38927

Notices

Federal Register
Vol. 84, No. 153
Thursday, August 8, 2019

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.

ADMINISTRATIVE CONFERENCE OF
THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of

the United States.
ACTION: Notice.

jbell on DSK3GLQ082PROD with NOTICES

SUMMARY: The Administrative

Conference of the United States adopted
four recommendations at its Seventyfirst Plenary Session. The appended
recommendations address Agency
Guidance Through Interpretive Rules,
Agency Recruitment and Selection of
Administrative Law Judges, Public
Availability of Agency Guidance
Documents, and Revised Model Rules
for Implementation of the Equal Access
to Justice Act.
FOR FURTHER INFORMATION CONTACT: For
Recommendation 2019–1, Todd Rubin;
for Recommendations 2019–2 and
2019–4, Alexandria Tindall Webb; and
for Recommendation 2019–3, Todd
Phillips. For each of these actions the
address and telephone number are:
Administrative Conference of the
United States, Suite 706 South, 1120
20th Street NW, Washington, DC 20036;
Telephone 202–480–2080.
SUPPLEMENTARY INFORMATION: The
Administrative Conference Act, 5 U.S.C.
591–596, established the Administrative
Conference of the United States. The
Conference studies the efficiency,
adequacy, and fairness of the
administrative procedures used by
Federal agencies and makes
recommendations to agencies, the
President, Congress, and the Judicial
Conference of the United States for
procedural improvements (5 U.S.C.
594(1)). For further information about
the Conference and its activities, see
www.acus.gov. At its Seventy-first
Plenary Session, held on June 13, 2019,
the Assembly of the Conference adopted
four recommendations.
Recommendation 2019–1, Agency
Guidance Through Interpretive Rules

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

identifies ways agencies can offer the
public the opportunity to propose
alternative approaches to those
presented in an interpretive rule and to
encourage, when appropriate, public
participation in the adoption or
modification of interpretive rules. It
largely extends the best practices for
statements of policy adopted in
Recommendation 2017–5, Agency
Guidance Through Policy Statements, to
interpretive rules, with appropriate
modifications to account for differences
between interpretive rules and policy
statements.
Recommendation 2019–2, Agency
Recruitment and Selection of
Administrative Law Judges addresses
the processes and procedures agencies
should establish for exercising their
authority under Executive Order 13,843
(2018) to hire administrative law judges
(ALJs). It encourages agencies to
advertise ALJ positions in order to reach
a wide pool of applicants, to publish
minimum qualifications and selection
criteria for ALJ hiring, and to develop
policies for the review of ALJ
applications.
Recommendation 2019–3, Public
Availability of Agency Guidance
Documents offers best practices for
promoting widespread availability of
guidance documents on agency
websites. It urges agencies to develop
and disseminate internal policies for
publishing, tracking, and obtaining
input on guidance documents; post
guidance documents online in a manner
that facilitates public access; and
undertake affirmative outreach to notify
members of the public of new or
updated guidance documents.
Recommendation 2019–4, Revised
Model Rules for Implementation of the
Equal Access to Justice Act revises the
Conference’s 1986 model agency
procedural rules for addressing claims
under the Act, which provides for the
award of attorney fees to individuals
and small businesses that prevail
against the government in certain
agency adjudications. The revisions
reflect, among other things, changes in
law and agency practice since 1986.
The Appendix below sets forth the
full texts of these four
recommendations. In addition, a Notice
of Availability, containing the Revised
Model Rules referenced in
Recommendation 2019–4, is published
elsewhere in this issue of the Federal

PO 00000

Frm 00001

Fmt 4703

Sfmt 4703

Register. The Conference will transmit
the recommendations to affected
agencies, Congress, and the Judicial
Conference of the United States, as
appropriate. The recommendations are
not binding, so the entities to which
they are addressed will make decisions
on their implementation.
The Conference based these
recommendations on research reports
that are posted at: https://
www.acus.gov/meetings-and-events/
plenary-meeting/71st-plenary-session.
Dated: August 2, 2019.
Shawne C. McGibbon,
General Counsel.

Appendix—Recommendations of the
Administrative Conference of the
United States
Administrative Conference Recommendation
2019–1
Agency Guidance Through Interpretive
Rules
Adopted June 13, 2019
The Administrative Procedure Act (APA)
exempts policy statements and interpretive 1
rules from its requirements for the issuance
of legislative rules, including notice and
comment.2 The Attorney General’s Manual
on the Administrative Procedure Act defines
‘‘general statements of policy’’ as agency
statements ‘‘issued . . . to advise the public
prospectively of the manner in which the
agency proposes to exercise a discretionary
power.’’ 3 The Manual similarly defines
‘‘interpretive rules’’ as ‘‘rules or statements
issued by an agency to advise the public of
the agency’s construction of the statutes and
rules which it administers.’’ 4 Because of the
commonalities between policy statements
and interpretive rules, including their
advisory function, many scholars and
government agencies have more recently
adopted the umbrella term ‘‘guidance’’ to
refer to both interpretive rules and policy
statements.5
The Administrative Conference has issued
several recommendations on policy
statements.6 The latest one, Recommendation
1 In accordance with standard parlance, this
Recommendation uses the term ‘‘interpretive’’ in
place of the APA’s word ‘‘interpretative.’’
2 5 U.S.C. 553(b)(A).
3 Attorney General’s Manual on the
Administrative Procedure Act 30 n.3 (1947).
4 Id.
5 See, e.g., Nicholas R. Parrillo, Federal Agency
Guidance: An Institutional Perspective (Oct. 12,
2017) (report to the Admin. Conf. of the U.S.),
https://www.acus.gov/report/agency-guidance-finalreport.
6 See, e.g., Admin. Conf. of the U.S.,
Recommendation 2017–5, Agency Guidance

E:\FR\FM\08AUN1.SGM

Continued

08AUN1

38928

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices

jbell on DSK3GLQ082PROD with NOTICES

2017–5, Agency Guidance Through Policy
Statements, offers best practices to agencies
regarding policy statements. The
Recommendation advises agencies not to
treat policy statements as binding on the
public and to take steps to make clear to the
public that policy statements are nonbinding.
It also suggests measures agencies could take
to allow the public to propose alternative
approaches to those contained in a policy
statement and offers suggestions on how
agencies can involve the public in adopting
and modifying policy statements.7
During the discussion of Recommendation
2017–5, the Assembly considered whether to
extend the recommendations therein to
interpretive rules. The Assembly decided
against doing so, but it expressed its views
that a follow-on study addressing interpretive
rules would be valuable.
This project takes up that charge. Policy
statements and interpretive rules are similar
in that they lack the force of law 8 and are
often issued without notice-and-comment
proceedings, as the APA permits. This
similarity suggests that, as a matter of best
practice, when interested persons disagree
with the views expressed in an interpretive
rule, the agency should allow them a fair
opportunity to try to persuade the agency to
revise or reconsider its interpretation. That is
the practice that Recommendation 2017–5
already prescribes in the case of policy
statements.9 The benefits to the public of
according such treatment, as well as the
potential costs to agencies of according it, are
largely the same regardless of whether a
given guidance document is concerned with
law, policy, or a combination of both.10
Recommendation 2017–5 provided that
‘‘[a]n agency should not use a policy
statement to create a standard binding on the
public, that is, as a standard with which
noncompliance may form an independent
basis for action in matters that determine the
rights and obligations of any member of the
public.’’ 11 Although the same basic idea
should apply to interpretive rules, the
concept of ‘‘binding’’ effect can give rise to
misunderstanding in the context of those
rules, for several reasons.
First, interpretive rules often use
mandatory language when the agency is
describing an existing statutory or regulatory
requirement. Recommendation 2017–5 itself
Through Policy Statements, 82 FR 61,734 (Dec. 29,
2017); Admin. Conf. of the U.S., Recommendation
1992–2, Agency Policy Statements, 57 FR 30,103
(July 8, 1992); Admin. Conf. of the U.S.,
Recommendation 1976–5, Interpretive Rules of
General Applicability and Statements of General
Policy, 41 FR 56,769 (Dec. 30, 1976).
7 See Recommendation 2017–5, supra note 6, ¶ 9.
8 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199,
1208 (2015) (citing Chrysler Corp. v. Brown, 441
U.S. 281, 302 n.31 (1979) (citing the Attorney
General’s Manual, supra note 3)).
9 Recommendation 2017–5, supra note 6, ¶ 2; see
also Recommendation 1992–2, supra note 6, ¶ II.B.
10 See Blake Emerson & Ronald M. Levin, Agency
Guidance Through Interpretive Rules: Research and
Analysis 33–34 (May 28, 2019) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/
report/agency-guidance-through-interpretive-rulesfinal-report.
11 Recommendation 2017–5, supra note 6, ¶ 1.

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

recognized the legitimacy of such phrasing.12
For this reason, administrative lawyers
sometimes describe such rules as ‘‘binding.’’
That common usage of words, however, can
lead to confusion: It can impede efforts to
make clear that interpretive rules should
remain nonbinding in a different sense, i.e.,
that members of the public should be
accorded a fair opportunity to request that
such rules be modified, rescinded, or waived.
Second, discussions of the circumstances
in which interpretive rules may or may not
be ‘‘binding’’ bring to mind assumptions that
stem from the case law construing the
rulemaking exemption in the APA.13 Courts
and commentators have disagreed about
whether, under that case law, interpretive
rules may be binding on the agency that
issues them.14 Despite this diversity of views,
officials interviewed for this project did not
express the view that they would
categorically deny private parties the
opportunity to seek modification, rescission,
or waiver of an interpretive rule. In this
Recommendation, the Administrative
Conference addresses only best practices and
expresses no opinions about how the APA
rulemaking exemption should be construed.
Nevertheless, assumptions derived from the
APA background can divert attention from
consideration of what sound principles of
administration require, which this
Recommendation does address.
Third, administrative lawyers currently
differ on the question of whether interpretive
rules are effectively rendered ‘‘binding’’
when they are reviewed in court under the
Auer v. Robbins 15 standard of review, which
provides that an agency’s interpretation of its
own regulation becomes of ‘‘controlling
weight’’ if it is not ‘‘plainly erroneous or
inconsistent with the regulation.’’ 16 The
question of whether interested persons
should be able to ask an agency to modify,
rescind, or waive an interpretive rule does
not intrinsically have to turn on what level
of deference the courts would later accord to
the agency’s interpretation. Indeed, the
possibility of judicial deference at the
appellate level (under Auer or any other
standard of review) may augment the
12 Id. ¶ 5; accord Office of Mgmt. & Budget, Exec.
Office of the President, Final Bulletin for Agency
Good Guidance Practices, 72 FR 3,432, 3,440 (Jan.
25, 2007).
13 See 5 U.S.C. 553(b)(A).
14 Emerson & Levin, supra note 10, at 20–23;
Parrillo, supra note 5, at 23–25; see also Ronald M.
Levin, Rulemaking and the Guidance Exemption,
70 Admin. L. Rev. 263, 317–19, 346–53 (2018).
15 519 U.S. 452 (1997).
16 Id. at 461; compare Perez, 135 S. Ct. at 1211–
12 (Scalia, J., concurring in the judgment) (stating
that because of ‘‘judge-made doctrines of deference
. . . [a]gencies may now use [interpretive] rules not
just to advise the public, but also to bind them’’),
with id. at 1208 n.4 (opinion of the Court) (‘‘Even
in cases where an agency’s interpretation receives
Auer deference, however, it is the court that
ultimately decides whether a given regulation
means what the agency says.’’). The Supreme Court
is currently considering whether to overrule Auer
in Kisor v. Wilkie, 139 S. Ct. 657 (2018) (granting
certiorari). For reasons explained in the text, the
present recommendations do not depend on which
view of Auer one favors, or on what the Court may
decide in Kisor.

PO 00000

Frm 00002

Fmt 4703

Sfmt 4703

challenger’s interest in raising this
interpretive issue at the agency level.17 Even
so, the doctrinal debate over whether an
interpretive rule is or is not ‘‘binding’’ under
Auer can direct attention away from these
practical considerations.
For these reasons, the Administrative
Conference has worded the initial operative
provisions of the Recommendation so that it
avoids using the phrase ‘‘binding on the
public.’’ Instead it urges that agencies not
treat interpretive rules as setting independent
standards for action and that interested
persons should have a fair opportunity to
seek modification, rescission, or waiver of an
interpretive rule. In substance, this
formulation expresses positions that largely
correspond with prescriptions that
Recommendation 2017–5 made regarding
policy statements, but it does so without
implicating unintended associations that the
word ‘‘binding’’ might otherwise evoke.
What constitutes a fair opportunity to
contest an interpretive rule will depend on
the circumstances. Research conducted for
Recommendation 2017–5 indicated that a
variety of factors can deter affected persons
from contesting guidance documents with
which they disagree; these factors operate in
approximately the same manner regardless of
whether a policy statement or interpretive
rule is involved.18 Agencies that design
procedures for requesting reconsideration or
modification of both types of guidance
should be attentive to circumstances that
affect the practical ability of members of the
public to avail themselves of the opportunity
to be heard. The mere existence of an
opportunity to contest an interpretive rule
through an internal appeal may not be
enough to afford a ‘‘fair opportunity’’ because
of the very high process costs that pursuing
such an appeal could entail.
At the same time, agencies should also
consider governmental interests such as the
agency’s resource constraints and need for
centralization.19 For example, an agency
should be able to deal summarily with
requests that it finds to be obstructive,
dilatory, or otherwise tendered in apparent
bad faith. It should not be expected to
entertain and respond in detail to repetitive
or frivolous challenges to the agency’s
position. Additionally, Paragraph 3
recognizes that the need for coordination of
multiple decision makers in a given program
may justify requiring lower-level employees
to adhere to the agency’s interpretive rules.
The recommendations below pertaining to
public participation in the formulation of
interpretive rules closely track the public
participation provisions of Recommendation
2017–5. The recommendations here have
been modified to reflect differences between
interpretive rules and statements of policy.
Paragraphs 12 through 15 set forth
principles that agencies should consider in
determining whether and how to invite
members of the public to suggest alternative
approaches or analyses to those spelled out
in interpretive rules. These paragraphs are
largely drawn from corresponding provisions
17 See Emerson & Levin, supra note 10, at 25.
18 Parrillo, supra note 5, at 25.
19 See Emerson & Levin, supra note 10, at 38–41.

E:\FR\FM\08AUN1.SGM

08AUN1

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices
in Recommendation 2017–5. Interpretive
rules that lend themselves to alternative
approaches include those that lay out several
lawful options for the public but do not
purport to be exhaustive. They may also
include rules that, in setting forth decisional
factors that are relevant to the meaning of a
statute or regulation, leave open the
possibility that other decisional factors might
also be relevant. Typically, such rules speak
at a general level, leaving space for informal
adjustments and negotiation between the
agency and interested persons 20 about how
the rule should be applied. On the other
hand, certain kinds of interpretive rules, such
as those in which an agency has determined
that a statutory term has only one
construction (e.g., rules that take the view
that certain conduct is categorically required
or forbidden), do not lend themselves to such
flexible treatment.21
Recommendation

jbell on DSK3GLQ082PROD with NOTICES

Recommendations Applicable to All
Interpretive Rules
1. An agency should not use an
interpretive rule to create a standard
independent of the statute or legislative rule
it interprets. That is, noncompliance with an
interpretive rule should not form an
independent basis for action in matters that
determine the rights and obligations of any
member of the public.
2. An agency should afford members of the
public a fair opportunity to argue for
modification, rescission, or waiver of an
interpretive rule. In determining whether to
modify, rescind, or waive an interpretive
rule, an agency should give due regard to any
reasonable reliance interests.
3. It is sometimes appropriate for an
agency, as an internal agency management
matter, to direct some of its employees to act
in conformity with an interpretive rule. But
the agency should ensure that this does not
interfere with the fair opportunity called for
in Paragraph 2. For example, an interpretive
rule could require officials at one level of the
agency hierarchy to follow the interpretive
rule, with the caveat that officials at a higher
level can authorize a modification,
rescission, or waiver of that rule. Agency
review should be available when officials fail
to follow interpretive rules they are properly
directed to follow.
4. An agency should prominently state, in
the text of an interpretive rule or elsewhere,
that the rule expresses the agency’s current
interpretation of the law but that a member
of the public will, upon proper request, be
accorded a fair opportunity to seek
modification, rescission, or waiver of the
rule.
5. An interpretive rule should not include
mandatory language unless the agency is
using that language to describe an existing
20 This Recommendation uses ‘‘interested
person’’ rather than ‘‘stakeholder,’’ which
Recommendation 2017–5, supra note 6, uses. The
Conference believes that ‘‘interested person’’ is
more precise than ‘‘stakeholder’’ and that
‘‘stakeholder,’’ as used in Recommendation 2017–
5, should be understood to mean ‘‘interested
person.’’
21 See Emerson & Levin, supra note 10, at 42–44.

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

statutory or regulatory requirement, or the
language is addressed to agency employees
and will not interfere with the fair
opportunity called for in Paragraph 2.
6. An agency should make clear to
members of the public which agency officials
are required to follow an interpretive rule
and where to go within the agency to seek
modification, rescission, or waiver from the
agency.
7. An agency should instruct all employees
engaged in an activity to which an
interpretive rule pertains that, although the
interpretive rule may contain mandatory
language, they should refrain from making
any statements suggesting that an interpretive
rule may not be contested within the agency.
Insofar as any employee is directed, as an
internal agency management matter, to act in
conformity with an interpretive rule, that
employee should be instructed as to the
expectations set forth in Paragraphs 2 and 3.
8. When an agency is contemplating
adopting or modifying an interpretive rule, it
should consider whether to solicit public
participation, and, if so, what kind, before
adopting or modifying the rule. Options for
public participation include meetings or
webinars with interested persons, advisory
committee proceedings, and invitation for
written input from the public with or without
a response. In deciding how to proceed, the
agency should consider:
a. The agency’s own procedures for
adopting interpretive rules.
b. The likely increase in useful information
available to the agency from broadening
participation, keeping in mind that nonregulated persons (regulatory beneficiaries
and other interested persons) may offer
different information than regulated persons
and that non-regulated persons will often
have no meaningful opportunity to provide
input regarding interpretive rules other than
at the time of adoption.
c. The likely increase in rule acceptance
from broadening participation, keeping in
mind that non-regulated persons will often
have no opportunity to provide input
regarding interpretive rules other than at the
time of adoption, and that rule acceptance
may be less likely if the agency is not
responsive to input from interested persons.
d. Whether the agency is likely to learn
more useful information by having a specific
agency proposal as a focal point for
discussion, or instead having a more freeranging and less formal discussion.
e. The practicability of broader forms of
participation, including invitation for written
input from the public, keeping in mind that
broader participation may slow the adoption
of interpretive rules and may diminish
resources for other agency tasks, including
issuing interpretive rules on other matters.
9. If an agency does not provide for public
participation before adopting or modifying an
interpretive rule, it should consider offering
an opportunity for public participation after
adoption or modification. As with Paragraph
8, options for public participation include
meetings or webinars with interested
persons, advisory committee proceedings,
and invitation for written input from the
public with or without a response.
10. An agency may make decisions about
the appropriate level of public participation

PO 00000

Frm 00003

Fmt 4703

Sfmt 4703

38929

interpretive rule-by-interpretive rule or by
assigning certain procedures for public
participation to general categories of
interpretive rules. If an agency opts for the
latter, it should consider whether resource
limitations may cause some interpretive
rules, if subject to pre-adoption procedures
for public participation, to remain in draft for
substantial periods of time. If that is the case,
agencies should either (a) make clear to
interested persons which draft interpretive
rules, if any, should be understood to reflect
current agency thinking; or (b) provide in
each draft interpretive rule that, at a certain
time after publication, the rule will
automatically either be adopted or
withdrawn.
11. All written interpretive rules affecting
the interests of regulated parties, regulatory
beneficiaries, or other interested parties
should be promptly made available
electronically and indexed, in a manner in
which they may readily be found.
Interpretive rules should also indicate the
nature of the reliance that may be placed on
them and the opportunities for modification,
rescission, or waiver of them.
Recommendations Applicable Only to Those
Interpretive Rules Amenable to Alternative
Approaches or Analyses
12. Interpretive rules that lend themselves
to alternative approaches or analyses include
those that lay out several lawful options for
the public but do not purport to be
exhaustive. They may also include rules that,
in setting forth decisional factors that are
relevant to the meaning of a statute or
regulation, leave open the possibility that
other decisional factors might also be
relevant. Typically, such rules speak at a
general level, leaving space for informal
adjustments and negotiation between the
agency and interested persons about how the
rule should be applied. Paragraphs 1–11
above apply with equal force to such rules.
However, with respect to such rules, agencies
should take additional steps to promote
flexibility, as discussed below.
13. Agencies should afford members of the
public a fair opportunity to argue for lawful
approaches or analyses other than those set
forth in an interpretive rule, subject to any
binding requirements imposed upon agency
employees as an internal management
manner. The agency should explain that a
member of the public may take a lawful
approach different from the one set forth in
the interpretive rule, request that the agency
take such a lawful approach, or request that
the agency endorse an alternative or
additional analysis of the rule. The
interpretive rule should also include the
identity and contact information of officials
to whom such a request should be made.
Additionally, with respect to such rules,
agencies should take further measures to
promote such flexibility as provided in
Paragraph 14.
14. In order to provide a fair opportunity
for members of the public to argue for other
lawful approaches or analyses, an agency
should, subject to considerations of
practicability and resource limitations and
the priorities described in Paragraph 15,
consider additional measures, including the
following:

E:\FR\FM\08AUN1.SGM

08AUN1

jbell on DSK3GLQ082PROD with NOTICES

38930

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices

a. Promoting the flexible use of interpretive
rules in a manner that still takes due account
of needs for consistency and predictability.
In particular, when the agency accepts a
proposal for a lawful approach or analysis
other than that set forth in an interpretive
rule and the approach or analysis seems
likely to be applicable to other situations, the
agency should disseminate its decision and
the reasons for it to other persons who might
make the argument, to other affected
interested persons, to officials likely to hear
the argument, and to members of the public,
subject to existing protections for
confidential business or personal
information.
b. Assigning the task of considering
arguments for approaches or analyses other
than those in an interpretive rule to a
component of the agency that is likely to
engage in open and productive dialogue with
persons who make such arguments, such as
a program office that is accustomed to
dealing cooperatively with regulated parties
and regulatory beneficiaries.
c. When officials are authorized to take an
approach or endorse an analysis different
from that in an interpretive rule but decline
to do so, directing appeals of such a refusal
to a higher-level official.
d. Investing in training and monitoring of
personnel to ensure that they: (i) Treat
parties’ ideas for lawful approaches or
analyses that are different from those in an
interpretive rule in an open and welcoming
manner; and (ii) understand that approaches
or analyses other than those in an
interpretive rule, if undertaken according to
the proper internal agency procedures for
approval and justification, are appropriate
and will not have adverse employment
consequences for them.
e. Facilitating opportunities for members of
the public, including through intermediaries
such as ombudspersons or associations, to
propose or support approaches or analyses
different from those in an interpretive rule
and to provide feedback to the agency on
whether its officials are giving reasonable
consideration to such proposals.
15. Because measures to promote flexibility
(including those listed in Paragraph 14) may
take up agency resources, it will be necessary
to set priorities for which interpretive rules
are most in need of such measures. In
deciding when to take such measures, the
agency should consider the following,
bearing in mind that these considerations
will not always point in the same direction:
a. An agency should assign a higher
priority to an interpretive rule the greater the
rule’s impact is likely to be on the interests
of regulated parties, regulatory beneficiaries,
and other interested parties, either because
regulated parties have strong incentives to
comply with the rule or because the rule
practically reduces the stringency of the
regulatory scheme compared to the status
quo.
b. An agency should assign a lower priority
to promoting flexibility in the use of a rule
insofar as the rule’s value to the agency and
interested persons is primarily consistency
rather than substantive content.

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

Administrative Conference Recommendation
2019–2
Agency Recruitment and Selection of
Administrative Law Judges
Adopted June 13, 2019
The Administrative Procedure Act (APA)
requires that hearings conducted under its
main adjudication provisions 1 (sometimes
known as ‘‘formal’’ hearings) be presided
over by the agency itself, by ‘‘one or more
members of the body which comprises the
agency,’’ or by ‘‘one or more administrative
law judges [(ALJs)] appointed under’’ 5
U.S.C. 3105.2 Section 3105, in turn,
authorizes ‘‘[e]ach agency’’ to ‘‘appoint as
many [ALJs] as are necessary for proceedings
required to be conducted in accordance’’
with those provisions.3
The process for appointing ALJs recently
changed as a result of Executive Order (E.O.)
13,843.4 Until that order was issued, agencies
could a hire a new ALJ only from a certificate
of qualified applicants (that is, a list of
applicants eligible for hire) prepared by the
Office of Personnel Management (OPM).5
Each certificate generally had, for each
opening, three applicants selected from a
much larger register of applicants OPM
deemed ‘‘qualified.’’ The ‘‘list of three,’’ as it
was known, consisted of the three highestscoring applicants based upon, among other
things, an OPM-administered and -developed
examination and panel interview process, as
well as veterans’ status.6
Under E.O. 13,843, newly appointed ALJs
were removed from the ‘‘competitive
service,’’ and were instead placed in what is
known as the ‘‘excepted service.’’ 7 As a
result, agencies now hire new ALJs directly—
that is, without OPM’s involvement—
generally using whatever selection criteria
and procedures they deem appropriate. E.O.
13,843 was premised on two primary bases.
The first was the need to ‘‘mitigate’’ the
concern that, after the Supreme Court’s 2018
1 5 U.S.C. 554, 556–57.
2 Id.
3 Id. § 3105.
4 Exec. Order No. 13,843, 83 FR 32,755 (July 13,
2018) (issued July 10, 2018); see also Memorandum
from Jeff T.H. Pon, Dir., Office of Pers. Mgmt., to
Heads of Exec. Dep’ts and Agencies, Executive
Order—Excepting Administrative Law Judges from
the Competitive Service (July 10, 2018), https://
chcoc.gov/print/9282 (noting that ‘‘OPM’s
regulations continue to govern some aspects of ALJ
employment’’).
5 This was the process for hiring new ALJs. Many
agencies hired incumbent ALJs from other agencies
under a process known as ‘‘interagency transfer.’’
This process no longer exists, but agencies are still
free to hire ALJs from other agencies using their
own process.
6 See Admin. Conf. of the U.S., Recommendation
1992–7, The Federal Administrative Judiciary, 57
FR 61,759, 61,761 (Dec. 29, 1992). Qualified
veterans received extra points that ‘‘had an
extremely large impact, given the small range in
unadjusted scores.’’ Id. As the Administrative
Conference noted in 1992, ‘‘application of the
veterans’ preference has almost always been
determinative in the ALJ selection system.’’ Id.
7 ‘‘[T]he ‘excepted service’ consists of those civil
service positions which are not in the competitive
service or the Senior Executive Service.’’ 5 U.S.C.
2103.

PO 00000

Frm 00004

Fmt 4703

Sfmt 4703

decision in Lucia v. Securities and Exchange
Commission,8 the OPM-administered process
might unduly circumscribe an agency head’s
discretionary hiring authority under the
Constitution’s Appointments Clause.9 Lucia
held that the Securities and Exchange
Commission’s (SEC) ALJs were officers under
the Appointments Clause, with the result
being that—assuming that the SEC’s ALJs are
inferior rather than principal officers 10—they
must be appointed directly by the
Commission itself as the head of a
department rather than, as was being done,
by SEC staff.11 The second basis was the need
to give ‘‘agencies greater ability and
discretion to assess critical qualities in ALJ
candidates . . . and [such candidates’] ability
to meet the particular needs of the agency.’’ 12
E.O. 13,843 requires only that ALJs be
licensed attorneys. In addition, it identifies
desirable qualities for ALJs, such as
appropriate temperament, legal acumen,
impartiality, and the ability to communicate
their decisions, explicitly leaving it,
however, to each agency to determine its own
selection criteria. This Recommendation does
not address the substantive hiring criteria
that agencies should employ in selecting
among ALJ candidates, though it does
recommend that agencies publish the
minimum qualifications and selection
criteria for their ALJ positions. The selection
criteria that an agency adopts might include,
for example, litigation experience, experience
as an adjudicator, experience in dispute
resolution, experience with the subjectmatter that comprises the agency’s caseload,
specialized technical skills, experience with
case management systems, demonstrated
legal research and legal writing skills, a
dedicated work ethic, and strong leadership
and communications skills.13
Each agency must decide not only which
selection criteria will apply, but also which
are mandatory and which are only desirable
or preferred. Of course, agencies must also
ensure that recruitment and selection comply
with generally applicable legal requirements,
such as those relating to veterans’ preference
and equal employment opportunity and
government-wide initiatives to promote
diversity and inclusion in the federal
workforce.14
8 138 S. Ct. 2044 (2018).
9 See Exec. Order No. 13,843, supra note 4, § 1.
10 The Lucia majority expressly refrained from
deciding whether the SEC’s ALJs are principal or
inferior officers, but did note that ‘‘[b]oth the
Government and Lucia view the SEC’s ALJs as
inferior officers and acknowledge that the
Commission, as a head of department, can
constitutionally appoint them.’’ Lucia, 138 S. Ct. at
2051 n.3.
11 See id. This Recommendation takes no position
on constitutional questions.
12 Exec. Order No. 13,843, supra note 4, § 1.
13 See generally Jack M. Beermann and Jennifer L.
Mascott, Federal Agency ALJ Hiring After Lucia and
Executive Order 13843 (May 29, 2019) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/
report/final-research-report-federal-agency-aljhiring-after-lucia-and-eo-13843. This report is
based in part upon interviews with officials at a
number of agencies, including those employing the
vast majority of ALJs.
14 See, e.g., Exec. Order No. 13,583, 76 FR 52,847
(Aug. 18, 2011). As far as veterans’ preference is

E:\FR\FM\08AUN1.SGM

08AUN1

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices
Because the E.O. allows each agency to
design its own selection procedures, each
agency must now decide which of its officials
will be involved in the selection process,
how the process will be structured, how
vacancies will be announced and otherwise
communicated to potential applicants, and
whether the agency will review writing
samples or use some other evaluation
method.
This Recommendation is built upon the
view that there is no ‘‘one-size-fits-all’’
procedure for appointing ALJs and is
designed to assist agencies that are in the
initial stages of thinking through new
procedures for appointing ALJs under the
E.O.15 Each agency will have to construct a
system that is best suited to its particular
needs. Doing so will require consideration of,
among other things, the nature of its
proceedings, the size of the agency’s
caseload, and the substance of the relevant
statutes and the procedural rules involved in
an agency’s proceedings.

jbell on DSK3GLQ082PROD with NOTICES

Recommendation
1. To ensure the widest possible awareness
of their Administrative Law Judge (ALJ)
vacancies and an optimal and broad pool of
applicants, agencies should announce their
vacancies on the government-wide
employment website (currently operated by
the Office of Personnel Management as
USAJOBS), their own websites, and/or other
websites that might reach a diverse range of
potential ALJ applicants. Agencies that desire
or require subject-matter, adjudicative, or
litigation experience should also reach out to
lawyers who practice in the field or those
with prior experience as an adjudicator. Each
agency should keep the application period
open for sufficient time to achieve an optimal
and broad pool of applicants.
2. Agencies should formulate and publish
minimum qualifications and selection
criteria for ALJ hiring. Those qualifications
and criteria should include the factors
specified in Executive Order 13,843 and the
qualifications the agency deems important
for service as an ALJ in the particular agency.
The notice should distinguish between
mandatory and desirable criteria.
3. Agencies should develop policies to
review and assess ALJ applications. These
policies might include the development of
screening panels to select which applicants
to interview, interview panels to select which
applicants to recommend for appointment, or
both kinds of panels. If used, such panels
could include internal reviewers only or both
internal and external reviewers, and could
include overlapping members among the two
types of panels or could include entirely
concerned, Executive Order 13,843 provides that
‘‘each agency shall follow the principle of veteran
preference as far as administratively feasible.’’ Exec.
Order No. 13,843, supra note 4, § 3.
15 Some agencies have already publicly
disseminated guidance. See, e.g., Secretary’s Order
07–2018, Procedures for Appointments of
Administrative Law Judges for the Department of
Labor, 83 FR 44,307 (Aug. 30, 2018); U.S. Dep’t of
Health & Human Serv.’s, Administrative Law Judge
Appointment Process Under the Excepted Service
(Nov. 29, 2018), https://www.hhs.gov/sites/default/
files/alj-appointment-process.pdf.

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

different members. These policies might
include procedures to evaluate applicants’
writing samples. If used, such writing
samples could be submitted with the
applicants’ initial applications, as part of a
second round of submissions for applicants
who meet the agencies’ qualifications
expectations, or as part of a proctored writing
assignment in connection with an interview.
4. The guidelines and procedures for the
hiring of ALJs should be designed and
administered to ensure the hiring of ALJs
who will carry out the functions of the office
with impartiality and maintain the
appearance of impartiality.
Administrative Conference Recommendation
2019–3
Public Availability of Agency Guidance
Documents
Adopted June 13, 2019
Among their many activities, government
agencies issue guidance documents that help
explain their programs and policies or
communicate other important information to
regulated entities and the public. Members of
the public should have ready access to these
guidance documents so that they can
understand how their government works and
how their government relates to them.
Agencies should manage their guidance
documents consistent with legal
requirements and principles of governmental
transparency and accountability.
Guidance documents can take many
forms.1 They include what the
Administrative Procedure Act (APA) calls
‘‘interpretative rules’’ and ‘‘general
statements of policy,’’ which are two types of
rules that are not required to undergo the
notice-and-comment procedures applicable
to legislative rules.2 They may also include
other materials considered to be guidance
documents under other, separate definitions
adopted by government agencies.3 When
1 To allow agencies flexibility to manage their
varied and unique types of guidance documents,
this Recommendation does not seek to provide an
all-encompassing definition of guidance
documents. This Recommendation is addressed, at
a minimum, to those guidance documents required
by law to be published in the Federal Register and
any other guidance document required by law to be
made publicly available. See infra notes 4–7 and
accompanying text.
2 Interpretative rules and general statements of
policy are ‘‘rules’’ under the APA. See 5 U.S.C.
551(4), 553. Although the APA does not define
these two terms, the Attorney General’s Manual on
the Administrative Procedure Act defines
‘‘interpretative rules’’ as ‘‘rules or statements issued
by an agency to advise the public of the agency’s
construction of the statutes and rules which it
administers,’’ and ‘‘general statements of policy’’ as
‘‘statements issued by an agency to advise the
public prospectively of the manner in which the
agency proposes to exercise a discretionary power.’’
Attorney General’s Manual on the Administrative
Procedure Act 30 n.3 (1947). In accordance with
standard parlance, this Recommendation uses the
term ‘‘interpretive’’ in place of the APA’s word
‘‘interpretative.’’
3 See Cary Coglianese, Public Availability of
Agency Guidance Documents (May 15, 2019)
(report to the Admin. Conf. of the U.S.), https://
www.acus.gov/report/consultant-report-publicavailability-agency-guidance-documents.

PO 00000

Frm 00005

Fmt 4703

Sfmt 4703

38931

managing the public availability of agency
information in implementing this
Recommendation, agencies should be clear
about what constitutes guidance and what
does not.
Several laws require agencies to make at
least certain guidance documents available to
the public. The Federal Records Act requires
agencies to identify ‘‘records of general
interest or use to the public that are
appropriate for public disclosure, and . . .
post[] such records in a publicly accessible
electronic format.’’ 4 The Freedom of
Information Act (FOIA) requires that agencies
publish ‘‘statements of general policy or
interpretations of general applicability
formulated and adopted by the agency’’ in
the Federal Register.5 FOIA also requires that
agencies ‘‘make available for public
inspection in an electronic format . . .
[specific] statements of policy and
interpretations which have been adopted by
the agency and are not published in the
Federal Register,’’ as well as ‘‘administrative
staff manuals and instructions to staff that
affect a member of the public.’’ 6 Finally,
Congress has occasionally enacted agencyspecific requirements for posting guidance
documents online. For example, the Food
and Drug Administration is required to
‘‘maintain electronically and update and
publish periodically in the Federal Register
a list of guidance documents’’ and to ensure
that ‘‘[a]ll such documents [are] made
available to the public.’’ 7
The Administrative Conference has
recommended that various types of guidance
documents be made available online.
Recommendation 2017–5, Agency Guidance
Through Policy Statements, provided that
‘‘[a]ll written policy statements affecting the
interests of regulated parties, regulatory
beneficiaries, or other interested parties
should be promptly made available
electronically and indexed, in a manner in
which they may readily be found.’’ 8
4 44 U.S.C. 3102.
5 5 U.S.C. 552(a)(1)(D) (emphasis added). To the
extent that the documents an agency considers
guidance would fall within any of the nine FOIA
exceptions, such as ‘‘records or information
compiled for law enforcement purposes,’’ 5 U.S.C.
552(b)(7), agencies would not be required to
disclose them.
6 5 U.S.C. 552(a)(2). ‘‘Agencies often accomplish
this electronic availability requirement by posting
records on their FOIA websites in a designated area
known as a ‘FOIA Library.’ ’’ U.S. Dep’t of Justice,
Office of Information Policy, Guide to the Freedom
of Information Act: Proactive Disclosures 6 (2019
ed.), available at https://www.justice.gov/oip/foiaguide/proactive_disclosures/download; see also EGovernment Act, Public Law 107–347, 206, 116
Stat. 2899, 2915 (Dec. 17, 2002) (codified at 44
U.S.C. 3501 note) (requiring agencies, to the extent
practicable, to publish online documents that FOIA
requires be published in the Federal Register);
Small Business Regulatory Enforcement Fairness
Act, Public Law 104–121, 212, 110 Stat. 847, 858
(Mar. 29, 1996) (codified at 5 U.S.C. 601 note)
(requiring agencies to produce a ‘‘small entity
compliance guide’’ for some legislative rules and
post those guides ‘‘in an easily identified location
on the website of the agency’’).
7 21 U.S.C. 371(h)(3).
8 Admin. Conf. of the U.S., Recommendation
2017–5, Agency Guidance Through Policy

E:\FR\FM\08AUN1.SGM

Continued

08AUN1

38932

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices

jbell on DSK3GLQ082PROD with NOTICES

Recommendation 2019–1 includes identical
language directing agencies to do the same
for interpretive rules.9 Similarly,
Recommendation 2018–5, Public Availability
of Adjudication Rules, urged agencies to
‘‘provide updated access on their websites to
all sources of procedural rules and related
guidance documents and explanatory
materials that apply to agency
adjudications.’’ 10
Although many agencies do post guidance
documents online, in recent years concerns
have emerged about how well organized, up
to date, and easily accessible these
documents are to the public. At various
times, the Office of Management and Budget
(OMB) has instructed agencies on their
management of guidance documents.11 The
United States Government Accountability
Office has conducted an audit that highlights
the management challenges associated with
agency dissemination of guidance documents
online.12 Several legislative proposals have
been introduced (but not enacted) to create
standards for public disclosure of guidance
documents.13
Agencies should be cognizant that the
primary goal of online publication is to
facilitate access to guidance documents by
regulated entities and the public. In deciding
how to manage the availability of their
guidance documents, agencies must be
mindful of how members of the public will
find the documents they need. Four
principles for agencies to consider when
developing and implementing plans to track
and disclose their guidance documents to the
Statements, ¶ 12, 82 FR 61,728, 61,737 (Dec. 29,
2017).
9 Admin. Conf. of the U.S., Recommendation
2019–1, Agency Guidance Through Interpretive
Rules, 84 FR __.
10 Admin. Conf. of the U.S., Recommendation
2018–5, Public Availability of Adjudication Rules,
¶ 1, 84 FR 2142, 2142 (Feb. 6, 2019).
11 For example, OMB Bulletin 07–02 directs
Executive Branch departments and agencies to
provide a current list of significant guidance
documents in effect on their websites. Office of
Mgmt. & Budget, Final Bulletin for Agency Good
Guidance Practices, 72 FR 3432 (Jan. 25, 2007);
Office of Mgmt. & Budget, Memorandum No. M–07–
07, Issuance of OMB’s ‘‘Final Bulletin for Agency
Good Guidance Practices’’ (Jan. 18, 2007), https://
www.whitehouse.gov/sites/whitehouse.gov/files/
omb/memoranda/2007/m07-07.pdf; see also Office
of Mgmt. & Budget, Memorandum No. M–19–14,
Guidance on Compliance with the Congressional
Review Act (Apr. 11, 2019), https://
www.whitehouse.gov/wp-content/uploads/2019/04/
M-19-14.pdf (calling upon both executive and
independent regulatory agencies to send certain
pre-publication guidance materials to the Office of
Information and Regulatory Affairs).
12 U.S. Gov’t Accountability Office, GAO–15–368,
Regulatory Guidance Processes: Selected
Departments Could Strengthen Internal Control and
Dissemination Practices (2015).
13 The most notable of the pending legislation
would require agencies to publish guidance
documents on their websites and a centralized
website selected by OMB. See Guidance Out of
Darkness Act, S. 380, 116th Cong. (2019); S. Rep.
No. 116–12 (2019); Guidance Out of Darkness Act,
H.R. 4809, 115th Cong. (2018); H.R. Rep. No. 115–
972 (2018); see also H.R. 2142, 116th Cong. (2019)
(requiring the creation of a centralized website for
small business compliance guides). For other
legislation, see Coglianese, supra note 3, at 6–7.

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

public include: (a) Comprehensiveness
(whether all relevant guidance documents are
available), (b) currency (whether guidance
documents are up to date), (c) accessibility
(whether guidance documents can be easily
located by website users), and (d)
comprehensibility (whether website users are
likely to be able to understand the
information they have located).
With these principles in mind, this
Recommendation calls on agencies to
consider opportunities for improving the
public availability of their guidance
documents. Each agency must decide which
guidance documents to post online and how
to present them in a manner that will ensure
their availability and usefulness for regulated
parties and the public. The Recommendation
provides best practices to guide agencies to
make their guidance documents more
publicly available. These best practices are
intended to be adaptable to fit agencyspecific circumstances.14 The Administrative
Conference notes that each agency is
different, and the practices outlined in this
Recommendation may be employed with
flexibility as necessary (perhaps based on
factors such as an agency’s internal
structures, available resources, types and
volume of documents, the parties it regulates,
and its end users) so that guidance
documents are made available to the public
in a logical and suitably comprehensive
manner.
Recommendation
Procedures for Managing Guidance
Documents
1. Agencies should develop written
procedures pertaining to their internal
management of guidance documents.
a. The procedures should include:
i. A description of relevant categories or
types of guidance documents subject to the
procedures; and
ii. examples of specific materials not
subject to the procedures, as appropriate.
b. The procedures should address
measures to be taken for the:
i. Development of guidance documents,
including any opportunity for public
comment;
ii. publication and dissemination of draft
or final guidance documents; and
iii. periodic review of existing guidance
documents.
c. Agency procedures should indicate the
extent to which any of the measures created
or identified in response to Paragraph 1(b)
should vary depending on the type of
guidance document or its category, as
defined by any provisions in agency
procedures responsive to Paragraph 1(a).
2. All relevant agency staff should receive
training in agencies’ guidance document
management procedures.
14 For example, even the term ‘‘agency’’ as used
in the Recommendation can be construed to address
either agencies or sub-agencies within larger
departments. Jennifer L. Selin & David E. Lewis,
Admin. Conf. of the U.S., Sourcebook of United
States Executive Agencies 11 (2d ed. 2018),
available at https://www.acus.gov/publication/
sourcebook-united-states-executive-agenciessecond-edition.

PO 00000

Frm 00006

Fmt 4703

Sfmt 4703

3. Agencies should develop and apply
appropriate internal controls to ensure
adherence to guidance document
management procedures.
4. To facilitate internal tracking of
guidance documents, as well as to help
members of the public more easily identify
relevant guidance documents, agencies
should consider assigning unique
identification numbers to guidance
documents covered by their written guidance
procedures. Once a guidance identification
number has been assigned to a guidance
document, it should appear on that
document and be used to refer to the
document whenever it is listed or referenced
on the agency’s website, in public
announcements, or in the Federal Register or
the Code of Federal Regulations.
5. Using appropriate metrics, agencies
should periodically review their guidance
document management procedures and their
implementation in order to assess their
performance in making guidance documents
available as well as to identify opportunities
for improvement.
6. Agencies should provide opportunities
for public feedback on their efforts to
promote the public availability of their
guidance documents.
Guidance Documents on Agency Websites
7. Agencies should maintain a page on
their websites dedicated to informing the
public about the availability of guidance
documents and facilitating access to those
documents. Such guidance document web
pages should include:
a. Agencies’ written guidance document
management procedures pursuant to
Paragraph 1, if developed;
b. Plain language explanations (sometimes
known as ‘‘explainers’’) that define guidance
documents, explain their legal effects, or give
examples of different types of guidance
documents;
c. A method for users to find relevant
guidance documents, which might include:
i. Comprehensively listing and indexing
agency guidance documents;
ii. Displaying links to pages where
guidance documents are located, which
could be organized by topic, type of guidance
document, agency sub-division, or some
other rubric; or
iii. A dedicated search engine; and
d. Contact information or a comment form
to facilitate public feedback related to
potentially broken links, missing documents,
or other errors or issues related to the
agency’s procedures for the development,
publication, or disclosure of its guidance
documents.
8. Agencies should provide the public with
access to a comprehensive set of its guidance
documents—either on the dedicated
guidance document web page or other web
pages—in accordance with its written
procedures.
a. Agency websites should include, at
minimum, (1) all guidance documents
required by law to be published in the
Federal Register and (2) all other guidance
documents required by law to otherwise be
made publicly available.
b. Guidance documents should generally
be made available in downloadable form.

E:\FR\FM\08AUN1.SGM

08AUN1

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices

jbell on DSK3GLQ082PROD with NOTICES

c. Links to downloadable copies of
agencies’ Small Entity Compliance Guides—
issued in accordance with the Small Business
Regulatory Enforcement Fairness Act 15—
should be provided.
d. Agency websites should include
relevant information for each guidance
document, such as its title, any
corresponding regulatory or statutory
provision that the guidance document relates
to or interprets (if applicable), the date of
issuance, and any assigned identifying
number.
e. Agencies should keep guidance
documents on their websites current. To the
extent a website contains obsolete or
modified guidance documents, it should
include notations indicating that such
guidance documents have been revised or
withdrawn. To the extent feasible, each
guidance document should be clearly marked
within the document to show whether it is
current and identify its effective date, and, if
appropriate, its rescission date. If a guidance
document has been rescinded, agencies
should provide a link to any successor
guidance document.
9. Although not every agency website will
have the same population of users, agency
websites should be designed to ensure that
they are as helpful to the end user as
possible. In particular, agencies should
ensure:
a. Simple words, such as ‘‘guidance,’’ are
used in describing web pages that discuss or
list guidance documents;
b. Agency guidance document web pages
are easy to find from their website’s home
page, through such techniques as a linked tab
or entry in a pull-down menu;
c. The search engine on agency websites
works effectively for finding relevant
guidance information;
d. Guidance documents, when listed on
web pages, are displayed in a manner that
helps the public find a particular document,
by using such techniques as indexing,
tagging, or sortable tables; and
e. Websites displaying guidance
documents are kept up to date, with any
broken links fixed and any amended or
withdrawn documents clearly labeled as
such.
10. To make guidance documents
accessible to users who are searching for
information elsewhere on agency websites,
agencies should strive to ensure that clearly
labeled links to all guidance documents
related to specific rules, issues, or programs
are easily found in the corresponding section
of the website where users are likely to find
that information especially helpful.
Public Notice of Guidance Documents
11. Agencies should undertake affirmative
measures to alert interested members of the
public to new and revised guidance
documents. Such measures could include,
among other things, establishing public email
distribution lists to disseminate alerts about
new or revised guidance documents, using
social media to disseminate guidance
documents and related information, having
15 Public Law 104–121, 212, 110 Stat. 847, 858
(Mar. 29, 1996) (codified at 5 U.S.C. 601 note).

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

agency staff speak about guidance documents
at relevant conferences or meetings, or
preparing printed pamphlets or other hardcopy documents. Even when not required to
do so by law, agencies should consider
publishing information about new or revised
guidance documents in the Federal Register.
12. Agencies should consider providing
descriptive references (such as links, if
possible) to relevant guidance documents in
appropriate sections of the Code of Federal
Regulations, stating where the public can
access the documents.
Administrative Conference Recommendation
2019–4
Revised Model Rules for Implementation of
the Equal Access to Justice Act
Adopted June 13, 2019
[Note from the Office of the Chairman:
Recommendation 2019–4 immediately
follows; however, the Revised Model Rules
for Implementation of the Equal Access to
Justice Act, which were adopted by the
Assembly as an appendix to
Recommendation 2019–4, are published
elsewhere in this issue of the Federal
Register. Federal agencies should consider
the Revised Model Rules when adopting or
revising their own rules in order to promote
the uniformity of procedure contemplated by
the Equal Access to Justice Act, and in
discharging their obligation to consult with
the Chairman of the Administrative
Conference of the United States under 5
U.S.C. 504(c)(1).]
The Equal Access to Justice Act (EAJA),
first enacted in 1980, authorizes the award of
attorney fees and other expenses to certain
individuals, small businesses, and other
entities that prevail against the federal
government in judicial proceedings and
certain adversarial agency adjudicative
proceedings, when the position of the
government is not substantially justified.1
The stated purpose of EAJA is to, among
other things, ‘‘diminish the deterrent effect of
seeking review of, or defending against,
governmental action by providing’’ the award
of certain costs and fees against the United
States.2
In the case of agency adjudications,
agencies must establish ‘‘uniform procedures
for the submission and consideration of
applications for an award of fees and other
expenses’’ ‘‘[a]fter consultation with the
Chairman of the Administrative Conference
of the United States.’’ 3 To carry out this
statutory charge, the Conference’s Chairman
issued model rules in 1981 to help agencies
establish uniform procedures for the
submission and consideration of EAJA
applications.4 Adoption of these model rules
was intended to facilitate consultation
between agencies and the Chairman of the
1 5 U.S.C. 504.
2 Equal Access to Justice Act, Public Law 96–481,
202(b)(1), 94 Stat. 2321, 2325 (1980) (codified as
amended at 5 U.S.C. 504 and 28 U.S.C. 2412).
3 5 U.S.C. 504(c)(1).
4 Admin. Conf. of the U.S., Equal Access to
Justice Act: Agency Implementation, 46 FR 32,900
(June 25, 1981).

PO 00000

Frm 00007

Fmt 4703

Sfmt 4703

38933

Conference as required by 5 U.S.C. 504.5 In
1986, the Chairman revised the 1981 model
rules following the amendment and
reauthorization of EAJA.6 Numerous agencies
adopted the 1981 and 1986 model rules,
including the Federal Trade Commission, the
Consumer Financial Protection Bureau, the
Securities and Exchange Commission, and
the National Labor Relations Board.7
In light of the amendments to EAJA made
since 1986,8 as well as evolving adjudicative
practices since that time, the Conference’s
Chairman decided to review and, as
necessary, revise the 1986 model rules, just
as he recently did in the case of the Model
Adjudication Rules, which govern agency
adjudication procedures generally.9 Rather
than simply revise the rules himself, the
Chairman decided to put the rules before the
membership of the Conference—first through
an ad hoc committee of all interested
members—for review so as to assure
consideration of as broad a range of views as
possible. The Conference considered, among
other things, EAJA rules that agencies have
issued since the promulgation of the 1986
model rules. Where appropriate, the
Conference updated the model rules to reflect
evolving practice and the latest EAJA
amendments and made additional revisions
to promote greater consistency and clarity.
The Conference’s revised model rules appear
in the appendix to this Recommendation.
Substantial changes have been made to the
1986 model rules. They include, most
notably, the elimination of most of what was
Subpart A. Subpart A of the 1986 model rules
consisted of general provisions addressing,
among other things, when EAJA applies,
eligibility of applicants, proceedings covered,
standards for awards, allowable fees and
expenses, rulemaking on maximum rates for
attorney fees, awards against other agencies,
5 Admin. Conf. of the U.S., Implementation of the
Equal Access to Justice Act: Requests for Comments
on Draft Model Rules, 46 FR 15,895 (Mar. 10, 1981).
6 Admin. Conf. of the U.S., Model Rules for
Implementation of the Equal Access to Justice Act:
Issuance of Final Revised Model Rules, 51 FR
16,659 (May 6, 1986).
7 See Equal Access to Justice Act Implementation
Rule, 79 FR 7,569 (Consumer Fin. Prot. Bureau Feb.
10, 2014) (codified as amended at 12 CFR pt. 1071);
Equal Access to Justice Rules, 54 FR 53,050 (Sec.
Exch. Comm’n Dec. 27, 1989) (codified as amended
at 17 CFR pt. 200–01); Procedural Rules
Implementing Equal Access to Justice Act, 51 FR
36,223 (Nat’l Labor Relations Bd. Oct. 9, 1986)
(codified as amended at 29 CFR pt. 102); Procedural
Rules Amendments, 51 FR 17,732 (Nat’l Labor
Relations Bd. May 15, 1986); Procedural Rules;
Miscellaneous Revisions and Corrections, 50 FR
53,302 (Fed. Trade Comm’n Dec. 31, 1985) (codified
as amended at 16 CFR pt. 0–5); Equal Access to
Justice Rules, 47 FR 609 (Sec. Exch. Comm’n Jan.
6, 1982); Rules Governing Recovery of Awards
Under Equal Access to Justice Act, 46 FR 48,910
(Fed. Trade Comm’n Oct. 5, 1981).
8 Act of Jan. 4, 2011, Public Law 111–350, 5, 124
Stat. 3677, 3841; Small Business Regulatory
Enforcement Fairness Act of 1996, 104 Public Law
121, 231, 110 Stat. 847, 862; Religious Freedom
Restoration Act of 1993, 103 Public Law 141, 4, 107
Stat. 1488, 1489; Education and Savings Act of
1988, Public Law 100–647, 6239, 102 Stat. 3342,
3746.
9 Admin. Conf. of the U.S., Model Adjudication
Rules, 83 FR 49,530 (Oct. 2, 2018).

E:\FR\FM\08AUN1.SGM

08AUN1

38934

Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Notices

and delegations of authority. The Conference
recommends the elimination of these
provisions because they address the
substantive standard for EAJA awards and
other such matters beyond the Conference’s
statutory charge identified above. Other
changes to the rules, including the addition
of a definitions section, have also been made
to improve their clarity and
comprehensibility.
Recommendation
The 1986 model rules should be replaced
with the revised model rules for the
implementation of the Equal Access to
Justice Act that appear in the attached
appendix. [Note from the Office of the
Chairman: The appendix to Recommendation
2019–4 is published elsewhere in this issue
of the Federal Register.]
[FR Doc. 2019–16946 Filed 8–7–19; 8:45 am]
BILLING CODE 6110–01–P

ADMINISTRATIVE CONFERENCE OF
THE UNITED STATES
Revised Model Rules for
Implementation of the Equal Access to
Justice Act
AGENCY: Administrative Conference of

the United States.
ACTION: Notice of availability; Revised

Model Rules for Implementation of the
Equal Access to Justice Act.

jbell on DSK3GLQ082PROD with NOTICES

SUMMARY: The Office of the Chairman of

the Administrative Conference of the
United States is issuing these Revised
Model Rules for Implementation of the
Equal Access to Justice Act. These
Revised Model Rules update the uniform
procedures for the submission and
consideration of applications for
attorney fees under the Equal Access to
Justice Act that were last issued in 1986.
These Revised Model Rules reflect,
among other things, amendments to the
Act made by the Small Business
Regulatory Enforcement Fairness Act
and evolving adjudicative practices.
They are designed to assist Federal
agencies in adopting or modifying their
own regulations for implementation of
the Act.
FOR FURTHER INFORMATION CONTACT:
Alexandria Tindall Webb, Attorney
Advisor, 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

VerDate Sep<11>2014

16:51 Aug 07, 2019

Jkt 247001

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 Equal Access to Justice Act
(EAJA), first enacted in 1980, authorizes
the award of attorney fees and other
expenses to eligible parties who prevail
against the Federal government in
judicial proceedings and certain
adversarial agency adjudicative
proceedings, where the position of the
government is not substantially
justified.1 In the case of certain
adversarial agency adjudications,
‘‘[a]fter consultation with the Chairman
of the Administrative Conference of the
United States, each agency shall by rule
establish uniform procedures for the
submission and consideration of
applications for an award of fees and
other expenses.’’ 2 In furtherance of this
statutory obligation, the Conference
Chairman in 1981 issued a set of Model
Rules for agencies to use when adopting
rules for the consideration of
applications for EAJA awards in agency
adjudications.3 The Conference
Chairman issued a revised set of Model
Rules in 1986.4 Many agencies have
since promulgated EAJA rules that are
substantially based upon these Model
Rules.5
The Office of the Chairman is issuing
these Revised Model Rules to replace the
1981 and 1986 Model Rules. They
include revisions made to reflect
changes in law and in practice during
the intervening thirty years and to
promote greater accuracy and clarity.
These rules were set forth in an
appendix to Conference
Recommendation 2019–4, Revised
Model Rules for Implementation of the
Equal Access to Justice Act.
Recommendation 2019–4 is published
elsewhere in this issue of the Federal
Register.
1 5 U.S.C. 504; 28 U.S.C. 2412.
2 5 U.S.C. 504(c)(1).
3 Admin. Conf. of the U.S., Equal Access to
Justice Act: Agency Implementation, 46 FR 32,900
(June 25, 1981).
4 Admin. Conf. of the U.S., Model Rules for
Implementation of the Equal Access to Justice Act,
51 FR 16,659 (May 6, 1986) (previously codified at
1 C.F.R pt. 315).
5 See, e.g., Equal Access to Justice Act
Implementation Rule, 79 FR 7,569 (Consumer Fin.
Prot. Bureau Feb. 10, 2014) (codified as amended
at 12 CFR pt. 1071); Equal Access to Justice Rules,
54 FR 53,050 (Sec. Exch. Comm’n Dec. 27, 1989)
(codified as amended at 17 CFR pt. 200–01);
Procedural Rules Implementing Equal Access to
Justice Act, 51 FR 36,223 (Nat’l Labor Relations Bd.
Oct. 9, 1986) (codified as amended at 29 CFR pt.
102); Procedural Rules; Miscellaneous Revisions
and Corrections, 50 FR 53,302 (Fed. Trade Comm’n
Dec. 31, 1985) (codified as amended at 16 CFR pt.
0–5).

PO 00000

Frm 00008

Fmt 4703

Sfmt 4703

Unlike the 1981 and 1986 versions,
these Revised Model Rules will not be
published in the Code of Federal
Regulations (CFR). The Federal Register
Act requires codification of agency
documents of general applicability and
legal effect in the CFR.6 However, these
model rules are publishing in the
Notices section of this issue of the
Federal Register with the same
intended effect of encouraging agencies
to set out and implement these model
rules as part of their own EAJA rules.
Because these model rules are
publishing in the Notices section, they
will use a different numbering scheme
than in past years. Agencies may use a
different numbering system than what
appears in the Revised Model Rules
The most significant revision to the
1986 Model Rules is the elimination of
much of the former Subpart A. This
change was implemented because its
provisions largely addressed substantive
matters beyond the Conference’s
statutory charge. Some provisions of
former Subpart A remain and were
moved to other parts of the Revised
Model Rules for the purpose of
improved clarity. A new definitions
section comprises Part 2 in the current
revision. Additional changes were made
to comport with the requirements of the
Small Business Regulatory Enforcement
Fairness Act, which was enacted in
1996.
The Revised Model Rules adopted by
the Conference’s Assembly as an
Appendix to Recommendation 2019–4,
and now issued by the Office of the
Chairman, were initially drafted by a
special ad hoc committee that held
public meetings to address revision of
the Model Rules. The materials related
to the meetings, including the agendas,
the 1981 and 1986 Model Rules, and
draft versions of the Revised Model
Rules, can be accessed via a dedicated
web page on the Conference’s website at
https://www.acus.gov/research-projects/
revised-model-rules-implementationequal-access-justice-act.
Agencies are encouraged to use these
Revised Model Rules when drafting or
revising their EAJA rules pertaining to
adjudications in order to promote the
uniformity of procedure contemplated
by EAJA. The Office of the Chairman’s
expectations of how agencies can fulfill
the statutory requirement of
consultation with the ACUS Chairman
are as follows. Agencies that publish
proposed rules for comment should
notify the Office of the Chairman of
their publication by email to ACUS@
info.gov, using ‘‘Model EAJA Rules
Consultation’’ in the subject line. The
6 44 U.S.C. 1510

E:\FR\FM\08AUN1.SGM

08AUN1


Administrative Conference Recommendation 2019-4
Revised Model Rules for Implementation of the Equal Access to
Justice Act
Adopted June 13, 2019

The Equal Access to Justice Act (EAJA), first enacted in 1980, authorizes the award of
attorney fees and other expenses to certain individuals, small businesses, and other entities who
prevail against the federal government in judicial proceedings and certain adversarial agency
adjudicative proceedings, when the position of the government is not substantially justified.1 The
stated purpose of EAJA is to, among other things, “diminish the deterrent effect of seeking
review of, or defending against, governmental action by providing” the award of certain costs
and fees against the United States.2
In the case of agency adjudications, agencies must establish “uniform procedures for the
submission and consideration of applications for an award of fees and other expenses” “[a]fter
consultation with the Chairman of the Administrative Conference of the United States.”3 To
carry out this statutory charge, the Conference’s Chairman issued model rules in 1981 to help
agencies establish uniform procedures for the submission and consideration of EAJA
applications.4 Adoption of these model rules was intended to facilitate consultation between

1

5 U.S.C. § 504.

Equal Access to Justice Act, Pub. L. No. 96-481, § 202(b)(1), 94 Stat. 2321, 2325 (1980) (codified as amended at 5
U.S.C. § 504 and 28 U.S.C. § 2412).
2

3

5 U.S.C. § 504(c)(1).

Admin. Conf. of the U.S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900 (June 25,
1981).
4

agencies and the Chairman of the Conference as required by 5 U.S.C. § 504.5 In 1986, the
Chairman revised the 1981 model rules following the amendment and reauthorization of EAJA.6
Numerous agencies adopted the 1981 and 1986 model rules, including the Federal Trade
Commission, the Consumer Financial Protection Bureau, the Securities and Exchange
Commission, and the National Labor Relations Board.7
In light of the amendments to EAJA made since 1986,8 as well as evolving adjudicative
practices since that time, the Conference’s Chairman decided to review and, as necessary, revise
the 1986 model rules, just as he recently did in the case of the Model Adjudication Rules, which
govern agency adjudication procedures generally.9 Rather than simply revise the rules himself,
the Chairman decided to put the rules before the membership of the Conference—first through
an ad hoc committee of all interested members—for review so as to assure consideration of as
broad a range of views as possible. The Conference considered, among other things, EAJA rules
that agencies have issued since the promulgation of the 1986 model rules. Where appropriate, the
Conference updated the model rules to reflect evolving practice and the latest EAJA amendments

Admin. Conf. of the U.S., Implementation of the Equal Access to Justice Act: Requests for Comments on Draft
Model Rules, 46 Fed. Reg. 15,895 (Mar. 10, 1981).
5

Admin. Conf. of the U.S., Model Rules for Implementation of the Equal Access to Justice Act: Issuance of Final
Revised Model Rules, 51 Fed. Reg. 16,659 (May 6, 1986).
6

Equal Access to Justice Act Implementation Rule, 79 Fed. Reg. 7,569 (Consumer Fin. Prot. Bureau Feb. 10, 2014)
(codified as amended at 12 C.F.R. pt. 1071); Equal Access to Justice Rules, 54 Fed. Reg. 53,050 (Sec. Exch.
Comm’n Dec. 27, 1989) (codified as amended at 17 C.F.R. pt. 200-01); Procedural Rules Implementing Equal
Access to Justice Act, 51 Fed. Reg. 36,223 (Nat’l Labor Relations Bd. Oct. 9, 1986) (codified as amended at 29
C.F.R. pt. 102); Procedural Rules Amendments, 51 Fed. Reg. 17,732 (Nat’l Labor Relations Bd. May 15, 1986);
Procedural Rules; Miscellaneous Revisions and Corrections, 50 Fed. Reg. 53,302 (Fed. Trade Comm’n Dec. 31,
1985) (codified as amended at 16 C.F.R. pt. 0-5); Equal Access to Justice Rules, 47 Fed. Reg. 609 (Sec. Exch.
Comm’n Jan. 6, 1982); Rules Governing Recovery of Awards Under Equal Access to Justice Act, 46 Fed. Reg.
48,910 (Fed. Trade Comm’n Oct. 5, 1981).
7

Act of Jan. 4, 2011, Pub. L. No. 111-350, § 5, 124 Stat. 3677, 3841; Small Business Regulatory Enforcement
Fairness Act of 1996, 104 Pub. L. No. 121, § 231, 110 Stat. 847, 862; Religious Freedom Restoration Act of 1993,
103 Pub. L. No. 141, § 4, 107 Stat. 1488, 1489; Education and Savings Act of 1988, Pub. L. No. 100-647, § 6239,
102 Stat. 3342, 3746.
8

9

Admin. Conf. of the U.S., Model Adjudication Rules, 83 Fed. Reg. 49,530 (Oct. 2, 2018).

2

and made additional revisions to promote greater consistency and clarity. The Conference’s
revised model rules appear in the appendix to this Recommendation.
Substantial changes have been made to the 1986 model rules. They include, most notably,
the elimination of most of what was Subpart A. Subpart A of the 1986 model rules consisted of
general provisions addressing, among other things, when EAJA applies, eligibility of applicants,
proceedings covered, standards for awards, allowable fees and expenses, rulemaking on
maximum rates for attorney fees, awards against other agencies, and delegations of authority.
The Conference recommends the elimination of these provisions because they address the
substantive standard for EAJA awards and other such matters beyond the Conference’s statutory
charge identified above. Other changes to the rules, including the addition of a definitions
section, have also been made to improve their clarity and comprehensibility.
RECOMMENDATION
The 1986 model rules should be replaced with the revised model rules for the
implementation of EAJA that appear in the attached appendix.

3

APPENDIX
The Equal Access to Justice Act (EAJA), first enacted in 1980, authorizes the award of
attorney fees and other expenses to eligible parties who prevail against the federal government
in judicial proceedings and certain adversarial agency adjudicative proceedings, where the
position of the government is not substantially justified.10 In the case of agency adjudications,
agencies must establish “uniform procedures for the submission and consideration of
applications for an award of fees and other expenses” “[a]fter consultation with the Chairman
of the Administrative Conference of the United States.”11 In furtherance of this statutory
obligation, the Conference Chairman in 1981 issued a set of model rules for agencies to use
when adopting rules for the consideration of applications for EAJA awards in agency
adjudications.12 The Conference Chairman issued a revised set of rules in 1986.13 Many
agencies have since promulgated EAJA rules that are substantially based upon these model
rules.14
The Conference Chairman is issuing these rules to replace the 1981 and 1986 rules. They
include revisions made to reflect changes in practice in the intervening thirty years and to
promote greater accuracy and clarity. These rules are the same as the rules accompanying
Conference Recommendation 2019-4, adopted by the Assembly of the Conference. Agencies are
encouraged to use these model rules when drafting or revising their EAJA rules pertaining to
adjudications to promote the uniformity of procedure contemplated by EAJA.

10

5 U.S.C. § 504; 28 U.S.C. § 2412.

11

5 U.S.C. § 504(c)(1).

12

Admin. Conf. of the U.S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900 (June 25, 1981).

Admin. Conf. of the U.S., Model Rules for Implementation of the Equal Access to Justice Act, 51 Fed. Reg. 16,659 (May 6,
1986) (previously codified at 1 C.F.R pt. 315).
13

Equal Access to Justice Act Implementation Rule, 79 Fed. Reg. 7,569 (Consumer Fin. Prot. Bureau Feb. 10, 2014) (codified as
amended at 12 C.F.R. pt. 1071); Equal Access to Justice Rules, 54 Fed. Reg. 53,050 (Sec. Exch. Comm’n Dec. 27, 1989) (codified
as amended at 17 C.F.R. pt. 200-01); Procedural Rules Implementing Equal Access to Justice Act, 51 Fed. Reg. 36,223 (Nat’l Labor
Relations Bd. Oct. 9, 1986) (codified as amended at 29 C.F.R. pt. 102); Procedural Rules; Miscellaneous Revisions and Corrections,
50 Fed. Reg. 53,302 (Fed. Trade Comm’n Dec. 31, 1985) (codified as amended at 16 C.F.R. pt. 0-5).
14

4

REVISED MODEL RULES FOR IMPLEMENTATION OF THE EQUAL ACCESS TO
JUSTICE ACT
Subpart A — Scope of These Rules
§ 315.101 Scope of these rules.
Subpart B — Definitions
§ 315.201 Definitions.
Subpart C — EAJA Applications
§ 315.301 Application requirements.
§ 315.302 Net worth exhibit.
§ 315.303 Documentation of fees and expenses.
Subpart D — Procedures for Considering Applications
§ 315.401 Filing and service of documents.
§ 315.402 Answer to application.
§ 315.403 Reply.
§ 315.404 Settlement.
§ 315.405 Further proceedings.
§ 315.406 Decision.
§ 315.407 Agency review.
§ 315.408 Judicial review.
§ 315.409 Stay of decision concerning award.
§ 315.410 Payment of award.

5

Subpart A — Scope of These Rules
§ 315.101 Scope of these rules.
The Equal Access to Justice Act, 5 U.S.C. § 504 (called “EAJA” in this part), provides
for the award of attorney fees and other expenses to eligible individuals and entities who are
parties to certain administrative proceedings (called “adversary adjudications”) before this
agency. An eligible party may receive an award when it prevails over an agency, unless the
agency’s position was substantially justified or special circumstances make an award unjust.
Alternatively, an eligible party, even if not a prevailing party, may receive an award under 5
U.S.C. § 504(a)(4) when it successfully defends against an excessive demand made by an
agency.
Subpart B — Definitions
§ 315.201 Definitions.
For the purposes of these rules:
(a) Adjudicative officer means the official, whether the official is designated as an
administrative law judge or otherwise, who presided over the hearing at the adversary
adjudication or the official who presides over an EAJA proceeding.
(b) Adversary adjudication means (i) an adjudication under 5 U.S.C. § 554 in which the
position of the United States is represented by counsel or otherwise, but excludes an adjudication
for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a
license, (ii) any appeal of a decision made pursuant to 41 U.S.C. § 7103 before an agency board
of contract appeals as provided in 41 U.S.C. § 7105, (iii) any hearing conducted under 31 U.S.C.
§ 3801 et seq., and (iv) the Religious Freedom Restoration Act of 1993.15
(c) Demand means the express demand of the agency which led to the adversary

The language that appears under subsection 315.201(b)(iv) was drawn directly from the Equal Access to Justice Act. 5 U.S.C. §
504. The statute does not identify what adjudications involving the Religious Freedom Restoration Act of 1993 are covered.
15

6

adjudication, but does not include a recitation by the agency of the maximum statutory penalty
(i) in the administrative complaint, or (ii) elsewhere when accompanied by an express demand
for a lesser amount.
(d) Excessive demand means a demand by an agency, in an adversary adjudication arising
from an agency action to enforce a party’s compliance with a statutory requirement, that is
substantially in excess of the decision of the adjudicative officer and is unreasonable when
compared with such decision, under the facts and circumstances of the case.
(e) Final disposition means the date on which a decision or order disposing of the
merits of the proceeding or any other complete resolution of the proceeding, such as a settlement
or voluntary dismissal, become final and unappealable, both within the agency and to the courts.
(f) Party means a party, as defined in 5 U.S.C. § 551(3), who is (i) an individual whose
net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated, or (ii)
any owner of an unincorporated business, or any partnership, corporation, association, unit of
local government, or organization, the net worth of which did not exceed $7,000,000 at the time
the adversary adjudication was initiated, and which had not more than 500 employees at the time
the adversary adjudication was initiated; except that an organization described in section
501(c)(3) of the Internal Revenue Code of 1986 exempt from taxation under section 501(a) of
such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing
Act, may be a party regardless of the net worth of such organization or cooperative association.
For purposes of 5 U.S.C. § 504(a)(4), “party” also includes a small entity as defined in 5 U.S.C.
§ 601.
(g) Position of the agency means, in addition to the position taken by the agency in the
adversary adjudication, the action or failure to act by the agency upon which the adversary
adjudication is based, except that fees and other expenses may not be awarded to a party for any
portion of the adversary adjudication in which the party has unreasonably protracted the
proceedings.

7

Subpart C — EAJA Applications
§ 315.301 Application requirements.
(a) A party seeking an award under EAJA shall file an application with the agency that
conducted the adversarial adjudication within 30 days after the agency’s final disposition of the
adversary adjudication.
(b) The application shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and identify the position of
the agency or agencies that the applicant alleges was not substantially justified; or, if the
applicant has not prevailed, shall show that the agency’s demand was substantially in excess of
the decision of the adjudicative officer and was unreasonable when compared with that decision
under the facts and circumstances of that case. The application shall also identify the agency
position(s) in the proceeding that the applicant alleges was (were) not substantially justified or
the agency’s demand that is alleged to be excessive and unreasonable. Unless the applicant is an
individual, the application shall also state the number of employees of the applicant and describe
briefly the type and purpose of its organization or business.
(c) The application shall also show that the applicant meets the definition of “party” in 5
U.S.C. § 504(b)(1)(B), including adequate documentation of its net worth, as set forth in section
315.302.
(d) The application shall state the amount of fees and expenses for which an award is
sought, subject to the requirements and limitations as set forth in 5 U.S.C. § 504(b)(1)(A), with
adequate documentation as set forth in section 315.303.
(e) The application shall be signed by the applicant or an authorized officer or attorney of
the applicant. It shall also contain or be accompanied by a written verification under penalty of
perjury that the information provided in the application is true and correct.

§ 315.302 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization, cooperative association,
or, in the case of an application for an award related to an allegedly excessive demand by the
8

agency, a small entity as that term is defined by 5 U.S.C. § 601, shall provide with its application
a detailed exhibit showing the net worth of the applicant is as represented in the statement
required by section 315.301(c) when the proceeding was initiated. The exhibit may be in any
form convenient to the applicant that provides full disclosure of the applicant’s assets and
liabilities and is sufficient to determine whether the applicant qualifies under the standards
provided in section 315.201(e). An adjudicative officer presiding over an EAJA proceeding may
require an applicant to file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the
proceeding. However, an applicant that objects to public disclosure of information in any portion
of the exhibit and believes there are legal grounds for withholding it from disclosure may request
that the documents be filed under seal or otherwise be treated as confidential, pursuant to [insert
cross-reference to appropriate agency rules governing such requests].

§ 315.303 Documentation of fees and expenses.
The application shall be accompanied by adequate documentation of the fees and other
expenses incurred after initiation of the adversary adjudication, including, but not limited to, the
reasonable cost of any study, analysis, engineering report, test, or project. With respect to a claim
for fees and expenses involving an excessive demand by the agency, the application shall be
accompanied by adequate documentation of such fees and expenses incurred after initiation of
the adversary adjudication for which an award is sought attributable to the portion of the demand
alleged to be excessive and unreasonable. A separate itemized statement shall be submitted for
each professional firm or individual whose services are covered by the application, showing the
hours spent in connection with the proceeding by each individual, a description of the specific
services performed, the rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount paid or payable by the
applicant or by any other person or entity for the services provided. An adjudicative officer
presiding over an EAJA proceeding may require the applicant to provide vouchers, receipts, or
other substantiation for any expenses claimed.
9

Subpart D — Procedures for Considering Applications
§ 315.401 Filing and service of documents.
Any application for an award, or any accompanying documentation related to an
application, shall be filed and served on all parties to the proceeding in the same manner as other
pleadings in the proceeding, except, as provided in section 315.302(b), for confidential financial
information.

§ 315.402 Answer to application.
(a) Within 30 days after service of an application, counsel representing the agency against
which an award is sought may file an answer to the application. Unless agency counsel requests
an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of
this section, failure to file an answer within the 30-day period may be treated as a consent to the
award requested.
(b) If agency counsel and the applicant believe that the issues in the fee application can
be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of
this statement shall extend the time for filing an answer for an additional 30 days, and further
extensions may be granted by the adjudicative officer presiding over an EAJA proceeding upon
request by agency counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify
the facts relied upon in support of agency counsel’s position. If the answer is based on any
alleged facts not already in the record of the proceeding, agency counsel shall include with the
answer either supporting affidavits or a request for further proceedings under section 315.405.

§ 315.403 Reply.
Within 15 days after service of an answer, the applicant may file a reply. If the reply is
based on any alleged facts not already in the record of the proceeding, the applicant shall include
with the reply either supporting affidavits or a request for further proceedings under section
315.405.
10

§ 315.404 Settlement.
The applicant and agency counsel may agree on a proposed settlement of the award
before final action on the application, either in connection with a settlement of the underlying
adversary adjudication, or after the adversary adjudication has been concluded, in accordance
with the agency’s standard settlement procedure. If a prevailing party and agency counsel agree
on a proposed settlement of an award before an application has been filed, the application shall
be filed with the proposed settlement. If a proposed settlement of an underlying proceeding
provides that each side shall bear its own expenses and the settlement is accepted, no application
may be filed.

§ 315.405 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the basis of the written
record. However, on request of either the applicant or agency counsel, or on his or her own
initiative, the adjudicative officer presiding over an EAJA proceeding may, if necessary for a full
and fair decision on the application, order the filing of additional written submissions; hold oral
argument; or allow for discovery or hold an evidentiary hearing, but only as to issues other than
whether the agency’s position was substantially justified (such as those involving the applicant’s
eligibility or substantiation of fees and expenses). Any written submissions shall be made, oral
argument held, discovery conducted, and evidentiary hearing held as promptly as possible so as
not to delay a decision on the application for fees. Whether or not the position of the agency was
substantially justified shall be determined on the basis of the administrative record, as a whole,
which is made in the adversary adjudication for which fees and other expenses are sought.
(b) A request for further proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the additional proceedings are
necessary to resolve the issues.

11

§ 315.406 Decision.
The adjudicative officer presiding over an EAJA proceeding shall issue an [initial or
recommended]16 decision on the application within [60 days] after the time for filing a reply, or
when further proceedings are held, within [60 days] after completion of such proceedings.
(a) For an application involving a prevailing party. The decision on the application shall
include written findings and conclusions on the applicant’s eligibility and status as a prevailing
party and an explanation of the reasons for any difference between the amount requested and the
amount awarded. The decision shall also include, if applicable, findings on whether the agency’s
position was substantially justified, whether the applicant unduly protracted the proceedings, or
whether special circumstances make an award unjust.
(b) For an application involving an allegedly excessive agency demand. The decision on
the application shall include written findings and conclusions on the applicant’s eligibility and an
explanation of the reasons why the agency’s demand was or was not determined to be
substantially in excess of the underlying decision of the adjudicative officer and was or was not
unreasonable when compared with that decision. That determination shall be based upon all the
facts and circumstances of the case. The decision on the application shall also include, if at issue,
findings on whether the applicant has committed a willful violation of law or otherwise acted in
bad faith, or whether special circumstances make an award unjust.
(c) Awards. An adjudicative officer presiding over an EAJA proceeding may reduce the
amount to be awarded, or deny any award, to the extent that the party during the course of the
proceedings engaged in conduct which unduly and unreasonably protracted the final resolution
of the matter in controversy.

Brackets such as these indicate that an agency is to use its discretion to determine what language or time frame is most
appropriate.
16

12

§ 315.407 Agency review.
Either the applicant or agency counsel may seek review of the decision of the
adjudicative officer on the fee application, or the agency may decide to review the decision on its
own initiative, in accordance with [insert cross-reference to agency’s regular review procedures].

§ 315.408 Judicial review.
Judicial review of final agency decisions on awards may be sought as provided in 5
U.S.C. § 504(c)(2).

§ 315.409 Stay of decision concerning award.
Any proceedings on an application for fees under these rules shall be automatically
stayed until the agency’s final disposition of the decision on which the application is based and
either the time period for seeking judicial review expires, or if review has been sought, until final
disposition is made by a court and no further judicial review is available.

§ 315.410 Payment of award.
An applicant seeking payment of an award shall submit to the [comptroller or other
disbursing official] of the paying agency a copy of the agency’s final decision granting the
award, accompanied by a certification that the applicant will not seek review of the decision in
the United States courts. [Include here address for submissions at specific agency.] The agency
will pay the amount awarded to the applicant within [60 days].

13