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.

Notices Federal Register

30683 

Vol. 83, No. 126 

Friday, June 29, 2018 

1The PRA was enacted in 1980 and has since 

been amended twice, in 1986 and 1995. See 

Paperwork Reduction Act of 1995, Public Law 104– 

13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501– 

3521). 

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 

three recommendations at its SixtyNinth Plenary Session. The appended 

recommendations address: Paperwork 

Reduction Act Efficiencies; Severability 

in Agency Rulemaking (formerly titled 

Minimizing the Cost of Judicial Review; 

and Electronic Case Management in 

Federal Administrative Adjudication. A 

fourth recommendation on the topic of 

Administrative Judges was recommitted 

to the committee of jurisdiction for 

further consideration. A working group 

convened by the Office of the Chairman 

presented the Conference’s Model 

Adjudication Rules (rev. 2018). 

FOR FURTHER INFORMATION CONTACT: 

Gisselle Bourns for Recommendations 

2018–1 and 2018–2, and Gavin Young 

for Recommendation 2018–3. For each 

Recommendation and general 

information about other projects 

referenced in this notice, 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 Sixty-Ninth 

Plenary Session, held June 14–15, 2018, 

the Assembly of the Conference adopted 

three recommendations. 

Recommendation 2018–1, Paperwork 

Reduction Act Efficiencies. This 

recommendation encourages 

collaboration between the Office of 

Information and Regulatory Affairs and 

federal agencies to maximize 

opportunities for making the 

information collection clearance process 

under the Paperwork Reduction Act 

more efficient, while still maintaining 

its integrity. The recommendation also 

encourages using generic clearances and 

common forms more frequently, 

providing more training to agencies, and 

improving several other aspects of the 

information-collection clearance 

process. 

Recommendation 2018–2, Severability 

in Agency Rulemaking (formerly titled 

Minimizing the Cost of Judicial Review). 

This recommendation encourages 

federal agencies that anticipate litigation 

over their rules to consider early in the 

rulemaking process whether a rule is 

severable—that is, divisible into 

portions that can and should function 

independently. It also identifies steps 

agencies should take if they intend that 

portions of a rule should continue in 

effect even though other portions have 

been held unlawful on judicial review. 

In addition, it encourages courts 

reviewing an agency rule to solicit the 

parties’ views on the issue of 

severability in appropriate 

circumstances. 

Recommendation 2018–3, Electronic 

Case Management in Federal 

Administrative Adjudication. This 

recommendation offers guidance for 

agencies considering whether and how 

to implement an electronic case 

management system. It provides factors 

for agencies to consider in weighing the 

costs and benefits of an electronic case 

management system; sets forth measures 

an agency should take to ensure privacy, 

transparency, and security; and 

describes ways an electronic case 

management system may improve 

adjudicatory processes. 

A proposed recommendation 

addressing agency practices related to 

the selection, oversight, evaluation, 

discipline, and removal of 

administrative judges who are not 

administrative law judges was also on 

the agenda of the Sixty-Ninth Plenary 

Session; however, the Assembly voted 

to recommit the proposed 

recommendation to the Committee on 

Adjudication for further consideration— 

particularly in light of a then-pending 

Supreme Court decision that may have 

had bearing on the recommendation 

(i.e., Lucia v. SEC, 585 U.S. ___(2018)). 

In addition to adopting three 

recommendations, the Assembly 

received and commented on a revised 

version of the Model Adjudication Rules 

(rev. 2018) prepared by a working group 

convened by the Conference’s Office of 

the Chairman. The revised Rules offer 

agencies a complete set of model 

procedural rules—governing prehearing 

proceedings, hearings, and appellate 

review—to improve the fairness and 

efficiency of their adjudication 

programs. Once completed, the Rules 

will be published on the Conference’s 

website and noticed in the Federal 

Register. Public comment on the revised 

Rules had been sought previously. See 

83 FR 2958 (Jan. 22, 2018). 

The Appendix below sets forth the 

full texts of the three adopted 

recommendations. The Conference will 

transmit them to affected entities, which 

may include Federal agencies, Congress, 

and the Judicial Conference of the 

United States. The recommendations are 

not binding, so the entities to which 

they are addressed will make decisions 

on their implementation. 

The Conference based these 

recommendations on research reports 

that are posted at: www.acus.gov/ 

69thPlenary. 

Dated: June 26, 2018. 

Shawne C. McGibbon, 

General Counsel. 

Appendix—Recommendations of the 

Administrative Conference of the 

United States 

Administrative Conference Recommendation 

2018–1 

Paperwork Reduction Act Efficiencies 

Adopted June 14, 2018 

The Paperwork Reduction Act (PRA) 

created the Office of Information and 

Regulatory Affairs (OIRA) within the Office 

of Management and Budget to oversee 

information policy in the executive branch.1


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2 5 CFR 1320.3(c)(1), (h)(4) (2018). The PRA 

applies to the collection of structured information, 

meaning requests for information calling for either 

answers to identical questions posed to, or identical 

reporting or recordkeeping requirements imposed 

on, ten or more persons, or answers to questions 

posed to agencies which are to be used for general 

statistical purposes. See 44 U.S.C. 3502(3) (2018). 

3See 44 U.S.C. 3502(3)(A)(i); 5 CFR 1320.3(c)(4). 

4See 44 U.S.C. 3506–3507; 5 CFR pt. 1320. 

5Stuart Shapiro, The Paperwork Reduction Act: 

Research on Current Practices and 

Recommendations for Reform 26 (Feb. 15, 2012) 

(report to the Admin. Conf. of the U.S.), https://

www.acus.gov/report/final-draft-paperworkreduction-act-report (stating that reviews can take 

from six to nine months). 

6See Cass Sunstein, OIRA Administrator, Social 

Media, Web-Based Interactive Technologies, and 

the Paperwork Reduction Act (Apr. 7, 2010), 

https://www.whitehouse.gov/sites/whitehouse.gov/ 

files/omb/assets/inforeg/SocialMediaGuidance_

04072010.pdf; Cass Sunstein, OIRA Administrator, 

Paperwork Reduction Act—Generic Clearances 

(May 28, 2010), https://www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/assets/inforeg/PRA_Gen_

ICRs_5-28-2010.pdf; Cass Sunstein, OIRA 

Administrator, New Fast-Track Process for 

Collecting Service Delivery Feedback Under the 

Paperwork Reduction Act (June 15, 2011), https:// 

www.whitehouse.gov/sites/whitehouse.gov/files/ 

omb/memoranda/2011/m11-26.pdf; Howard 

Shelanski, OIRA Administrator, Flexibilities under 

the Paperwork Reduction Act for Compliance with 

Information Collection Requirements (July 22, 

2016), https://www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/inforeg/inforeg/pra_

flexibilities_memo_7_22_16_finalI.pdf. 

7Agencies can also take advantage of expedited 

approval processes for the following additional 

categories of information collections: emergencies, 

non-substantive changes, de minimis changes, data 

search tools and calculators, challenges or prizes, 

and certain requests for information through social 

media. See Shelanski, supra note 6. 

8When an agency asks for approval of a generic 

clearance, it is asking for approval of a series of 

related information collections under a single, 

umbrella request. The umbrella request describes 

the individual collections that would fall under it. 

The umbrella request then goes through the entire 

PRA process. If OIRA approves the umbrella request 

for a generic clearance, the individual collections 

covered by that clearance can be submitted through 

an expedited approval process in which OIRA 

reviews the proposed collection within ten days of 

receipt. See id. 

9The fast track process borrows heavily from the 

generic clearance process, but fast tracks have a 

narrower range of uses primarily concerning 

customer feedback and OIRA reviews requests 

under the fast-track clearance within five working 

days. See id. 

10Under the common form approval process, a 

‘‘host’’ agency secures approval of the collection 

from OIRA. Later, other agencies that wish to use 

the form can avoid the two Federal Register notices 

required under the PRA and merely inform OIRA 

of any additional burden on the public that the use 

of the form might create. Id. 

11Stuart Shapiro, Paperwork Reduction Act 

Efficiencies 12–17 (May 14, 2018) (report to the 

Admin. Conf. of the U.S.), https://www.acus.gov/ 

report/paperwork-reduction-act-efficiencies-finalreport. 

12See id. at 26–27. Not all types of activities 

related to testing the usability of forms or website 

feedback would be covered by the PRA. Direct 

observations of users interacting with digital 

services tools are not subject to the PRA. See 

Shelanski, supra note 6. 

13See Shapiro, supra note 11, at 17–19. 

14 Id. Federal ‘‘agencies must report their annual 

burden as part of OIRA’s required submission to 

Congress of an Information Collection Budget.’’ Id. 

at 18 n.38. 

15Sometimes this is because statutes require 

agencies to collect data elements not on the 

common form; in other cases, it may be the agency’s 

preference. Id. at 17–19. 

16 Id. at 17–19, 24. 

17The supporting statement consists of the 

answers to eighteen questions. Id at 22. For 

collections with a statistical component, there is a 

second part to the supporting statement consisting 

of five additional questions. Id. 

OIRA’s oversight responsibilities include the 

review and approval of federal agencies’ 

information collections from the public. 

Information collections are government 

requests for structured information, such as 

those requests for information issued through 

report forms, application forms, schedules, 

questionnaires, surveys, and reporting or 

recordkeeping requirements.2 The goal of the 

OIRA review process is to ensure that the 

burden of information collection on the 

public is justified by the utility of the 

information to the government. This 

Recommendation primarily concerns the 

interaction between agencies and the OIRA 

review process. 

Under the OIRA review process, when an 

agency seeks to collect structured 

information from ten or more members of the 

public,3 it must follow a series of steps.4 It 

must first publish a notice in the Federal 

Register and give the public sixty days to 

comment. Once the comment period ends, 

the agency must submit the proposed 

information collection to OIRA with a 

detailed supporting statement, ordinarily 

using the Regulatory Information Service 

Center and Office of Information and 

Regulatory Affairs Combined Information 

System (ROCIS), the computer system used 

by agencies to submit information collections 

to OIRA. At the same time, the agency must 

also publish a second notice in the Federal 

Register asking for comments on the 

information collection it provided to OIRA. 

After the thirty days for public comments 

have elapsed, OIRA has another thirty days 

to decide whether to approve or disapprove 

the information collection. 

Expedited Clearance Processes 

The process of obtaining OIRA approval for 

an information collection can be lengthy.5 To 

address this, OIRA has issued a series of 

memoranda designed to highlight existing 

processes that shorten the review time of 

certain types of information collections, 

while maintaining the integrity of the review 

process.6 The memoranda discuss several 

categories of information collections that may 

qualify for expedited clearance from OIRA, 

such as generic clearances, fast-tracks, and 

common forms.7 Generic clearances are 

generally intended for ‘‘voluntary, lowburden, and uncontroversial collections,’’ not 

for ones with substantive policy impacts.8

The fast track process, a subset of generic 

clearances, was designed to encourage 

agencies to solicit feedback about their 

services, and is generally used for 

information collections that focus on 

customer service feedback.9 Common forms 

are information collections that can be used 

by two or more agencies, or governmentwide, for the same purpose.10

Agencies’ Use of Expedited Clearance 

Processes 

Agencies have used the expedited 

clearance processes offered by OIRA in 

varying degrees. Agencies’ use of new generic 

clearances and fast tracks increased after 

OIRA publicized them and provided training 

to agencies on their use in 2011, but has 

since decreased (although agencies continue 

to seek OIRA approvals extensively under 

preexisting generic clearances).11 This is in 

part because the most likely candidates for 

generic clearances and fast-track approval 

were the first ones submitted by agencies. 

But these techniques have likely also faded 

in the consciousness of agencies, particularly 

with the turnover of agency personnel. There 

also appears to be very little use of the 

generic clearance and fast track processes to 

test the usability of forms or obtain feedback 

to improve agency websites, even though 

OIRA has indicated that usability testing is 

a good fit for these processes.12

Common forms could also be used to 

expedite approval of collections and to 

promote data sharing among agencies, 

limiting the need for duplicative information 

collection. Agencies have not used common 

forms, however, as often as fast-tracks and 

generic clearances. This may be due to 

barriers that make it difficult for agencies to 

collaborate with one another to develop 

common forms.13 There also appears to be 

confusion at agencies about how they should 

report the burden created by an information 

collection conducted through a common 

form.14 Finally, agencies sometimes avoid 

common forms because they want to ask for 

information to suit particular agency needs.15

Regardless, it appears that there is a great 

deal of untapped potential for the use of 

common forms.16

Other Opportunities for Facilitating the 

Clearance Process 

Aside from the expedited clearance 

processes outlined by OIRA, there are other 

opportunities for making the information 

collection clearance process more efficient, 

while still maintaining its integrity. One 

possibility would be for an agency to review 

all of the collections that are coming up for 

renewal without changes for a particular time 

period and to consolidate the Federal 

Register notices for those renewals. While 

there is a concern that combining unrelated 

collections might be confusing to the public, 

there are also offsetting benefits in terms of 

consistent information collection—especially 

for those collections that have previously 

undergone the review process. 

Another opportunity to achieve efficiencies 

is to update the supporting statement that 

agencies must submit with each submission 

of a proposed information collection to OIRA 

for review.17 The supporting statement is 

intended to allow OIRA to evaluate the 

collections against the statutory criteria in 

the PRA. Developing it is a significant 

component of the time it takes agencies to 

prepare information collections for review, 

especially new collections. Currently, neither 


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18Filling out some parts of the form for the 

supporting statement is perceived by agencies as a 

pro forma exercise, and filling out other parts is 

perceived as a needlessly time-consuming exercise. 

From OIRA’s perspective, agencies focus too much 

on discussing burdens of the proposed information 

collection and not enough time discussing its 

practical utility. Id. at 25. 

19 Id. at 22–23, 25–26. 

1Admin. Conf. of the U.S., Recommendation 

2013–6, Remand Without Vacatur, 78 FR 76,269, 

76,272 (Dec. 5, 2013); Ronald M. Levin, Judicial 

Remedies, in A Guide to Judicial and Political 

Review of Federal Agencies 251, 251–52 (Michael 

E. Herz et al. eds., 2d ed. 2015). 

2 Jennifer Nou & Edward H. Stiglitz, Regulatory 

Bundling, 128 Yale L.J. __(forthcoming 2018). 

3A recent article on severability clauses 

identified fifty-nine instances in which agencies 

had included severability clauses in their rules as 

of October 2014. Charles W. Tyler & E. Donald 

Elliott, Administrative Severability Clauses, 124 

Yale L.J. 2286, 2349–52 (2015). 

4The Federal Trade Commission and 

Environmental Protection Agency have generated 

the largest volume of severability clauses. Id. at 

2318–19. 

5See, e.g., Consumer Fin. Prot. Bureau v. The 

Mortg. Law Grp., LLP, 182 F. Supp. 3d 890, 894– 

95 (W.D. Wis. 2016) (deferring to severability clause 

on issue of whether the agency intended for the 

remainder of the rule to stay in effect); High 

Country Conservation Advocates v. U.S. Forest 

Serv., No. 13–CV–01723–RBJ, 2014 WL 4470427, at 

*4 (D. Colo. Sept. 11, 2014) (‘‘I conclude that the 

severability clause creates a presumption that the 

North Fork Exception is severable . . . .’’); cf. MD/ 

DC/DE Broads. v. FCC, 253 F.3d 732, 734–36 (D.C. 

Cir. 2001) (declining to honor an agency’s 

severability clause because the agency did not 

adequately explain how the remaining portion of 

the rule would have served the goals for which the 

rule was designed). 

6Am. Petroleum Inst. v. EPA, 862 F.3d 50, 72 

(D.C. Cir. 2017) (‘‘If EPA, or any party, wishes to 

disabuse us of our substantial doubt with a petition 

for rehearing, we will of course reconsider as 

necessary.’’), decision modified on reh’g, 883 F.3d 

918 (D.C. Cir. 2018). 

7Nat’l Treasury Emps. Union v. Chertoff, 452 

F.3d 839, 867 (D.C. Cir. 2006) (quoting Harmon v. 

Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989)). 

This is an application of the Chenery doctrine, 

which holds that a reviewing court may not affirm 

an agency decision on different grounds from those 

adopted by the agency. See SEC v. Chenery Corp., 

318 U.S. 80, 92–94 (1943). 

8See, e.g., Virginia v. EPA, 116 F.3d 499, 500–01 

(D.C. Cir. 1997); Davis Cty. Solid Waste Mgmt., 108 

F.3d 1454, 1455–56, 1459–60 (D.C. Cir. 1997); Nat’l 

Ass’n of Mfrs. v. NLRB, 846 F. Supp. 2d 34, 62 

(D.D.C. 2012), aff’d in part, rev’d in part, 717 F.3d 

947 (D.C. Cir. 2013). 

agencies nor OIRA are satisfied with it.18

Refining the supporting statement with the 

input of agency PRA clearance officers has 

the potential to reduce the burden on 

agencies while increasing the practical utility 

of submissions to OIRA. 

Finally, some agencies have also reported 

difficulties and confusion in using ROCIS.19

Improvements to ROCIS could reduce agency 

burden, make agency submissions more 

useful to OIRA, and increase the usability of 

the data collected by ROCIS to agencies and 

the public. 

Recommendation 

1. To the extent practicable, the Office of 

Information and Regulatory Affairs (OIRA) 

should provide training opportunities for 

agencies on the Paperwork Reduction Act 

(PRA). The training topics could include 

basic administration of the PRA; expedited 

clearance processes, including generic 

clearances and the use of common forms; and 

other new and emerging topics in 

information collection. The method of 

training could include in-person training of 

PRA clearance officers, as well as new 

training materials. 

2. Agencies should make greater use of 

generic clearances to comply with the PRA 

when engaging in usability testing of 

websites and other applications. 

3. OIRA should encourage the 

development of common forms. OIRA should 

ask agencies to provide a list of potential 

common forms, and facilitate agency 

coordination and implementation of 

promising candidates. This list should be 

included in the Annual Information 

Collection Budget report that OIRA submits 

to Congress every year. 

4. For information collection requests 

without changes from previous approvals, 

OIRA should clarify that agencies may 

consolidate the first Federal Register notice 

for extensions by taking the following steps: 

a. The agency would choose a time period 

(e.g., six months or a year) and review all of 

its related collections that are coming up for 

renewal during that period. 

b. The agency would then place a single 

notice in the Federal Register to inform the 

public that those collections are available for 

public comment. 

5. OIRA, in consultation with agency PRA 

clearance officers, should revise the 

supporting statement requirements on 

information collection submissions to ensure 

the requirements minimize preparation time 

and remain practically useful. 

6. OIRA, in consultation with agency PRA 

clearance officers, should make 

improvements to ROCIS, the internal 

computer system used to submit information 

collections to OIRA. OIRA should consider, 

for example, improvements to the user 

interface, workflow, and the usability of 

ROCIS, data to agencies and to the public. 

7. OIRA should continue to consult with a 

working group consisting of agency PRA 

clearance officers, and with other appropriate 

experts, to continue improving the PRA 

clearance process. 

Administrative Conference Recommendation 

2018–2 

Severability in Agency Rulemaking 

Adopted June 15, 2018 

If a court holds portions of a rule unlawful, 

and the agency has been silent about 

severability, then the default remedy is to 

vacate the entire rule, including those 

portions that the court did not hold 

unlawful.1 This outcome can impose 

unnecessary costs on the agency, if it chooses 

to re-promulgate the portions of the rule that 

the court did not hold unlawful but 

nonetheless set aside, and on the public, 

which would forgo any benefits that would 

have accrued under those portions of the 

rule. 

In recent years, as administrative rules 

have become more complex,2 some agencies 

have adapted the concept of severability 

originally developed in the legislative 

context. Specifically, some agencies have 

included provisions in some of their rules 

stating that if portions of the rule are held 

unlawful in court, other portions not held 

unlawful should be allowed to go into or 

remain in effect.3 To date, only a handful of 

agencies have used these severability 

clauses,4 yet many other agencies issue rules 

that may be good candidates for considering 

the possibility of severability. 

This Recommendation suggests best 

practices for agencies in addressing 

severability in a rulemaking. Addressing 

severability is not appropriate in every 

rulemaking. Indeed, if agencies include 

severability clauses without a reasoned 

discussion of the rationale behind them and 

how severability might apply to a particular 

rule, the courts will be less likely to give 

them much weight. By contrast, addressing 

severability can be particularly valuable 

when an agency recognizes that some 

portions of its proposed rule are more likely 

to be challenged than others and that the 

remaining portions of the rule can and 

should function independently. 

It is not yet clear how principles of 

severability developed in the context of 

judicial review of legislation should be 

adapted to judicial review of agency rules. 

Nor is it clear how much weight the courts 

will or should give to an agency’s expression 

of its views on severability. The Supreme 

Court has never addressed the issue, and the 

lower courts have reached different results in 

the context of particular rulemakings.5

General principles of administrative law 

suggest that the agency’s views on 

severability should be most persuasive when: 

(1) The agency includes its severability 

proposal in the text of the proposed rule and 

the agency’s initial rationale for severability 

is explained in the preamble to the proposed 

rule; (2) these initial positions are made 

available for comment by interested parties; 

(3) the agency addresses its determination of 

severability in the text of the final rule; (4) 

the agency addresses the rationale for 

severability in the statement of basis and 

purpose accompanying the final rule (in the 

same manner as any other substantive policy 

issue in the rulemaking); and (5) the agency 

explains how specific portions of the rule 

would operate independently. While courts 

may also be willing to consider the agency’s 

view on severability as expressed in agency 

briefs or at oral argument,6 courts may be less 

likely to agree with the agency if the issue 

of severability comes up for the first time in 

litigation because of ‘‘ ‘the fundamental 

principle that agency policy is to be made, 

in the first instance, by the agency itself—not 

by courts, and not by agency counsel.’ ’’7

Sometimes courts have concluded that an 

agency’s intentions are sufficiently clear to 

support severability, despite the absence of a 

severability clause or discussion of the issue 

in the rulemaking.8 This outcome is more 

likely, however, if the agency includes a 

severability clause in the proposed regulatory 

text; invites comment; and includes in the 

rule’s statement of basis and purpose a 

reasoned explanation for why the agency 


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9Charles W. Tyler & E. Donald Elliott, Tailoring 

the Scope of Judicial Remedies in Administrative 

Law 22 (May 4, 2018) (report to the Admin. Conf. 

of the U.S.), https://www.acus.gov/report/tailoringscope-judicial-remedies-administrative-law-finalreport. 

1Felix F. Bajandas & Gerald K. Ray, 

Implementation and Use of Electronic Case 

Management Systems in Federal Agency 

Adjudication (May 23, 2018) (report to the Admin. 

Conf. of the U.S.), https://acus.gov/report/finalreport-implementation-and-use-electronic-casemanagement-systems-federal-agency. 

2 Government Paperwork Elimination Act, Public 

Law 105–277, 112 Stat. 2681–749 (1998) (codified 

at 44 U.S.C. 3504 note). 

3E-Government Act of 2002, Public Law 107–347, 

116 Stat. 2899 (codified at 44 U.S.C. 101 note). 

4See Admin. Conf. of the U.S., Recommendation 

2017–1, Adjudication Materials on Agency 

websites, 82 FR 31,039, 31,039 (Jul. 5, 2017); 

Admin. Conf. of the U.S., Recommendation 2013– 

5, Social Media in Rulemaking, 78 FR 76,269, 

76,269 (Dec. 17, 2013); and Admin. Conf. of the 

U.S., Recommendation 2011–1, Agency Innovations 

in E-Rulemaking, 77 FR 2,257, 2,264 (Jan. 17, 2012). 

5Privacy Act of 1974 (codified at 5 U.S.C. 552a), 

as amended by the FOIA Improvement Act of 2016, 

Public Law 114–185, 130 Stat. 538 (codified at 5 

U.S.C. 101 note). 

believes some portions of the rule can and 

should function independently. 

A separate but related question is how 

parties to a challenge to an agency rule 

should address the question of severability 

during litigation. Litigants may be reluctant 

to address the issue of severability in their 

briefs because: (1) It is often not clear in 

advance which portions of a rule a court may 

hold unlawful and on what basis; or (2) they 

may fear that addressing severability would 

suggest weakness in their positions on the 

merits.9

Recommendation 

1. Early in the process of developing a rule, 

in addition to other programmatic 

considerations, agencies that anticipate 

litigation should consider whether a rule is 

divisible into portions that could and should 

function independently if other portions 

were to be held unlawful on judicial review. 

a. If the agency intends that portions of the 

rule should continue in effect even if other 

portions are later held unlawful on judicial 

review, it should draft the rule so that it is 

divisible into independent portions that 

reflect this purpose. 

b. In order to provide members of the 

public an opportunity for comment, agencies 

should address the issue of severability in the 

text of the proposed rule and provide a 

reasoned explanation for the proposal. 

c. Agencies should likewise address their 

determination of severability in the text of 

the final rule and provide a reasoned 

explanation for that determination in the 

statement of basis and purpose. Agencies 

should identify which portions, if any, they 

intend to be severable and explain how they 

relate to other portions in the event a court 

holds some portions of the rule unlawful. 

2. When severability becomes an issue on 

judicial review, and it has not been 

previously briefed, courts should solicit the 

parties’ views on severability. 

Administrative Conference Recommendation 

2018–3 

Electronic Case Management in Federal 

Administrative Adjudication 

Adopted June 15, 2018 

Courts and adjudicative agencies have 

increasingly come to rely on technology to 

manage various aspects of their adjudicative 

activities. Some of these federal agencies 

have adopted and implemented a form of 

electronic management for their casework, 

but others have not done so. Although 

practical considerations or resource 

constraints may sometimes weigh against the 

use of an electronic case management system 

(eCMS), agencies can often realize 

considerable efficiencies and reap other 

benefits by adopting such a system. 

Benefits of an Electronic Case Management 

System 

As referred to here, an electronic case 

management system includes the functions 

usually associated with a paper-based case 

management system from the filing of a case 

to its resolution and beyond, such as: The 

initial receipt of the claim, complaint, or 

petition; the receipt, organization, and secure 

storage of evidence and briefs; the scheduling 

of hearings or other proceedings; the 

maintenance of tools to facilitate the analysis 

and resolution of the case; and the collection 

and reporting of data relating to the case, 

including when evidence was received, the 

time the case has remained pending, 

employees who have processed the case, and 

the outcome of the case, including any 

agency decision. 

An eCMS, properly implemented, may 

perform these functions in a more efficient 

and cost-effective manner than a paper-based 

management system.1 For example, 

maintaining paper records can be costly with 

respect to storage space, mailing fees, and 

staff time for agency employees needed to 

receive, store, track, and retrieve records, and 

locate lost or misfiled records. An eCMS may 

reduce these costs in addition to reducing 

processing time and improving interactions 

with litigants and the public. In addition to 

improving the traditional functions of a 

paper-based case management system, an 

eCMS may also provide new functionalities, 

such as making structured data available for 

analysis that can be used to improve an 

agency’s operations. 

Perhaps more importantly, an eCMS can 

assist adjudicative agencies in fulfilling their 

duties under various laws that impose 

requirements related to paperwork reduction, 

agency efficiency, public access to records, 

and technology management. For example, 

the Government Paperwork Elimination Act 

requires that federal agencies use electronic 

forms, electronic filing, and electronic 

signatures to conduct official business with 

the public, when practicable.2 Further, the EGovernment Act of 2002 directs agencies to 

establish ‘‘a broad framework of measures 

that require using internet-based information 

technology to improve citizen access to 

government information and services.’’ 3 And 

finally, beyond statutory requirements, an 

eCMS can also assist an agency’s 

implementation of best practices for public 

access and participation, consistent with the 

objectives of past ACUS recommendations 

relating to both adjudication and 

rulemaking.4

Considerations in Adopting an Electronic 

Case Management System 

Despite the advantages of an eCMS, the 

decision to implement an eCMS must be 

carefully considered. It may not be cost 

efficient for every adjudicative agency to 

implement an eCMS given agency-specific 

factors such as caseload volume. For 

example, there may be significant costs 

associated with the development, purchase, 

and maintenance of new hardware and 

software. Further, the need to train agency 

staff in new business processes associated 

with the eCMS may also be significant, as the 

new operations may be substantially 

different. In addition, an agency may need to 

allocate resources to ensure that any new 

eCMS complies with existing legal 

requirements, such as the protection of 

private information about individuals, as 

required by the Privacy Act.5

If, after considering the costs, an agency 

decides to implement an eCMS to partially or 

fully replace a paper-based case management 

system, the agency must consider a number 

of factors in deciding what particular eCMS 

features are to be used and how they are to 

be designed and implemented. Planning for 

an eCMS implementation thus requires a 

comprehensive understanding of an agency’s 

structure and business process. Agencies 

considering implementing or enhancing an 

eCMS may find further benefit in studying 

the experiences of other agencies’ eCMS 

implementations, and they should examine 

those experiences carefully, due to the highly 

fact-specific nature of a consideration of the 

costs and benefits of an eCMS. 

The implementation or expansion of an 

eCMS deserves full and careful consideration 

by federal adjudicative agencies, with 

recognition that each agency is unique in 

terms of its mission, caseload, and 

challenges. This Recommendation suggests 

that agencies implement or expand an eCMS 

only when they conclude, after conducting a 

thorough consideration of the costs and 

benefits, that doing so would lead to benefits 

such as reduced costs and improved 

efficiency, accuracy, public access, and 

transparency without impairing the fairness 

of the proceedings or the participants’ 

satisfaction with them. 

Recommendation 

1. Federal adjudicative agencies should 

consider implementing electronic case 

management systems (eCMS) in order to 

reduce costs, expand public access and 

transparency, increase both efficiency and 

accuracy in the processing of cases, identify 

opportunities for improvement through the 

analysis of captured data, and honor 

statutory requirements such as the protection 

of personally identifiable information. 

2. Federal adjudicative agencies should 

consider whether their proceedings are 

conducive to an eCMS and whether their 

facilities and staff can support the eCMS 

technology. If so, agencies should then 

consider the costs and benefits to determine 


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Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Notices 30687 

whether the implementation or expansion of 

an eCMS would promote the objectives 

identified in Recommendation 1 as well as 

the agency’s statutory mission without 

impairing the fairness of proceedings or the 

participants’ satisfaction with them. This 

consideration of the costs and benefits 

should include the following non-exclusive 

factors: 

a. Whether the agency’s budget would 

allow for investment in appropriate and 

secure technology as well as adequate 

training for agency staff. 

b. Whether the use of an eCMS would 

reduce case processing times and save costs, 

including printing of paper and the use of 

staff resources to store, track, retrieve, and 

maintain paper records. 

c. Whether the use of an eCMS would 

foster greater accessibility and better public 

service. 

d. Whether users of an eCMS, such as 

administrative law judges, other adjudicators, 

other agency staff, parties, witnesses, 

attorneys or other party representatives, and 

reviewing officials would find the eCMS 

beneficial. 

e. Whether the experiences of other 

agencies’ eCMS implementations provide 

insight regarding other factors which may 

bear on the manner of an eCMS 

implementation. 

3. The following possible eCMS features, 

currently implemented by some federal 

adjudicative agencies, should be considered 

by other agencies for their potential benefits: 

a. Web access to the eCMS that allows 

parties the flexibility to file a claim, 

complaint, or petition; submit documents; 

and obtain case information at any time. 

b. Streamlining of agency tasks in 

maintaining a case file, such as sorting and 

organizing case files, providing simultaneous 

access to files and documents by authorized 

users, tracking deadlines and elapsed age of 

a case, notifying parties of new activity in a 

case, and pre-populating forms with data 

from the case file. 

c. The comprehensive capture of structured 

and unstructured data that allows for robust 

data analysis to identify opportunities for 

improving an agency’s operations, budget 

formulation, and reporting. 

d. Streamlined publication of summary 

data on agency operations. 

4. Federal adjudicative agencies that 

decide to implement or expand an eCMS 

should plan and manage their budgets and 

operations in a way that balances the needs 

of a sustainable eCMS with the possibility of 

future funding limitations. Those agencies 

should also: 

a. Consider the costs associated with 

building, maintaining, and improving the 

eCMS. 

b. Consider whether the adoption of an 

eCMS requires modifications of an agency’s 

procedural rules. This would include 

addressing whether the paper or electronic 

version of a case file will constitute the 

official record of a case and whether filing 

methods and deadlines need to be changed. 

c. Consider whether to require non-agency 

individuals to file claims, complaints, 

petitions, and other papers using the eCMS. 

Such consideration should include the 

accessibility, suitability, usability, and 

burden of the eCMS for its likely user 

population, and whether creating exceptions 

to electronic filing procedures would assist 

in maintaining sufficient public access. 

d. Create a map or flow chart of their 

adjudicative processes in order to identify 

the needs of an eCMS. This involves listing 

the tasks performed by employees at each 

step in the process to ensure the eCMS 

captures all of the activities that occur while 

the case is pending, from initial filing to final 

resolution. It also includes identifying how 

members of the public or other non-agency 

users will access and interact with the eCMS. 

To the extent practical, this effort should also 

involve mapping or flow-charting the legal 

and policy requirements to decisional 

outcomes. 

e. Put in place a management structure 

capable of: (1) Restoring normal operations 

after an eCMS goes down (incident 

management); (2) eliminating recurring 

problems and minimizing the impact of 

problems that cannot be prevented (problem 

management); (3) overseeing a new release of 

an eCMS with multiple technical or 

functional changes (release management); (4) 

handling modifications, improvements, and 

repairs to the eCMS to minimize service 

interruptions (change management); and (5) 

identifying, controlling, and maintaining the 

versions of all of the components of the 

eCMS (configuration management). 

f. Establish a ‘‘service desk,’’ which is a 

central hub for reporting issues with the 

eCMS, providing support to eCMS users, and 

receiving feedback on the resolution of 

problems. A service desk should gather 

statistics of eCMS issues in order to help 

guide future improvements of the eCMS. A 

service desk could also enable eCMS users to 

offer suggestions for improving the eCMS. 

g. Plan adequate and timely training for 

staff on the use of the eCMS. 

5. Federal adjudicative agencies that 

decide to implement or expand an eCMS 

must do so in such a way that appropriate 

protections for privacy, transparency, and 

security are preserved by: 

a. Ensuring that the agency’s compliance 

with the Privacy Act, other statutes 

protecting privacy, and the agency’s own 

privacy regulations and policies remains 

undiminished by the implementation or 

expansion of an eCMS. 

b. To the extent it is consistent with 

Recommendation 5(a) above, making case 

information available online to parties and, 

when appropriate, the public, taking into 

account both the interests of transparency (as 

embodied in, for example, the Freedom of 

Information Act’s proactive disclosure 

requirements) as well as the benefits of 

having important adjudicative documents 

publicly available. 

c. Adopting security measures, such as 

encryption, to ensure that information held 

in an eCMS cannot be accessed or changed 

by unauthorized persons. 

d. Ensuring that sensitive information is 

not provided to unintended third parties 

through private email services, unsecured 

data transmission, insider threats, or 

otherwise. 

e. Keeping track of the evolution of 

security technologies and considering the 

adoption of those technologies as they 

mature in order to ensure the integrity of 

agency information systems. 

6. Federal adjudicative agencies that 

decide to implement or expand an eCMS 

should consider how to analyze and leverage 

data that is captured by the eCMS to improve 

their adjudicative processes, including 

through the use of natural language 

processing, machine learning, and predictive 

algorithms. Agencies should consider: 

a. Evaluating how eCMS features could 

generate the types of data that would be 

useful for evaluating the effectiveness of their 

adjudicative processes and policies. 

b. Capturing and analyzing such data about 

adjudicative processes and policies to detect 

and define problem areas that present 

opportunities for improvement. 

c. Upon identification of areas for 

improvement in the adjudication process, 

taking corrective action, refining performance 

goals, and measuring performance under the 

newly improved process. 

d. Hiring staff trained in data science to 

facilitate data analysis and giving that staff 

access to subject matter experts within 

agencies. 

e. Collaborating with other agencies on best 

practices for data analytics. 

[FR Doc. 2018–14075 Filed 6–28–18; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Office of the Secretary 

Determination of Total Amounts of 

Fiscal Year 2019 WTO Tariff-Rate 

Quotas for Raw Cane Sugar and 

Certain Sugars, Syrups and Molasses 

AGENCY: Office of the Secretary, USDA. 

ACTION: Notice. 

SUMMARY: The Office of the Secretary of 

the Department of Agriculture (the 

Secretary) announces the establishment 

of the Fiscal Year (FY) 2019 (October 1, 

2018–September 30, 2019) in-quota 

aggregate quantity of raw cane sugar at 

1,117,195 metric tons raw value 

(MTRV), and the establishment of the 

FY 2019 in-quota aggregate quantity of 

certain sugars, syrups, and molasses 

(also referred to as refined sugar) at 

192,000 MTRV. 

DATES: These quantities are established 

as of June 29, 2018. 

ADDRESSES: Souleymane Diaby, Import 

Policies and Export Reporting Division, 

Foreign Agricultural Service, U.S. 

Department of Agriculture, Stop 1021, 

1400 Independence Avenue SW, 

Washington, DC 20250–1021. 

FOR FURTHER INFORMATION CONTACT: 

Souleymane Diaby, (202) 720–2916, 

Souleymane.Diaby@fas.usda.gov. 

SUPPLEMENTARY INFORMATION: The 

provisions of paragraph (a)(i) of the 


sradovich on DSK3GMQ082PROD with NOTICES