Office of Personnel
Management (OPM) allots and closely regulates the total number of
SES positions for each agency.\15\ By law, the number of political
appointees may not exceed ten percent of government-wide SES
positions and may not exceed twenty-five percent of a single
agency's total SES positions.\16\
---------------------------------------------------------------------------
\12\ The Plum Book, supra note 2, at 217-18; 5 U.S.C. 3131 et
seq.; Jennifer L. Selin & David E. Lewis, Admin. Conf. of the U.S.,
Sourcebook of United States Executive Agencies 64, 67-68 (2d ed.
2018), available at https://www.acus.gov/publication/sourcebook-united-states-executive-agencies-second-edition. There are other,
also significant government officials that do not fall within the
PAS, PA, or SES. See Ochoa, supra note 4, at 4-14. For purposes of
this Recommendation, we have focused on PAS, PA, and SES officials
because the PAS and PA are presidential appointments and the SES is
the government-wide personnel system for leadership positions. This
Recommendation does not address other executive personnel systems.
See, e.g., 5 U.S.C. 3132 (listing exclusions).
\13\ 5 U.S.C. 3132(a)(2).
\14\ The Plum Book, supra note 2, at 217; Ochoa, supra note 4,
at 6-7.
\15\ The Plum Book, supra note 2, at 217-18; 5 U.S.C. 3132 et
seq.; Selin & Lewis, supra note 12, at 67.
\16\ 5 U.S.C. 3134.
---------------------------------------------------------------------------
The public often learns the identities of cabinet secretaries,
heads of other agencies, and a handful of other very high-ranking
officials, if only through news coverage of the individuals. But the
public knows far less about the next layers of the executive branch,
in part because information can be difficult to locate in a
centralized, updated, and comprehensive format.\17\ A recent report
by the U.S. Government Accountability Office concluded that ``there
is no single source of data on political appointees serving in the
executive branch that is publicly available, comprehensive, and
timely.'' \18\ Much of this information is available in private-
sector publications, but they are expensive and not readily
available to the public.
---------------------------------------------------------------------------
\17\ U.S. Gov't Accountability Office, GAO-19-249, Government-
Wide Political Appointee Data and Some Ethics Oversight Procedures
at Interior and SBA Could Be Improved 10-14 (2019), available at
https://www.gao.gov/assets/700/697593.pdf; Ochoa, supra note 4, at
1, 40-42, 50-51.
\18\ GAO, Government-Wide Political Appointee Data, supra note
17 (summarizing ``What GAO Found'').
---------------------------------------------------------------------------
To be sure, various resources, including United States
Government Policy and Supporting Positions (the so-called ``Plum
Book''),\19\ the Official Congressional Directory,\20\ and the
United States Government Manual,\21\ provide periodic snapshots of
the occupants of certain high-level agency positions. But these
publications serve distinct purposes and objectives and, in all
events, given turnover, can quickly become out-of-date.\22\
Likewise, although OPM maintains extensive lists of federal
employees, those lists are not readily available to the public.\23\
Finally, although some agencies provide current information about
high-ranking officials on their websites, practices vary
significantly.\24\ Detailed information about appointment terms,
vacant offices, acting officials, and delegated authority is often
even more difficult to find.\25\
---------------------------------------------------------------------------
\19\ The Plum Book, supra note 2.
\20\ United States Congress, Joint Commission on Printing,
Official Congressional Directory: 115th Congress (2017).
\21\ Nat'l Archives & Rec. Admin., The United States Government
Manual (2016).
\22\ See GAO, Government-Wide Political Appointee Data, supra
note 17, at 13 (``Until the names of political appointees and their
position, position type, agency or department name, start and end
dates are publicly available at least quarterly, it will be
difficult for the public to access comprehensive and reliable
information.''); Ochoa, supra note 4, at 19-39.
\23\ See Ochoa, supra note 4, at 46-49. OPM's data from agencies
is based on the person, rather than based on the specific position
or job. As a result, the agency stops sending information about a
person and their position when they separate from an agency. With
respect to PAS, PA, and SES officials, OPM's data includes
information about the name, agency, job title, start date, and type
of appointment (PAS, PA, career SES, noncareer SES, limited-term
SES, and limited-emergency SES). For these data-related reasons--and
because agencies are best positioned to make determinations about
which SES officials perform significant leadership
responsibilities--the Recommendation to OPM includes all SES
officials. OPM's workforce information-reporting function under
Civil Service Rule 9 excludes certain agencies and positions. 5 CFR
9.1, 9.2.
\24\ Ochoa, supra note 4, at 40-42.
\25\ See, e.g., Anne Joseph O'Connell, Acting Agency Officials
and Delegations of Authority 16-18 (Dec. 1, 2019) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/final-report-acting-agency-officials (describing significant data-quality
issues).
---------------------------------------------------------------------------
Knowing the identities of those who help lead federal agencies
is important for promoting transparency and facilitating public
participation in the work of government.\26\ For instance, members
of the public (including reporters and academic researchers),
congressional members and staff, White House officials, and
officials at other federal and state agencies all sometimes have
reasons to know this information.\27\
---------------------------------------------------------------------------
\26\ See GAO, Government-Wide Political Appointee Data, supra
note 17, at 13; Ochoa, supra note 4, at 3.
\27\ See GAO, Government-Wide Political Appointee Data, supra
note 17, at 13. The Conference has previously addressed related
issues. In 1968, the Conference recommended changes to the U.S.
Government Organization Manual, specifically pointing out
deficiencies with the ``narrative text submitted'' by agencies and
encouraging agencies to improve these entries. Admin. Conf. of the
U.S., Recommendation 68-2, U.S. Government Organization Manual (Dec.
11, 1968). This Recommendation goes much further, offering specific
recommendations for making agency information publicly available.
---------------------------------------------------------------------------
One of this Recommendation's purposes is to advance the
Conference's recent efforts to promote greater access to relevant
agency information.\28\ This Recommendation is a companion to
Recommendation 2019-7, Acting Agency Officials and Delegations of
Authority, which promotes compliance with the Federal Vacancies
Reform Act of 1998 and other agency-specific succession statutes and
encourages federal agencies to improve transparency regarding the
use of acting officials and agency delegations of authority in
response to staffing vacancies.\29\
---------------------------------------------------------------------------
\28\ See, e.g., Admin. Conf. of the U.S., Recommendation 2019-3,
Public Availability of Agency Guidance Documents, 84 FR 38931 (Aug.
8, 2019); Admin. Conf. of the U.S., Recommendation 2018-6, Improving
Access to Regulations.gov's Rulemaking Dockets, 84 FR 2139 (Feb. 6,
2019); Admin. Conf. of the U.S., Recommendation 2018-5, Public
Availability of Adjudication Rules, 84 FR 2142 (Feb. 6, 2019);
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication
Materials on Agency websites, 82 FR 31039 (July 5, 2017). Earlier
Conference recommendations in accord include Admin. Conf. of the
U.S., Recommendation 89-8, Agency Practices and Procedures for the
Indexing and Public Availability of Adjudicatory Decisions, 54 FR
53495 (Dec. 29, 1989).
\29\ Admin. Conf. of the U.S., Recommendation 2019-7, Acting
Agency Officials and Delegations of Authority, _ FR ___ (____).
---------------------------------------------------------------------------
Recommendation
Recommendations Applicable to Agencies Generally
1. Agencies should display on their websites updated information
about each PAS and PA position, and any SES position that is
assigned significant leadership responsibilities, including the name
and contact information of the current or acting official, as well
as whether it is a PAS, PA, or SES position (and, if SES, whether it
is a career or noncareer position). Vacancies for such positions
should also be displayed.
Recommendations Applicable to the Office of Personnel Management
2. The Office of Personnel Management (OPM) should regularly
publish data about PAS, PA, and SES officials (preferably on a
monthly basis) on a public website and ensure the information is
easily accessible. This data should include the following fields, if
applicable, for each listed PAS, PA, and SES official: Name (first
and last); Agency; Job Title; Start Date; and Type of Appointment.
3. OPM should create a separate list of former PAS officials to
the extent feasible.
Administrative Conference Recommendation 2019-9
Recruiting and Hiring Agency Attorneys
Adopted December 12, 2019
Attorneys serve crucial roles within federal agencies. They
defend agencies in litigation, draft regulations, investigate
complaints, and resolve legal issues surrounding information
disclosure, among their many functions. Attorneys support nearly all
the operations of agencies, helping to ensure their fair and lawful
functioning. Therefore, it is critical that agencies hire a corps of
highly qualified attorneys.\1\
---------------------------------------------------------------------------
\1\ The Administrative Conference addressed hiring practices
with respect to administrative law judges (ALJs) in Recommendation
2019-2, Agency Recruitment and Selection of Administrative Law
Judges, 84 FR 38930 (Aug. 8, 2019).
---------------------------------------------------------------------------
This Recommendation offers best practices for the recruitment
and hiring of federal agency attorneys in the excepted service
(explained below), who comprise the majority of attorneys in the
federal government.\2\ The laws applicable to excepted service
hiring of attorneys are more flexible than those applicable to
hiring other federal employees. This Recommendation suggests ways
agencies can structure their recruitment and hiring to use these
flexibilities to attract highly qualified attorneys.
---------------------------------------------------------------------------
\2\ U.S. Gov't Accountability Office, GAO-16-521, Federal
Hiring: OPM Needs to Improve Management and Oversight of Hiring
Authorities (2016).
---------------------------------------------------------------------------
Background on Federal Personnel Law
Title 5 of the U.S. Code creates three categories of civil
service positions: (1)
[[Page 71356]]
Competitive service, (2) excepted service, and (3) senior executive
service. Most civil service positions are in the competitive
service. The attorney positions addressed in this Recommendation \3\
are in the excepted service. As explained below, however, they are
not subject to most of the rules governing the hiring of excepted
service positions.
---------------------------------------------------------------------------
\3\ Those holding these positions are often referred to as
``0905 attorneys'' in reference to the occupational series that the
Office of Personnel Management assigns to those attorneys who are in
the General Schedule pay system. Many agencies use ``0905'' to refer
to attorneys performing equivalent functions in other statutory pay
systems. All such attorneys are within the scope of this
Recommendation. This Recommendation does not apply, however, to (a)
attorney positions provided for in titles of the U.S. Code other
than Title 5, (b) attorney positions in the senior executive
service, and (c) licensed attorneys who serve in non-attorney
positions.
---------------------------------------------------------------------------
Agencies that wish to fill a position in the competitive service
must generally offer all U.S. citizens and nationals the opportunity
to compete in a public and open examination.\4\ The procedures that
agencies must follow include (1) posting a vacancy announcement on
USAJobs.gov, the federal jobs portal (hereinafter ``USAJobs''); (2)
using minimum qualifications to determine who is qualified and
eligible to be rated for an agency assessment; (3) formally
assigning numerical ratings to qualified applicants and selecting
among the top three candidates; \5\ (4) adhering to detailed
procedures for giving veterans and certain family members of
veterans priority consideration; and (5) hiring only from lists of
candidates prepared by OPM or, if OPM has delegated this function to
an agency, by the agency's own human resources (HR) office (formally
called a ``delegated examining unit''). For most excepted service
appointments, the rules are generally the same as the above except
that agencies need not post an announcement on USAJobs or use OPM-
generated minimum qualifications.\6\
---------------------------------------------------------------------------
\4\ 5 U.S.C. 3304-3319; Civil Service Rule II, VII (5 CFR 2.1,
7.3).
\5\ Alternatively, agencies may adopt a system in which they
establish two or more rating categories (e.g., ``unqualified,''
``qualified,'' and ``highly qualified'') and place each applicant
into one of the categories. Agencies may not offer employment to any
candidate in a lower category before they offer it to a candidate in
a higher category. See 5 U.S.C. 3319.
\6\ See 5 U.S.C. 3320; 5 CFR 302.103 et seq.
---------------------------------------------------------------------------
Although attorney positions are placed in the excepted service,
OPM regulations further exempt agencies from having to formally rank
applicants, use detailed procedures for giving preference to
veterans and eligible family members, and hire from lists of
candidates prepared by the agency.\7\ The result is that the laws
governing the hiring process for attorney positions are generally
much less restrictive than those governing the hiring process for
competitive and other excepted service positions.
---------------------------------------------------------------------------
\7\ See 5 CFR 302.101(c).
---------------------------------------------------------------------------
There are, however, some legal requirements to which agencies
must adhere when hiring attorneys. Agencies may not, among other
things, make hiring decisions based on protected characteristics
(e.g., race, sex, or national origin), nepotism, political
affiliation, whistleblower activities, or other factors unrelated to
the candidate's ability to perform the work.\8\ Agencies also must
``follow the [statutory] principle of veteran preference as far as
administratively feasible and, on the request of a qualified and
available [veteran or eligible family member of a veteran who is not
selected] . . . furnish him/her with the reasons for his/her
nonselection.'' \9\
---------------------------------------------------------------------------
\8\ See 5 U.S.C. 2302. Among other restrictions on agencies'
hiring practices, agencies must not recruit in a way that results in
an unlawful disparate impact based on race, sex, or certain other
protected characteristics under federal law. See 42 U.S.C. 2000e-
2(k)(1)(A).
\9\ 5 CFR 302.101(c).
---------------------------------------------------------------------------
Practices in Hiring Attorneys
Distinguishing Between Optional and Mandatory Hiring Practices
Many agencies adopt additional hiring practices that are not
legally required. They include involving HR officials in screening
out applicants based on substantive criteria (e.g., nature of legal
experience) and posting announcements exclusively on USAJobs without
further disseminating them.\10\ Although some agencies undertake
these practices knowing they are optional, other agencies adopt them
because HR and hiring officials mistakenly believe they are legally
required.\11\ A possible reason is that, in 1993, OPM stopped
publishing the Federal Personnel Manual, a compendium of guidance
that served as a reference guide for agencies. Successor
publications have taken the form of discrete handbooks and operating
manuals that are not updated frequently.
---------------------------------------------------------------------------
\10\ See Todd Phillips & Todd Rubin, Recruiting and Hiring
Agency Attorneys 18 (report to the Admin. Conf. of the U.S.),
www.acus.gov/report/recruiting-and-hiring-agency-attorneys-final-report (Dec. 4, 2019).
\11\ Id.
---------------------------------------------------------------------------
Considering Whether To Attract Broad or Discrete Applicant Pools
Agencies may benefit from availing themselves of the flexibility
the law affords them in hiring attorneys by using different
practices in different situations. Sometimes agencies may wish to
attract broad applicant pools, in which case they will typically
benefit from posting an announcement in locations likely to reach a
large number of qualified potential candidates. Agencies that wish
to do so may decide to post the position on USAJobs. There is,
however, a monetary cost to posting on USAJobs, and posting an
announcement solely on USAJobs without further dissemination may not
produce the optimal applicant pool. At other times, agencies might
wish to attract discrete candidate pools, consisting of, for
example, attorneys who previously worked for the agency, former
legal interns, presidential management fellows, or highly
recommended candidates. This might be the case when, for example, an
agency requires a unique set of skills. In such cases, agencies may
not want to post or broadcast an announcement (which the law
generally permits).\12\
---------------------------------------------------------------------------
\12\ Recruitment ``should be from qualified individuals from
appropriate sources in an endeavor to achieve a work force from all
segments of society.'' 5 U.S.C. 2301(b)(1).
---------------------------------------------------------------------------
Drafting Announcements
Whatever approach agencies take, it is important that their job
announcements are written clearly and in a way designed to attract
qualified applicants. Too often, however, attorney vacancy
announcements contain dense language and descriptions of job
responsibilities that are difficult to decipher.\13\ This problem
can arise when hiring officials send announcements to HR after they
draft the position's description. Once HR employees receive the
announcements, they sometimes insert language that does not apply to
hiring attorneys (e.g., language applicable only to competitive
service hiring). In addition, when HR employees post the
announcement through a talent acquisition system (i.e., a system
that allows government officials to post vacancy announcements and
track applicants on USAJobs), the HR officials may select generic
agency-developed job vacancy announcement templates, which populate
language that may be incorrect or inapplicable to the hiring of
attorneys. If HR officials do not remove or correct that language,
the announcements can be confusing or incorrect for specialized
positions such as attorneys. Hiring officials might not realize that
inapplicable language has been inserted until after the
announcements have been posted.
---------------------------------------------------------------------------
\13\ For examples of such announcements, see Phillips & Rubin,
supra note 10, at 28-30.
---------------------------------------------------------------------------
Resources exist to help agencies draft position announcements in
plain language, including Administrative Conference Recommendation
2017-3, Plain Language in Regulatory Drafting,\14\ and the Federal
Plain Language Guidelines.\15\
---------------------------------------------------------------------------
\14\ Admin. Conf. of the U.S., Recommendation 2017-3, Plain
Language in Regulatory Drafting, 82 FR 61728 (Dec. 29, 2017).
\15\ Plain Language Action & Information Network, Federal Plain
Language Guidelines (Rev. ed. 2011), http://www.plainlanguage.gov/guidelines/.
---------------------------------------------------------------------------
Recruiting Interns and Using Honors Programs
Agencies' recruitment efforts might include recruiting former
interns to work as attorneys. Hiring these candidates allows
agencies to employ those who have previously worked in the agency
and have proved that they can successfully carry out the agency's
work. Such hiring is akin to summer associate programs at some law
firms, in which firms hire students to work for the summer after
their second year of law school and then, after observing the
students' work, may offer them permanent employment upon graduation.
Agencies, however, cannot extend an offer of employment as an
attorney to an applicant until after he or she has been admitted to
a bar, which can take nearly a year or longer after graduation from
law school. If an agency wishes to hire an applicant for an attorney
position before he or she has been admitted to a bar, the agency
must hire him or her as a ``law clerk trainee.'' The law clerk
trainee position is a temporary excepted service appointment in
which a candidate for an attorney position could serve while waiting
[[Page 71357]]
to be admitted to a bar. The appointment can last no more than 14
months.\16\
---------------------------------------------------------------------------
\16\ 5 CFR 213.3102(d).
---------------------------------------------------------------------------
Some agencies regularly use the law clerk trainee hiring
authority by hiring through honors programs, which are generally
two-year employment and training programs for recent law school
graduates. Applicants generally apply to an honors program in their
final year of law school or during a clerkship and, if they are
accepted, may join the agency as a ``law clerk trainee'' if they are
not yet admitted to a bar. Licensed attorneys supervise law clerk
trainees in honors programs until they are admitted to a bar, at
which time they may be appointed to attorney positions.
Accruing Merit Systems Protection Board (MSPB) Rights
Once an attorney is hired, he or she must, in general,
continuously serve for two years (or one year, if the person is a
veteran or an eligible family member of a veteran) before accruing
the right to challenge a removal before the MSPB.\17\ Supervisors
may evaluate the appointee's performance during this period and
decide whether to retain the appointee.
---------------------------------------------------------------------------
\17\ See 5 U.S.C. 7511. In the competitive service, adverse
action rights accrue at the end of a probationary or trial period,
or after completion of one year of current continuous service under
other than a temporary appointment limited to one year or less. 5
CFR 315.803.
---------------------------------------------------------------------------
Hiring Procedures for Non-ALJ Adjudicators
The Administrative Conference recognizes that specific attorney
positions may require additional procedures to screen for certain
attributes. One important example arises when an agency hires an
adjudicator other than an administrative law judge (ALJ). Non-ALJ
adjudicators, like ALJs, must demonstrate an ability to discharge
the duties of an adjudicator with impartiality.\18\ There may be
additional procedures agencies need to adopt to screen for this
attribute and others specific to attorneys hired as non-ALJ
adjudicators.
---------------------------------------------------------------------------
\18\ See Admin. Conf. of the U.S., Recommendation 2018-4,
Recusal Rules for Administrative Adjudicators, 84 FR 2139 (Feb. 6,
2019).
---------------------------------------------------------------------------
Recommendation
Ensuring Agencies Know Which Procedures Are Required and Which Are
Optional
1. The Office of Personnel Management (OPM), in conjunction with
the Merit Systems Protection Board (MSPB) and the Office of Special
Counsel as necessary, should offer, and agencies should request,
training on the minimum procedural requirements in statutes,
regulations, and executive orders for hiring attorneys. That
training should, in particular, clarify the distinction between
hiring attorneys and hiring other kinds of employees and explain the
alternative processes and flexibilities available for hiring
attorneys. Such training could take any number of forms, including
providing written materials and in-person presentations and
webinars.
Helping Agencies Recruit Qualified Applicants
2. When hiring attorneys, agencies should recognize that they
have flexibility in recruiting. They should recognize that, among
other things, they can employ recruitment strategies designed to
reach either a broad or narrow pool of applicants as they deem
appropriate.
3. When seeking broad applicant pools for attorney positions,
agencies should post vacancy announcements in multiple locations
where they are likely to reach qualified applicants. Options for
posting include agencies' own websites, job recruiting websites, or
USAJobs.gov, the federal hiring portal. In addition to posting
announcements, agencies should widely disseminate such announcements
to a variety of sources, such as bar associations, other
professional legal associations, law school career offices,
professional listservs, former and current agency employees and
interns, other agencies, and other professional networks.
4. When seeking narrower applicant pools, agencies should
consider limiting the posting of vacancy announcements to the
agencies' websites and specialized forums.
Drafting Vacancy Announcements
5. Agencies should ensure that hiring officials take the lead in
drafting and reviewing final vacancy announcements for agency
attorney positions.
6. Attorney vacancy announcements should be written in plain
language, adhering closely to the principles in Administrative
Conference Recommendation 2017-3, Plain Language in Regulatory
Drafting, and the Federal Plain Writing Guidelines.
7. Announcements should specify exactly and clearly which
documents are required to constitute a complete application;
distinguish between mandatory and desirable criteria; and include
under mandatory criteria only essential elements, such as bar
membership and citizenship status.
8. Announcements should not include language that is applicable
only to competitive service positions or that is otherwise
inapplicable to attorney positions.
9. If agencies intend not to consider additional applications
after receiving a certain number, the announcement should so
indicate and specify the limit.
10. Agencies should recognize that they have the option of
requiring a conventional r[eacute]sum[eacute] from applicants
instead of requiring applicants to create a USAJobs
r[eacute]sum[eacute]. Agencies that require a conventional
r[eacute]sum[eacute] should so state in the vacancy announcement.
11. If, after drafting a vacancy announcement, hiring officials
send the announcement to human resources (HR) officials to be posted
on USAJobs or elsewhere, hiring officials should collaborate with HR
officials to review and approve the final version of the
announcement exactly as it will appear to the public. Hiring
officials should review the announcement to ensure that it is
consistent with Paragraphs 6 through 10 before it is posted.
12. Hiring officials should continue to review open-ended or
long-term vacancy announcements to ensure they do not become
outdated.
Improving OPM's Talent Acquisition System
13. OPM should instruct agencies that HR users developing job
vacancy announcement templates in the talent acquisition system used
to post announcements on USAJobs and to track applications must
specify exactly and clearly which documents are required to
constitute a complete application; distinguish between mandatory and
desirable criteria; and include under mandatory criteria only
essential elements, such as bar membership and citizenship status,
as specified in Paragraph 7.
14. OPM should clearly inform agencies to exclude from their
vacancy announcement templates any language inapplicable to attorney
hiring.
15. OPM should include a link on its talent acquisition system
to the Plain Language Guidelines and to Administrative Conference
Recommendation 2017-3, Plain Language in Regulatory Drafting, and
encourage agencies to apply all relevant provisions to their
drafting of vacancy announcements, as specified in Paragraph 6.
16. OPM should make clear in the instructions for its talent
acquisition system that agencies have the option of requiring
applicants to submit a conventional r[eacute]sum[eacute] instead of
a r[eacute]sum[eacute] generated by USAJobs.
Evaluating Applicants for Attorney Positions
17. Agencies should develop policies or processes governing how
attorney applications will be reviewed and assessed. These policies
or processes may include creating teams to select applicants for
interviews or recommend applicants for appointment.
18. Agency leadership should decide which responsibilities HR
officials should have in evaluating applications. If HR officials
will screen applicants, hiring officials should determine the
screening criteria and clearly communicate them to the screeners.
19. If feasible, agencies should ensure applicants are notified
when their applications have been received and when the agency has
made a hiring decision.
20. Supervisors should be aware that most newly hired attorneys
accrue the right to challenge removal before the MSPB after two
years (or one year, if the person is a veteran or an eligible family
member of a veteran). HR officials should send reminders to
supervisors approximately three to six months before such rights
accrue for any given attorney.
Using Law Clerk Trainee Positions and Honors Programs To Hire Attorneys
21. Agencies with honors programs should encourage successful
interns to apply to them. Agencies without honors programs should
consider hiring high-performing legal interns after graduation but
before they have been admitted to a bar, using the authority to hire
a law clerk trainee who can be appointed to an attorney position
upon admission to a bar.
[[Page 71358]]
Ensuring Impartiality of Attorneys Hired as Non-Administrative Law
Judge (ALJ) Adjudicators
22. Agencies' guidelines and procedures for hiring attorneys who
will act as non-ALJ adjudicators should be designed and administered
to ensure that those hired will act impartially and maintain the
appearance of impartiality, as suggested in Recommendation 2018-4,
Recusal Rules for Administrative Adjudicators.
[FR Doc. 2019-27930 Filed 12-26-19; 8:45 am]
BILLING CODE 6110-01-P
