This section of the FEDERAL REGISTER

contains documents other than rules or

proposed rules that are applicable to the

public. Notices of hearings and investigations,

committee meetings, agency decisions and

rulings, delegations of authority, filing of

petitions and applications and agency

statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

6612 

Vol. 86, No. 13 

Friday, January 22, 2021 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendations 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Administrative 

Conference of the United States adopted 

six recommendations and one official 

statement at its virtual Seventy-third 

Plenary Session. The appended 

recommendations address: (a) Rules on 

Rulemakings; (b) Protected Materials in 

Public Rulemaking Dockets; (c) Agency 

Appellate Systems; (d) Government 

Contract Bid Protests Before Agencies; 

(e) Publication of Policies Governing 

Agency Adjudicators; and (f) Agency 

Litigation Webpages. The official 

statement addresses Agency use of 

Artificial Intelligence. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendations 2020–1 and 2020–2, 

Todd Rubin; for Recommendation 

2020–3, Gavin Young; for 

Recommendations 2020–4 and 2020–6, 

and Statement #20, Mark Thomson; and 

for Recommendation 2020–5, Leigh 

Anne Schriever. 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 virtual Seventythird Plenary Session on December 16– 

17, 2020, the Assembly of the 

Conference adopted six 

recommendations and one official 

statement. 

Recommendation 2020–1, Rules on 

Rulemakings. This recommendation 

encourages agencies to consider issuing 

rules governing their rulemaking 

procedures. It identifies subjects that 

agencies should consider addressing in 

their rules on rulemakings—without 

prescribing any particular procedures— 

and it urges agencies to solicit public 

input on these rules and make them 

publicly available. 

Recommendation 2020–2, Protected 

Materials in Public Rulemaking Dockets. 

This recommendation offers agencies 

best practices for protecting sensitive 

personal and confidential commercial 

information in public rulemaking 

dockets. It identifies, in particular, best 

practices for agencies to use when 

redacting, summarizing, and aggregating 

comments that contain such 

information. It also encourages agencies 

to provide public notices that 

discourage commenters from submitting 

such information in the first place. 

Recommendation 2020–3, Agency 

Appellate Systems. This 

recommendation offers agencies best 

practices to improve administrative 

review of hearing-level adjudicative 

decisions with respect to case selection, 

decision-making process and 

procedures, management oversight, and 

public disclosure and transparency. In 

doing so, it encourages agencies to 

identify the objectives of such review 

and structure their appellate systems to 

serve those objectives. 

Recommendation 2020–4, 

Government Contract Bid Protests 

Before Agencies. This recommendation 

suggests improvements to the 

procedures governing agency-level 

procurement contract disputes— 

commonly called bid protests—under 

the Federal Acquisition Regulation and 

agency-specific regulations to make 

those procedures more simple, 

transparent, and predictable. It urges 

agencies to clarify what types of 

decisions can be the subjects of agencylevel bid protests, what processes and 

deadlines will govern such protests, and 

who in the agency will decide such 

protests; make it easier for protesters to 

get information about the decisions they 

protest; and publish more data on 

agency-level protests. 

Recommendation 2020–5, Publication 

of Policies Governing Agency 

Adjudicators. This recommendation 

encourages agencies to disclose policies 

governing the appointment and 

oversight of adjudicators that bear on 

their impartiality and constitutional 

status. It offers best practices on how to 

provide descriptions of, and access to, 

such policies on agency websites. 

Recommendation 2020–6, Agency 

Litigation Webpages. This 

recommendation offers agencies best 

practices for making their federal court 

filings and relevant court opinions 

available to the public on their websites, 

with particular emphasis on materials 

from litigation dealing with agency 

regulatory programs. It provides 

guidance on the types of litigation 

materials that will be of greatest interest 

to the public and on how agencies can 

disseminate the materials in a way that 

makes them easy to find. 

Statement #20, Agency Use of 

Artificial Intelligence. This statement 

identifies issues agencies should 

consider when adopting, revamping, 

establishing policies and practices 

governing, and regularly monitoring 

artificial intelligence systems. Among 

the topics it addresses are transparency, 

harmful biases, technical capacity, 

procurement, privacy, security, 

decisional authority, and oversight. 

The Appendix below sets forth the 

full texts of these six recommendations 

and the official statement. The 

Conference will transmit the 

recommendations and statement to 

affected agencies, Congress, and the 

Judicial Conference of the United States, 

as appropriate. The recommendations 

and statement are not binding, so the 

entities to which they are addressed will 

make decisions on their 

implementation. 

The Conference based these 

recommendations and the statement on 

research reports that are posted at: 

https://www.acus.gov/meetings-andevents/plenary-meeting/73rd-plenarysession. Committee-proposed drafts of 

the recommendations and statement, 

and public comments received in 

advance of the plenary session, are also 

available using the same link. 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6613 

1This Recommendation does not address 

rulemakings subject to the formal hearing 

requirements of the Administrative Procedure Act. 

See 5 U.S.C. 556–57. 

2Cf. Admin. Conf. of the U.S., Recommendation 

2019–1, Agency Guidance Through Interpretive 

Rules, 84 FR 38927 (Aug. 8, 2019); Admin. Conf. 

of the U.S., Recommendation 2017–5, Agency 

Guidance Through Policy Statements, 82 FR 61734 

(Dec. 29, 2017). 

3See, e.g., 2 U.S.C. 1534 (Unfunded Mandates 

Reform Act); 5 U.S.C. 609 (Regulatory Flexibility 

Act); Exec. Order No. 13,175, Consultation and 

Coordination with Indian Tribal Governments, 65 

FR 67249 (Nov. 11, 2000). 

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

92–1, The Procedural and Practice Rule Exemption 

from the APA Notice-and-Comment Rulemaking 

Requirements, 57 FR 30102 (July 8, 1992); see also 

Recommendation 2019–1, supra note 2; 

Recommendation 2017–5, supra note 2. 

5See, e.g., Health Ins. Ass’n of Am. v. Shalala, 23 

F.3d 412, 423 (D.C. Cir. 1994) (stating that 

‘‘publication in the Code of Federal Regulations, or 

its absence’’ is only ‘‘a snippet of evidence of 

agency intent’’ that the published pronouncement 

be given binding effect). 

6Some rules on rulemakings include a statement 

that they do not create any substantive or 

procedural rights or benefits. This Recommendation 

does not address whether such disclaimers should 

be included or what legal effect they may have on 

judicial review. These questions cannot be 

answered in isolation from the broader question of 

when a rule on rulemakings is judicially 

enforceable. 

7See Admin. Conf. of the U.S., Recommendation 

2015–1, Promoting Accuracy and Transparency in 

the Unified Agenda, 80 FR 36757 (June 26, 2015). 

Dated: January 14, 2021. 

Shawne C. McGibbon, 

General Counsel. 

Appendix—Recommendations and 

Statement of the Administrative 

Conference of the United States 

Administrative Conference Recommendation 

2020–1 

Rules on Rulemakings 

Adopted December 16, 2020 

Numerous agencies have promulgated 

rules setting forth the policies and 

procedures they will follow when conducting 

informal rulemakings under 5 U.S.C. 553.1

The rules can cover a variety of practices, 

including processes for initiating and seeking 

public input on new rules, coordinating with 

the Office of Management and Budget and 

other agencies as a rule is being formulated, 

and obtaining approval from agency 

leadership before a proposed rule is issued or 

finalized. Agencies refer to these rules by 

different names. This Recommendation calls 

them ‘‘rules on rulemakings.’’ 

Rules on rulemakings vary—in terms of the 

particular matters they address, their scope 

and comprehensiveness, and other 

characteristics—but they share several 

common features. First, they authoritatively 

reflect the agency’s position as to what 

procedures it will observe when adopting 

new rules. By ‘‘authoritative,’’ this 

Recommendation means that a rule on 

rulemakings sets forth the procedures that 

agency officials responsible for drafting and 

finalizing new rules will follow in at least 

most cases within the rule on rulemakings’ 

scope, though it may contemplate the 

possibility that agency leadership could 

authorize an alternative set of procedures.2

Second, rules on rulemakings do more than 

simply summarize or explain rulemaking 

requirements of the Administrative 

Procedure Act and other statutes, although 

they often serve an explanatory function at 

the same time that they set forth the 

procedures the agencies will follow in 

conducting rulemakings. Rules on 

rulemakings set forth additional 

commitments by an agency concerning how 

it will conduct rulemakings. And third, 

agencies disseminate rules on rulemakings 

publicly rather than only internally. They 

appear on agency websites and are often 

published not only in the Federal Register 

but also in the Code of Federal Regulations 

(CFR). 

Rules on rulemakings can serve at least 

four important objectives. First, they promote 

efficiency by ensuring that both agency 

officials and those outside the agency know 

where to go to find the agency’s rulemaking 

policies. Second, they promote predictability 

by informing the public that the agency will 

follow particular procedures, thereby 

allowing the public to plan their 

participation in the rulemaking process 

accordingly. Third, they promote 

accountability by ensuring that agency 

leadership has approved the policies and 

procedures the agency will follow. And they 

can also provide accountability in connection 

with individual rulemakings by creating an 

internal approval process by which agency 

leadership reviews proposed and final rules. 

Finally, they promote transparency by 

affording the public access to the agency’s 

internal procedures pertaining to its 

rulemaking process. 

In promulgating a rule on rulemakings, an 

agency may wish to solicit public input to 

inform the rule’s development, even if such 

a rule is subject to 5 U.S.C. 553’s exemption 

from notice-and-comment procedures as a 

rule of procedure, general statement of 

policy, or otherwise. In soliciting public 

input, agencies may wish to use mechanisms 

that facilitate more robust participation, 

including by underrepresented 

communities.3 As the Administrative 

Conference has acknowledged in past 

recommendations, public comment can both 

provide valuable input from the public and 

enhance public acceptance of an agency’s 

rules.4

An agency may also wish to publish its 

rule on rulemakings in the CFR. Doing so can 

enhance transparency and facilitate 

accountability. Importantly, publishing a rule 

on rulemakings in the CFR does not, by itself, 

make the rule on rulemakings judicially 

enforceable.5

This Recommendation does not seek to 

resolve whether, when, or on what legal 

bases a court might enforce a rule on 

rulemakings against an agency.6

Recommendation 

1. Agencies should consider promulgating 

rules on rulemakings setting forth the 

policies and procedures they will follow in 

informal rulemaking under 5 U.S.C. 553. 

2. In issuing rules on rulemakings, agencies 

should consider including provisions 

addressing the following topics (which 

reflect topics frequently covered in existing 

rules on rulemakings): 

a. Procedures prior to the issuance of a 

notice of proposed rulemaking; 

b. Procedures connected with the noticeand-comment process; 

c. Procedures connected with the 

presidential review process, if applicable; 

d. Procedures for handling post-comment 

period communications; 

e. Internal approval procedures for issuing 

and finalizing rules; and 

f. Procedures for reassessing existing rules. 

The appendix gives examples of particular 

subtopics agencies may wish to consider 

under each of these topics. 

3. Agencies should make rules on 

rulemakings available in a prominent, easyto-find place on the portion of their websites 

dealing with rulemaking matters. 

Additionally, agencies should consider 

publishing them in the Federal Register and 

the Code of Federal Regulations. When 

posting rules on rulemakings on their 

websites, agencies should use techniques like 

linked tabs, pull-down menus, indexing, 

tagging, and sorting tables to ensure that 

relevant documents are easily findable. 

Agencies should also design their search 

engines to allow people to easily identify 

relevant documents. 

4. In addition to issuing rules on 

rulemakings, agencies should consider 

explaining in accessible language how the 

rulemaking process works in order to educate 

the public. Such explanations might be 

integrated within a rule on rulemakings or 

might be contained in separate explanatory 

documents (e.g., documents identifying 

frequently asked questions). When providing 

such explanations, an agency should, to the 

extent practicable, distinguish between 

procedures it intends to follow and material 

provided purely by way of background. 

5. Agencies should consider a broad range 

of means of seeking public input on rules on 

rulemakings, even if the Administrative 

Procedure Act does not require it. 

6. Agencies should consider the extent to 

which procedures required by a rule on 

rulemakings should be made internally 

waivable and, if so, by whom. For example, 

they might consider drafting a rule on 

rulemakings in a way that allows high-level 

agency officials to permit other officials to 

use alternative procedures. 

Appendix 

Non-Exhaustive List of Topics for Agencies 

To Consider Including Within Their Rules 

on Rulemakings 

(a) Procedures Prior to the Issuance of a 

Notice of Proposed Rulemaking 

Subtopic Examples: 

(1) Regulatory planning; 7

(2) Issuing advance notices of proposed 

rulemaking and obtaining feedback from 

members of the public using means other 

than the notice-and-comment process, such 


jbell on DSKJLSW7X2PROD with NOTICES
6614 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

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

2018–7, Public Engagement in Rulemaking, 84 FR 

2146 (Feb. 6, 2019). 

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

2014–6, Petitions for Rulemaking, 79 FR 75117 

(Dec. 17, 2014). 

10See Admin. Conf. of the U.S., Recommendation 

2012–1, Regulatory Analysis Requirements, 77 FR 

47801 (Aug. 10, 2012). 

11See Admin. Conf. of the U.S., Recommendation 

2017–3, Plain Language in Regulatory Drafting, 82 

FR 61728 (Dec. 29, 2017). 

12See Admin. Conf. of the U.S., Recommendation 

2018–2, Severability in Agency Rulemaking, 83 FR 

30685 (June 29, 2018). 

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

2017–2, Negotiated Rulemaking and Other Options 

for Public Engagement, 82 FR 31040 (July 5, 2017). 

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

2018–6, Improving Access to Regulations.gov’s 

Rulemaking Dockets, 84 FR 2143 (Feb. 6, 2019). 

15See Admin. Conf. of the U.S., Recommendation 

2011–2, Rulemaking Comments, 76 FR 48791 (Aug. 

9, 2011). 

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

2014–4, ‘‘Ex Parte’’ Communications in Informal 

Rulemaking, 79 FR 35993 (June 25, 2014). 

17See Admin. Conf. of the U.S., Recommendation 

2011–5, Incorporation by Reference, 77 FR 2257 

(Jan. 17, 2012). 

18See Admin. Conf. of the U.S., Recommendation 

2013–5, Social Media in Rulemaking, 78 FR 76269 

(Dec. 17, 2013). 

19See Recommendation 2018–7, supra note 8. 

20See Admin. Conf. of the U.S., Recommendation 

2020–2, Protected Materials in Public Rulemaking 

Dockets, 86 FR (approved Dec. 16, 2020); Admin. 

Conf. of the U.S., Recommendation 2011–1, Legal 

Considerations in e-Rulemaking, 76 FR 48789 (Aug. 

9, 2011). 

21See Recommendation 92–1, supra note 4. 

22See Admin. Conf. of the U.S., Recommendation 

95–4, Procedures for Noncontroversial and 

Expedited Rulemakings, 60 FR 43108 (Aug. 18, 

1995). 

23See Admin. Conf. of the U.S., Recommendation 

2011–6, International Regulatory Cooperation, 77 

FR 2259 (Jan. 17, 2012). 

24See Recommendation 2011–2, supra note 15. 

25See id. 

26See Admin. Conf. of the U.S., Recommendation 

2019–5, Agency Economists, 84 FR 71349 (Dec. 27, 

2019). 

27See Admin. Conf. of the U.S., Recommendation 

2017–7, Regulatory Waivers and Exemptions, 82 FR 

61742 (Dec. 29, 2017). 

28See Admin. Conf. of the U.S., Recommendation 

2014–5, Retrospective Review of Agency Rules, 79 

FR 75114 (Dec. 17, 2014). 

29See Admin. Conf. of the U.S., Recommendation 

2013–4, Administrative Record in Informal 

Rulemaking, 78 FR 41358 (July 10, 2013). 

30See Admin. Conf. of the U.S., Recommendation 

2013–6, Remand Without Vacatur, 78 FR 76272 

(Dec. 17, 2013). 

1The public rulemaking docket is distinguished 

from ‘‘the administrative record for judicial 

review,’’ which is intended to provide courts with 

a record for evaluating challenges to the rule, and 

the ‘‘rulemaking record,’’ which means all 

comments and materials submitted to agencies 

during comment periods and any other materials 

agencies considered during the course of the 

rulemaking. See Admin. Conf. of the U.S., 

Recommendation 2013–4, The Administrative 

Record in Informal Rulemaking, 78 FR 41358 (July 

10, 2013). 

2Recommendation 2011–1, Legal Considerations 

in e-Rulemaking, advises agencies to allow 

submitters to flag confidential information, 

including trade secrets, and advises agencies to 

devise procedures for reviewing and handling such 

information. Admin. Conf. of the U.S., 

Recommendation 2011–1, Legal Considerations in 

e-Rulemaking, ¶ 1, 76 FR 48789, 48790 (Aug. 9, 

2011). Recommendation 2013–4, supra note 1, ¶ 11, 

advises agencies to develop guidance on managing 

and segregating protected information, such as 

confidential commercial information and sensitive 

personal information, while disclosing nonprotected materials; see also Admin. Conf. of the 

U.S., Recommendation 89–7, Federal Regulation of 

Biotechnology, 54 FR 53494 (Dec. 29, 1988); Admin. 

Conf. of the U.S., Recommendation 82–1, 

Exemption (b)(4) of the Freedom of Information Act, 

47 FR 30702 (July 15, 1982); Admin. Conf. of the 

U.S., Recommendation 80–6, Intragovernmental 

Communications in Informal Rulemaking 

Proceedings, 45 FR 86408 (Dec. 31, 1980). 

as requests for information and focus 

groups; 8

(3) Accepting, reviewing, and responding 

to petitions for rulemaking; 9

(4) Considering options besides 

rulemaking; 

(5) Performing ex ante regulatory analyses 

(e.g., benefit-cost analysis and regulatory 

flexibility analysis); 10

(6) Using plain language in regulatory 

drafting; 11

(7) Preparing for potential judicial review 

of rulemakings, including deciding whether 

to make any of the provisions of a rule 

severable; 12

(8) Conducting negotiated rulemaking; 13

and 

(9) Establishing an effective date for rules. 

(b) Procedures Connected With the Noticeand-Comment Process 

Subtopic Examples: 

(1) Materials to be published on 

Regulations.gov with the notice; 14

(2) Minimum comment periods to be 

allowed; 15

(3) Policies on ex parte contacts; 16

(4) Handling external merits 

communications not filed as comments; 

(5) Incorporating standards by reference; 17

(6) Using social media to engage the public 

in rulemaking; 18

(7) Obtaining feedback from American 

Indian tribes, other historically 

underrepresented or under-resourced groups, 

and state and local governments; 19

(8) Posting, analyzing, and responding to 

public comments, including comments that 

may contain confidential commercial 

information, protected personal information, 

or other kinds of sensitive submissions; 20

(9) Waiving or invoking of Administrative 

Procedure Act exemptions to notice and 

comment; 21 and 

(10) Using interim final rules or direct final 

rules.22

(c) Procedures Connected With the 

Presidential Review Process, if Applicable 

Subtopic Examples: 

(1) Interacting with the Office of 

Information and Regulatory Affairs, the 

Office of the Federal Register, the Regulatory 

Information Service Center, the Small 

Business Administration’s Office of 

Advocacy, and other offices with 

government-wide rulemaking 

responsibilities; 

(2) Participating in the interagency review 

process; and 

(3) Procedures related to international 

regulatory cooperation.23

(d) Procedures for Handling Post-Comment 

Period Communications 

Subtopic Examples: 

(1) Provisions pertaining to reply 

comments 24 and 

(2) Handling late-filed comments.25

(e) Internal Approval Procedures for Issuing 

and Finalizing Rules 

Subtopic Examples: 

(1) Procedures for submitting rules to 

offices with legal, economic, and other 

responsibilities within the agency for 

review 26 and 

(2) Procedures for submitting rules to the 

relevant agency official for final approval. 

(f) Procedures for Reassessing Existing Rules 

Subtopic Examples: 

(1) Issuing regulatory waivers and 

exemptions; 27

(2) Engaging in retrospective review of 

rules; 28

(3) Maintaining and preserving rulemaking 

records, including transparency of such 

records and the handling of confidential 

commercial information, protected personal 

information, or other kinds of sensitive 

information contained therein; 29 and 

(4) Handling rules that have been vacated 

or remanded without vacatur.30

Administrative Conference Recommendation 

2020–2 

Protected Materials in Public Rulemaking 

Dockets 

Adopted December 16, 2020 

As part of the rulemaking process, agencies 

create public rulemaking dockets, which 

consist of all rulemaking materials agencies 

have: (1) Proactively published online or (2) 

made available for public inspection in a 

reading room. Public rulemaking dockets 

include materials agencies generate 

themselves and comments agencies receive 

from the public. Their purpose is to provide 

the public with the information that 

informed agencies’ rulemakings.1

The Administrative Conference has issued 

several recommendations to help agencies 

balance the competing considerations of 

transparency and confidentiality in managing 

their public rulemaking dockets.2 This 

project builds on these recommendations. 

The scope of the Recommendation is 

limited to personal information and 

confidential commercial information that 

agencies have decided to withhold from their 

public rulemaking dockets, which this 

Recommendation calls ‘‘protected material.’’ 

The Recommendation specifies how agencies 

should consider handling protected material. 

For purposes of this Recommendation, 

personal information is information about an 

individual including his or her education, 

financial transactions, medical history, 

criminal or employment history, or similarly 

sensitive information, and that contains his 

or her name, or the identifying number, 

symbol, or other identifying particular 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6615 

3See Privacy Act of 1974 § 3, 5 U.S.C. 552a(a)(4). 

4See Food Mktg. Inst. v. Argus Leader Media, 139 

S. Ct. 2356, 2363 (2019); see also Exec. Order No. 

12,600, Predisclosure Notification Procedures for 

Confidential Commercial Information, 52 FR 23781 

(June 23, 1987). 

5See Christopher Yoo, Protected Materials in 

Public Rulemaking Dockets 24 (Nov. 24, 2020) 

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

www.acus.gov/report/final-report-protectedmaterials-public-rulemaking-dockets. 

6 5 U.S.C. 553(c). 

7Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 

375, 393 (D.C. Cir. 1973). In addition to these public 

transparency requirements, there are a number of 

federal record-retention requirements of which 

agencies should be aware. See, e.g., 44 U.S.C. 3301. 

8 5 U.S.C. 552a(b). 

9 18 U.S.C. 1905. 

10 5 U.S.C. 552a(b)(2). 

11See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 

1137–43 (D.C. Cir. 1987). 

12See Food Mktg. Inst., 139 S. Ct. at 2361. 

13Permitting the submission of anonymous and 

pseudonymous comments is one way that some 

agencies attempt to reduce the privacy risks 

commenters face when submitting protected 

material. Issues regarding the submission of 

anonymous and pseudonymous comments are 

being considered in an ongoing project of the 

Administrative Conference titled Mass, ComputerGenerated, and Fraudulent Comments and are 

beyond the scope of this Recommendation. 

assigned to the individual.3 Confidential 

commercial information is commercial 

information that is customarily kept private, 

or at least closely held, by the person or 

business providing it.4 Other types of 

information, such as national security 

information and copyrighted materials, are 

beyond the Recommendation’s scope. The 

Recommendation is also limited to 

addressing procedures for protecting 

materials that agencies decide warrant 

protection. It is not intended to define the 

universe of protected materials. In particular, 

the Recommendation does not address any 

issue that may arise if agencies choose to rely 

on protected material in explaining their 

rulemakings, whether in notices of proposed 

rulemaking, regulatory impact analyses, or 

otherwise. 

Agencies accept public comments for their 

public rulemaking dockets primarily through 

Regulations.gov, their own websites, and 

email. Regulations.gov and many agency 

websites that accept comments expressly 

notify the public that agencies may publish 

the information submitted in public 

comments.5 When people submit comments 

to agencies, however, agencies typically do 

not immediately publish the comments. 

Instead, agencies generally take time to 

screen comments before publishing them. 

Most agencies perform at least some kind of 

screening during this period. 

For all agencies, whether to withhold or 

disclose protected material is governed by 

various laws: Some mandate disclosure, 

some mandate withholding, and some leave 

agencies with substantial discretion in 

deciding whether to disclose. Although a full 

description of those laws is beyond the scope 

of this Recommendation, a brief overview of 

at least some of this body of law helps to 

identify the issues agencies face. 

The Administrative Procedure Act requires 

agencies to ‘‘give interested persons an 

opportunity to participate in rulemaking 

through submission of written data, views, or 

arguments.’’ 6 The United States Court of 

Appeals for the D.C. Circuit has interpreted 

this provision to ordinarily require that 

agencies make publicly available the critical 

information—including studies, data, and 

methodologies—underlying proposed rules.7

The Privacy Act and the Trade Secrets Act 

place limits on the disclosure norm 

discussed above. Generally, the Privacy Act 

prevents agencies from disclosing any 

information about a person, such as medical 

records, educational background, and 

employment history, contained in agencies’ 

systems of records, without that person’s 

written consent.8 The Trade Secrets Act 

generally prevents agencies from disclosing 

trade secrets and other kinds of confidential 

commercial information, such as corporate 

losses and profits.9

Both the Privacy Act and the Trade Secrets 

Act have exceptions. For the Privacy Act, the 

main exception relevant to this 

Recommendation is for information required 

to be released under the Freedom of 

Information Act (FOIA).10 The Trade Secrets 

Act only has one exception, which covers 

any materials authorized to be disclosed by 

statute (including FOIA) or regulation.11

Whether a particular piece of personal or 

confidential commercial information meets 

one of these exceptions often involves a 

complex determination that depends upon 

the exact type of information at issue and its 

contemplated use, and agencies must 

determine the applicability of the exceptions 

on a case-by-case basis. For example, 

whether FOIA authorizes disclosure of 

confidential commercial information may 

turn in part on whether agencies in receipt 

of the information assured submitters that the 

information would be withheld from the 

public.12 If agencies offer assurances that 

they will not disclose confidential 

commercial information, agencies and 

submitters may rely on those assurances as 

a defense against compelled disclosure under 

FOIA. In many cases, agencies assure 

companies that they will not disclose such 

information in order to encourage companies 

to submit it. 

Particular cases are governed by specific 

requirements of law, not broad categorical 

labels. But agencies often consider certain 

categories of personal information and 

confidential commercial information to be 

protected material (e.g., trade secrets, social 

security numbers, bank account numbers, 

passport numbers, addresses, email 

addresses, medical information, and 

information concerning a person’s finances). 

There are many ways protected material 

may arrive at the agency in a rulemaking. A 

person might submit his or her own 

information, intentionally or unintentionally, 

and then ask the agency not to disclose it. A 

third party might submit another person’s 

information, with or without that person’s 

knowledge. A company might submit a 

document containing its own confidential 

commercial information, intentionally or 

unintentionally, with or without the agency’s 

prior assurance of protection. Or a company 

might submit another company’s or person’s 

information. Depending on the information 

in question and the manner in which it was 

submitted, there may be issues of waiver of 

statutory protection. Such questions, like all 

questions regarding the substance of the laws 

governing protected material, are beyond this 

Recommendation’s scope, but they illustrate 

the various considerations that agencies and 

the public often face in the submission and 

handling of such material. 

This Recommendation proposes steps 

agencies can take to withhold protected 

materials from their public rulemaking 

dockets while still providing the public with 

the information upon which agencies relied 

in formulating proposed rules.13

Recommendation 

Recommendations for All Agencies 

1. To reduce the risk that agencies will 

inadvertently disclose protected material, 

agencies should describe what kinds of 

personal and confidential commercial 

information qualify as protected material and 

should clearly notify the public about their 

treatment of protected material. An agency’s 

notifications should: 

a. Inform members of the public that 

comments are generally subject to public 

disclosure, except when disclosure is limited 

by law; 

b. Inform members of the public whether 

the agency offers assurances of protection 

from disclosure for their confidential 

commercial information and, if so, how to 

identify such information for the agency; 

c. Provide guidance to the public 

concerning the submission of protected 

material that pertains to third parties, 

including instructions that the disclosure of 

some protected material may be prohibited 

by law; 

d. Advise members of the public to review 

their comments for the material identified 

above in (c) and, if they find such material, 

to remove any such material that is not 

essential to the comment; 

e. Inform members of the public that they 

may request, during the period between 

when a comment is received and when it is 

made public, that protected material they 

inadvertently submitted be withheld from the 

public rulemaking docket; 

f. Inform members of the public that they 

may request, after the agency has published 

any comment, that protected material 

pertaining to themselves or to their 

dependents within the comment be removed 

from the public rulemaking docket; and 

g. Inform members of the public that the 

agency reserves the right to redact or 

aggregate any part of a comment if the agency 

determines that it constitutes protected 

material, or may withhold a comment in its 

entirety if it determines that redaction or 

aggregation would insufficiently prevent the 

disclosure of this material. 

2. Agencies should include the 

notifications described in Paragraph 1, or a 

link to those notifications, in at least the 

following places: 

a. Within the rulemaking documents on 

which agencies request comments, such as a 


jbell on DSKJLSW7X2PROD with NOTICES
6616 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

1There is no universally accepted definition of 

‘‘artificial intelligence,’’ and the rapid state of 

evolution in the field, as well as the proliferation 

of use cases, makes coalescing around any such 

definition difficult. See, e.g., John S. McCain 

National Defense Authorization Act for Fiscal Year 

2019, Public Law 115–232, 238(g), 132 Stat. 1636, 

1697–98 (2018) (using one definition of AI); Nat’l 

Inst. of Standards & Tech., U.S. Leadership in AI: 

A Plan for Federal Engagement in Developing 

Technical Standards and Related Tools 7–8 (Aug. 

9, 2019) (offering a different definition of AI). 

Generally speaking, AI systems tend to have 

characteristics such as the ability to learn to solve 

complex problems, make predictions, or undertake 

tasks that heretofore have relied on human decision 

making or intervention. There are many illustrative 

examples of AI that can help frame the issue for the 

purpose of this Statement. They include, but are not 

limited to, AI assistants, computer vision systems, 

biomedical research, unmanned vehicle systems, 

advanced game-playing software, and facial 

recognition systems as well as application of AI in 

both information technology and operational 

technology. 

2See 5 U.S.C. 591. 

3 David Freeman Engstrom, Daniel E. Ho, 

Catherine M. Sharkey, & Mariano-Florentino 

Cue ́llar, Government by Algorithm: Artificial 

Intelligence in Federal Administrative Agencies 

(Feb. 2020) (report to the Admin. Conf. of the U.S.), 

https://www.acus.gov/report/government-algorithmartificial-intelligence-federal-administrativeagencies; Cary Coglianese, A Framework for 

Governmental Use of Machine Learning (Dec. 8, 

2020) (report to the Admin. Conf. of the U.S.), 

https://www.acus.gov/report/frameworkgovernmental-use-machine-learning-final-report. 

notice of proposed rulemaking or an advance 

notice of proposed rulemaking; 

b. On agencies’ own comment submission 

forms, if agencies have them; 

c. Within any automatic emails that 

agencies send acknowledging receipt of a 

comment; 

d. On any part of agencies’ websites that 

describe their rulemaking process or within 

any rules on rulemakings they may have, as 

described in Recommendation 2020–1, Rules 

on Rulemakings; and 

e. Within any notices of public meetings 

pertaining to a rule. 

3. The General Services Administration’s 

eRulemaking Program Management Office 

should work with agencies that participate in 

Regulations.gov to include or refer to the 

notifications described in Paragraph 1 within 

any automated emails Regulations.gov sends 

acknowledging receipt of a comment. 

4. If a submitter notifies an agency that the 

submitter inadvertently included protected 

material in the submitter’s comment, the 

agency should act as promptly as possible to 

determine whether such material warrants 

withholding from the public rulemaking 

docket and, if so, withhold it from the public 

rulemaking docket, or, if already disclosed, 

remove it from the public rulemaking docket. 

If an agency determines that such material 

does not qualify as protected, it should 

promptly notify the submitter of this finding 

with a brief statement of reasons. 

5. Agencies should allow third parties to 

request that protected material pertaining to 

themselves or a dependent be removed from 

the public rulemaking docket. Agencies 

should review such requests and, upon 

determining that the material subject to the 

request qualifies as protected material, 

should remove it from the public rulemaking 

docket as promptly as possible. If an agency 

determines that the material does not qualify 

as protected, it should promptly notify the 

requestor of this finding with a brief 

statement of reasons. 

Recommendations for Agencies That Screen 

Comments for Protected Material Before 

Publication in the Public Rulemaking Docket 

6. Agencies that screen comments for 

protected material before publication in the 

public rulemaking docket, either as required 

by law or as a matter of discretion, should 

redact the protected material and publish the 

rest of the comment. Redaction should be 

thorough enough to prevent the public from 

discerning the redacted material, but not so 

broad as to prevent the public from viewing 

non-protected material. 

7. If redaction is not feasible within a 

comment, agencies should consider 

presenting the data in a summarized form. 

8. If redaction is not feasible across 

multiple, similar comments, agencies should 

consider presenting any related information 

in an aggregated form. Agencies should work 

with data science experts and others in 

relevant disciplines to ensure that 

aggregation is thorough enough to prevent 

someone from disaggregating the 

information. 

9. If the approaches identified in 

Paragraphs 6–8 would still permit a member 

of the public to identify protected material, 

agencies should withhold the comment in its 

entirety. When doing so, they should 

describe the withheld material for the public 

in as much detail as possible without 

compromising its confidentiality. 

10. When deciding whether and how to 

redact, aggregate, or withhold protected 

material, agencies should explore using 

artificial intelligence-based tools to aid in 

identifying protected material. Agencies 

should consult with private sector experts 

and technology-focused agencies, such as the 

General Services Administration’s 

Technology Transformation Service and the 

Office of Management and Budget’s United 

States Digital Service, to determine which 

tools are most appropriate and how they can 

best be deployed given the agencies’ 

resources. 

Recommendations for Agencies That Offer 

Assurances of Protection From Disclosure of 

Confidential Commercial Information 

11. Agencies that offer assurances of 

protection from disclosure of confidential 

commercial information should decide how 

they will offer such assurances. Agencies can 

choose to inform submitters, directly upon 

submission, that they will withhold 

confidential commercial information from 

the public rulemaking docket; post a general 

notice informing submitters that confidential 

commercial information will be withheld 

from the public rulemaking docket; or both. 

12. Such agencies should adopt policies to 

help them identify such information. 

Agencies should consider including the 

following, either in tandem or as alternatives, 

as part of their policies, including within any 

rules on rulemakings they may have, as 

described in Recommendation 2020–1, Rules 

on Rulemakings: 

a. Instructing submitters to identify clearly 

that the document contains confidential 

commercial information; 

b. Instructing submitters to flag the 

particular text within the document that 

constitutes confidential commercial 

information; and 

c. Instructing submitters to submit both 

redacted and unredacted versions of a 

comment that contains confidential 

commercial information. 

Administrative Conference Statement #20 

Agency Use of Artificial Intelligence 

Adopted December 16, 2020 

Artificial intelligence (AI) techniques are 

changing how government agencies do their 

work.1 Advances in AI hold out the promise 

of lowering the cost of completing 

government tasks and improving the quality, 

consistency, and predictability of agencies’ 

decisions. But agencies’ uses of AI also raise 

concerns about the full or partial 

displacement of human decision making and 

discretion. 

Consistent with its statutory mission to 

promote efficiency, participation, and 

fairness in administrative processes,2 the 

Administrative Conference offers this 

Statement to identify issues agencies should 

consider when adopting or modifying AI 

systems and developing practices and 

procedures for their use and regular 

monitoring. The Statement draws on a pair 

of reports commissioned by the 

Administrative Conference,3 as well as the 

input of AI experts from government, 

academia, and the private sector (some ACUS 

members) provided at meetings of the ad hoc 

committee of the Administrative Conference 

that proposed this Statement. 

The issues addressed in this Statement 

implicate matters involving law, policy, 

finances, human resources, and technology. 

To minimize the risk of unforeseen problems 

involving an AI system, agencies should, 

throughout an AI system’s lifespan, solicit 

input about the system from the offices that 

oversee these matters. Agencies should also 

keep in mind the need for public trust in 

their practices and procedures for use and 

regular monitoring of AI technologies. 

1. Transparency 

Agencies’ efforts to ensure transparency in 

connection with their AI systems can serve 

many valuable goals. When agencies set up 

processes to ensure transparency in their AI 

systems, they should consider publicly 

identifying the processes’ goals and the 

rationales behind them. For example, 

agencies might prioritize transparency in the 

service of legitimizing its AI systems, 

facilitating internal or external review of its 

AI-based decision making, or coordinating its 

AI-based activities. Different AI systems are 

likely to satisfy some transparency goals 

more than others. When possible, agencies 

should use metrics to measure the 

performance of their AI-transparency 

processes. 

In setting transparency goals, agencies 

should consider to whom they should be 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6617 

4While the term bias has a technical, statistical 

meaning, the Administrative Conference here uses 

the term more generally, to refer to common or 

systematic errors in decision making. 5 5 U.S.C. 3371–76. 

6Agencies may also obtain AI systems that are 

embedded in commercial products. The 

considerations applicable to such embedded AI 

systems should reflect the fact that agencies may 

have less control over their design and 

development. 

7Within the General Services Administration, for 

example, the office called 18F routinely partners 

with government agencies to help them build and 

buy technologies. Similarly, the United States 

Digital Service (which is within the Executive 

Office of the President) has a staff of technologists 

whose job is to help agencies build better 

technological tools. While the two entities have 

different approaches—18F acts more like an 

information intermediary and the Digital Service 

serves as an alternative source for information 

technology contracts—both could aid agencies with 

obtaining, developing, and using different AI 

techniques. 

8See, e.g., Paperwork Reduction Act, 44 U.S.C. 

3501–20. 

9See, e.g., 5 U.S.C. 552a(e), (g), & (p); 44 U.S.C. 

3501 note. 

transparent. For instance, depending on the 

nature of their operations, agencies might 

prioritize transparency to the public, courts, 

Congress, or their own officials. 

The appropriate level or nature of 

transparency and interpretability in agencies’ 

AI systems will also depend on context. In 

some contexts, such as adjudication, reasongiving requirements may call for a higher 

degree of transparency and interpretability 

from agencies regarding how their AI systems 

function. In other contexts, such as 

enforcement, agencies’ legitimate interests in 

preventing gaming or adversarial learning by 

regulated parties could militate against 

providing too much information (or specific 

types of information) to the public about AI 

systems’ processes. In every context, agencies 

should consider whether particular laws or 

policies governing disclosure of information 

apply. 

In selecting and using AI techniques, 

agencies should be cognizant of the degree to 

which a particular AI system can be made 

transparent to appropriate people and 

entities, including the general public. There 

may be tradeoffs between explainability and 

accuracy in AI systems, so that transparency 

and interpretability might sometimes weigh 

in favor of choosing simpler AI models. The 

appropriate balance between explainability 

and accuracy will depend on the specific 

context, including agencies’ circumstances 

and priorities. 

The proprietary nature of some AI systems 

may also affect the extent to which they can 

be made transparent. When agencies’ AI 

systems rely on proprietary technologies or 

algorithms the agencies do not own, the 

agencies and the public may have limited 

access to the information about the AI 

techniques. Agencies should strive to 

anticipate such circumstances and address 

them appropriately, such as by working with 

outside providers to ensure they will be able 

to share sufficient information about such a 

system. Agencies should not enter into 

contracts to use proprietary AI systems 

unless they are confident that actors both 

internal and external to the agencies will 

have adequate access to information about 

the systems. 

2. Harmful Bias 

At their best, AI systems can help agencies 

identify and reduce the impact of harmful 

biases.4 Yet they can also unintentionally 

create or exacerbate those biases by encoding 

and deploying them at scale. In deciding 

whether and how to deploy an AI system, 

agencies should carefully evaluate the 

harmful biases that might result from the use 

of the AI system as well as the biases that 

might result from alternative systems (such 

as an incumbent system that the AI system 

would augment or replace). Because different 

types of bias pose different types of harms, 

the outcome of the evaluation will depend on 

agencies’ unique circumstances and priorities 

and the consequences posed by those harms 

in those contexts. 

AI systems can be biased because of their 

reliance on data reflecting historical human 

biases or because of their designs. Biases in 

AI systems can increase over time through 

feedback. That can occur, for example, if the 

use of a biased AI system leads to systematic 

errors in categorizations, which are then 

reflected in the data set or data environment 

the system uses to make future predictions. 

Agencies should be mindful of the 

interdependence of the models, metrics, and 

data that underpin AI systems. 

Identifying harmful biases in AI systems 

can pose challenges. To identify and mitigate 

biases, agencies should, to the extent 

practical, consider whether other data or 

methods are available. Agencies should 

periodically examine and refresh AI 

algorithms and other protocols to ensure that 

they remain sufficiently current and reflect 

new information and circumstances relevant 

to the functions they perform. 

Data science techniques for identifying and 

mitigating harmful biases in AI systems are 

developing. Agencies should stay up to date 

on developments in the field of AI, 

particularly on algorithmic fairness; establish 

processes to ensure that personnel that reflect 

various disciplines and relevant perspectives 

are able to inspect AI systems and their 

decisions for indications of harmful bias; test 

AI systems in environments resembling the 

ones in which they will be used; and make 

use of internal and external processes for 

evaluating the risks of harmful bias in AI 

systems and for identifying such bias. 

3. Technical Capacity 

AI systems can help agencies conserve 

resources, but they can also require 

substantial investments of human and 

financial capital. Agencies should carefully 

evaluate the short- and long-term costs and 

benefits of an AI system before committing 

significant resources to it. Agencies should 

also ensure they have access to the technical 

expertise required to make informed 

decisions about the type of AI systems they 

require; how to integrate those systems into 

their operations; and how to oversee, 

maintain, and update those systems. 

Given the data science field’s ongoing and 

rapid development, agencies should consider 

cultivating an AI-ready workforce, including 

through recruitment and training efforts that 

emphasize AI skills. When agency personnel 

lack the skills to develop, procure, or 

maintain AI systems that meet agencies’ 

needs, agencies should consider other means 

of expanding their technical expertise, 

including by relying on tools such as the 

Intergovernmental Personnel Act,5 prize 

competitions, cooperative research and 

development agreements with private 

institutions or universities, and consultation 

with external technical advisors and subjectmatter experts. 

4. Obtaining AI Systems 

Decisions about whether to obtain an AI 

system can involve important trade-offs. 

Obtaining AI systems from external sources 

might allow agencies to acquire more 

sophisticated tools than they could design on 

their own, access those tools sooner, and save 

some of the up-front costs associated with 

developing the technical capacity needed to 

design AI systems.6 Creating AI tools within 

agencies, by contrast, might yield tools that 

are better tailored to the agencies’ particular 

tasks and policy goals. Creating AI systems 

within agencies can also facilitate 

development of internal technical capability, 

which can yield benefits over the lifetime of 

the AI systems and in other technological 

tasks the agencies may confront. 

Certain government offices are available to 

help agencies with decisions and actions 

related to technology.7 Agencies should make 

appropriate use of these resources when 

obtaining an AI system. Agencies should also 

consider the cost and availability of the 

technical support necessary to ensure that an 

AI system can be maintained and updated in 

a manner consistent with its expected life 

cycle and service mission. 

5. Data 

AI systems require data, often in vast 

quantities. Agencies should consider whether 

they have, or can obtain, data that 

appropriately reflect conditions similar to the 

ones the agencies’ AI systems will address in 

practice; whether the agencies have the 

resources to render the data into a format that 

can be used by the agencies’ AI systems; and 

how the agencies will maintain the data and 

link them to their AI systems without 

compromising security or privacy. Agencies 

should also review and consider statutes and 

regulations that impact their uses of AI as a 

potential collector and consumer of data.8

6. Privacy 

Agencies have a responsibility to protect 

privacy with respect to personally 

identifiable information in AI systems. In a 

narrow sense, this responsibility demands 

that agencies comply with requirements 

related to, for instance, transparency, due 

process, accountability, and information 

quality and integrity established by the 

Privacy Act of 1974, Section 208 of the 

E-Government Act of 2002, and other 

applicable laws and policies.9 More broadly, 

agencies should recognize and appropriately 

manage privacy risks posed by an AI system. 

Agencies should consider privacy risks 


jbell on DSKJLSW7X2PROD with NOTICES
6618 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

10See Nat’l Inst. of Standards & Tech. Special 

Publication SP–800–37 revision 2, Risk 

Management Framework for Information Systems 

and Organizations: A System Lifecycle Approach 

for Security and Privacy (Dec. 2018); Office of 

Mgmt. & Budget, Exec. Off. of the President, 

Circular A–130, Managing Information as a 

Strategic Resource (July 28, 2016); see also Nat’l 

Inst. of Standards & Tech., NIST Privacy 

Framework: A Tool for Improving Privacy Through 

Enterprise Risk Management, Version 1.0 (Jan. 16, 

2020). 

11See supra note 10; see also Office of Mgmt. & 

Budget, Exec. Off. of the President, M–21–06, 

Guidance for Regulation of Artificial Intelligence 

Applications (Nov. 17, 2020); Nat’l Inst. for 

Standards & Tech., Framework for Improving 

Critical Infrastructure Cybersecurity (Apr. 16, 2018). 

12Cf. Admin. Conf. of the U.S., Recommendation 

2018–3, Electronic Case Management in Federal 

Administrative Adjudication, 83 FR 30,686 (June 

29, 2018) (suggesting, in the context of case 

management systems, that agencies consider 

implementing electronic systems only when they 

conclude that doing so would lead to benefits 

without impairing either the objective ‘‘fairness’’ of 

the proceedings or the subjective ‘‘satisfaction’’ of 

those participating in those proceedings). 

13Courts would analyze such challenges under 

the three-part balancing framework from Mathews 

v. Eldridge, 424 U.S. 319, 335 (1976). 

14See 5 U.S.C. 706(2)(A). Courts would likely 

review such challenges under the standard set forth 

in Motor Vehicle Manufacturers Ass’n v. State Farm 

Mutual Automobile Insurance Co., 463 U.S. 29, 43 

(1983). 

15See 5 U.S.C. 553(b)–(c). 

16See Office of Mgmt. & Budget, Circular A–130, 

supra note 10; Office of Mgmt. & Budget, Exec. 

Office of the President, Circular A–123, 

Management’s Responsibilities for Enterprise Risk 

Management and Internal Control (July 15, 2016). 

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

2016–4, Evidentiary Hearings Not Required by the 

Administrative Procedure Act, 81 FR 94,314 (Dec. 

23, 2016). 

2Recommendation 2016–4 addressed agency 

adjudications in which an evidentiary hearing, 

though not governed by the formal hearing 

provisions of the Administrative Procedure Act 

throughout the entire life cycle of an AI 

system from development to retirement and 

assess those risks, as well as associated 

controls, on an ongoing basis. In designing 

and deploying AI systems, agencies should 

consider using relevant privacy risk 

management frameworks developed through 

open, multi-stakeholder processes.10

7. Security 

Agencies should consider the possibility 

that AI systems might be hacked, 

manipulated, fooled, evaded, or misled, 

including through manipulation of training 

data and exploitation of model sensitivities. 

Agencies must ensure not only that their data 

are secure, but also that their AI systems are 

trained on those data in a secure manner, 

make forecasts based on those data in a 

secure way, and otherwise operate in a 

secure manner. Agencies should regularly 

consider and evaluate the safety and security 

of AI systems, including resilience to 

vulnerabilities, manipulation, and other 

malicious exploitation. In designing and 

deploying AI systems, agencies should 

consider using relevant government guidance 

or voluntary consensus standards and 

frameworks developed through open, multistakeholder processes.11

8. Decisional Authority 

Agencies should be mindful that most AI 

systems will involve human beings in a range 

of capacities—as operators, customers, 

overseers, policymakers, or interested 

members of the public. Human factors may 

sometimes undercut the value of using AI 

systems to make certain determinations. 

There is a risk, for example, that human 

operators will devolve too much 

responsibility to AI systems and fail to detect 

cases in which the AI systems yield 

inaccurate or unreliable determinations. That 

risk may be acceptable in some settings— 

such as when the AI system has recently 

been shown to perform significantly better 

than alternatives—but unacceptable in 

others. 

Similarly, if agency personnel come to rely 

reflexively on algorithmic results in 

exercising discretionary powers, use of an AI 

system could have the practical effect of 

curbing the exercise of agencies’ discretion or 

shifting it from the person who is supposed 

to be exercising it to the system’s designer. 

Agencies should beware of such potential 

shifts of practical authority and take steps to 

ensure that appropriate officials have the 

knowledge and power to be accountable for 

decisions made or aided by AI techniques. 

Finally, there may be some circumstances 

in which, for reasons wholly apart from 

decisional accuracy, agencies may wish to 

have decisions be made without reliance on 

AI techniques, even if the law does not 

require it. In some contexts, accuracy and 

fairness may not be the only relevant values 

at stake. In making decisions about their AI 

systems, agencies may wish to consider 

whether people will perceive the systems as 

unfair, inhumane, or otherwise 

unsatisfactory.12

9. Oversight 

It is essential that agencies’ AI systems be 

subject to appropriate and regular oversight 

throughout their lifespans. There are two 

general categories of oversight: External and 

internal. Agencies’ mechanisms of internal 

oversight will be shaped by the demands of 

external oversight. Agencies should be 

cognizant of both forms of oversight in 

making decisions about their AI systems. 

External oversight of agencies’ uses of AI 

systems can come from a variety of 

government sources, including inspectors 

general, externally facing ombuds, the 

Government Accountability Office, and 

Congress. In addition, because agencies’ uses 

of AI systems might lead to litigation in a 

number of circumstances, courts can also 

play an important role in external oversight. 

Those affected by an agency’s use of an AI 

system might, for example, allege that use of 

the system violates their right to procedural 

due process.13 Or they might allege that the 

AI system’s determination violated the 

Administrative Procedure Act (APA) because 

it was arbitrary and capricious.14 When an AI 

system narrows the discretion of agency 

personnel, or fixes or alters the legal rights 

and obligations of people subject to the 

agency’s action, affected people or entities 

might also sue on the ground that the AI 

system is a legislative rule adopted in 

violation of the APA’s requirement that 

legislative rules go through the notice-andcomment process.15 Agencies should 

consider these different forms of potential 

external oversight as they are making and 

documenting decisions and the underlying 

processes for these AI systems. 

Agencies should also develop their own 

internal evaluation and oversight 

mechanisms for their AI systems, both for 

initial approval of an AI system and for 

regular oversight of the system, taking into 

account their system-level risk management, 

authorization to operate, regular monitoring 

responsibilities, and their broader enterprise 

risk management responsibilities.16

Successful internal oversight requires 

advance and ongoing planning and 

consultation with the various offices in an 

agency that will be affected by the agency’s 

use of an AI system, including its legal, 

policy, financial, human resources, 

internally-facing ombuds, and technology 

offices. Agencies’ oversight plans should 

address how the agencies will pay for their 

oversight mechanisms and how they will 

respond to what they learn from their 

oversight. 

Agencies should establish a protocol for 

regularly evaluating AI systems throughout 

the systems’ lifespans. That is particularly 

true if a system or the circumstances in 

which it is deployed are liable to change over 

time. In these instances, review and 

explanation of the system’s functioning at 

one stage of development or use may become 

outdated due to changes in the system’s 

underlying models. To enable that type of 

oversight, agencies should monitor and keep 

track of the data being used by their AI 

systems, as well as how the systems use 

those data. Agencies may also wish to secure 

input from members of the public or private 

evaluators to improve the likelihood that 

they will identify defects in their AI systems. 

To make their oversight systems more 

effective, agencies should clearly define goals 

for their AI systems. The relevant question 

for oversight purposes will often be whether 

the AI system outperforms alternatives, 

which may require agencies to benchmark 

their systems against the status quo or some 

hypothetical state of affairs. 

Finally, AI systems can affect how 

agencies’ staffs do their jobs, particularly as 

agency personnel grow to trust and rely on 

the systems. In addition to evaluating and 

overseeing their AI systems, agencies should 

pay close attention to how agency personnel 

interact with those systems. 

Administrative Conference Recommendation 

2020–3 

Agency Appellate Systems 

Adopted December 16, 2020 

In Recommendation 2016–4,1 the 

Administrative Conference offered best 

practices for evidentiary hearings in 

administrative adjudications. Paragraph 26 

recommended that agencies provide for 

‘‘higher-level review’’ (or ‘‘agency appellate 

review’’) of the decisions of hearing-level 

adjudicators.2 This Recommendation offers 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6619 

(APA) (5 U.S.C. 554, 556–57), 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 2016–4 

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 APA’s 

formal hearing provisions. 

3Admin. 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 68–6, 

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. 

4Christopher 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. 

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 

adjudicators—often styled as a board or 

council—sitting below the agency head. The 

appellate decision may be the agency’s 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 68–6 and 83–3, it 

provided guidance to agencies when 

establishing new, and reviewing existing, 

organizational structures of appellate 

review.3 Both recommendations focused on 

the selection of ‘‘delegates’’—individual 

adjudicators, review boards composed of 

multiple adjudicators, or panels composed of 

members of a multi-member agency—to 

exercise appellate review authority vested in 

agency heads (including boards and 

commissions). Recommendation 83–3 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 

Recommendation’s focus lies elsewhere. It 

addresses, and offers best practices with 

respect to, the following subjects: First, an 

agency’s 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, 

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 purpose(s) or 

objective(s) 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 

system—including what cases it hears and 

under what standards of review it decides 

them—and provides a standard against 

which an agency’s performance can be 

evaluated. 

This Recommendation proceeds from the 

recognition that agency appellate systems 

vary enormously—as to their purposes or 

objectives, governing substantive law, size, 

and resources—and 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 agency’s procedural choices may 

sometimes be constrained by statute and (2) 

available resources and personnel policies 

may dictate an agency’s 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 objective(s) 

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 agency’s 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; 

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 program’s 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 400–450) in the 

Administrative Conference’s 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. 553(b)(A), 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 


jbell on DSKJLSW7X2PROD with NOTICES
6620 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

1See Federal Acquisition Regulation, 48 CFR ch. 

1; see also Competition in Contracting Act of 1984, 

Public Law 98–369, div. B, tit. VII, 98 Stat. 494, 

942–85 (codified, as amended, in various parts of 

the U.S. Code); Federal Acquisition Streamlining 

Act of 1994, Public Law 103–355, 108 Stat. 3243; 

Federal Acquisition Reform Act of 1996, Public Law 

104–106, 110 Stat. 186 (later renamed the ClingerCohen Act of 1996); Exec. Order No. 12,979, Agency 

Procurement Protests, 60 FR 55,171 (Oct. 25, 1995). 

2See 48 CFR ch. 1. 

3See Admin. Conf. of the U.S., Recommendation 

95–5, Government Contract Bid Protests, 60 FR 

43,108, 43,113 (Aug. 18, 1995). 

4See 4 CFR 21.0(a)(1) (defining ‘‘interested party’’ 

for purposes of bid protest proceedings before the 

Government Accountability Office); 48 CFR 33.101 

(defining ‘‘interested party’’ for purposes of bid 

protest proceedings before procuring agencies); 

CliniComp Int’l, Inc. v. United States, 904 F.3d 

1353, 1358 (Fed. Cir. 2018) (defining ‘‘interested 

party’’ for purposes of 28 U.S.C. 1491(b), which 

covers actions in the Court of Federal Claims). 

There are some instances in which Congress has 

restricted the ability to file a protest, regardless of 

whether a vendor is an ‘‘interested party.’’ See, e.g., 

41 U.S.C. 4106(f) (limiting the ability to protest the 

issuance or proposed issuance of a task or delivery 

order); 48 CFR 16.505(a)(10) (same). 

5See 48 CFR 33.103. 

6See 31 U.S.C. 3552(a), 3553(a). For civilian 

agencies, GAO has exclusive jurisdiction over 

protests of task and delivery orders in excess of $10 

million, unless the protest is on the grounds that 

management systems that ensure that hearing 

records are easily accessible to appellate 

adjudicators. Such systems may include the 

capability for electronic filing. 

9. Although the randomized assignment of 

cases to appellate adjudicators is typically an 

appropriate docketing method for an agency 

appellate system, agencies should consider 

the potential benefits of sorting and grouping 

appeals on the appellate docket, such as 

reduced case processing times and more 

efficient use of adjudicators’, staff attorneys’, 

and law clerks’ skills and time. Criteria for 

sorting and grouping cases may include the 

size of a case’s record, complexity of a case’s 

issues, subject matter of a case, and similarity 

of a case’s legal issues to those of other 

pending cases. 

10. Consistent with the objectives of the 

agency’s appellate system and in light of the 

costs of time and resources, agencies should 

consider adopting an appellate model of 

judicial review in which the standard of 

review is not de novo with respect to 

findings of fact and application of law to 

facts. For similar reasons, many agencies 

should consider limiting the introduction of 

new evidence on appeal that is not already 

in the administrative record from the 

hearing-level adjudication. 

11. Taking agency resources into account, 

agencies should emphasize concision, 

readability, and plain language in their 

appellate decisions and explore the use of 

decision templates, summary dispositions, 

and other quality-improving measures. 

12. Agencies should establish clear criteria 

and processes for identifying and selecting 

appellate decisions as precedential, 

especially for appellate systems with 

objectives of policymaking or inter-decisional 

consistency. 

13. Agencies should assess the value of 

oral argument and amicus participation in 

their appellate system based on the agencies’ 

identified objectives for appellate review and 

should establish rules governing both. 

Criteria that may favor oral argument and 

amicus participation include issues of high 

public interest; issues of concern beyond the 

parties to the case; specialized or technical 

matters; and a novel or substantial question 

of law, policy, or discretion. 

Administration, Management, and 

Bureaucratic Oversight 

14. Agency appellate systems should 

promptly transmit their precedential 

decisions to all appellate program 

adjudicators and, directly or through hearinglevel programs, to hearing-level adjudicators 

(as appropriate). Appellate programs should 

include in their transmittals, when feasible, 

brief summaries of the decision. 

15. Agencies should notify their 

adjudicators of significant federal court 

decisions reviewing the agencies’ decisions 

and, when providing notice, explain the 

significance of those decisions to the 

program. As appropriate, agencies should 

notify adjudicators if the agency will not 

acquiesce in a particular decision of the 

federal courts of appeals. 

16. Agencies in which decision making 

relies extensively on their own precedential 

decisions should consider preparing or 

having prepared indexes and digests—with 

annotations and comments, as appropriate— 

to identify those decisions and their 

significance. 

17. As appropriate, agency appellate 

systems should communicate with agency 

rule-writers and other agency policymakers— 

and institutionalize communication 

mechanisms—to address whether recurring 

issues in their decisions should be addressed 

by rule rather than precedential case-by-case 

adjudication. 

18. The Office of the Chairman of the 

Administrative Conference should provide 

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

‘‘interchange among administrative agencies 

of information potentially useful in 

improving’’ agency appellate systems. The 

subjects of interchange might include 

electronic case management systems, 

procedural innovations, quality-assurance 

reviews, and common management 

problems. 

Public Disclosure and Transparency 

19. Agencies should disclose on their 

websites any rules (sometimes styled as 

‘‘orders’’), and statutes authorizing such 

rules, by which an agency head has delegated 

review authority to appellate adjudicators. 

20. Regardless of whether the Government 

in the Sunshine Act (5 U.S.C. 552b) governs 

their appellate review system, agencies 

should consider announcing, livestreaming, 

and maintaining video recordings on their 

websites of appellate proceedings (including 

oral argument) that present significant legal 

and policy issues likely to be of interest to 

regulated parties and other members of the 

public. Brief explanations of the issues to be 

addressed by oral argument may usefully be 

included in website notices of oral argument. 

21. Agencies should include on their 

websites brief and accessibly written 

explanations as to how their internal 

decision-making processes work and, as 

appropriate, include links to explanatory 

documents appropriate for public disclosure. 

Specific subjects that agencies should 

consider addressing include: The process of 

assigning cases to adjudicators (when fewer 

than all of the programs’ adjudicators 

participate in a case), the role of staff, and the 

order in which cases are decided. 

22. When posting decisions on their 

websites, agencies should distinguish 

between precedential and non-precedential 

decisions. Agencies should also include a 

brief explanation of the difference. 

23. When posting decisions on their 

websites, agencies should consider 

including, as much as practicable, brief 

summaries of precedential decisions and, for 

precedential decisions at least, citations to 

court decisions reviewing them. 

24. Agencies should include on their 

websites any digests and indexes of decisions 

they maintain. It may be appropriate to 

remove material exempt from disclosure 

under the Freedom of Information Act or 

other laws. 

25. Agencies should affirmatively solicit 

feedback concerning the functioning of their 

appellate systems and provide a means for 

doing so on their websites. 

Administrative Conference Recommendation 

2020–4 

Government Contract Bid Protests Before 

Agencies 

Adopted December 17, 2020 

Federal law establishes policies and 

procedures governing how federal executive 

agencies procure supplies and services.1 The 

primary source of these policies and 

procedures is the Federal Acquisition 

Regulation (FAR),2 which applies to all 

executive-agency acquisitions of supplies 

and services with appropriated funds by and 

for the use of the federal government, unless 

expressly excluded. Other relevant policies 

and procedures are found in federal statutes 

and agencies’ own procurement rules. 

If a vendor believes a federal executive 

agency has not complied with the law or the 

terms of a solicitation, it may file what is 

called a bid protest—that is, a written 

objection to a government agency’s conduct 

in acquiring supplies and services for its 

direct use or benefit.3 Responding to bid 

protests can require agencies to reevaluate 

their procurement processes and, sometimes, 

make improvements. That, in turn, results in 

more competitive, fairer, and more 

transparent procurement processes, 

benefiting vendors, agencies, and ultimately 

the public. 

To file a bid protest, an actual or 

prospective vendor must show that it is an 

‘‘interested party’’—meaning that its direct 

economic interest would be adversely 

affected by the award of, or failure to award, 

the contract in question 4—and that it 

suffered prejudice because of an error in the 

procurement process. Ordinarily, vendors 

who meet those requirements may file bid 

protests in any of three forums: (1) The 

procuring agency,5 (2) the Government 

Accountability Office (GAO),6 or (3) the 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6621 

the order increases the scope, period, or maximum 

value of the contract. See 41 U.S.C. 4106(f); 48 CFR 

16.505(a)(10). 

7See 28 U.S.C. 1491(b). 

8See Admin. Conf. of the U.S., Info. Interchange 

Bull. No. 007, Agency Bid Protests (June 2020), 

https://www.acus.gov/fact-sheet/iib-007-agency-bidprotests. 

9See Exec. Order. No. 12,979, Agency 

Procurement Protests, 60 FR 55,171, 55,171 (Oct. 

25, 1995). 

10See Christopher Yukins, Stepping Stones to 

Reform: Making Agency-Level Bid Protests Effective 

for Agencies and Bidders by Building on Best 

Practices from Across the Federal Government 12– 

13 (May 1, 2020) (report to the Admin. Conf. of the 

U.S.), https://www.acus.gov/report/agency-levelbid-protests-final-report. 

11 Id. at 23. 

12 Id. at 13. 

13 48 CFR 33.103(g). 

14 41 U.S.C. 7101–09. 

15See id. § 7103(f)(1)–(2). 

16See id. § 605(c)(5). 

17 Yukins, supra note 10, at 39. 

18 48 CFR 33.103(g) (italics added). 

19 4 CFR 21.3(c)–(d); 48 CFR 33.104(a). 

20 Yukins, supra note 10, at 31. 

21See 4 CFR 21.0(e), 21.2. 

22See Yukins, supra note 10, at 13–14, 18–19. 

23See id. at 23. 

24 48 CFR 33.103(f). Under certain circumstances, 

the agency can override the regulatory stay for 

agency-level protests. See 48 CFR 33.103(f)(1), (f)(3). 

25 31 U.S.C. 3553(c)(1), (d)(3). Under certain 

circumstances, the agency can override the 

statutory stay for protests to GAO. See 31 U.S.C. 

3553(c)–(d); 48 CFR 33.104(b)–(c). 

United States Court of Federal Claims 

(COFC),7 and depending on where the protest 

is initiated, may be able to file protests in 

series. For example, a protest may be filed 

first at the agency, then (if unsuccessful at 

the agency) at GAO, and then (if again 

unsuccessful) at COFC.8 The procedural tools 

available in a given forum, along with other 

strategic and cost considerations, typically 

drive vendors’ decisions about where to file 

their bid protests. 

Bid protests filed with procuring agencies 

are commonly referred to as agency-level 

protests. Agency-level protests have 

important benefits for the public, contractors, 

procuring agencies, and COFC and GAO. By 

‘‘provid[ing] for inexpensive, informal, 

procedurally simple, and expeditious 

resolution of protests,’’ 9 agency-level protest 

mechanisms allow small businesses (among 

other vendors) to affordably contest agencies’ 

procurement decisions. They also give 

procuring agencies the chance to review and 

improve their own procurement practices. 

And they funnel some protests away from 

COFC and GAO, reducing the likelihood that 

the number of protests will overwhelm those 

institutions. 

Vendors, however, seldom file agency-level 

protests. Although there is little data on the 

number of agency-level protests filed each 

year, available evidence suggests that 

substantially more protests are filed with 

COFC and GAO each year than with 

procuring agencies.10 There are several 

reasons why vendors may forego agency-level 

protests. Those reasons implicate the themes 

of transparency, predictability, and 

accountability. 

First, some vendors report shying away 

from agency-level protests because they 

perceive the agency as unlikely to change its 

decision.11 Sometimes, for instance, the 

official responsible for soliciting or awarding 

a procurement contract is also responsible for 

handling any agency-level protests that are 

filed regarding the procurement. This 

perception of a pre-judgment by the agency 

may cause some vendors to file their protests 

at GAO or COFC, rather than at the agency 

level. 

Second, some vendors report that they 

view agency-level protest processes as 

opaque.12 Agencies do not publish or provide 

comprehensive data on their bid protest 

decisions. And the FAR and agency-specific 

bid protest rules establish few hard-and-fast 

requirements for the process. For example, 

although the FAR states that ‘‘[a]gencies shall 

make their best efforts to resolve agency 

protests within 35 days after [an agency-level 

protest] is filed,’’ 13 that language is hortatory 

and does not establish any binding deadlines 

for agency decisions. Nothing in the FAR 

does. The failure to provide for any binding 

deadlines distinguishes the FAR from other 

federal procurement statutes, such as the 

Contract Disputes Act,14 which sets or 

requires contracting officers to set firm 

deadlines for deciding most claims 15 and 

provides that the passage of the deadline for 

a claim means the claim is deemed denied.16

Third, some vendors report being 

dissuaded by their inability to compel 

production of the procurement record as part 

of an agency-level protest.17 The FAR gives 

disappointed offerors the right to an agency 

debriefing—a procedure whereby contracting 

personnel provide offerors with an 

explanation of the agency’s evaluation 

process and an assessment of the offerors’ 

proposals. But nothing in the FAR guarantees 

vendors the right to view the procurement 

record itself. The FAR provides only that 

agencies ‘‘may exchange relevant 

information’’ with agency-level protesters.18

By contrast, vendors who file bid protests at 

GAO may demand to see the entire record of 

the procurement, and procuring agencies 

must respond to such requests within 

twenty-five days and produce the responsive 

documents within thirty days (unless they 

are withheld for a valid reason).19

Finally, some vendors deem agency-level 

protests to be too risky.20 In many cases, 

vendors who do not obtain relief through an 

agency-level protest will seek relief from 

GAO by pursuing their protest in that forum. 

But GAO’s deadline for filing such ‘‘followon protests’’ often begins to run as soon as 

the vendor has actual or constructive notice 

of some ‘‘adverse agency action,’’ which can 

occur before a protester receives the decision 

in its agency-level protest.21 In this way, 

delayed notification about an agency’s 

decision in a bid protest can seriously 

prejudice protesters’ rights at GAO.22 This 

causes some vendors to forego agency-level 

protests altogether.23

The perception that agency-level protests 

lack transparency, predictability, and 

accountability also makes it more likely that 

protesters who do file at the agency level and 

whose protests are denied will file follow-on 

protests with GAO or COFC. Such follow-on 

protests not only tax the limited resources of 

GAO and COFC, but also can disrupt 

activities at procuring agencies. For instance, 

just as the filing of an agency-level protest 

automatically prohibits the contract from 

being awarded or performed until the agency 

denies or dismisses the protest and takes 

some adverse action,24 a follow-on protest at 

GAO may automatically prevent the contract 

from being awarded or performed (if the 

requisite filing deadlines are met) until GAO 

denies or dismisses the protest.25 Thus, when 

an agency-level protest is followed by 

another protest at GAO, delays in 

procurements can be substantial. 

Protesters, agencies, and the public would 

all benefit from an improved agency-level 

protest system. Protesters would benefit 

because agency-level protests are typically 

the least formal and least costly types of bid 

protest procedures. Agencies would benefit 

from an improved agency-level protest 

system because greater use of agency-level 

protests means more agency control over the 

timing and conduct of protests and more 

opportunities for agencies to superintend 

their own procurement processes. And the 

public would benefit from more competitive, 

fairer, and more transparent agency 

procurements. 

Because an improved agency-level protest 

system is of significant value to contractors, 

agencies, and the public, this 

Recommendation identifies changes to make 

it more likely vendors will avail themselves 

of agency-level protest procedures. The 

recommended changes reflect three 

overarching principles—transparency, 

simplicity, and predictability—meant to 

address contractors’ principal concerns about 

agency-level protest systems. 

Recommendation 

Identification of Decisions Subject to 

Agency-Level Protests 

1. Agencies should clearly identify which 

categories of procurement decisions may or 

may not be made the subjects of agency-level 

protests. 

Transparency for the Process and Personnel 

for Agency-Level Protests 

2. Agencies should formalize and compile 

in a document that is publicly available 

online the procedures they apply in 

adjudicating agency-level protests. In so 

doing, they should be guided by the 

principles set out in Recommendation 2018– 

5, Public Availability of Adjudication Rules. 

3. Agencies should clearly identify who 

within the agency will adjudicate an agencylevel protest. They should consider 

designating at least one Agency Protest 

Official (APO)—a person who specializes in 

handling agency-level protests—to oversee 

and coordinate agency-level protests and 

hear protests brought to a level above the 

contracting officer. Agencies lacking the 

resources to designate their own APO might 

consider sharing an APO with other agencies. 

Notice of the Timeline for Agency-Level 

Protests 

4. Agencies should consider adopting 

presumptive timelines for agency-level 


jbell on DSKJLSW7X2PROD with NOTICES
6622 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

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

2016–2, Aggregate Agency Adjudication, 81 FR 

40,260, 40,260 (June 21, 2016). 

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

2018–5, Public Availability of Adjudication Rules, 

84 FR 2142 (Feb. 6, 2019); Admin. Conf. of the U.S., 

Recommendation 2017–1, Adjudication Materials 

on Agency Websites, 82 FR 31,039 (July 5, 2017). 

3Cf. Admin. Conf. of the U.S., Recommendation 

2018–4, Recusal Rules for Administrative 

Adjudicators, 84 FR 2139 (Feb. 6, 2019). 

4See, e.g., Lucia v. SEC, 138 S. Ct. 2044 (2018); 

Arthrex v. Smith & Nephew, 941 F.3d 1320 (Fed. 

Cir. 2019), cert. granted, __S. Ct. __(Oct. 13, 2020) 

(No. 19–1434). 

5FOIA Improvement Act of 2016, Public Law 

114–185, 2, 130 Stat. 538, 538 (amending 5 U.S.C. 

552(a)(2)); E-Government Act of 2002, Public Law 

140–347, 206, 116 Stat. 2899, 2916 (amending 44 

U.S.C. 3501). 

6See, e.g., Admin. Conf. of the U.S., 

Recommendation 2018–4, Recusal Rules for 

Administrative Adjudicators, 84 FR 2139 (Feb. 6, 

2019). 

7See 5 U.S.C. 554, 556–57. 

8The vast majority of ALJs work at the Social 

Security Administration. AJs work at many 

different agencies under a variety of titles, 

including not only ‘‘Administrative Judge’’ but also, 

by way of example, ‘‘Hearing Officer,’’ 

‘‘Immigration Judge,’’ ‘‘Veterans Law Judge,’’ 

‘‘Administrative Patent Judge,’’ and 

‘‘Administrative Appeals Judge.’’ 

9 5 U.S.C. 554, 557, 3105, 4301, 5372, 7521; 5 CFR 

pt. 930, subpt. B; Exec. Order No. 13,843, Executive 

Order Excepting Administrative Law Judges from 

the Competitive Service, 83 FR 32,755 (July 13, 

2018) (issued July 10, 2018). 

10 Kent Barnett et al., Non-ALJ Adjudicators in 

Federal Agencies: Status, Selection, Oversight, and 

Removal 1 (Sept. 24, 2018) (report to the Admin. 

Conf. of the U.S.), https://www.acus.gov/report/nonalj-adjudicators-federal-agencies-status-selectionoversight-and-removal-1. 

11Leigh Anne Schriever, Public Availability of 

Information About Adjudicators 10 (Nov. 23, 2020) 

protests, similar to the ones under the 

Contract Disputes Act. Agencies should also 

make best efforts to notify protesters of the 

timelines applicable to their agency-level 

protests. 

5. Agencies should clearly and 

immediately provide written notice to 

protesters of any adverse agency action 

affecting the rights of the protester under the 

challenged procurement. Agency rules 

should provide that protests are deemed 

denied after a specified number of days 

without a decision and that agencies may 

grant case-specific extensions based on 

identified criteria. 

Compiling the Record and Making It 

Available 

6. Agencies should make available to 

protesters as much of the procurement record 

as is feasible. To address confidential 

information in the record, agencies should 

consider using tools such as enhanced 

debriefings. 

7. Agencies should consider adopting a 

thirty-day deadline, running from the date a 

protest is filed, for providing protesters with 

as much of the procurement record as is 

feasible. 

Protecting Against Adverse Consequences 

8. Although the Federal Acquisition 

Regulation (FAR) prohibits the award of a 

contract or continued performance under an 

awarded contract during an agency-level 

protest, agencies should provide for a short 

extension of the stay after a final decision in 

an agency-level bid protest as permitted by 

the FAR. The short extension should be of 

sufficient duration (e.g., five days) to give the 

protester time to bring a follow-on protest at 

the Government Accountability Office (GAO) 

or the United States Court of Federal Claims 

after the agency’s decision. 

9. Congress should provide that, if a 

protester promptly files a GAO protest after 

an adverse decision in an agency-level 

protest, the agency shall not award the 

contract or commence performance under the 

contract during the pendency of the GAO 

protest, subject to potential override in 

urgent and compelling circumstances. 

10. GAO should amend its bid protest 

procedures to ensure that follow-on protests 

at GAO are handled on an expedited basis, 

to the extent feasible. 

Publishing Data on Agency-Level Protests 

11. Agencies should collect and annually 

publish data about the bid protests they 

adjudicate. To the extent feasible, the data 

should at least include what the GAO 

currently provides in its annual reports about 

the bid protests it adjudicates (e.g., the 

number of bid protests filed with the agency; 

the effectiveness rate of agency-level bid 

protests (the ratio of protests sustained or in 

which corrective action is afforded versus 

total agency-level protests filed); the number 

of merits decisions by the agency; the 

number of decisions sustaining the protest; 

the number of decisions denying the protest; 

and the time required for bid protests to be 

resolved). 

Administrative Conference Recommendation 

2020–5 

Publication of Policies Governing Agency 

Adjudicators 

Adopted December 17, 2020 

[NOTE: Appendix B referenced in this 

Recommendation has been omitted from this 

notice because of the inaccessible images it 

contains. The full appendix may be found 

online at https://www.acus.gov/ 

recommendation/publication-policiesgoverning-agency-adjudicators.] 

Federal agency officials throughout the 

country preside over hundreds of thousands 

of adjudications each year.1 As the 

Administrative Conference has previously 

observed, litigants, their lawyers, and other 

members of the public benefit from having 

ready online access to procedural rules, 

decisions, and other key materials associated 

with adjudications.2 They also benefit from 

having ready online access to the policies 

and practices by which agencies appoint and 

oversee administrative law judges and other 

adjudicators. The availability of these 

policies and practices helps inform the 

public about, among other things, any actions 

agencies have taken to ensure the 

impartiality of administrative adjudicators 3

and promotes an understanding of 

adjudicators’ constitutional status under the 

Appointments Clause and other 

constitutional provisions. The 

Administrative Conference acknowledges 

ongoing litigation regarding the 

constitutional status of many agency 

adjudicators and the continuing validity of 

the means and circumstances of their 

appointment and removal.4

Agencies may benefit from disclosures 

about agency adjudicators because it allows 

them to compare their own policies with 

those made publicly available by other 

agencies. Agencies’ proactive disclosures, 

which may sometimes already be required 

under the Freedom of Information Act and 

the E-Government Act, may also be more 

cost-effective than agencies’ responding to 

individual requests for information.5

Like other recent recommendations 

regarding adjudicators,6 this 

Recommendation pertains to officials who 

preside over (1) hearings governed by the 

formal hearing provisions of the 

Administrative Procedure Act (APA) 7 and (2) 

hearings that are not governed by those 

provisions but are required by statute, 

regulation, or executive order. It also covers 

officials (agency heads excluded) who review 

hearing-level adjudicators’ decisions on 

appeal. For ease of reference, this 

Recommendation refers to the covered 

adjudicators as either ‘‘administrative law 

judges’’ (ALJs) or ‘‘administrative judges’’ 

(AJs).8 Agencies may decide to include on 

their websites the disclosures identified in 

this Recommendation for other adjudicators, 

depending on the level of formality of the 

proceedings over which they preside and 

whether they serve as full-time adjudicators. 

Agencies may also decide to make similar 

disclosures with respect to agency heads if 

their websites do not already provide 

sufficient information. 

This Recommendation focuses on policies 

and practices relating to adjudicators that 

agencies should disclose, including those 

addressing appointment and qualifications; 

compensation (including salaries, bonuses, 

and performance incentives); duties and 

responsibilities; supervision and assignment 

of work; position within agencies’ 

organizational hierarchies; methods of 

evaluating performance; limitations on ex 

parte communications and other policies 

ensuring separation between adjudicative 

and enforcement functions; recusal and 

disqualification; the process for review of 

adjudications; and discipline and removal. 

Many of the policies and practices 

applicable to ALJs governing these matters 

are already publicly available because they 

are in the APA, Office of Personnel 

Management rules, or other legal authorities.9

Nevertheless, agencies that employ ALJs can 

take steps to improve the public’s access to 

this information. 

ALJs, in any case, make up a small portion 

of federal adjudicators. There are many more 

AJs than ALJs.10 AJs are regulated by a 

complex mix of statutory provisions, 

including civil service laws, agency rules 

codified in the Code of Federal Regulations, 

and agency-specific policies that take a 

variety of forms. Many types of information 

about AJs reside in these sources, but they 

may be difficult to find.11 Some relevant 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6623 

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

www.acus.gov/report/final-report-publicavailability-information-about-agency-adjudicators. 

12 Id. at 7. 

13 5 U.S.C. 552. 

14 Id. § 552a. 

15Cf. Admin. Conf. of the U.S., Recommendation 

2017–3, Plain Language in Regulatory Drafting, 82 

FR 61,728 (Dec. 29, 2017). 

sources may not be publicly available, 

including internal administrative and 

personnel manuals, position descriptions, 

and labor agreements. This is particularly 

true with respect to certain kinds of policies, 

such as those relating to compensation and 

performance incentives.12 Of course, the 

Administrative Conference recognizes that 

some of these agency policies and practices 

may qualify for an exemption under the 

Freedom of Information Act,13 Privacy Act,14

or other laws and executive-branch policies. 

Agency websites are the most helpful 

location for agencies to make relevant 

policies and practices publicly available. 

Individuals most naturally seek information 

about administrative policies and practices 

on agencies’ websites. Agencies can situate 

information about their adjudicators in a 

logical and easily identifiable place on their 

websites and structure their websites to 

synthesize policies in plain language and 

link to information from many different 

sources.15

This Recommendation encourages agencies 

to post on their websites clear and readily 

accessible descriptions of the policies 

governing the appointment and oversight of 

ALJs and AJs, and to include links to relevant 

legal documents. How, exactly, they should 

do so will of course depend on the specific 

features of their adjudicative programs and 

their institutional needs. 

Recommendation 

1. Each adjudicative agency should 

prominently display on its website a short, 

straightforward description of all generally 

applicable policies and practices, along with 

the legal authority, governing the 

appointment and oversight of Administrative 

Law Judges (ALJs) and Administrative Judges 

(AJs), including, as applicable, those that 

address: 

a. Procedures for assessing, selecting, and 

appointing candidates for adjudicator 

positions and the legal authority under 

which such appointments are made; 

b. Placement of adjudicators within 

agencies’ organizational hierarchies; 

c. Compensation structure and 

performance incentives, such as bonuses, 

nonmonetary awards, and promotions; 

d. Procedures for assigning cases; 

e. Assignment, if any, of nonadjudicative 

duties to adjudicators; 

f. Limitations on ex parte communications, 

including between adjudicators and other 

agency officials, related to the disposition of 

individual cases, as well as other policies 

ensuring a separation of adjudication and 

enforcement functions; 

g. Standards for recusal by and 

disqualification of adjudicators; 

h. Administrative review of adjudicators’ 

decisions; 

i. Supervision of adjudicators by higherlevel officials; 

j. Evaluation of adjudicators, including 

quantitative and qualitative methods for 

appraising adjudicators’ performances, such 

as case-processing goals, if any; and 

k. Discipline and removal of adjudicators. 

Agencies may choose not to provide access 

to policies covered by a Freedom of 

Information Act exemption. 

2. On the same web page as the 

information described in Paragraph 1 

appears, each adjudicative agency should 

post links to key legal documents or, when 

links are not available, citations to such 

documents. These documents may include 

(a) federal statutes, including relevant 

provisions of the Administrative Procedure 

Act (APA) and other laws applicable to ALJs 

and AJs; (b) agency-promulgated rules 

regarding adjudicators, including Office of 

Personnel Management rules applicable to 

ALJs; (c) publicly available agencypromulgated guidance documents relating to 

adjudicators, including manuals, bench 

books, and other explanatory materials; (d) 

delegations of authority; and (e) position 

descriptions. To the extent that some policies 

concerning adjudicators may be a matter of 

custom, such as assignment of 

nonadjudicative duties, each adjudicative 

agency should consider documenting those 

policies to make them publicly accessible to 

the extent practicable. 

3. The web page containing the 

information described in Paragraphs 1 and 2 

should present the materials in a clear, 

logical, and comprehensive fashion. One 

possible method of presenting this 

information appears in Appendix A. The 

appendix gives one example for ALJs and 

another for AJs. 

4. If an agency’s mission consists 

exclusively or almost exclusively of 

conducting adjudications, the agency should 

provide a link to the web page containing the 

information described in Paragraphs 1 and 2 

on the agency’s homepage. If conducting 

adjudications is one of an agency’s many 

functions, the agency should provide a link 

to these materials from a location on the 

website that is both dedicated to adjudicative 

materials and logical in terms of a user’s 

likelihood of finding the documents in the 

selected location. One example would be an 

enforcement or adjudication page or the 

homepage for the component in which a 

particular category of adjudicators works. 

Citations to agency web pages that currently 

provide this information in a way that makes 

it easy for the public to locate, as well as 

descriptions of how to find those pages on 

agency websites, appear in Appendix B. 

Appendix A 

Sample Website Text for Administrative Law 

Judges 

About Our Administrative Law Judges 

Administrative Law Judges (ALJs) at 

[agency] conduct hearings and decide cases 

under [insert name of authorizing act]. They 

are part of the [agency component in which 

ALJs are located], which is directed by [title 

of office head] and has offices in [cities]. Visit 

[link to agency organization chart] to see how 

[office] relates to other offices at [agency]. 

[Agency] is committed to ensuring that all 

hearings and appeals are conducted in a fair 

and equitable manner. Parties are entitled to 

a due process hearing presided over by an 

impartial, qualified ALJ. ALJs resolve cases 

involving [kinds of cases ALJs hear] in a fair, 

transparent, and accessible manner. Our ALJs 

are appointed by [agency official], and are 

[describe qualifications]. ALJs are paid 

according to the [pay scale for ALJs with link 

to the scale] scale set by statute under 5 

U.S.C. 5372, subject to annual pay 

adjustments. 

Cases are assigned to ALJs [in each 

geographic office] in rotation so far as 

practicable. The ALJ assigned to your case is 

responsible for [job duties, like taking 

evidence, hearing objections, issuing 

decisions]. ALJs are required by statute to 

perform their functions impartially. 5 U.S.C. 

556(b). To ensure impartiality, they do not 

take part in investigative or enforcement 

activities, nor do they report to officials in 

the [agency]’s investigative or enforcement 

components. 5 U.S.C. 554(d), 3105. The ALJ 

assigned to your case may not communicate 

privately about the facts of your case with 

other agency officials. [More details on 

[agency]’s rules about communicating with 

ALJs are available [location of agencyspecific ex parte prohibitions]]. 

By law, [agency] does not reward or 

discipline ALJs for their decisions. A federal 

statute provides that [agency] may remove, or 

take certain other disciplinary actions, 

against an ALJ it employs only for good cause 

established and determined by the Merit 

Systems Protection Board on the record after 

opportunity for hearing before the Board. 5 

U.S.C. 7521. 

The agency has adopted rules of recusal 

[link] that allow a participant to request that 

the ALJ in charge of his or her case be 

disqualified if the participant believes the 

ALJ cannot fairly and impartially decide the 

case. 

If you are dissatisfied with an ALJ’s 

decision, you can request reconsideration 

from the ALJ or appeal that decision to 

[agency office/official]. Visit [link] for 

information on appealing an ALJ decision. 

[Agency office/official] may also review your 

case on [its/his or her] own initiative if there 

is an issue with the ALJ’s decision. 

For Further Information: 

• Hiring process: [link] 

• Pay rates: [link] 

• How cases are assigned to ALJs: [link] 

• Communicating with ALJs (ex parte 

communications): [link] 

• Process for addressing allegations that an 

ALJ has a conflict of interest (recusal and 

disqualification procedures): [link] 

• How to appeal an ALJ decision: [link] 

• Case-processing goals: [link] 

• Process for addressing allegations of ALJ 

misconduct: [link] 

See also: 

• Statutory provisions governing ALJs: 5 

U.S.C. 554, 557, 3105, 4301, 5372, 7521 

• OPM’s regulations governing ALJs: 5 CFR 

930.205–930.207, 930.211 

• MSPB’s regulations governing ALJs: 5 CFR 

1201.127–1201.142 

• [Additional legal provisions governing 

ALJs] 


jbell on DSKJLSW7X2PROD with NOTICES
6624 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

1The term ‘‘component units’’ encompasses an 

agency’s sub-units, which are often identified under 

terms like ‘‘agency,’’ ‘‘bureau,’’ ‘‘administration,’’ 

‘‘office,’’ ‘‘division,’’ or ‘‘service.’’ For example, the 

United States Fish and Wildlife Service is a 

component unit of the Department of the Interior, 

and the Office of Water is a component unit of the 

United States Environmental Protection Agency. 

2See 5 U.S.C. 552(a)(3). 

3See 44 U.S.C. 3502(a). 

4See Mark Thomson, Report on Agency Litigation 

web pages 14–16 (Nov. 24, 2020) (report to the 

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

report/report-agency-litigation-web pages. 

• Executive Orders pertaining to ALJs: E.O. 

13,843 (giving agencies control over the 

hiring process of ALJs) [add other pertinent 

EOs] 

Sample Website Text for Administrative 

Judges 

If agencies have different kinds of 

adjudicators, they should consider providing 

a separate web page for each. 

About Our [Insert Adjudicator Title] 

[Adjudicator title] at [agency] [conduct 

hearings and decide cases/review appeals] 

under [name of authorizing act(s)]. They are 

part of the [agency component in which 

adjudicators are located], which is directed 

by [title of office head] and has offices in 

[cities]. Visit [link to agency organization 

chart] to see how [office] relates to other 

offices at [agency]. 

[Agency] is committed to ensuring that all 

hearings and appeals are conducted in a fair 

and equitable manner. Parties are entitled to 

a due process hearing presided over by an 

impartial, qualified [adjudicator title]. 

[Adjudicator title] resolve cases involving 

[kinds of cases] in a fair, transparent, and 

accessible manner. Our [adjudicator title] are 

appointed pursuant to [authorizing statute] 

by [agency official] [for terms of [number of 

years] years], and are [describe 

qualifications]. [Adjudicator title] are paid 

according to [[the pay scale for the 

adjudicator with link to the scale] or [the 

discretion of the agency head]]. 

Cases are [describe how cases are 

assigned]. The [adjudicator title] assigned to 

your case is responsible for [job duties, like 

taking evidence, hearing objections, issuing 

decisions]. [Description of policies (if any 

exist) that ensure the agency component or 

adjudicators remain independent from 

investigative or enforcement activities]. 

[Description of rules about ex parte 

communications, if any exist]. 

[Agency official or body] is responsible for 

evaluating the quality of [adjudicator title] 

decisions, and [agency official or body] 

conducts performance reviews of 

[adjudicator title]. [Agency official/entity 

from another agency] may remove the 

[adjudicator title] or [agency official or body/ 

other entity] may discipline the [adjudicator 

title] by [kinds of discipline] when 

warranted. 

The agency has adopted rules of recusal 

[link] that allow a participant to request that 

the [adjudicator title] in charge of his or her 

case be disqualified if the participant 

believes the [adjudicator title] cannot fairly 

and impartially decide the case. 

If you are dissatisfied with an [adjudicator 

title] decision, you can request 

reconsideration from the [adjudicator title] or 

appeal that decision to [agency office/ 

official]. Visit [link] for information on 

appealing an [adjudicator title] decision. 

[Agency office/official] may also review your 

case on [its/his or her] own initiative if there 

is an issue with the [adjudicator title]’s 

decision. 

For Further Information: 

• Hiring process: [link] 

• Pay rates: [link] 

• Bonuses and performance incentives: [link] 

• How cases are assigned to [adjudicator 

title]: [link] 

• Communicating with [adjudicator title] (ex 

parte communications): [link] 

• Process for addressing allegations that an 

[adjudicator title] has a conflict of interest 

(recusal and disqualification procedures): 

[link] 

• How to appeal an [adjudicator title] 

decision: [link] 

• Case-processing goals: [link] 

• Process for addressing allegations of 

[adjudicator title] misconduct: [link] 

See also: 

• Statutory provisions regarding [adjudicator 

title], including the appointment authority: 

[statutory citations] 

• Agency regulations governing [adjudicator 

title]: [CFR provisions] 

Appendix B 

[Note: Appendix B has been omitted from 

this notice because of the inaccessible images 

it contains. The full appendix may be found 

online at https://www.acus.gov/ 

recommendation/publication-policiesgoverning-agency-adjudicators.] 

Administrative Conference Recommendation 

2020–6 

Agency Litigation Web Pages 

Adopted December 17, 2020 

Federal agencies and their component 

units 1 participate in thousands of court cases 

every year. Most such cases result in ‘‘agency 

litigation materials,’’ which this 

Recommendation defines as including 

agencies’ publicly filed pleadings, briefs, and 

settlements, as well as court decisions, where 

such materials bear on agencies’ regulatory or 

enforcement activities. 

Public access to agency litigation materials 

is desirable for at least two reasons. First, 

because agency litigation materials often 

clarify how the federal government interprets 

and aims to enforce federal law, they can 

help people understand their legal 

obligations. Second, public access to agency 

litigation materials promotes accountable and 

transparent government. Those two reasons 

distinguish agency litigation materials from 

litigation filings by private parties. 

However valuable public access to agency 

litigation materials might be, federal law does 

little to mandate it. When it comes to 

agencies’ own litigation filings, only the 

Freedom of Information Act (FOIA) requires 

disclosure, and then only when members of 

the public specify the materials in which 

they are interested (and no FOIA exception 

applies).2 In the same vein, the EGovernment Act of 2002 requires federal 

courts to make their written opinions, 

including opinions in cases involving federal 

agencies, available on websites.3 But that 

requirement has not always made judicial 

opinions readily accessible to the public, 

partly because most courts’ websites lack 

functions and features that would allow users 

to easily identify cases about specific topics 

or agencies. 

The most comprehensive source of agency 

litigation materials is the federal courts’ 

Public Access to Court Electronic Records 

(PACER) service, which provides the public 

with instantaneous access to virtually every 

document filed in every federal court. But 

PACER searches often cost money, and the 

costs can add up quickly, especially when 

users are uncertain about what cases or 

documents they are trying to find. PACER’s 

limited search functionality also makes it 

difficult to find cases involving particular 

agencies, statutes, regulations, or types of 

agency action. For example, a person 

interested in identifying ongoing cases to 

which the United States Fish and Wildlife 

Service (FWS) is a party would have to 

search for a host of terms—including ‘‘United 

States Fish and Wildlife Service,’’ ‘‘U.S. Fish 

and Wildlife Service,’’ and the names of 

FWS’s recent directors—just to come close to 

identifying all such cases. Even after 

conducting all those searches, the person 

would still have to scroll through and 

eliminate search results involving state fishand-wildlife agencies and private citizens 

with the same names as FWS’s recent 

directors. Similarly, were a person interested 

in finding cases about FWS’s listing of 

species under the Endangered Species Act 

(ESA), PACER would not afford that person 

any way to filter search results to include 

only cases about ESA listings. The person’s 

only option would be to open and review 

documents in potentially thousands of cases. 

The cost and time involved in performing 

this type of research limit PACER’s 

usefulness as a tool for locating and 

searching agency litigation materials. And 

although paid legal services, such as Westlaw 

and Lexis, have far greater search capabilities 

than PACER, their costs can dissuade many 

individuals and researchers. 

Agency litigation web pages, by contrast, 

can be a convenient way for the public to 

examine agency litigation materials. For 

purposes of this Recommendation, an agency 

litigation web page is a web page on an 

agency’s website that systematically catalogs 

and links to agency litigation materials that 

may aid the public in understanding the 

agency’s regulatory or enforcement activities. 

When agencies maintain up-to-date, searchfriendly agency litigation web pages, the 

public can visit them and quickly find 

important filings in court cases concerning 

matters of interest. Agency litigation web 

pages thus make it easier for the public to 

learn about the law and to hold government 

accountable for agencies’ actions. 

Several federal agencies already maintain 

agency litigation web pages.4 A survey of 

websites for twenty-five federal agencies 

revealed a range of practices regarding 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 6625 

5See id. at 12–19 (identifying variations in agency 

practices). The survey conducted for this 

Recommendation covered all kinds of agencies—big 

and small, independent and not, regulatory and 

benefit-oriented, and so forth—with the aim of 

covering a broad and at least somewhat 

representative cross-section of federal agencies. In 

particular, the survey focused on agencies that are 

frequently in federal court or that are parties to a 

significant number of high-profile cases. 

6Most federal agencies do not have independent 

litigation authority but are represented in court by 

the Department of Justice (DOJ). In most cases, these 

agencies designate a DOJ liaison, who is then added 

as a recipient for all court filing notices, resulting 

in automatic access to all filings via PACER. This 

automatic access should enable implementation of 

this Recommendation by client agencies. 

7Cf. Admin. Conf. of the U.S., Recommendation 

2017–1, Adjudication Materials on Agency 

websites, 82 FR 31,039, 31,040 (July 5, 2017) 

(‘‘Agencies that adjudicate large volumes of cases 

that do not vary considerably in terms of their 

factual contexts or the legal analyses employed in 

their dispositions should consider disclosing on 

their websites a representative sampling of actual 

cases and associated adjudication materials.’’). 

agency litigation web pages.5 The survey 

suggests that most federal agencies do not 

maintain active agency litigation web pages. 

Among those that do, the quality of the 

agency litigation web pages varies 

appreciably. Some contain vast troves of 

agency litigation materials; others contain 

much more limited collections. Some are 

updated regularly; others are updated only 

sporadically. Some are easy to locate and 

search; others are not. In short, there appears 

to be no standard practice for publishing and 

maintaining agency litigation web pages, save 

that all the surveyed agency litigation web 

pages contained only the publicly filed 

versions of agency litigation materials, with 

all confidential material—such as trade 

secrets and personally identifiable 

information—redacted. 

An inspection of agencies’ litigation web 

pages suggests four general features that 

make an agency litigation web page useful. 

First, an agency’s litigation web page must be 

easy to find. Second, it must contain a 

representative and up-to-date collection of 

agency litigation materials. Third, those 

materials must be easy to search and sort. 

And fourth, the agency’s litigation web page 

must give visitors the information they need 

to understand the materials on the web page, 

including information about materials the 

agency omitted from the web page and the 

criteria the agency employed to determine 

which materials to include on the web page. 

Agency litigation web pages can promote 

transparency and accountability. The 

Administrative Conference recognizes, 

however, that creating and maintaining a 

useful agency litigation web page takes time, 

money, and effort. An agency’s decision to 

launch an agency litigation web page will 

necessarily be informed by considerations 

such as the agency’s mission, litigation 

portfolio, existing technological capacity, 

budget, and the anticipated benefits—to the 

agency and the public—of creating an agency 

litigation web page.6 Further, an agency’s 

decisions about what content to include on 

an agency litigation web page should be 

tailored to the agency’s particular 

circumstances. An agency that litigates 

thousands of cases each year, for example, 

could choose to feature only a representative 

sample of agency litigation materials on its 

agency litigation web page. 

Similarly, an agency that litigates many 

repetitive, fact-based cases could reasonably 

choose to post documents from just a few 

representative cases instead of posting 

documents from all of its cases.7 And an 

agency that litigates many different types of 

cases, some of obviously greater interest to 

the public than others, might appropriately 

restrict the contents of its agency litigation 

web page to agency litigation materials from 

the types of cases that are of greater public 

interest, particularly when the agency 

determines that the resources required to 

post more agency litigation materials can be 

better applied elsewhere. 

Since the decision to create and maintain 

an agency litigation web page involves 

balancing factors that will differ from agency 

to agency, this Recommendation should not 

be read to suggest that agency litigation web 

pages be created and maintained by all 

agencies, especially those that litigate 

thousands of cases each year. Nor should this 

Recommendation be read as dictating the 

precise contents or structure of agency 

litigation web pages. While encouraging the 

creation and maintenance of agency litigation 

web pages, the Administrative Conference 

recognizes that an agency’s particular 

circumstances might ultimately militate 

against creating an agency litigation web page 

or might support only the creation of a 

comparatively limited version. 

At bottom, this Recommendation simply 

offers best practices and factors for agencies 

to consider in making their agency litigation 

materials available on their websites, should 

the agencies choose to do so. The 

Recommendation leaves the weighing and 

balancing of those factors to the sound 

discretion of individual agencies. 

Recommendation 

Providing Access to Agency Litigation 

Materials 

1. Agencies should consider providing 

access on their websites to publicly filed 

pleadings, briefs, and settlements, as well as 

court decisions bearing on agencies’ 

regulatory or enforcement activities 

(collectively ‘‘agency litigation materials’’). 

2. Should an agency choose to post such 

material, an agency with a large volume of 

court litigation could decide not to post 

documents from every case. The agency 

might, for instance, post examples of filings 

from routine litigation and all or a portion of 

the filings from cases raising important or 

unusual questions. 

3. In determining whether to provide 

access to agency litigation materials on their 

websites, and in determining which types of 

agency litigation materials to include on their 

websites, among the factors agencies should 

consider are the following: 

a. The public’s interest in having ready 

access to certain categories of the agency’s 

litigation materials; 

b. The extent to which providing access to 

agency litigation materials on the agency’s 

website will advance the agency’s mission; 

c. The internal benefits of maintaining a 

web page providing access to certain types of 

agency litigation materials; 

d. The costs of creating and maintaining a 

web page providing access to the types of 

agency litigation materials the agency sees fit 

to include; 

e. The nature of the agency’s litigation 

portfolio, including the quantity of litigation 

materials the agency generates each year; 

f. The degree to which the agency’s 

existing technological capacity can 

accommodate the creation and maintenance 

of a web page providing access to certain 

types of agency litigation materials; 

g. The availability and cost of other 

technological services that may more reliably 

and effectively give access to agency 

litigation material because of its scale or 

volume and the wide variety of issues and 

matters involved; and 

h. The risk of disclosure or increased 

dissemination of confidential or sensitive 

information of private litigants. 

4. In determining which agency litigation 

materials to include on their websites, 

agencies should ensure that they have 

implemented appropriate safeguards to 

protect relevant privacy or business interests 

implicated by the disclosure of agency 

litigation materials. Each agency should 

implement a protocol to ensure that, before 

a document is posted to the agency’s 

litigation web page, the document has been 

reviewed and determined not to contain 

confidential information, such as trade 

secrets and personal identifying information. 

5. Agencies should disclose materials in a 

way that gives a full and accurate picture of 

their litigating positions. To provide proper 

context, agencies should: 

a. Use objective, clear, and publicly posted 

criteria to determine which agency litigation 

materials the agencies will publish on their 

websites; 

b. Regularly review their websites to 

ensure the agency litigation materials posted 

there (especially court opinions) are 

complete and up-to-date, and consider 

including notations regarding when material 

on the web page was last updated; 

c. Provide appropriate context for agency 

litigation materials, at least when failure to 

do so might confuse or mislead the public; 

d. Explain the types of litigation in which 

the agency is involved and other ways to 

search for any additional agency litigation 

materials not included on the agency’s 

litigation web page, as well as opposing 

counsel’s litigation filings; 

e. When resources permit, consider posting 

opposing parties’ litigation filings when they 

are significant or important to understanding 

an issue; 

f. Neither present litigation materials as a 

means of setting policy, nor use those 

materials to circumvent rulemaking 

processes; 

g. Ensure that descriptions of agency 

litigation materials, if any, fairly reflect the 

litigation; and 

h. Recognize that some types of agency 

litigation materials may be of greater 

significance than others. 

6. Agencies that choose to post significant 

quantities of agency litigation materials on 


jbell on DSKJLSW7X2PROD with NOTICES
6626 Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices 

their websites should consider grouping 

together links to those materials on a single, 

dedicated web page (an ‘‘agency litigation 

web page’’). If an agency is organized so that 

its component units have their own litigation 

portfolios, some or all of the component units 

may wish to have their own agency litigation 

web pages, or the agency may wish to 

maintain an agency litigation web page 

compiling litigation materials from or 

relating to the agency’s component units. 

Making It Easy To Locate Agency Litigation 

Web Pages 

7. Agencies that post agency litigation 

materials on their websites should make sure 

that website users can easily locate those 

materials. Agencies can accomplish this goal 

by: 

a. Displaying links to agency litigation web 

pages in readily visible locations on the 

homepage for the agency’s website; and 

b. Maintaining a search engine and a site 

map or index, or both, on the agency’s 

homepage. 

8. When an agency collects its component 

units’ litigation materials on a single agency 

litigation web page, those component units’ 

websites should clearly note that fact and 

include links to the agency’s litigation web 

page. When an agency’s component units 

maintain their own litigation web pages, the 

agency’s website should clearly note that fact 

and include links to the component units’ 

litigation web pages. 

Making It Easy To Find Relevant Materials 

on Agency Litigation Web Pages 

9. Agencies and their component units 

should have substantial flexibility in 

organizing materials. Agencies should 

consider grouping together materials from the 

same and related cases on their agency 

litigation web pages. Agencies might, for 

example, consider providing a separate 

docket page for each case, with a link to the 

docket page on their agency litigation web 

pages. Agencies should also consider linking 

to the grouped-together materials when 

issuing press releases concerning a particular 

litigation. 

10. Agencies should consider offering 

general and advanced search and filtering 

options within their agency litigation web 

pages. The search and filtering options could, 

for instance, allow users to sort, narrow, or 

filter searches according to criteria such as 

action or case type, date, topic, case number, 

party name, a relevant statute or regulation, 

or specific words and phrases, along with 

any other criteria the agency decides are 

especially useful given its litigation 

activities. 

[FR Doc. 2021–01273 Filed 1–21–21; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

Media Outlets for Publication of Legal 

and Action Notices in the Southern 

Region 

AGENCY: Forest Service, USDA. 

ACTION: Notice. 

SUMMARY: This notice lists all 

newspapers that will be used by the 

Ranger Districts, Grasslands, Forests and 

the Regional Office of the Southern 

Region to publish notices required 

under 36 CFR parts 218 and 219. The 

intended effect of this action is to 

inform members of the public which 

newspapers will be used by the Forest 

Service to publish legal notices 

regarding proposed actions, notices of 

decisions and notices indicating 

opportunities to file objections. 

DATES: Use of these newspapers for 

purposes of publishing legal notice of 

decisions and notices of the opportunity 

to object under 36 CFR 218 and 36 CFR 

219 shall begin the first day after the 

date of this publication. 

ADDRESSES: Robert Bergstrom, 

Administrative Review Coordinator, 

Southern Region, Planning, 1720 

Peachtree Road NW, Atlanta, Georgia 

30309. 

FOR FURTHER INFORMATION CONTACT: 

Robert Bergstrom, Administrative 

Review Coordinator by telephone at 

(404) 606–6151 or by email at 

robert.bergstrom@usda.gov. 

SUPPLEMENTARY INFORMATION: 

Responsible Officials in the Southern 

Region will give notice of the 

opportunity to object to a proposed 

project under 36 CFR part 218, or 

developing, amending or revising land 

management plans under 36 CFR 219 in 

the following newspapers which are 

listed by Forest Service administrative 

unit. The timeframe for filing a 

comment, appeal or an objection shall 

be based on the date of publication of 

the notice of the proposed action in the 

newspaper of record for projects subject 

to 36 CFR 218 or 36 CFR 219. Where 

more than one newspaper is listed for 

any unit, the first newspaper listed is 

the newspaper of record that will be 

utilized for publishing the legal notice 

of decisions and calculating timeframes. 

Secondary newspapers listed for a 

particular unit are those newspapers the 

Deciding Officer/Responsible Official 

expects to use for purposes of providing 

additional notice. The following 

newspapers will be used to provide 

notice: 

Southern Region 

Regional Forester Decisions 

Affecting National Forest System 

lands in more than one administrative 

unit of the 15 in the Southern Region:— 

‘‘Atlanta Journal—Constitution’’, 

published daily in Atlanta, Georgia. 

Affecting National Forest System 

lands in only one administrative unit or 

only one Ranger District will appear in 

the newspaper of record elected by the 

National Forest, National Grassland, 

National Recreation Area, or Ranger 

District as listed below. 

National Forests in Alabama, Alabama 

Forest Supervisor Decisions 

Affecting National Forest System 

lands in more than one Ranger District 

of the 6 in the National Forests in 

Alabama:—‘‘Montgomery Advertiser’’, 

published daily in Montgomery, 

Alabama. Affecting National Forest 

System lands in only one Ranger 

District will appear in the newspaper of 

record elected by the Ranger District as 

listed below. 

District Ranger Decisions 

Bankhead Ranger District:— 

‘‘Northwest Alabamian’’, published biweekly (Wednesdays & Saturdays) in 

Haleyville, Alabama. 

Conecuh Ranger District:—‘‘The 

Andalusia Star News’’, published biweekly (Wednesday and Saturday) in 

Andalusia, Alabama. 

Oakmulgee Ranger District:—‘‘The 

Tuscaloosa News’’, published daily in 

Tuscaloosa, Alabama. 

Shoal Creek Ranger District:—‘‘The 

Anniston Star’’ published daily in 

Anniston, Alabama. 

Talladega Division:—‘‘The Anniston 

Star’’, published daily in Anniston, 

Alabama. 

Talladega Ranger District:—‘‘The 

Daily Home’’, published daily in 

Talladega, Alabama. 

Tuskegee Ranger District:—‘‘Tuskegee 

News’’, published weekly (Thursday) in 

Tuskegee, Alabama. 

Chattahoochee-Oconee National Forest, 

Georgia 

Forest Supervisor Decisions 

‘‘The Times’’, published daily in 

Gainesville, Georgia. 

District Ranger Decisions 

Blue Ridge Ranger District:—‘‘The 

News Observer’’, (newspaper of record) 

published weekly (Wednesdays) in Blue 

Ridge, Georgia. 

‘‘North Georgia News’’, (newspaper of 

record) published weekly (Wednesdays) 

in Blairsville, Georgia. 

Conasauga Ranger District:—‘‘Daily 

Citizen’’, published daily in Dalton, 

Georgia. 

Chattooga River Ranger District:— 

‘‘The Northeast Georgian’’, (newspaper 

of record) published bi-weekly 

(Wednesdays & Fridays) in Cornelia, 

Georgia. 

‘‘Clayton Tribune’’, (newspaper of 

record) published weekly (Thursdays) 

in Clayton, Georgia. 


jbell on DSKJLSW7X2PROD with NOTICES