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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
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best practices for such review. The Administrative Conference intends this Recommendation to cover appellate review of decisions resulting from 1 hearings governed by the formal hearing provisions of the Administrative Procedure Act APA and 2 evidentiary hearings that are not governed by those provisions but are required by statute, regulation, or executive order.
Agencies may also decide to apply this Recommendation to appellate review of decisions arising from other hearings, depending on their level of formality.
Appellate review of hearing-level decisions can be structured in numerous ways. Two structures are most common. In the first, litigants appeal directly to the agency head, which may be a multi-member board or commission. In the second, litigants appeal to an appellate adjudicator or group of adjudicatorsoften styled as a board or councilsitting below the agency head. The appellate decision may be the agencys final action or may be subject to further appeal within the agency usually to the agency head.
The Administrative Conference has twice before addressed agency appellate review. In Recommendations 686 and 833, it provided guidance to agencies when establishing new, and reviewing existing, organizational structures of appellate review.3 Both recommendations focused on the selection of delegatesindividual adjudicators, review boards composed of multiple adjudicators, or panels composed of members of a multi-member agencyto exercise appellate review authority vested in agency heads including boards and commissions. Recommendation 833 also addressed when agencies should consider providing appellate review as a matter of right and when as a matter of discretion, and, in the case of the latter, under what criteria.
With the exception of the appropriate standard for granting review, this Recommendations focus lies elsewhere. It addresses, and offers best practices with respect to, the following subjects: First, an agencys identification of the purpose or objective served by its appellate review;
second, its selection of cases for appellate review, when review is not required by statute; third, its procedures for review;
fourth, its appellate decision-making processes; fifth, its management, APA 5 U.S.C. 554, 55657, is required by statute, regulation, or executive order. Those adjudications, which are often as formal as APA adjudications in practice, far outnumber so-called APA
adjudications. Although Recommendation 20164
addresses only non-APA adjudications, most of its best practices are as applicable to APA
adjudications as non-APA adjudications. Some such practices, in fact, are modeled on the APAs formal hearing provisions.
3 Admin. Conf. of the U.S., Recommendation 83
3, Agency Structures for Review of Decisions of Presiding Officers Under the Administrative Procedure Act, 48 FR 57,461 Dec. 30, 1983;
Admin. Conf. of the U.S., Recommendation 686, Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency, 38 FR 19,783
July 23, 1973. Both recommendations concerned only the review of decisions in proceedings governed by the formal hearing provisions of the APA. Their principles, though, are not so confined.

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administration, and bureaucratic oversight of its appellate system; and sixth, its public disclosure of information about its appellate system.4
Most importantly, this Recommendation begins by suggesting that agencies identify, and publicly disclose, the purposes or objectives of their appellate systems.
Appellate systems may have different purposes, and any given appellate system may have multiple purposes. Purposes or objectives can include the correction of errors, inter-decisional consistency of decisions, policymaking, political accountability, management of the hearinglevel adjudicative system, organizational effectiveness and systemic awareness, and the reduction of litigation in federal courts.
The identification of purpose is important both because it dictates or should dictate how an agency administers its appellate systemincluding what cases it hears and under what standards of review it decides themand provides a standard against which an agencys performance can be evaluated.
This Recommendation proceeds from the recognition that agency appellate systems vary enormouslyas to their purposes or objectives, governing substantive law, size, and resourcesand that what may be a best practice for one system may not always be the best practice for another. In offering the best practices that follow, moreover, the Administrative Conference recognizes that 1 an agencys procedural choices may sometimes be constrained by statute and 2
available resources and personnel policies may dictate an agencys decision as to whether and how to implement the best practices that follow. The Administrative Conference makes this Recommendation subject to these important qualifications.
Recommendation Objectives of Appellate Review 1. Agencies should identify the objectives of appellate review; disclose those objectives in procedural regulations; and design rules and processes, especially for scope and standard of review, to serve them.
Procedures for Appellate Review 2. Agencies should promulgate and publish procedural regulations governing agency appellate review in the Federal Register and codify them in the Code of Federal Regulations. These regulations should cover all significant procedural matters pertaining to agency appellate review, including but not limited to the following:
a. The objectives of the agencys appellate review system;
b. The timing and procedures for initiating review, including any available interlocutory review;
c. The standards for granting review, if review is discretionary;
d. The standards for permitting participation by interested persons and amici;
4 Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems Dec. 14, 2020 report to the Admin. Conf. of the U.S., https
www.acus.gov/report/final-report-agency-appellatesystems.

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e. The standard of review;
f. The allowable and required submissions by litigants and their required form and contents;
g. The procedures and criteria for designating decisions as precedential and the legal effect of such designations;
h. The record on review and the opportunity, if any, to submit new evidence;
i. The availability of oral argument or other form of oral presentation;
j. The standards of and procedures for reconsideration and reopening, if available;
k. Any administrative or issue exhaustion requirements that must be satisfied before seeking agency appellate or judicial review, including whether agency appellate review is a mandatory prerequisite to judicial review;
l. Openness of proceedings to the public and availability of video or audio streaming or recording;
m. In the case of multi-member appellate boards, councils, and similar entities, the authority to assign decision-making authority to fewer than all members e.g., panels; and n. Whether seeking agency appellate review automatically stays the effectiveness of the appealed agency action until the appeal is resolved which may be necessary for appellate review to be mandatory, see 5
U.S.C. 704, and, if not, how a party seeking agency appellate review may request such a stay and the standards for deciding whether to grant it.
3. Agencies should include in the procedural regulations governing their appellate programs: a A brief statement or explanation of each programs review authority, structure, and decision-making components; and b for each provision based on a statutory source, an accompanying citation to that source.
4. When revising existing or adopting new appellate rules, agencies should consider the appellate rules Rules 400450 in the Administrative Conferences Model Rules of Agency Adjudication rev. 2018.
5. When materially revising existing or adopting new appellate rules, agencies should use notice-and-comment procedures or other mechanisms for soliciting public input, notwithstanding the procedural rules exemption of 5 U.S.C. 553bA, unless the costs clearly outweigh the benefits of doing so.
Case Selection for Appellate Review 6. Based on the agency-specific objectives of appellate review, agencies should decide whether the granting of review should be mandatory or discretionary assuming they have statutory authority to decide; if discretionary, the criteria for granting review should track the objectives of the appellate system, and they should be published in the procedural regulations.
7. Agencies should consider implementing procedures for sua sponte appellate review of non-appealed hearing-level decisions, as well as for the referral of cases or issues by hearing-level adjudicators to the appellate entity for interlocutory review.
Appellate Decision-Making Processes and Decisions 8. Whenever possible, agencies should consider maintaining electronic case
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