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

1509 

Vol. 89, No. 7 

Wednesday, January 10, 2024 

1The term ‘‘adjudication’’ as used in this 

Recommendation refers to the process for 

formulating an order that is ‘‘a decision by 

government officials made through an 

administrative process to resolve a claim or dispute 

between a private party and the government or 

between two private parties arising out of a 

government program.’’ Michael Asimow, Admin. 

Conf. of the U.S., Federal Administrative 

Adjudication Outside the Administrative Procedure 

Act 8 (2019). 

2Asimow, supra note 1, at 10. 

3Asimow, supra note 1, at 10. The 

Administrative Conference has used the term ‘‘Type 

A adjudications’’ to refer to adjudications that 

include an opportunity for a legally required 

evidentiary hearing that is covered by the formal 

adjudication provisions of the Administrative 

Procedure Act (APA), 5 U.S.C. 554, 556–557. The 

Conference has used the term ‘‘Type B 

adjudications’’ to refer to adjudications that include 

an opportunity for a legally required evidentiary 

hearing that is not covered by the APA’s formal 

adjudication provisions. See Admin. Conf. of the 

U.S., Recommendation 2016–4, Evidentiary 

Hearings Not Required by the Administrative 

Procedure Act, 81 FR 94314 (Dec. 23, 2016). 

4The Conference has used the term ‘‘Type C’’ 

adjudication to refer to adjudications that are not 

subject to a legally required evidentiary hearing. 

See id. 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendations 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Assembly of the 

Administrative Conference of the 

United States adopted four 

recommendations at its hybrid (virtual 

and in-person) Eightieth Plenary 

Session: Best Practices for Adjudication 

Not Involving an Evidentiary Hearing, 

Identifying and Reducing Burdens on 

the Public in Administrative Processes, 

Improving Timeliness in Agency 

Adjudication, and User Fees. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendations 2023–5 and 2023–6, 

Matthew Gluth; Recommendation 2023– 

7, Lea Robbins; and Recommendation 

2023–8, Kazia Nowacki. For each of 

these recommendations the address and 

telephone number are: Administrative 

Conference of the United States, Suite 

706 South, 1120 20th Street NW, 

Washington, DC 20036; Telephone 202– 

480–2080. 

SUPPLEMENTARY INFORMATION: The 

Administrative Conference Act, 5 U.S.C. 

591–596, established the Administrative 

Conference of the United States. The 

Conference studies the efficiency, 

adequacy, and fairness of the 

administrative procedures used by 

Federal agencies and makes 

recommendations to agencies, the 

President, Congress, and the Judicial 

Conference of the United States for 

procedural improvements (5 U.S.C. 

594(1)). For further information about 

the Conference and its activities, see 

www.acus.gov. 

The Assembly of the Conference met 

during its Eightieth Plenary Session on 

December 14, 2023, to consider four 

proposed recommendations and 

conduct other business. All four 

recommendations were adopted. 

Recommendation 2023–5, Best 

Practices for Adjudication Not Involving 

an Evidentiary Hearing. This 

recommendation examines the wide 

range of procedures that agencies use 

when adjudicating cases in programs in 

which there is no legally required 

opportunity for an evidentiary hearing. 

It offers a set of broadly applicable best 

practices that account for the diversity 

of matters that agencies decide through 

truly informal adjudication and promote 

fairness, accuracy, and efficiency. 

Recommendation 2023–6, Identifying 

and Reducing Burdens on the Public in 

Administrative Processes. This 

recommendation examines best 

practices, such as public engagement, 

that agencies can use to identify 

unnecessary burdens that members of 

the public face when they engage with 

administrative programs or participate 

in administrative processes. It also 

recommends strategies agencies can use 

to reduce unnecessary burdens, such as 

simplifying processes, digitizing 

services, and collaborating with other 

agencies and nongovernmental 

organizations. 

Recommendation 2023–7, Improving 

Timeliness in Agency Adjudication. 

This recommendation examines 

strategies—including procedural, 

technological, personnel, and other 

reforms—that agencies have used or 

might use to address backlogs or delays 

in administrative adjudication. It 

identifies best practices to help agencies 

devise plans to promote timeliness in 

administrative adjudication, in accord 

with principles of fairness, accuracy, 

and efficiency. 

Recommendation 2023–8, User Fees. 

This recommendation provides best 

practices for agencies and Congress to 

consider in designing and implementing 

user fees in administrative programs. It 

addresses how Congress and agencies 

might determine when user fees are 

appropriate; how agencies might 

determine fair and reasonable user fees 

for specific programs, including 

whether there are reasons for waivers, 

exemptions, or reduced rates; when and 

how agencies should engage with the 

public in determining or modifying user 

fees; and how agencies should review 

their user fee programs. 

The Conference based its 

recommendations on research reports 

and prior history that are posted at: 

https://www.acus.gov/event/80thplenary-session. 

Authority: 5 U.S.C. 595. 

Dated: January 4, 2024. 

Shawne C. McGibbon, 

General Counsel. 

APPENDIX—RECOMMENDATIONS OF 

THE ADMINISTRATIVE CONFERENCE 

OF THE UNITED STATES 

Administrative Conference Recommendation 

2023–5 

Best Practices for Adjudication Not 

Involving an Evidentiary Hearing 

Adopted December 14, 2023 

Federal administrative adjudication takes 

many forms.1 Many adjudications include a 

legally required opportunity for an 

evidentiary hearing—that is, a proceeding ‘‘at 

which the parties make evidentiary 

submissions and have an opportunity to 

rebut testimony and arguments made by the 

opposition.’’ 2 Such proceedings also follow 

the exclusive record principle, in which the 

decision maker is confined to considering 

‘‘evidence and arguments from the parties 

produced during the hearing process (as well 

as matters officially noticed) when 

determining factual issues.’’ 3

In many federal administrative 

adjudications, however, no constitutional 

provision, statute, regulation, or executive 

order grants parties the right to an 

evidentiary hearing.4 Proceedings of this type 

include many agency decisions regarding 

grants, licenses, or permits; immigration and 

naturalization; national security; the 


lotter on DSK11XQN23PROD with NOTICES1
1510 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 

5Michael Asimow, Fair Procedure in Informal 

Adjudication 7 (Dec. 5, 2023) (report to the Admin. 

Conf. of the U.S.). 

6See Mathews v. Eldridge, 424 U.S. 319 (1976); 

Brock v. Roadway Express, Inc., 481 U.S. 252, 262– 

63 (1987) (applying Mathews principles in a Type 

C context); Goss v. Lopez, 415 U.S. 565 (1975) 

(discussing minimal procedures required for shortterm suspension from public school). 

7See PBG Corp. v. LTV Corp. 496 U.S. 633 (1990). 

8See Asimow, supra note 55, at 36, for a 

discussion of the right to representation before 

agencies, including the right to lay representation 

under many agencies’ regulations. 

9See Admin. Conf. of the U.S., Recommendation 

2016–5, The Use of Ombuds in Federal Agencies, 

81 FR 94316 (Dec. 23, 2016). 

10See Asimow, supra note 55, at 33. 

11 Id. at 46. 

regulation of banks and other financial 

matters; requests for records under the 

Freedom of Information Act; land-use 

requests; and a wide variety of other 

matters.5

There are many policy reasons why 

adjudications might be conducted without a 

legally required opportunity for an 

evidentiary hearing, though such reasons are 

beyond the scope of this Recommendation. 

The stakes in disputes resolved through such 

adjudications vary widely, but whether the 

stakes are low or high, each decision matters 

to the parties. For those involved in or 

familiar with these adjudications, the most 

important factor in their view of government 

may be the way these decisions are made. 

Accordingly, decision making in such 

adjudications should be accurate, efficient, 

and both fair and perceived to be fair, 

regardless of the stakes involved. 

Adjudications without an evidentiary 

hearing differ in fundamental ways from 

those that include a legally required 

opportunity for an evidentiary hearing. In 

adjudications of all types, a decision maker 

conducts an investigation and issues an 

initial, preliminary, or proposed decision. In 

adjudications that include an evidentiary 

hearing, if the private party does not 

acquiesce in that decision, the party is 

entitled to an evidentiary hearing before a 

neutral decision maker who, after 

considering the evidence and arguments, 

issues a decision. Typically, the private party 

also can seek review of that decision within 

the agency, often by the agency head or 

officials exercising authority delegated by the 

agency head. By contrast, in adjudications 

without an evidentiary hearing, often the 

same decision maker who issued the initial, 

proposed, or preliminary decision issues the 

decision, normally after considering input 

from the affected party. Typically, that party 

is entitled to seek review of that decision by 

a different decision maker within the agency. 

These fundamental differences are reflected 

in this Recommendation. 

No uniform set of procedures applies to all 

adjudications without evidentiary hearings, 

nor could one be devised. Some 

characteristics are common, however. Such 

adjudications often allow for document 

exchanges and submission of research 

studies, oral arguments, public hearings, 

conferences with staff, interviews, 

negotiations, examinations, and inspections. 

Agencies that engage in such adjudications 

typically employ dispute resolution 

methodologies without the procedures 

typical of evidentiary hearings, such as the 

opportunity to cross examine witnesses, the 

prohibition of ex parte communications, the 

separation of adjudicative functions from 

investigative and prosecutorial functions, 

and the exclusive record principle. 

While not subject to the requirement that 

a decision be preceded by an evidentiary 

hearing, adjudications without evidentiary 

hearings may be subject to other legal 

requirements. The Due Process Clause of the 

Constitution’s Fifth Amendment may require 

certain minimum procedures for such 

adjudications that involve constitutionally 

protected interests in life, liberty, or 

property.6 In addition, agencies conducting 

such adjudications typically must observe 

certain general provisions of the 

Administrative Procedure Act (APA)—in 

particular 5 U.S.C. 555 7 and 558—and are 

subject to other generally applicable statutes 

and regulations addressing the conduct of 

federal employees, rights of representation,8

ombuds,9 and other matters.10 The 

procedures employed by agencies conducting 

these adjudications may also be subject to 

agency-specific statutes and procedural 

regulations. Finally, judicial review is 

available for many such adjudications. 

Statutorily required procedures and 

judicial review, however, may be insufficient 

to ensure fairness, accuracy, and efficiency in 

adjudications without an evidentiary hearing. 

Due process, the APA, and other sources of 

law external to the agency often do not 

specifically prescribe the details of agency 

procedures, and judicial review may be 

unrealistic because the costs of such review 

exceed the value of the interests at stake.11

For these reasons, agency-adopted policies 

offer the best mechanism for establishing 

procedural protections for parties, promoting 

fairness and participant satisfaction, and 

facilitating the efficient and effective 

functioning of these adjudications. The 

public availability of such rules also 

facilitates external oversight. 

This Recommendation identifies a set of 

best practices for adjudications without an 

evidentiary hearing and encourages agencies 

to implement them through their regulations 

and guidance documents. Many agencies 

conducting such adjudications already follow 

these best practices. This Recommendation 

recognizes that agencies adjudicate a wide 

range of matters, have different adjudicatory 

needs and available resources, and are 

subject to different legal requirements. What 

works best for one agency may not work for 

another. Agencies must take into account 

their own unique circumstances when 

implementing the best practices that follow. 

Accordingly, agencies adopting or modifying 

procedures for adjudication without an 

evidentiary hearing should tailor these best 

practices to their individual systems. 

Recommendation 

Notice of Proposed Action 

1. Agencies conducting adjudications 

without evidentiary hearings should notify 

parties of the initial, proposed, or 

preliminary decision, including the reasons 

for that decision. 

2. Such notice should provide sufficient 

detail and be given in sufficient time to allow 

parties to contest the initial, proposed, or 

preliminary decision and submit evidence to 

support their position. This notice should 

provide parties with the following 

information, when applicable: 

a. Whether the agency provides a second 

chance to achieve compliance; 

b. The manner by which the party can 

submit additional evidence and argument to 

influence the agency’s initial, proposed, or 

preliminary decision; 

c. The amount of time before further 

agency action will be taken; and 

d. Whether and, if so, how parties may 

access materials in the agency’s case file. 

Opportunity To Submit Evidence and 

Argument 

3. Agencies should allow parties in 

adjudications without evidentiary hearings to 

furnish decision makers with evidence and 

arguments. Depending on the stakes 

involved, the types of issues involved, and 

the agency’s caseload and adjudicatory 

resources, the process for furnishing 

evidence and argument may include written 

submissions or oral presentations and the 

opportunity to rebut adverse information. 

Agencies should make such opportunities 

available in a manner that permits people 

with disabilities and people with limited 

English proficiency to take advantage of 

them. 

4. If credibility issues are presented, the 

party should be permitted an opportunity to 

rebut adverse information. 

Representation 

5. When feasible, agencies should allow 

participants in their adjudications without 

evidentiary hearings to be represented by a 

lawyer or a lay person with relevant 

expertise. 

6. Particularly for self-represented parties, 

agencies should not prevent participants in 

their adjudications without evidentiary 

hearings from obtaining assistance or support 

from friends, family members, or other 

individuals in presenting their case. 

7. Agencies should make their proceedings 

as accessible as possible to self-represented 

parties by providing plain-language 

resources, such as frequently asked questions 

(FAQs), and other appropriate assistance, 

such as offices dedicated to helping the 

public navigate agency programs. 

Decision Maker Impartiality 

8. Agencies should tailor neutrality 

standards appropriately to adjudications 

without evidentiary hearings, which may be 

conducted by decision makers who engage in 

their own investigations or participate in 

investigative teams and may have prior 

involvement in the matter. 

9. Consistent with government ethics 

requirements, agencies should require the 

recusal of employees engaged in 

adjudications without evidentiary hearings 

who have financial or other conflicts of 

interest in matters they are investigating or 

deciding. 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 1511 

1Pamela Herd, Donald Moynihan & Amy 

Widman, Identifying and Reducing Burdens in 

Administrative Processes 4 (Oct. 4, 2023) (report to 

the Admin. Conf. of the U.S.). This 

Recommendation uses both ‘‘administrative 

burden’’ and ‘‘administrative burdens.’’ The 

singular is intended to capture the idea of burden 

as a theoretical concept; the plural reflects the fact 

that, in practice, burdens are multiple rather than 

singular. See Pamela Herd & Donald Moynihan, 

Administrative Burden: Policymaking by Other 

Means 1, 269 (2018); see also Burden Reduction 

Initiative, Off. of Info. & Regul. Affs., Off. of Mgmt. 

& Budget, Exec. Off. of the President, https://

www.whitehouse.gov/omb/information-regulatoryaffairs/burden-reduction-initiative (last visited Dec. 

14, 2023). 

2Off. of Info. & Regul. Affs., Off. of Mgmt. & 

Budget, Exec. Off. of the President, Tackling the 

Time Tax: How the Federal Government is 

Reducing Burdens to Accessing Critical Benefits 

and Services 9 (2023). 

3See Herd et al., supra note 1, at 15–17. 

4Exec. Order No. 13,985, 86 FR 7009 (Jan. 20, 

2021). 

5Tackling the Time Tax, supra note 2, at 10; see 

also Herd & Moynihan, supra note 1, at 105, 134– 

135, 157–162, 264; Herd et al., supra note 1, at 10– 

12. 

6 44 U.S.C. 3501–3521. 

7Customer life experiences are experiences that 

require members of the public to navigate 

government services across multiple programs, 

agencies, or levels of government. Off. of Mgmt. & 

Budget, Exec. Off. of the President, OMB Circular 

A–11, Preparation, Submission, and Execution of 

the Budget (2023). As explained in Part 6 § 280.16, 

OMB will manage the selection of a limited number 

of customer life experiences to prioritize for 

government-wide action in line with the President’s 

Management Agenda. See also Exec. Order No. 

14,058, 86 FR 71357 (Dec. 16, 2021). 

8OMB Circular A–11, supra note 7, § 280.1. 

Human-centered design is a technique to 

understand administrative process from the user’s 

perspective and then use those insights to adjust 

processes to better match human capacities. Herd 

et al., supra note 1, at 22. Journey mapping is a 

related concept that involves documenting each 

step that an individual takes when engaging with 

an administrative process in order to better 

understand the process and where individuals 

struggle with it. Id. 

10. Agencies should require recusal of 

employees who reasonably may be viewed as 

not impartial. 

11. When adjudications without 

evidentiary hearings involve serious 

sanctions, agencies should consider adopting 

internal separation of investigative or 

prosecutorial functions and adjudicatory 

functions. 

Statement of Reasons 

12. Agencies conducting adjudications 

without evidentiary hearings should provide 

oral or written statements of reasons that 

follow federal plain-language guidelines 

setting forth the rationale for the decision, 

including the factual and other bases for it. 

The level of detail in the statement should be 

consistent with the stakes involved in the 

adjudication. 

Administrative Review 

13. Agencies should provide for 

administrative review of their decisions by 

higher-level decision makers or other 

reviewers unless it is impracticable because 

of high caseload, lack of available staff, or 

time constraints, or because of low stakes. 

Procedural Regulations 

14. Agency regulations should specify the 

procedures for each adjudication without an 

evidentiary hearing the agency conducts. 

Consistent with Recommendation 92–1, The 

Procedural and Practice Rule Exemption 

from the APA Notice-and-Comment 

Rulemaking Requirements, agencies should 

voluntarily use notice-and-comment 

rulemaking for the adoption of significant 

procedural regulations unless the costs 

outweigh the benefits of doing so. 

15. Agencies should ensure their 

regulations, guidance documents, staff 

manuals, procedural instructions, and FAQs 

addressing their adjudications without 

evidentiary hearings follow federal plainlanguage guidelines and are easily accessible 

on the agency’s website. 

16. Agencies should ensure that their 

notices, statements, procedural instructions, 

FAQs, and other documents that contain 

important information about their 

adjudications without evidentiary hearings 

are made available in languages understood 

by people who frequently appear before the 

agency. 

Ombuds 

17. Agencies with an ombuds program 

should ensure that their ombuds are 

empowered to handle complaints about 

adjudications without evidentiary hearings. 

18. Agencies without an ombuds program 

should consider establishing one, 

particularly if their adjudications without 

evidentiary hearings have sufficient 

caseloads, significant stakes, or significant 

numbers of unrepresented parties. The 

establishment and standards of such 

programs should follow the best practices 

identified in Recommendation 2016–5, The 

Use of Ombuds in Federal Agencies. 

19. Agencies with smaller caseloads, lower 

stakes, or lack of available staff should 

consider sharing an ombuds program with 

other similarly situated agencies to address 

any resource constraints. 

20. Agencies that choose not to establish or 

share an ombuds program should provide 

alternative procedures for allowing parties to 

submit feedback or complaints, such as 

through an agency portal or dedicated email 

address. 

Quality Assurance 

21. Agencies conducting adjudications 

without evidentiary hearings should 

establish methods for assessing and 

improving the quality of their decisions to 

promote accuracy, efficiency, fairness, the 

perception of fairness, and other goals 

relevant to those adjudications in accordance 

with Recommendation 2021–10, Quality 

Assurance Systems in Agency Adjudication. 

Depending on the caseload, stakes, and 

available resources, such methods may 

include formal quality assessments and 

informal peer review on an individual basis, 

sampling and targeted case selection on a 

systemic basis, and case management 

systems with data analytics and artificial 

intelligence tools. 

Administrative Conference Recommendation 

2023–6 

Identifying and Reducing Burdens on the 

Public in Administrative Processes 

Adopted December 14, 2023 

Each year, millions of people navigate 

administrative processes to access benefits 

and services and otherwise engage with 

government programs to help themselves and 

their families. These processes can be 

extraordinarily complex. Additionally, 

processes can vary significantly across and 

within government agencies. These 

variations can make it especially hard when 

members of the public need to access 

multiple programs at the same time, for 

example during key life events such as 

retirement, birth of a child, or unexpected 

disaster. 

Navigating these processes requires time 

and effort to learn both about programs and 

how to access them. Complying with these 

processes also requires significant work, such 

as completing forms, obtaining and 

submitting information, and possibly 

traveling to in-person interviews or hearings. 

Efforts to comply can result in stress, stigma, 

frustration, fear, or other psychological 

harms. These costs—which may be described 

as learning, compliance, and psychological 

costs, respectively—can be collectively 

understood as administrative burden.1

Administrative burdens significantly affect 

whether and how the public accesses a wide 

range of government programs, including 

those related to veterans benefits and 

services, student financial aid, Social 

Security benefits, health care, disaster 

assistance, tax credits, nutrition assistance, 

housing assistance, and unemployment 

insurance. These burdens can be exacerbated 

when programs are not wholly administered 

by the federal government but in partnership 

with state, local, or tribal governments. 

Although some level of administrative 

burden may be necessary—to establish 

eligibility for programs with sufficient 

accuracy or to prevent fraud—research shows 

the cumulative effect of this burden hinders 

the ability of agencies to achieve their 

missions. Billions of dollars in government 

benefits go unclaimed every year,2 and 

administrative burdens are a key reason.3

Administrative burdens do not fall equally 

on all members of the public but fall 

disproportionately on certain members of 

historically underserved communities 

(including persons with disabilities),4 the 

elderly, persons with limited English 

proficiency, and persons with poor physical 

or mental health.5 Reducing administrative 

burden, while also taking into account other 

important public values such as program 

integrity, can make government work better 

for everyone. 

Various authorities govern how federal 

agencies identify and reduce administrative 

burdens. The Paperwork Reduction Act 

(PRA) has long required agencies to identify 

burdens associated with information they 

collect from the public and explain why 

those burdens are necessary to administer 

their programs.6 Office of Management and 

Budget (OMB) Circular A–11 emphasizes the 

importance of customer life experiences 7 and 

human-centered design 8 in how agencies 


lotter on DSK11XQN23PROD with NOTICES1
1512 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 

9See Herd et al., supra note 1, at 28; see also 

Tackling the Time Tax, supra note 2, at 48–49; 

White House Legal Aid Interagency Roundtable, 

Access to Justice through Simplification (2022); 

Admin. Conf. of the U.S., Recommendation 2016– 

5, The Use of Ombuds in Federal Agencies, 81 FR 

94316 (Dec. 23, 2016). 

10Herd et al., supra note 1, at 26. Under 

Executive Order 14,058, the term ‘‘customer’’ refers 

to any individual, business, or organization that 

interacts with an agency or program, and the term 

‘‘customer experience’’ refers to the public’s 

perceptions of and overall satisfaction with 

interactions with an agency, product, or service. See 

86 FR at 71358. This Recommendation uses the 

term ‘‘customer’’ following its use in that Executive 

Order, notwithstanding the debate regarding the 

appropriateness of referring to members of the 

public as ‘‘customers.’’ See, e.g., Does DHS Really 

Have Customers?, U.S. Dep’t of Homeland Sec., 

https://www.dhs.gov/news/2022/06/23/does-dhsreally-have-customers (last visited Dec. 14, 2023). 

11 Fair Information Practice Principles (FIPPs), 

Fed. Priv. Council, Off. of Mgmt. & Budget, Exec. 

Off. of the President, https://www.fpc.gov/ 

resources/fipps (last visited Dec. 14, 2023). 

12See Herd et al., supra note 1, at 18, 29–31; see 

also Tackling the Time Tax, supra note 2, at 36, 41. 

13See Herd et al., supra note 1, at 46; see also 

Admin. Conf. of the U.S. & Legal Servs. Corp., 

Forum, Assisting Parties in Federal Administrative 

Adjudication (2023); Admin. Conf. of the U.S., 

Recommendation 2021–9, Regulation of 

Representatives in Agency Adjudicative 

Proceedings, 87 FR 1721 (Jan. 12, 2022). 

14See, e.g., Admin. Conf. of the U.S., 

Recommendation 2023–4, Online Processes in 

Agency Adjudication, 88 FR 42681 (July 3, 2023); 

Admin. Conf. of the U.S., Recommendation 2023– 

2, Virtual Public Engagement in Agency 

Rulemaking, 88 FR 42680 (July 3, 2023); Admin. 

Conf. of the U.S., Recommendation 2021–3, Early 

Input on Regulatory Alternatives, 86 FR 36082 (July 

8, 2021); Admin. Conf. of the U.S., 

Recommendation 2019–3, Public Availability of 

Agency Guidance Documents, 84 FR 38931 (Aug. 8, 

2019); Admin. Conf. of the U.S., Recommendation 

2018–7, Public Engagement in Rulemaking, 86 FR 

2146 (Feb. 6, 2019); Admin. Conf. of the U.S., 

Recommendation 2017–3, Plain Language in 

Regulatory Drafting, 82 FR 61728 (Dec. 29, 2017); 

Admin. Conf. of the U.S., Recommendation 2016– 

6, Self-Represented Parties in Administrative 

Hearings, 81 FR 94319 (Dec. 23, 2016). 

15For the purposes of this Recommendation, 

agency leadership and staff include a wide range of 

stakeholders such as general counsels, chief 

information officers, chief risk officers, and chief 

data officers, as well as ombuds and officials 

responsible for compliance with laws such as the 

Privacy Act (5 U.S.C. 552a) and the PRA. 

16See also Admin. Conf. of the U.S., 

Recommendation 2018–1, Paperwork Reduction Act 

Efficiencies, 83 FR 30683 (June 29, 2018); Admin. 

Conf. of the U.S., Recommendation 2012–4, 

Paperwork Reduction Act, 77 FR 47808 (Aug. 10, 

2012). 

manage organizational performance to 

improve service delivery. 

While some administrative burdens are 

imposed by Congress or by state law, federal 

agencies have an important role to play in 

reducing the burdens they impose when 

administering their programs. Agencies 

employ numerous strategies to reduce those 

burdens, including simplifying processes, 

improving access for persons with limited 

English proficiency and persons with 

disabilities, expanding the availability of 

online (instead of solely in-person) processes, 

and establishing ombuds offices to assist 

those experiencing burdens.9 In addition, 

agencies have achieved success in reducing 

burdens by establishing devoted customer 

experience (CX) teams that have sufficient 

policy knowledge and authority within the 

agency to be effective.10

Collaboration within and between federal 

agencies, and between federal agencies and 

state, local, and tribal governments, is also 

essential for burden reduction. Interagency 

data sharing that is consistent with the Fair 

Information Practice Principles 11 and all 

relevant law and policy, especially when 

used in conjunction with simplifying 

onerous processes or eliminating 

unnecessary ones, can also reduce 

administrative burdens.12 In addition to 

collaboration across the government, federal 

agency partnerships with non-governmental 

third parties (such as legal aid organizations 

and others) also play a crucial role in agency 

efforts to reduce burden. Third parties assist 

agencies by providing information about how 

processes can be improved to serve the 

public better and by directly assisting 

members of the public who interact with 

government programs.13

This Recommendation provides best 

practices for agencies to use in identifying 

and reducing unnecessary administrative 

burdens. Building on previous 

recommendations of the Conference,14 this 

Recommendation provides specific 

consultative techniques agencies should use 

to gather information from individual 

members of the public to gain a fuller and 

more accurate understanding of 

administrative burdens. The 

Recommendation encourages the use of 

online processes and offers other techniques 

to simplify and streamline processes and to 

make information about processes more 

accessible. The Recommendation also 

identifies broad organizational and 

collaborative tools agencies should employ in 

their burden reduction efforts, including 

outlining how agency leadership and staff 15

should engage with burden reduction 

initiatives within their agencies and across 

the government. The primary focus of burden 

reduction efforts should be with those federal 

agencies that have frequent or consequential 

interactions with the public. The tools 

discussed are intended to reduce burdens on 

the public and not become a reporting 

burden on agencies for which they are less 

relevant. 

This Recommendation also includes a 

recommendation directed to OMB that builds 

on OMB’s prior actions directed at reducing 

burdens. It recommends that OMB provide 

agencies with additional guidance for 

measurement and consideration of 

administrative burden and forgone benefits 

and services, as well as provide additional 

guidance on agencies’ consideration of the 

potential advantages and disadvantages of 

administrative data sharing. This guidance 

could take many forms, including written 

guidance or agency-specific or governmentwide training. In addition, again building on 

past recommendations of the Conference and 

related implementation efforts,16 this 

Recommendation encourages OMB to 

provide agencies with additional guidance on 

the use of flexibilities under the PRA to 

conduct CX research. It also includes a 

recommendation to Congress that, when 

developing new legislation that establishes or 

affects administrative programs, it should 

provide express statutory authority for 

agencies to share data where beneficial for 

achieving the goals of the legislation. 

Recommendation 

Burden Identification and Reduction 

Principles 

1. Federal agencies should seek to identify 

and reduce administrative burdens that the 

public faces when interacting with 

government programs. 

2. Agencies’ efforts to identify and reduce 

burdens should take into account the 

experiences and perspectives of members of 

the public who interact with government 

programs. 

3. Because members of the public often 

interact with multiple government agencies 

and programs during key life experiences, 

such as retirement, birth of a child, or 

unexpected disaster, agency and program 

officials should collaborate to identify and 

reduce burdens that would predictably arise 

during those experiences. 

4. When undertaking efforts to identify and 

reduce burdens, agencies should consider the 

effects on other important public values, 

including program integrity. 

Burden Identification Strategies 

5. Agencies should adopt procedures for 

consulting with members of the public who 

interact with government programs to better 

inform agency officials about the nature of 

the burdens their processes impose. In 

seeking to do so, agencies should try to 

identify and consult with those who may face 

disproportionate burdens in accessing agency 

programs. Agencies should employ multiple 

consultative techniques, including: 

a. Client outreach, such as surveys and 

focus groups; 

b. Requests for public comment; 

c. Complaint portals available on agency 

websites; 

d. Consultation with agency staff who work 

with the public, including agency ombuds or 

public advocate staff; and 

e. Consultation with nongovernmental 

organizations, advocacy groups, and other 

members of the private sector (such as 

representatives, program navigators who help 

members of the public engage with 

governmental processes, and social workers) 

who assist members of the public. 

6. To help identify burdens, agencies 

should use the information obtained through 

such consultation to identify the procedures 

members of the public face, and resulting 

burdens, at each step in the process. 

7. To determine agencies’ authority to 

reduce burdens, agencies should trace the 

legal or operational source of identified 

burdens to determine whether they are 

imposed by statute or by regulation, 

guidance, or agency practice, at the federal or 

state level. 

8. Agencies should, to the extent feasible, 

estimate and quantify any learning, 

compliance, or psychological costs of 

interacting with their programs. These costs 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 1513 

1 Jeremy S. Graboyes & Jennifer L. Selin, 

Improving Timeliness in Agency Adjudication (Dec. 

11, 2023) (report to the Admin. Conf. of the U.S.). 

include the time it takes to learn about 

programs and how to access them, the work 

it takes to comply with program 

requirements, and the stress or stigma 

resulting from engaging with administrative 

programs, as well as forgone benefits or 

services. 

Burden Reduction Strategies 

9. Agencies should periodically review 

their administrative processes to identify 

opportunities to simplify them by, as 

appropriate: 

a. Limiting the number of steps in 

processes; 

b. Reducing the length of required forms; 

c. Limiting documentation requirements, 

where possible; 

d. Eliminating notary requirements and 

substituting unsworn statements under 

penalty of perjury; and 

e. Expanding access to persons with 

limited English proficiency and persons with 

disabilities. 

10. Agencies should allow the public to 

interact with government programs using 

online processes while still retaining inperson processes when necessary to ensure 

access to benefits and services. In particular, 

agencies should, when possible: 

a. Create alternatives (such as digital or 

telephonic signatures) for requirements for 

‘‘wet’’ signatures; 

b. Allow members of the public to use 

universal logins used by government 

agencies; 

c. Allow members of the public to interact 

with agencies by telephone or video 

conference rather than requiring in-person 

appointments; and 

d. Make agency websites and processes 

accessible on mobile devices. 

11. When permitted by law, agencies 

should reduce steps members of the public 

must take to receive benefits or services by 

using information in the government’s 

possession to determine program eligibility, 

prepopulate enrollment forms, or 

automatically select the most beneficial 

program options for members of the public 

unless they decide to opt out. 

12. Agencies should make information 

about their programs as easy as possible to 

find and understand, proactively provide 

information to members of the public about 

their eligibility for benefits and services, and 

allow members of the public to expeditiously 

access records pertaining to themselves when 

required for obtaining benefits and services. 

13. Agencies should timely provide 

information in plain language and, when 

appropriate and feasible, in multiple 

languages to ensure members of the public 

can understand and use the information. 

14. Agencies should increase the 

availability of assistance for members of the 

public interacting with their programs, 

beyond continuing to enable members of the 

public to rely on assistance from other 

persons such as family or friends, by: 

a. Working with legal aid organizations and 

others who provide pro bono or ‘‘low’’ bono 

(below market rate but not free) services to 

increase availability of representation; 

b. Establishing rules authorizing accredited 

or qualified nonlawyer representatives to 

practice before the agency; and 

c. Expanding the use of agency staff, 

including front-line staff, ombuds, and public 

advocates, as well as government-sponsored 

and -supported entities designed to help 

members of the public navigate government 

processes. 

15. Agencies should identify unnecessary 

administrative burdens that are required by 

statutes in their Supporting Statements under 

the Paperwork Reduction Act (PRA) and in 

their annual proposed legislative program 

submissions to the Office of Management and 

Budget (OMB) under OMB Circular A–19. 

Agency Organization 

16. Political appointees, senior executives, 

and other agency leaders should prioritize 

burden identification strategies and 

reduction efforts, using their leadership 

positions to articulate burden reduction goals 

for agency staff and outline commitments for 

achieving them, particularly when such 

commitments require collaboration between 

agency units. Agencies should connect their 

burden reduction goals to their strategic 

planning and reporting goals under the 

Government Performance and Results Act. 

17. Agencies should identify whether they 

have particular programs or functions that 

involve interaction with the public. Agencies 

with such programs should assemble a team 

devoted to improving the experiences that 

these members of the public have when 

interacting with the agency, often referred to 

as customer experience (CX) teams. CX teams 

should have thorough knowledge of relevant 

agency programs. Senior career staff should 

partner with one or more political appointees 

to provide CX teams with sufficient authority 

within the agency to accomplish their goals. 

18. Agencies should include their general 

counsels and other relevant staff with 

statutory responsibilities related to burden 

reduction (for example, privacy officers and 

PRA officers) in such reduction efforts as 

early as possible in order to facilitate agency 

efforts to maximize burden reduction. 

Agency Collaboration 

19. Federal agencies should expand efforts 

to collaborate with other entities to maximize 

burden reduction. In particular, program and 

legal staff should collaborate with their chief 

data officer and other relevant officials on 

ways to share data across federal agencies 

and between federal and state agencies, 

consistent with the Fair Information Practice 

Principles and all relevant law and policy, in 

order to: 

a. Increase outreach to members of the 

public who may be eligible for administrative 

programs; 

b. Reduce requirements for forms and 

documentation; and 

c. Under certain conditions, provide for 

automatic enrollment and renewal. 

20. Agencies should work with their chief 

data officers and other relevant officials in 

cross-agency working groups to share 

information about best practices for reducing 

burden and using data-sharing agreements. 

Roles for OMB and Congress 

21. OMB should provide agencies with 

additional guidance, potentially including 

models and training, to inform agency: 

a. Measurement and consideration of 

administrative burden and forgone benefits 

and services, such as in regulatory impact 

analyses; 

b. Examination of the potential legal or 

policy advantages and disadvantages of 

administrative data sharing, in particular 

providing additional positive examples of 

data sharing; and 

c. Use of flexibilities under the PRA to 

make it easier for agencies to conduct CX 

research and to improve agency service 

delivery. 

22. When developing legislation that 

establishes or affects administrative 

programs, Congress should provide express 

statutory authority for agencies to share data 

where doing so would further the goals of the 

legislation and not cause undue harm to 

other legislative purposes or critical privacy 

interests. 

Administrative Conference Recommendation 

2023–7 

Improving Timeliness in Agency 

Adjudication 

Adopted December 14, 2023 

It is often said that justice delayed is 

justice denied. Indeed, one rationale 

underlying the adjudication of many types of 

cases by executive branch agencies is that 

they often can decide them more quickly 

through administrative methods than the 

courts can through judicial methods. 

Federal agencies adjudicate millions of 

cases each year, including applications for 

benefits and services, applications for 

licenses and permits, and enforcement 

actions against persons suspected of violating 

the law. Members of the public depend on 

the timely adjudication of their cases. 

Delayed adjudication, especially given the 

possible added time of judicial review, can 

have significant consequences, particularly 

for members of historically underserved 

communities. 

The time it takes an agency to decide a case 

depends on, among other variables, the 

evidentiary and procedural demands of the 

case, the volume of cases pending before the 

agency, and the resources available to the 

agency to adjudicate cases. Many factors can 

affect these variables, such as the funds 

appropriated by Congress, which directly 

impact the resources that agencies can 

allocate to adjudication. Other factors 

include the establishment and expansion of 

programs by Congress, economic and 

demographic changes, trends in federal 

employment affecting agencies’ ability to 

recruit and retain personnel involved in 

adjudication, disruptions to agency 

operations, such as the COVID–19 pandemic, 

and agency organizational structures and 

procedures.1 When delays or backlogs 

increase, agencies frequently face pressure 

from parties, representatives, Congress, the 

media, and others to process and decide 

cases more promptly. 

Agencies rely on a wide range of 

procedural, organizational, personnel, 


lotter on DSK11XQN23PROD with NOTICES1
1514 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 

2Admin. Conf. of the U.S., Recommendation 69– 

1, Compilation of Statistics on Administrative 

Proceedings by Federal Departments and Agencies, 

38 FR 19784 (July 23, 1973). 

3Admin. Conf. of the U.S., Recommendation 68– 

6, Delegation of Final Decisional Authority Subject 

to Discretionary Review by the Agency, 38 FR 19783 

(July 23, 1973); see also Admin. Conf. of the U.S., 

Recommendation 2020–3, Agency Appellate 

Systems, 86 FR 6618 (Jan. 22, 2021); Admin. Conf. 

of the U.S., Recommendation 83–3, Agency 

Structures for Review of Decisions of Presiding 

Officers Under the Administrative Procedure Act, 

48 FR 57461 (Dec. 30, 1983). 

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

2022–4, Precedential Decision Making in Agency 

Adjudication, 88 FR 2312 (Jan. 13, 2023). 

5Admin. Conf. of the U.S., Recommendation 70– 

3, Summary Decision in Agency Adjudication, 38 

FR 19785 (July 23, 1973). 

6Admin. Conf. of the U.S., Recommendation 70– 

4, Discovery in Agency Adjudication, 38 FR 19786 

(July 23, 1973). 

7Admin. Conf. of the U.S., Recommendation 86– 

7, Case Management as a Tool for Improving 

Agency Adjudication, 51 FR 46989 (Dec. 30, 1986). 

8Admin. Conf. of the U.S., Recommendation 

2023–4, Online Processes in Agency Adjudication, 

88 FR 42681 (July 3, 2023); Admin. Conf. of the 

U.S., Recommendation 2018–3, Electronic Case 

Management in Federal Administrative 

Adjudication, 83 FR 30686 (June 29, 2018). 

9Admin. Conf. of the U.S., Recommendation 73– 

3, Quality Assurance Systems in the Adjudication 

of Claims of Entitlement to Benefits or 

Compensation, 38 FR 16840 (June 27, 1973); 

Admin. Conf. of the U.S., Recommendation 2021– 

10, Quality Assurance Systems in Agency 

Adjudication, 87 FR 1722 (Jan. 12, 2022). 

10Recommendation 86–7, supra note 7, ¶ 7; 

Admin. Conf. of the U.S., Recommendation 78–3, 

Time Limits on Agency Actions, 43 FR 27509 (June 

26, 1978). 

11Admin. Conf. of the U.S., Recommendation 86– 

3, Agencies’ Use of Alternative Means of Dispute 

Resolution, 51 FR 25643 (July 16, 1986); see also 

Admin. Conf. of the U.S., Recommendation 88–5, 

Agency Use of Settlement Judges, 53 FR 26030 (July 

11, 1988); Admin. Conf. of the U.S., 

Recommendation 87–5, Arbitration in Federal 

Programs, 52 FR 23635 (June 24, 1987). 

12Admin. Conf. of the U.S., Recommendation 90– 

6, Use of Simplified Proceedings in Enforcement 

Actions Before the Occupational Safety and Health 

Review Commission, 55 FR 53271 (Dec. 28, 1990); 

Recommendation 86–7, supra note 7, ¶ 3. 

13Admin. Conf. of the U.S., Recommendation 

2021–4, Virtual Hearings in Agency Adjudication, 

86 FR 36083 (July 8, 2021); Admin. Conf. of the 

U.S., Recommendation 2014–7, Best Practices for 

Using Video Teleconferencing for Hearings, 79 FR 

75114 (Dec. 17, 2014); Admin. Conf. of the U.S., 

Recommendation 2011–4, Agency Use of Video 

Hearings: Best Practices and Possibilities for 

Expansion, 76 FR 48795 (Aug. 9, 2011); Admin. 

Conf. of the U.S., Recommendation 86–7, supra 

note 7. 

14Admin. Conf. of the U.S., Recommendation 

2016–2, Aggregation of Similar Claims in Agency 

Adjudication, 81 FR 40260 (June 21, 2016); 

Recommendation 86–7, supra note 7, ¶ 9. 

15Recommendation 86–7, supra note 7, ¶ 1. 

16Cf. David Freeman Engstrom et al., Government 

by Algorithm: Artificial Intelligence in Federal 

Administrative Agencies 38, 45 (2020) (report to the 

Admin. Conf. of the U.S.); Admin. Conf. of the U.S., 

Statement #20, Agency Use of Artificial Intelligence, 

86 FR 6616 (Jan. 22, 2021); see also Exec. Order No. 

14,110, 88 FR 75191 (Nov. 1, 2023). 

technological, and other initiatives to 

promote timeliness and to respond to 

concerns about timeliness when they arise. 

The Administrative Conference has adopted 

many recommendations identifying specific 

methods that agencies have used or might 

use to improve timeliness. One of its earliest 

recommendations encourages agencies to 

collect and analyze case processing data to 

‘‘develop improved techniques fitted to 

[their] particular needs to reduce delays’’ and 

measure the effectiveness of those 

techniques.2 Later recommendations address 

options including: 

• Delegation of final decisional authority 

subject to discretionary review by the agency 

head; 3

• Use of precedential decision making by 

appellate decision makers; 4

• Adoption of procedures for summary 

judgment 5 and prehearing discovery; 6

• Use of a broad suite of active case 

management techniques; 7

• Implementation of electronic case 

management and publicly accessible online 

processes; 8

• Establishment of quality assurance 

systems; 9

• Development of reasonable time limits or 

step-by-step time goals for agency action; 10

• Use of alternative dispute resolution 

(ADR) techniques; 11

• Use of simplified or expedited 

procedures in appropriate cases; 12

• Use of remote hearings; 13

• Aggregation of similar claims; 14 and 

• Use of personnel management 

strategies.15

These recommendations remain valuable 

resources for policymakers charged with 

promoting and improving timeliness in 

agency adjudication. As technologies 

develop, policymakers also are increasingly 

looking to artificial intelligence and other 

advanced algorithmic tools to streamline or 

automate time-consuming, error-prone, or 

resource-intensive processes.16

At the same time, no single method will 

promote timeliness at all agencies in all 

circumstances. Each agency has its own 

mission, serves different communities, 

adjudicates according to a distinct set of legal 

requirements, has different resources 

available to it, and faces different operational 

realities. Moreover, in promoting timely 

adjudication, agencies must remain sensitive 

to other values of administrative adjudication 

such as decisional quality, procedural 

fairness, consistency, transparency, customer 

service, and equitable treatment. Building on 

earlier recommendations, this 

Recommendation provides a general 

framework that agencies and Congress can 

use to both foster an organizational culture of 

timeliness in agency adjudication in accord 

with principles of fairness, accuracy, and 

efficiency and devise plans to address 

increased caseloads, delays, backlogs, and 

other timeliness concerns when they arise. 

Recommendation 

Information Collection 

1. Agencies should ensure their electronic 

or other case management systems are 

collecting data necessary for accuracy in 

monitoring and detecting changes in case 

processing times at all levels of their 

adjudication systems (e.g., initial level, 

hearing level, appellate review level), 

identify the causes of changes in case 

processing times, and devise methods to 

promote or improve timeliness without 

adversely affecting decisional quality, 

procedural fairness, or other objectives. 

Agencies should identify the kinds of data or 

records that Congress, media representatives, 

researchers, or other interested persons 

frequently request to ensure that agency 

personnel responsible for responding to such 

requests can do so in an efficient manner. 

Agencies should ensure that electronic or 

other case management systems track the 

following information: 

a. The number of proceedings of each type 

pending, commenced, and concluded during 

a standard reporting period (e.g., week, 

month, quarter, year) within and across 

different levels of their adjudication systems; 

b. The current status of each case pending 

at every level of their adjudication systems; 

and 

c. For each case, the number of days 

required to meet critical case processing 

milestones within and across different levels 

of their adjudication systems. 

2. To meet organizational goals and obtain 

information about expectations for 

adjudication timelines, agencies should 

communicate regularly with interested 

persons within and outside the agency. In 

addition to formal engagements, agencies 

should provide ongoing opportunities for 

interested persons within and outside the 

agency to provide feedback and suggestions. 

Methods for obtaining such information 

include: 

a. Surveys of interested persons within and 

outside the agency; 

b. Listening sessions and other meetings; 

c. Requests for information published in 

the Federal Register; 

d. Online feedback forms; and 

e. Use of ombuds. 

Performance Goals and Standards 

3. Agencies should adopt organizational 

performance goals that encourage and 

provide clear expectations for timeliness. 

Performance goals may take several forms, 

including goals contained in agency strategic 

plans, guidelines establishing time limits for 

concluding cases, and policies instituting 

step-by-step time goals. In developing 

organizational performance goals for 

timeliness, agencies should: 

a. Use the information described in 

Paragraphs 1 and 2 to develop goals that are 

reasonable and objective; 

b. Encourage interested persons within and 

outside the agency to participate in the 

development of such goals; and 

c. Periodically reevaluate such goals to 

ensure they (i) continue to be reasonable; (ii) 

encourage and provide clear expectations for 

timeliness; and (iii) do not adversely affect 

decisional quality or the fairness or integrity 

of proceedings. 

4. When agencies use timeliness or 

productivity measures in appraising the 

performance of employees, as defined in 5 

U.S.C. 4301, and members of the Senior 

Executive Service, or in setting timeliness or 

productivity expectations for administrative 

law judges, who are not subject to 

performance appraisals, agencies should: 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 1515 

a. Use the information described in 

Paragraphs 1 and 2 to develop measures or 

expectations that are reasonable and 

objective and provide clear expectations for 

timeliness; 

b. Encourage interested persons within and 

outside the agency, including employees to 

whom the measures or expectations apply, to 

participate in the development of such 

measures or expectations; 

c. Ensure measures or expectations reflect 

tasks within the control of individual 

employees; 

d. Ensure measures or expectations take 

into account the range of case types and tasks 

performed by individual employees as well 

as resources (e.g., staff support, technology) 

at their disposal; 

e. For employees who decide cases, ensure 

measures or expectations do not lead them to 

decide cases in a particular way; 

f. For all employees, ensure measures or 

expectations do not lead them to take actions 

that would adversely affect decisional quality 

or the fairness or integrity of proceedings; 

and 

g. Periodically reevaluate such measures or 

expectations. 

Organizational, Procedural, Technological, 

and Case Management Techniques 

The Administrative Conference has 

adopted many recommendations, listed in 

the Preamble, that identify organizational, 

procedural, technological, and case 

management techniques that agencies should 

use, in appropriate circumstances, to 

promote timeliness in adjudication or 

respond to increased caseloads, delays, 

backlogs, and other timeliness concerns. 

Agencies should also implement the 

following best practices, as appropriate: 

5. Agencies should narrow disputes and 

resolve cases at the lowest possible level of 

their adjudication systems and, at each level, 

use the least time- and resource-intensive 

processes available and appropriate to the 

circumstances, such as informal prehearing 

procedures, alternative dispute resolution, 

streamlined procedures, or decision making 

on the written record. 

6. As appropriate, agencies should adopt 

procedures for (i) resolving multiple cases in 

a single proceeding, such as the aggregation 

of similar claims; and (ii) resolving recurring 

legal or factual issues, such as precedential 

decision making or substantive rulemaking. 

7. Agencies should adopt processes for 

screening cases at intake to (i) resolve 

procedural issues as early as possible; (ii) 

identify cases that may be appropriate for 

less time- and resource-intensive processes, 

such as those described in Paragraphs 5 and 

6; (iii) identify cases that can be resolved 

quickly because they are legally and factually 

straightforward; and (iv) identify cases that 

should be prioritized or expedited. 

8. Agencies should adopt procedures that 

standardize the allocation of tasks among 

adjudicators, managers, staff attorneys, and 

paralegal support staff. 

9. Agencies should review and update as 

necessary their Human Capital Operating 

Plans (5 CFR pt. 250) to ensure their hiring 

and position management needs are aligned 

properly with their operational goals for 

adjudication. 

10. Agencies should automate routine tasks 

that do not require a significant exercise of 

discretion when automation will not 

adversely affect quality or program integrity. 

Such tasks may include receiving filings and 

evidence, establishing new case files, 

associating records with case files, deduplicating records, assigning cases to 

agency personnel for action, screening cases 

as described in Paragraph 7, and generating 

and releasing standardized correspondence. 

11. Agencies should outsource routine 

tasks that do not require a significant exercise 

of discretion—such as transcribing, scanning 

records, or mailing correspondence—when it 

would be more efficient and cost-effective for 

a contractor to perform them and there are no 

legal or policy reasons to assign the tasks to 

agency personnel (e.g., restrictions on access 

to sensitive personal or national security 

information). 

12. Agencies should adopt rules and 

policies that reflect best practices for case 

management, including evidentiary 

development, motions practice, intervention, 

extensions of time, decision writing, and 

methods for encouraging prompt action and 

discouraging undue delay by parties. At the 

same time, agencies should ensure that 

adjudicators, managers, and support staff 

have sufficient flexibility to manage 

individual cases fairly, accurately, and 

efficiently, and test alternative case 

management techniques that may reveal new 

best practices. Agencies should periodically 

reevaluate such rules and policies, using the 

information described in Paragraphs 1 and 2, 

to ensure they continue to reflect best 

practices for case management and provide 

relevant personnel with sufficient flexibility 

to manage individual cases and test 

alternative case management techniques. 

13. Agencies should establish 

organizational units, supervisory structures, 

and central and field operations that 

reinforce timeliness and facilitate appropriate 

communication among agency personnel 

involved in adjudication at all levels of an 

adjudication system. 

14. Agencies should update public 

websites and electronic case management 

systems so that they are able to handle the 

volume of current and future cases efficiently 

and effectively. 

Strategic Planning 

15. Agencies should engage in evidencebased and transparent strategic planning to 

anticipate and address concerns about 

timeliness, including increased caseloads, 

delays, and backlogs. In undertaking such 

strategic planning, agencies should: 

a. Use the information described in 

Paragraphs 1 and 2 to identify case 

processing trends such as geographical or 

temporal variations in case intake or case 

processing times, assess the causes of 

timeliness concerns, and identify points at all 

levels of their adjudication systems that are 

causing delays; 

b. Review previous efforts to address 

timeliness concerns to understand what 

initiatives have been attempted and which 

have been effective; 

c. Consider a wide range of options for 

improving timeliness in the adjudication 

process without adversely affecting 

decisional quality, procedural fairness, 

program integrity, or other objectives. 

Options may include organizational, 

procedural, technological, case management, 

and other techniques, including those 

identified in previous Conference 

recommendations and Paragraphs 5–14; 

d. Engage in candid discussions with 

adjudicators, managers, and support staff at 

all levels of their adjudication systems, as 

well as interested persons outside the agency, 

regarding the benefits, costs, and risks 

associated with different options for 

improving timeliness; 

e. Develop proposed plans for addressing 

timeliness concerns, and solicit feedback on 

the plans from interested persons within and 

outside of the agency; 

f. Consider pilot studies and demonstration 

projects before implementing interventions 

broadly to test the effectiveness of different 

interventions and identify unintended 

consequences; and 

g. Designate a senior official responsible for 

coordinating the activities described in this 

Paragraph. 

Coordination and Collaboration 

16. Agencies should facilitate 

communication between components 

involved in their adjudication systems and 

other components that carry out functions 

necessary for timely adjudication, such as 

those that oversee information technology, 

human resources, budget planning, office 

space, and procurement. 

17. Agencies should coordinate, as 

appropriate, with the President and Congress 

by providing information on recommended 

legislative changes and appropriations that 

would promote timeliness generally or 

address ongoing timeliness concerns. 

18. Agencies should partner with federal 

entities such as the Chief Information 

Officers Council, the U.S. Digital Service, the 

General Services Administration, and the 

Office of Personnel Management to develop 

and implement best practices for leveraging 

information technology, human capital, and 

other resources to promote or improve 

timeliness. 

19. Unless precluded by law or otherwise 

inappropriate, agencies should share 

information with each other about their 

experiences with and practices for promoting 

timeliness generally and addressing ongoing 

timeliness concerns. The Office of the Chair 

of the Administrative Conference should 

provide for the interchange of such 

information, as authorized by 5 U.S.C. 594(2). 

20. Agencies should develop partnerships 

with relevant legal service providers, other 

nongovernmental organizations, and state 

and local government agencies that advocate 

for or provide assistance to individuals who 

participate as parties in agency adjudications. 

21. Agencies should make informational 

materials available to adjudicators, managers, 

staff attorneys, and paralegal support staff. 

Agencies should conduct regular training 

sessions for such personnel on best practices 

for fair, accurate, and efficient case 

management. 


lotter on DSK11XQN23PROD with NOTICES1
1516 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 

1Erika Lietzan, User Fee Programs: Design 

Choices and Processes 6 (Nov. 9, 2023) (report to 

the Admin. Conf. of the U.S.). 

2 31 U.S.C. 9701. 

3 52 FR 23634 (June 24, 1987). 

4See Lietzan, supra note 1, at 3. 

5 31 U.S.C. 3302. 

6Cf. Admin. Conf. of the U.S., Recommendation 

2018–7, Public Engagement in Agency Rulemaking, 

84 FR 2146 (Feb. 6, 2019); see also Admin. Conf. 

of the U.S., Office of the Chair, Statement of 

Principles for Public Engagement in Agency 

Rulemaking (rev. Sept. 1, 2023); Admin. Conf. of 

the U.S., Recommendation 2023–2, Virtual Public 

Engagement in Agency Rulemaking, 88 FR 42680 

(July 3, 2023); Admin. Conf. of the U.S., 

Recommendation 2021–3, Early Input on 

Regulatory Alternatives, 86 FR 36082 (July 8, 2021). 

7This Recommendation does not address what 

constitutional limits, if any, may apply to feesupported agency activities even when 

congressionally approved. 

Communication and Transparency 

22. Agencies should provide parties and 

representatives with resources to help them 

navigate their adjudication systems, 

understand procedural alternatives that may 

expedite decision making in appropriate 

cases, and learn about best practices for 

efficient and effective advocacy before the 

agency. Such resources may include 

informational materials (e.g., documents 

written in plain language and available in 

languages other than English, short videos, 

decision trees, and visualizations), navigator 

programs, and counseling for self-represented 

parties. 

23. As early as possible and at key points 

throughout the adjudication process, 

agencies should provide self-represented 

parties with plain-language materials 

informing them of (i) their right to be 

represented by an attorney or qualified 

nonlawyer legal service provider; (ii) 

potential benefits of representation; and (iii) 

options for obtaining representation. 

24. Agencies should publicly identify case 

management priorities and procedures that 

have been adopted to improve timeliness and 

may result in parties’ cases being identified 

for aggregation, expedition, or similar 

alternative techniques. 

25. Agencies should publicly disclose (i) 

average processing times and aggregate 

processing data for claims pending, 

commenced, and concluded during a 

standard reporting period; (ii) any deadlines 

or processing goals for adjudicating cases; 

and (iii) information about the agency’s plans 

for and progress in addressing timeliness 

concerns. Agencies should consider whether 

and to what extent they should disclose such 

information pertaining to agency 

subcomponents. 

26. When agencies use timeliness or 

productivity measures in appraising the 

performance of employees, as defined in 5 

U.S.C. 4301, and members of the Senior 

Executive Service, or in setting timeliness or 

productivity expectations for administrative 

law judges, who are not subject to 

performance appraisals, they should disclose 

such measures or expectations publicly and 

explain how they were developed. For 

employees who are subject to performance 

appraisal, agencies should disclose publicly 

(i) how they use such measures to appraise 

employees, and (ii) whether employees are 

eligible for incentive awards based on 

timeliness or productivity. 

Consideration for Congress 

27. As set forth in Recommendation 78–3, 

Time Limits on Agency Actions, Congress 

ordinarily should not impose statutory time 

limits on agency adjudication. If Congress 

does consider imposing time limits on 

adjudication by a particular agency, it should 

first seek information from the agency and 

interested persons. If Congress does decide to 

impose time limits, it should do so only after 

determining that the benefits of such limits 

outweigh the costs. If Congress then decides 

time limits are necessary or warranted, it 

should require agencies to adopt reasonable 

time limits or, in rare circumstances, impose 

such limits itself. In setting any statutory 

time limits, Congress should: 

a. Recognize that preexisting statutory or 

regulatory frameworks or special 

circumstances (e.g., a sudden substantial 

increase in an agency’s caseload or the 

complexity of the issues in a particular case) 

may justify an agency’s failure to conclude a 

case within the proposed statutory time limit; 

b. State expressly what should occur if the 

agency does not meet its statutory deadline; 

c. State expressly whether affected persons 

may or may not enforce the time limit 

through judicial action and, if so, the nature 

of the relief available for this purpose; and 

d. Consider the need to increase agency 

resources to enable the agency to meet its 

statutory deadline. 

Administrative Conference Recommendation 

2023–8 

User Fees 

Adopted December 14, 2023 

Federal agencies charge user fees as part of 

many programs. For purposes of this 

Recommendation, a federal agency ‘‘user fee’’ 

is (1) any fee assessed by an agency for a 

good or service that the agency provides to 

the party paying the fee, as well as (2) any 

fee collected by an agency from an entity 

engaged in, or seeking to engage in, activity 

regulated by the agency, either to support a 

specific regulatory service provided to that 

entity or to support a regulatory program that 

at least in part benefits the entity.1 User fees 

serve many purposes, for example, to shift 

the costs of a program from taxpayers to 

those persons or entities whom the program 

directly benefits, to supplement general 

revenue, or to incentivize or discourage 

certain behavior. 

Agencies have assessed user fees since this 

country was founded. In 1952, Congress 

enacted the Independent Offices 

Appropriations Act (IOAA), giving agencies 

broad authority to charge user fees in 

connection with specific goods or services 

that benefit identifiable persons or entities.2

The Bureau of the Budget, the predecessor to 

the Office of Management and Budget (OMB), 

issued Circular A–25 in 1959 to implement 

the IOAA. Since 1982, when the President’s 

Private Sector Survey on Cost Control urged 

expanded application of user fees, Congress 

and agencies increasingly have relied on user 

fees, instead of or in addition to general 

revenue, to fund federal programs. 

In 1987, the Administrative Conference 

adopted Recommendation 87–4, User Fees, 

which identified basic principles for 

Congress and agencies to consider in 

establishing user fee programs and setting fee 

levels. Recommendation 87–4 stated that a 

‘‘government service for which a user fee is 

charged should directly benefit fee payers.’’ 

It also identified principles intended to 

allocate government goods and services 

efficiently and fairly.3

There have been significant developments 

since ACUS last addressed this topic in 1987. 

Congress and agencies have continued to 

expand the collection of and reliance on user 

fees,4 and OMB revised Circular A–25 in 

2017 to update federal policy regarding fees 

assessed for government services, resources, 

and goods; provide information on which 

activities are subject to user fees and the 

basis for setting user fees; and provide 

guidance for implementing and collecting 

user fees. 

Today, user fee programs serve many 

purposes and vary significantly in their 

design. Some are established by a specific 

statute. Such statutes may specify the fee 

amount, provide a formula for calculating 

fees, or prescribe a standard for the agency 

to use in establishing reasonable fees (e.g., 

full or partial cost recovery). Some statutory 

authorizations are permanent, while others 

sunset and require periodic reauthorization. 

Other programs are established by agencies 

on their own initiative under the IOAA or 

other authority. Some fees are transactional, 

while others are paid on a periodic basis. 

Some fees are set to achieve economic 

efficiency, while others are set to advance 

other values, goals, and priorities. Other 

statutes impose requirements that apply to a 

user fees program unless Congress specifies 

otherwise; one example is the Miscellaneous 

Receipts Act, which requires that money 

received by the government from any source 

be deposited into the U.S. Treasury.5

When designing user fee programs, 

Congress and agencies must also consider 

possible negative consequences such as the 

potential for fees to adversely affect the 

quality of agency decision making or its 

appearance of impartiality; their potential to 

affect the behavior of private persons and 

entities in unintended ways; the impact of 

the fees on low-income people, members of 

historically underserved communities, and 

small businesses and other small entities; the 

agency’s revenue stability; and congressional 

oversight. The Conference consistently has 

emphasized the potential for public 

engagement to help policymakers obtain 

more comprehensive information, enhance 

the legitimacy of their decisions, and 

increase public support for their decisions.6

Given expanded reliance on user fees, the 

development of new models for user fee 

programs, and updated guidance on user fees 

from OMB, the Conference decided to revisit 

the subject. This Recommendation represents 

the Conference’s current views on the 

objectives, design, and implementation of 

user fee programs by Congress and agencies, 

and supplements and updates 

Recommendation 87–4.7


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 1517 

Recommendation 

General Considerations 

1. In creating or modifying user fees, 

Congress or agencies, as appropriate, should 

identify the purpose(s) of an agency’s user fee 

program, such as shifting the costs of a 

program from taxpayers to those persons or 

entities whom the program benefits, 

supplementing general revenue, or 

incentivizing or discouraging certain 

behavior. Congress or agencies also should 

consider whether or not there are reasons for 

waivers, exemptions, or reduced rates. 

2. When establishing a user fee-funded 

program, especially one with a novel fee 

structure and one that collects fees from 

regulated entities, Congress or agencies, as 

appropriate, should consider whether any 

feature of the program might inappropriately 

affect or be perceived as inappropriately 

affecting agency decision making and 

whether any steps should be taken to 

mitigate those effects. 

3. Congress or agencies, as appropriate, 

should consider whether a user fee may have 

a negative or beneficial effect on the behavior 

of individuals and entities subject to that fee. 

Congress or agencies also should consider 

whether the user fee might have other public 

benefits, such as promoting equity, reducing 

barriers to market entry, incentivizing 

desirable behavior, or producing some other 

socially beneficial outcome, or might have 

other public costs. Congress or agencies, as 

appropriate, should set forth procedures for 

waiving or reducing user fees that would 

cause undue hardship for low-income 

individuals, members of historically 

underserved communities, small businesses, 

and other small entities. 

4. Congress or agencies, as appropriate, 

should ensure user fees are not 

disproportionate in relation to government 

costs or to the benefits that users receive. 

Considerations for Congress 

5. When Congress enacts a specific statute, 

separate from the Independent Offices 

Appropriations Act, authorizing an agency to 

collect user fees, it should specify, as 

applicable: 

a. The manner for setting fee levels. 

Congress should either determine the amount 

of the fee, with or without adjustment for 

inflation, set a formula for calculating it, or 

alternatively give the agency discretion to 

determine the appropriate fee (e.g., to achieve 

a particular purpose or to recover some or all 

of the costs of providing a good or service or 

administering a program); 

b. Any circumstances in which the agency 

may or must charge a fee or, conversely, may 

or must waive or reduce the fee amount. 

Congress should determine whether it is 

appropriate to reduce or eliminate fees for 

certain individuals or entities to promote 

equity, reduce barriers to market entry, 

incentivize desirable behavior, or produce 

some other socially beneficial outcome; 

c. Any required minimum process for 

setting or modifying fees, either through the 

notice-and-comment rulemaking process set 

forth in 5 U.S.C. 553 or an alternative 

process, including requirements for public 

engagement; 

d. Any authorizations, limitations, or 

prescriptions pertaining to the manner in 

which the agency may collect fees; 

e. Any required process for enforcing the 

obligation to pay user fees and any penalties 

for failure to pay required fees, including 

interest (specifying rates); 

f. The availability of collected fees. 

Congress should determine whether or not 

the fees collected by the agency should be 

deposited in the U.S. Treasury, consistent 

with the Miscellaneous Receipts Act, 31 

U.S.C. 3302, and made available to the 

agency only after appropriation; 

g. The period during which the agency may 

expend collected fees. Should Congress 

determine that, for reasons of revenue 

stability, collected fees should remain 

available to the agency, it should consider, 

for reasons of oversight, whether they should 

only be available for a limited period or 

subject to other requirements or limitations; 

h. Any authorizations or prescriptions for 

the uses for which the agency may expend 

collected fees; 

i. Any requirement that the agency 

periodically review its user fees and any 

required method(s) for doing so (e.g., 

comparing fee amounts with corresponding 

costs or recalculating fees based on new 

developments and information); and 

j. Whether the authority granted under the 

statute sunsets. 

6. Whenever Congress decides to create a 

new statutory user fee program, it should 

reach out to relevant agencies for technical 

assistance early in the legislative drafting 

process and it should consider input from 

interested persons. 

7. Congress should maintain oversight of 

agencies that operate user fee programs, such 

as through the appropriations process or 

authorizing legislation that specifies the 

purpose, time, and availability for money 

collected through user fee programs. 

Considerations for Agencies 

8. When an agency establishes a new user 

fee program or sets fees under an existing 

program, it should follow the rulemaking 

requirements of 5 U.S.C. 553 unless Congress 

has specified otherwise. In engaging with 

interested members of the public, agencies 

should follow the best practices suggested in 

Recommendations 2018–7, Public 

Engagement in Rulemaking, 2021–3, Early 

Input on Regulatory Alternatives, and 2023– 

2, Virtual Public Engagement in Agency 

Rulemaking. 

9. Agencies should communicate clearly to 

the public the purpose(s) of their user fee 

programs, the nature of the fee setting 

process, and the uses for which the agency 

expends collected fees. Agencies also should 

be transparent with and engage the public 

when conducting activities that may affect 

the design of their user fee programs or the 

level of their fees, for instance by inviting 

public participation at early stages such as 

during cost and demand forecasting and 

budget formulation. 

10. Agencies should maintain an easy-tofind page on their websites describing their 

user fee-funded programs, identifying and 

explaining the fees, describing any waivers or 

exemptions available, identifying the uses for 

which the agency expends collected fees, and 

providing links to supporting resources, such 

as the governing sections of the United States 

Code and the Code of Federal Regulations, 

and recent notices in the Federal Register. 

11. Agencies should conduct regular 

reviews, consistent with Recommendation 

2021–2, Periodic Retrospective Review, of 

their user fee programs to ensure the 

programs are meeting their purposes and that 

the fee levels are appropriate. Agencies also 

should assess other resulting consequences 

or effects of the programs, such as those 

described in Paragraphs 2, 3, and 4. 

[FR Doc. 2024–00302 Filed 1–9–24; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

[Docket No. APHIS–2023–0081] 

Importation of Fresh Rhizomes of 

Turmeric (Curcuma longa L.) for 

Consumption From Mexico Into the 

United States 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Notice of availability. 

SUMMARY: We are advising the public 

that we have prepared a pest risk 

analysis that evaluates the risks 

associated with importation of fresh 

rhizomes of turmeric (Curcuma longa 

L.) for consumption from Mexico into 

the United States. Based on the analysis, 

we have determined that the application 

of one or more designated phytosanitary 

measures will be sufficient to mitigate 

the risks of introducing or disseminating 

plant pests or noxious weeds via the 

importation of fresh rhizomes of 

turmeric from Mexico. We are making 

the pest risk analysis available to the 

public for review and comment. 

DATES: We will consider all comments 

that we receive on or before March 11, 

2024. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

www.regulations.gov. Enter APHIS– 

2023–0081 in the Search field. Select 

the Documents tab, then select the 

Comment button in the list of 

documents. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2023–0081, Regulatory Analysis 

and Development, PPD, APHIS, Station 

3A–03.8, 4700 River Road, Unit 118, 

Riverdale, MD 20737–1238. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at www.regulations.gov 


lotter on DSK11XQN23PROD with NOTICES1