[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Notices]
[Pages 1715-1724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00463]


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Notices
                                                Federal Register
________________________________________________________________________

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.

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Federal Register / Vol. 87, No. 8 / Wednesday, January 12, 2022 / 
Notices

[[Page 1715]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendation

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Assembly of the Administrative Conference of the United 
States adopted five recommendations at its virtual Seventy-sixth 
Plenary Session: (a) Public Access to Agency Adjudicative Proceedings, 
(b) Public Availability of Inoperative Agency Guidance Documents, (c) 
Technical Reform of the Congressional Review Act, (d) Regulation of 
Representatives in Agency Adjudicative Proceedings, and (e) Quality 
Assurance Systems in Agency Adjudication.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2021-6, Jeremy 
Graboyes; for Recommendation 2021-7, Todd Rubin; for Recommendation 
2021-8, Kazia Nowacki; for Recommendation 2021-9, Gavin Young; and for 
Recommendation 2021-10, Matthew A. Gluth. For each of these 
recommendations the address and telephone number are: Administrative 
Conference of the United States, Suite 706 South, 1120 20th Street NW, 
Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov.
    The Assembly of the Conference met during its Seventy-sixth Plenary 
Session on December 16, 2021, to consider five proposed 
recommendations. All five were adopted.
    Recommendation 2021-6, Public Access to Agency Adjudicative 
Proceedings. This recommendation identifies best practices regarding 
when and how federal agencies provide public access to adjudicative 
proceedings. Within the legal framework established by federal law, it 
identifies factors agencies should consider when determining whether to 
open or close particular proceedings. It also offers best practices to 
promote public access to proceedings that agencies open to the public 
and recommends that agencies make the policies governing public access 
readily available.
    Recommendation 2021-7 Public Availability of Inoperative Agency 
Guidance Documents. This recommendation provides best practices for 
maintaining public access to agency guidance documents that are no 
longer in effect--that is, inoperative. It identifies factors agencies 
should consider in deciding whether to include certain types of 
inoperative guidance documents on their websites, outlines steps 
agencies can take to make it easier for the public to find inoperative 
guidance documents, and identifies ways that agencies can label and 
explain the significance of inoperative guidance documents.
    Recommendation 2021-8 Technical Reform of the Congressional Review 
Act. This recommendation offers technical reforms of the Congressional 
Review Act (CRA) to clarify certain of its procedural aspects and 
reduce administrative burdens on executive-branch agencies and 
congressional offices. Specifically, it recommends (1) requiring 
electronic rather than paper submission of the materials agencies must 
transmit to Congress, (2) making it easier to ascertain key dates and 
time periods relevant to review of agency rules under the CRA, and (3) 
formalizing the procedure by which members of Congress initiate 
congressional review of rules that agencies conclude are not covered by 
the CRA.
    Recommendation 2021-9, Regulation of Representatives in Agency 
Adjudicative Proceedings. This recommendation recommends that agencies 
consider adopting rules governing attorney and non-attorney 
representatives in order to promote accessibility, fairness, integrity, 
and efficiency in agency adjudicative proceedings. It provides guidance 
on the topics that rules might cover and recommends that agencies 
consider whether greater harmonization of different bodies of rules is 
desirable and ensure that their rules are readily accessible on their 
websites.
    Recommendation 2021-10, Quality Assurance Systems in Agency 
Adjudication. This recommendation identifies best practices for 
promoting fairness, accuracy, timeliness, and consistency in agency 
adjudications through the use of quality assurance systems. It provides 
guidance to agencies on the selection, role, and institutional 
placement of quality-assurance personnel. It also identifies specific 
considerations for the timing of and process for quality-assurance 
review; outlines different methodologies for identifying and correcting 
quality issues; and addresses how agencies might use electronic case 
management, data analytics, and artificial intelligence for quality-
assurance purposes.
    The Conference based its recommendations on research reports and 
prior history that are posted at: https://www.acus.gov/meetings-and-events/event/76th-plenary-session-virtual.
    Authority: 5 U.S.C. 595.

    Dated: January 7, 2022.
Shawne C. McGibbon,
General Counsel.

Appendix--Recommendation of the Administrative Conference of the United 
States

Administrative Conference Recommendation 2021-6

Public Access to Agency Adjudicative Proceedings

Adopted December 16, 2021

    Agencies adjudicate millions of cases each year. The matters 
they adjudicate are diverse, as are the processes they use to do so. 
Some processes are trial-like; others are informal. Some are 
adversarial; others are non-adversarial. Agencies conduct many 
different types of proceedings in the course of adjudicating cases, 
such as investigatory hearings, prehearing and scheduling 
conferences, settlement conferences, evidentiary hearings, and 
appellate

[[Page 1716]]

arguments.\1\ Members of the public--participants' family and 
friends, media representatives, representatives of non-governmental 
organizations, researchers, and others--may seek to observe 
adjudicative proceedings for any number of reasons.
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    \1\ This Recommendation applies however adjudicative proceedings 
are conducted, including virtually or by telephone or video 
teleconferencing.
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    Agencies must determine whether and how to allow public access 
to the proceedings they conduct. Federal statutes govern how 
agencies manage public access in some contexts. The Government in 
the Sunshine Act \2\ and certain statutes specific to particular 
programs and agencies require that agencies open or close 
adjudicative proceedings or certain portions thereof to public 
observation.\3\ Agencies may need to transcribe or record certain 
adjudicative proceedings and may be required, under the Federal 
Advisory Committee Act \4\ or other laws, to make such records 
publicly available.\5\ Conversely, the Privacy Act \6\ and other 
laws and executive-branch policies may require agencies to protect 
sensitive interests and information.
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    \2\ 5 U.S.C. 552b.
    \3\ Members of the public have, in some instances, asserted a 
right under the First Amendment to access certain agency 
adjudicative proceedings. See Jeremy Graboyes & Mark Thomson, Public 
Access to Agency Adjudicative Proceedings 10-12 (Nov. 22, 2021). 
Courts have reached different conclusions on whether and in what 
circumstances such a right exists for administrative proceedings. 
Compare Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 
2002), with N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198, 
212-213 (3d Cir. 2002). Agencies should be aware of such opinions 
when establishing policies on public access and responding to 
requests for public access to adjudicative proceedings they conduct.
    \4\ 5 U.S.C. app. 2, 11. Although the Federal Advisory Committee 
Act principally governs the operation of advisory committees, 
section 11 of the Act requires agencies to ``make available to any 
person, at actual cost of duplication, copies of transcripts of 
agency proceedings.'' Id. Sec.  11(a). ``Agency proceedings'' means 
agency processes for rulemaking, adjudication, and licensing. Id. 
Sec.  11(b).
    \5\ The Administrative Conference has recommended that agencies 
consider providing access on their websites to supporting 
adjudicative materials issued and filed in adjudicative proceedings. 
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication 
Materials on Agency Websites, 82 FR 31039 (July 5, 2017). Online 
disclosure of transcripts and recordings of adjudicative proceedings 
and real-time broadcast of open proceedings can save staff time or 
money through a reduction in the volume of Freedom of Information 
Act (FOIA) requests or printing costs, or an increase in the speed 
with which agency staff will be able to respond to remaining FOIA 
requests.
    \6\ 5 U.S.C. 552a.
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    On top of these legal requirements, many agencies have adopted 
their own policies regarding public access to adjudicative 
proceedings.\7\ Settling on a sound policy for determining which 
proceedings should be open to public observation can require 
balancing different, and sometimes conflicting, interests. 
Proceedings open to public observation promote transparency, public 
accountability, and public understanding of agency decision making. 
Openness encourages fair process for private parties and promotes 
accurate and efficient decision making by subjecting arguments and 
evidence to public scrutiny. And many participants, especially self-
represented parties, people with disabilities, and children, benefit 
from having a family member, friend, personal care attendant, case 
worker, or other supportive member of the public present at their 
proceedings.\8\
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    \7\ See Graboyes & Thomson, supra note 3.
    \8\ Although family members, friends, personal care attendants, 
care workers, or other supportive members of the public may wish to 
attend an adjudicative proceeding as a public observer, such 
individuals may, in some circumstances, assist or provide support 
for a party or other participant by serving, for example, as a legal 
guardian, representative, or interpreter. Individuals who serve in 
such a role are not considered public observers for purposes of this 
Recommendation.
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    As with any legal proceeding, however, there can be drawbacks to 
opening adjudicative proceedings to the public. Many adjudications 
involve sensitive information that would be publicly disclosed in an 
open proceeding. Public disclosure of unverified information or 
unproven allegations may result in unwarranted reputational harm to 
private parties. Just as open proceedings allow family members and 
other supportive members of the public to accompany participants, 
they also allow in those who would intimidate or harass. Openness 
may also affect the dynamic of agency proceedings, leaving them 
vulnerable to disruption or leading them to become unduly 
adversarial or protracted. There can also be administrative costs 
associated with facilitating in-person or remote observation of 
adjudicative proceedings by members of the public, providing advance 
public notice of open proceedings, and providing access to 
transcripts and recordings of open proceedings. These costs may be 
warranted in some circumstances but not others.
    This Recommendation recognizes that agency adjudicative 
proceedings vary widely in their purpose, complexity, and governing 
law and the degree of public interest they attract. It also 
recognizes that not all agencies can bring the same resources to 
bear in addressing public access to their adjudicative proceedings. 
In offering these best practices, the Administrative Conference 
encourages agencies to develop policies that, in addition to 
complying with all relevant legal requirements for public access, 
recognize the benefits of public access for members of the public, 
private parties, agencies, and other participants and account for 
countervailing interests, such as privacy and confidentiality.

Recommendation

Policies for Public Access to Agency Adjudicative Proceedings

    1. Agencies should promulgate and publish procedural regulations 
governing public access to their adjudicative proceedings in the 
Federal Register and codify them in the Code of Federal Regulations. 
In formulating these regulations, agencies, in addition to adhering 
to any legal requirements for public access, should consider the 
benefits of public access and countervailing interests, such as 
privacy and confidentiality, as elaborated in Paragraph 6. These 
regulations should include the following:
    a. A list of proceedings that should be categorically or 
presumptively open or closed, and standards for determining when 
adjudicators may or must depart from such presumption in individual 
cases (see Paragraphs 5-7);
    b. The manners in which members of the public can observe open 
proceedings, for example by attending in person (e.g., at an agency 
hearing room) or by remote means (e.g., online or by telephone) (see 
Paragraphs 8-14);
    c. Requirements, if any, for advance public notice of 
proceedings, whether open or closed (see Paragraphs 11-14); and
    d. The public availability of and means of accessing transcripts 
and audio and video recordings of proceedings (see Paragraphs 15-
17).
    2. In conjunction with such regulations, agencies should develop 
guidelines that set forth, in plain language, the following 
information for proceedings that are open to the public:
    a. The manner in which agencies will communicate the schedule of 
upcoming proceedings to the public;
    b. The location at and manner in which members of the public can 
observe proceedings;
    c. The registration process, if any, required for members of the 
public to observe proceedings and how they should register;
    d. The agency official whom members of the public should contact 
if they have questions about observing proceedings;
    e. Any instructions for accessing agency or non-agency 
facilities where proceedings are held;
    f. Any requirements for conduct by public observers (e.g., 
regarding the possession and use of electronic devices);
    g. Any protocols for facilitating media coverage; and
    h. Any policies for managing proceedings that attract high 
levels of public interest.
    3. Agencies should also consider whether presumptively closed 
proceedings may be open to select members of the public, such as 
family members or caregivers, and, if so, develop guidelines for 
such situations that address, as relevant, the information in 
Paragraph 2.
    4. Agencies should provide access to the regulations described 
in Paragraph 1, the guidelines described in Paragraphs 2 and 3, and 
any other information about public access to adjudicative 
proceedings, in an appropriate location on their websites.

Standards and Procedures for Determining Which Adjudicative Proceedings 
Are Open or Closed

    5. Agencies ordinarily should presume that evidentiary hearings 
and appellate proceedings (including oral arguments) are open to 
public observation. Agencies may choose to close such proceedings, 
in whole or in part, to the extent consistent with applicable law 
and if there is substantial justification to do so. Substantial 
justification may exist, for example, when the need to protect one 
or more of the following interests can reasonably be considered to 
outweigh the public interest in openness:
    a. National security;

[[Page 1717]]

    b. Law enforcement interests;
    c. Confidentiality of business information;
    d. Personal privacy interests;
    e. The interests of minors and juveniles; and
    f. Other interests protected by statute or regulation.
    6. Agencies should consider whether types of adjudicative 
proceedings other than evidentiary hearings and appellate 
proceedings (such as investigatory hearings and prehearing 
conferences), which are typically closed, should be open to public 
observation. In doing so, agencies, in addition to adhering to any 
legal requirements for public access, should consider the following:
    a. Whether public access would promote important policy 
objectives such as transparency, fairness to parties, accurate and 
efficient development of records for decision making, or public 
participation in agency decision making;
    b. Whether public access would impede important policy 
objectives such as encouraging candor, achieving consensus, deciding 
cases and resolving disputes in an efficient manner, preventing 
intimidation or harassment of participants, avoiding unwarranted 
reputational harm to participants, or protecting national security, 
law enforcement interests, confidentiality of business information, 
personal privacy interests, the interests of minors and juveniles, 
and other interests protected by statute or regulation;
    c. Whether such proceedings or the broader adjudication process 
of which the proceeding at issue is a part typically include 
opportunities for public access;
    d. Whether there is often public interest in observing such 
proceedings; and
    e. Whether matters to be discussed at such proceedings 
ordinarily involve issues of broad public interest or the interests 
of persons beyond the parties.
    7. Agencies should adopt processes for departing from or 
considering requests to depart from a presumption of open or closed 
proceedings in particular cases. Agencies should consider addressing 
the following topics in the procedural regulations described in 
Paragraph 1:
    a. How parties to a case can request that proceedings that are 
presumptively open to public observation be closed or that 
proceedings that are presumptively closed to public observation be 
open to particular individuals or the general public;
    b. How non-parties to a case can request access, for themselves 
or the general public, to proceedings that are presumptively closed 
to public observation;
    c. How parties and non-parties can respond or object to requests 
regarding public access made in subparagraphs (a) or (b);
    d. Under what circumstances adjudicators or other agency 
officials can, on their own motion, close proceedings that are 
presumptively open to public observation or open proceedings that 
are presumptively closed to public observation;
    e. Whether and how adjudicators or other agency officials must 
document and notify participants about decisions regarding public 
access; and
    f. Who, if anyone, can appeal decisions regarding public access 
and, if so, when, to whom, and how they may do so.

Manner of Public Observation of Open Adjudicative Proceedings

    8. When adjudicators conduct open proceedings in public hearing 
rooms, members of the public should have the opportunity to observe 
the proceedings from the rooms in which they are conducted, subject 
to reasonable security protocols, resource and space constraints, 
and concerns about disruptions.
    9. Agencies should provide all or select members of the public, 
such as family members or caregivers, the opportunity to observe 
open adjudicative proceedings remotely. Agencies should provide 
remote access in a way that is appropriate for a particular 
proceeding, such as by providing a dial-in number to select members 
of the public, such as family members or caregivers, on request, or 
by livestreaming audio or video of the proceedings to the general 
public online. Agencies should structure remote access in a way that 
avoids disruptions, such as by ensuring that public observers cannot 
unmute themselves or use chat, screen-sharing, document-annotation, 
and file-sharing functions common in internet-based 
videoconferencing software.
    10. Agencies should consider whether interested members of the 
public are likely to encounter any barriers to accessing open 
adjudicative proceedings and, if so, take steps to remedy them. For 
example, measures may be needed to accommodate people with 
disabilities, people for whom it may be difficult to make 
arrangements to travel to locations where proceedings are conducted, 
and people who do not have access to electronic devices or private 
internet services necessary to observe proceedings remotely. 
Agencies may also need to adjust security protocols at the 
facilities where proceedings are conducted to facilitate in-person 
attendance while still accounting for reasonable security needs.

Advance Public Notice of Adjudicative Proceedings

    11. Agencies should provide advance public notice of open 
adjudicative proceedings and consider whether to provide advance 
public notice of closed proceedings, so that the public is aware of 
such proceedings and can request access to them as specified in 
Paragraph 7(b). Agencies that determine that advance public notice 
would be beneficial should consider (a) the best places and 
publications for providing such notice, (b) the information provided 
in the notice, and (c) the timing of the notice. Agencies that 
regularly conduct open proceedings should also consider maintaining 
a schedule of and information about upcoming proceedings in an 
appropriate location on their websites.
    12. To determine the best places and publications for providing 
advance public notice of adjudicative proceedings, agencies should 
consider their needs and available resources and the individuals, 
communities, and organizations that are likely to be interested in 
or affected by such proceedings. Places and publications where 
agencies might provide public notice of proceedings include:
    a. The Federal Register;
    b. A press release, digest, newsletter, or blog post published 
by the agency;
    c. An agency events calendar;
    d. Social media;
    e. A newspaper or other media outlet that members of the public 
who may be interested in observing the proceeding are likely to 
monitor;
    f. A physical location that potentially interested members of 
the public are likely to see (e.g., a bulletin board at a jobsite or 
agency office);
    g. An email sent to persons who have subscribed to a mailing 
list or otherwise opted to receive updates about a particular 
adjudication; and
    h. A communication sent directly to members of the public, 
communities, and organizations who may be interested in observing 
the proceeding.
    13. Agencies should include the following information in any 
public notice for an open adjudicative proceeding, as applicable:
    a. The name and docket number or other identifying information 
for the proceeding;
    b. The date and time of the proceeding;
    c. The ways that members of the public can observe the 
proceeding, along with the directions, if any, for registering or 
requesting access to the proceeding and, for in-person observers, 
instructions for accessing the facility where the proceeding will 
take place, including any security or public health protocols and 
disability accommodations;
    d. A brief summary of the proceeding's purpose; and
    e. Contact information for a person who can answer questions 
about the proceeding.
    14. Agencies should determine the appropriate timing for 
providing and updating public notice of adjudicative proceedings 
given the nature of their programs and the proceeding at issue. More 
advance notice may be warranted, for example, if significant public 
interest in an open proceeding is likely and interested members of 
the public will need to travel to observe it in person.

Public Access to Transcripts and Recordings of Adjudicative Proceedings

    15. Consistent with applicable legal requirements, agencies 
should consider how they make transcripts and recordings of 
adjudicative proceedings available to interested members of the 
public. In addition to providing public access to such materials on 
their websites, an agency might also, as appropriate:
    a. Make transcripts and recordings available for public 
inspection in a reading room, docket office, or other agency 
facility;
    b. Make transcripts and recordings available for public 
inspection on another public website, such as a public video sharing 
website; or
    c. Provide, or arrange for court reporters working under 
contract with the government to provide, copies of transcripts and 
recordings on request for a fee that is no more than the actual cost 
of duplication, though the agency may charge a reasonable, 
additional fee for expedited processing.

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    16. Agencies should take steps to redact any information that is 
protected by law or policy from public disclosure before providing 
public access to transcripts and recordings.
    17. Agencies should ensure that transcripts and recordings of 
open proceedings are available for public inspection in a timely 
manner.

Administrative Conference Recommendation 2021-7

Public Availability of Inoperative Agency Guidance Documents

Adopted December 16, 2021

    Agencies issue guidance documents to help explain their programs 
and policies, announce their interpretation of laws, and communicate 
other important information to regulated entities, regulatory 
beneficiaries, and the broader public.\1\ The Administrative 
Conference has issued several recent recommendations regarding 
guidance documents.\2\ Among them was Recommendation 2019-3, Public 
Availability of Agency Guidance Documents, which encourages agencies 
to facilitate public access to guidance documents on their websites.
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    \1\ Guidance documents include what the Administrative Procedure 
Act calls ``interpretive rules'' and ``general statements of 
policy.'' 5 U.S.C. 553(b). They may also include other materials 
considered to be guidance documents under other, separate 
definitions adopted by government agencies. See Admin. Conf. of the 
U.S., Recommendation 2019-3, Public Availability of Agency Guidance 
Documents, 84 FR 38931, 38931 (Aug. 8, 2019).
    \2\ See, e.g., Recommendation 2019-3, supra note 1; 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); Admin. Conf. of the U.S., 
Recommendation 2014-3, Guidance in the Rulemaking Process, 79 FR 
35992 (June 25, 2014).
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    Over time, a given guidance document may no longer reflect an 
agency's position. An agency may rescind the document in whole or in 
part by announcing that it no longer reflects the agency's position. 
Even without being rescinded in whole or in part, a guidance 
document may be superseded in whole or in part by later statutory, 
regulatory, or judicial developments, or it may fall into disuse in 
whole or in part. The present Recommendation terms these documents 
``inoperative guidance documents.''
    Some inoperative guidance documents will be of interest to the 
public because they disclose how an agency's legal interpretations 
have changed \3\ or how policies or programs have changed over 
time.\4\ But if these documents are not posted on an agency's 
website, they will be either inaccessible (except through a Freedom 
of Information Act (FOIA) request), in the case of documents not 
published in the Federal Register, or not as accessible as they 
should be, in the case of documents that were noticed in the Federal 
Register.\5\
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    \3\ See Blake Emerson & Ronald Levin, Agency Guidance Through 
Interpretive Rules: Research and Analysis (May 28, 2019) (report to 
the Admin. Conf. of the U.S.).
    \4\ See Nicholas R. Parrillo, Agency Guidance Through Policy 
Statements: An Institutional Perspective (Oct. 12, 2017) (report to 
the Admin. Conf. of the U.S.).
    \5\ See Recommendation 2019-3, supra note 1.
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    Three statutes require agencies to make some inoperative 
guidance documents publicly available. The Federal Records Act 
requires agencies to post on their websites materials that are of 
``general interest or use to the public.'' \6\ FOIA calls upon 
agencies to publish notices in the Federal Register when they have 
rescinded or partially rescinded certain guidance documents that are 
addressed to the public generally rather than to specific 
individuals or organizations.\7\ The E-Government Act requires 
agencies, in certain circumstances, to publish these rescission and 
partial rescission notices on their websites.\8\ Many agencies have 
also issued regulations pertaining to the public availability of 
their inoperative guidance documents.
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    \6\ See 44 U.S.C. 3102(2).
    \7\ See 5 U.S.C. 552(a)(1); Nat'l Org. of Veterans' Advocs., 
Inc. v. Sec'y of Veterans Affairs, 981 F.3d 1360, 1375 (Fed. Cir. 
2020).
    \8\ See E-Government Act of 2002 Sec.  206, 44 U.S.C. 3501 note 
(Federal Management and Promotion of Electronic Government 
Services).
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    The Office of Management and Budget's 2007 Final Bulletin for 
Agency Good Guidance Practices imposes additional requirements on 
agencies relating to inoperative guidance documents. It directs all 
agencies other than independent regulatory agencies to maintain a 
list on their websites identifying significant guidance documents 
that have been revised or withdrawn in the past year. It also 
encourages agencies to stamp or otherwise prominently identify as 
``superseded'' those significant guidance documents that have become 
inoperative but which remain available for historical purposes.\9\
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    \9\ See Office of Mgmt. & Budget, Exec. Office of the President, 
OMB Bull. No. 07-02, Final Bulletin for Agency Good Guidance 
Practices (2007).
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    Recommendation 2019-3, though concerned primarily with operative 
guidance documents, makes several recommendations relating to the 
posting of inoperative guidance documents. In summary, it recommends 
that agencies (1) mark posted guidance documents to indicate whether 
they are current or were withdrawn or rescinded and (2) in the case 
of rescinded or withdrawn documents, note their rescission or 
withdrawal date and provide links to any successor documents.
    Recommendation 2019-3 reserved the question, however, of which 
inoperative guidance documents agencies should publish online. This 
Recommendation takes up that issue, building on the principles 
Recommendation 2019-3 set forth for operative documents by extending 
them, as appropriate, to inoperative guidance documents. 
Specifically, it advises agencies to develop written procedures for 
publishing inoperative guidance documents, devise effective 
strategies for labeling and organizing these documents on their 
websites, and deploy other means of disseminating information about 
these documents.\10\ The Recommendation also encourages agencies to 
provide clear cross-references or links between inoperative guidance 
documents and any operative guidance documents replacing or 
modifying them.
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    \10\ Several paragraphs of this Recommendation directly or 
indirectly apply the paragraphs of Recommendation 2019-3 to 
inoperative guidance documents. Compare Paragraph 1 of this 
Recommendation with Recommendation 2019-3, ] 1; Paragraph 3 with 
Recommendation 2019-3, ]] 4, 7, 9; Paragraph 4 with Recommendation 
2019-3, ] 8; and Paragraph 6 with Recommendation 2019-3, ] 11.
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    This Recommendation, like Recommendation 2019-3, accounts for 
differences across agencies in terms of the number of guidance 
documents they issue, how they use guidance documents, and their 
resources and capacities for managing online access to these 
documents.\11\ Accordingly, although it is likely that agencies 
following this Recommendation will make some of their inoperative 
guidance documents more readily available to the public, this 
Recommendation should not be understood as necessarily advising 
agencies to post the full universe of their inoperative guidance 
documents online.
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    \11\ See Todd Rubin, Public Availability of Inoperative Agency 
Guidance Documents (Nov. 22, 2021) (report to the Admin. Conf. of 
the U.S.); Cary Coglianese, Public Availability of Agency Guidance 
Documents (May 15, 2019) (report to the Admin. Conf. of the U.S.).
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    This Recommendation is limited to guidance documents that 
agencies determine are inoperative after the date of this 
Recommendation. Agencies may, of course, choose to apply it 
retroactively to existing inoperative guidance documents.

Recommendation

Establishing Written Procedures Governing the Public Availability of 
Inoperative Guidance Documents

    1. Each agency should develop and publish on its website written 
procedures governing the public availability of inoperative guidance 
documents and should consider doing the following in its procedures:
    a. Explaining what it considers to be inoperative guidance 
documents for purposes of its procedures instituted under this 
Recommendation;
    b. Identifying which one or more of the following kinds of 
inoperative guidance documents are covered by its procedures: 
Rescinded guidance documents, partially rescinded guidance 
documents, superseded guidance documents, partially superseded 
guidance documents, or guidance documents that have fallen into 
disuse in whole or in part;
    c. Identifying, within the kinds of inoperative guidance 
documents covered by its procedures, which categories of inoperative 
guidance documents will be published on its website and otherwise 
made publicly available, taking into consideration the categories 
articulated in Paragraph 2 below;
    d. Explaining how it will include links or cross-references 
between any related inoperative and operative guidance documents;

[[Page 1719]]

    e. Specifying how long inoperative guidance documents will be 
retained on its website;
    f. Specifying whether some types of previously unpublished 
operative guidance documents will be posted on its website and 
otherwise made publicly available when they become inoperative and, 
if so, under what circumstances;
    g. Providing for how inoperative guidance documents will be 
organized on its website to facilitate searching and public access;
    h. Identifying, as provided in Paragraph 4 below, what labels 
and explanations it will use to communicate clearly the inoperative 
status of guidance documents; and
    i. Indicating whether any of the procedures should be applied 
retroactively.

Determining Which Categories of Inoperative Guidance Documents To 
Publish Online and Otherwise Make Publicly Available

    2. Each agency should consider publishing on its website and 
otherwise making publicly available one or more of the following 
categories of inoperative guidance documents:
    a. Inoperative guidance documents whose operative versions it 
made publicly available;
    b. Inoperative guidance documents that, if they were operative, 
would be made publicly available under its current policies;
    c. Inoperative guidance documents that have been replaced or 
amended by currently operative guidance documents;
    d. Inoperative guidance documents that expressed policies or 
legal interpretations that remain relevant to understanding current 
law or policy;
    e. Inoperative guidance documents that generated reliance 
interests when they were operative;
    f. Inoperative guidance documents that generate--or, when they 
were operative, generated--numerous unique inquiries from the 
public;
    g. Inoperative guidance documents that are--or, when operative, 
were--the subject of attention in the general media or specialized 
publications relevant to the agency, or have been cited frequently 
in other agency documents, such as permits, licenses, grants, loans, 
contracts, or briefs;
    h. Inoperative guidance documents that, when originally being 
formulated, generated a high level of public participation; and
    i. Inoperative guidance documents that, when operative or 
originally being formulated, had been published in the Unified 
Agenda of Federal Regulatory and Deregulatory Actions or were 
considered ``significant guidance documents'' under the Office of 
Management and Budget's Final Bulletin for Agency Good Guidance 
Practices.

Organizing and Labeling Inoperative Guidance Documents Available Online

    3. Each agency should organize its inoperative guidance 
documents on its website to make it easy for members of the public 
to find them and relate them to any successor guidance documents. 
The agency should consider one or more of the following approaches:
    a. Assigning a unique guidance identification number to each 
inoperative guidance document, if this number had not already been 
assigned when the document was operative;
    b. Creating a table that is indexed, tagged, or sortable and is 
dedicated exclusively to displaying entries for inoperative guidance 
documents, with links to these documents;
    c. Providing a search function that enables retrieval of 
inoperative guidance documents;
    d. Using a method, such as a pull-down menu, that allows the 
public to view inoperative guidance documents and see that they are 
inoperative; and
    e. Including links or notations within inoperative guidance 
documents, pointing to any successor operative guidance documents.
    4. Each agency should label inoperative guidance documents on 
its website to ensure that the public can readily understand the 
inoperative status of those guidance documents. The agency should 
consider adopting one or more of the following methods for publicly 
labeling its guidance documents as inoperative and then using the 
selected method or methods consistently:
    a. Including a watermark that displays ``rescinded,'' 
``partially rescinded,'' ``superseded,'' ``partially superseded,'' 
``not in use,'' or similar terminology as appropriate across each 
page of an inoperative guidance document;
    b. Including words such as ``rescinded,'' ``partially 
rescinded,'' ``superseded,'' ``partially superseded,'' ``not in 
use,'' or similar terminology as appropriate within a table in which 
links to inoperative guidance documents appear;
    c. Using an appropriate method, including redline versions or 
lists of changes, to communicate changes made to a guidance document 
that has been partially rescinded or superseded;
    d. Including a prominent stamp at the top of an inoperative 
guidance document noting that the document is inoperative and 
indicating the date it became inoperative;
    e. Providing cross-references, using links or notations, from an 
inoperative guidance document to any successor versions of the 
guidance document, and vice versa; and
    f. Publishing a notice of rescission or partial rescission of a 
guidance document on the agency's website and providing links to 
this notice in the inoperative guidance document.

Using Means in Addition to Agency Websites To Notify the Public When a 
Guidance Document Has Become Inoperative

    5. At a minimum, each agency should notify the public that a 
guidance document has become inoperative in the same way that it 
notified the public that the operative version of the guidance 
document was issued or in the same way it would notify the public 
that an operative version of the guidance document has been issued 
under the agency's current policies.
    6. Each agency should consider using one or more of the 
following methods to notify the public when a guidance document has 
become inoperative:
    a. Publishing this notification in the Federal Register even 
when not required to do so by law;
    b. Sending this notification over an agency listserv or to a 
similar mailing list to which the public can subscribe;
    c. Providing this notification during virtual meetings, in-
person meetings, or webinars involving the public; and
    d. Publishing this notification in a press release.
    7. In disseminating notifications as indicated in Paragraph 6, 
each agency should consider including cross-references to any 
successor guidance documents.

Administrative Conference Recommendation 2021-8

Technical Reform of the Congressional Review Act

Adopted December 16, 2021

    The Congressional Review Act (CRA) \1\ allows Congress to enact 
joint resolutions overturning rules issued by federal agencies. It 
also establishes special, fast-track procedures governing such 
resolutions. This Recommendation aims to address certain technical 
flaws in the Act and how it is presently administered.
---------------------------------------------------------------------------

    \1\ 5 U.S.C. 801-08.
---------------------------------------------------------------------------

The Hand-Delivery Requirement

    The CRA provides that, before a rule can take effect, an agency 
must submit a report (an 801(a) report) to each house of Congress 
and the Comptroller General, who heads the Government Accountability 
Office (GAO). Receipt of the 801(a) report by each house of Congress 
and the Comptroller General also triggers the CRA's special, fast-
track procedures.
    The CRA says nothing about how agencies must deliver 801(a) 
reports to Congress or the Comptroller General. Congressional rules, 
however, currently require that 801(a) reports be hand-delivered to 
both chambers of Congress. Although the House allows members to 
electronically submit certain legislative documents and the 
Comptroller General permits agencies to electronically submit 801(a) 
reports, electronic submission is not generally regarded by Congress 
as an acceptable means of submitting 801(a) reports to Congress.
    The hand-delivery requirement has been the subject of persistent 
criticism on the grounds that it is inefficient and outdated and 
results in exorbitant costs to federal agencies. Recent events have 
also shown that it is sometimes impracticable. For example, staffing 
disruptions related to the COVID-19 pandemic have, in some 
instances, meant that agencies had difficulty delivering 801(a) 
reports by hand and congressional officials have not been present in 
the Capitol to receive 801(a) reports via hand-delivery.

Time Periods for Introducing and Acting on Resolutions Under the CRA

    Another source of persistent criticism of the CRA concerns the 
time periods during which members of Congress may introduce and act 
on joint resolutions overturning agencies' rules. Under the CRA, 
Congress's receipt of an 801(a) report begins a period of 60 days, 
excluding days when either chamber adjourns for more than three 
days, during

[[Page 1720]]

which any member of either chamber may introduce a joint resolution 
disapproving the rule.\2\ Only rules submitted during this period, 
sometimes called the ``introduction period,'' are eligible for the 
CRA's special, fast-track procedures.
---------------------------------------------------------------------------

    \2\ Id. 802(a).
---------------------------------------------------------------------------

    Calculating the introduction period can be confusing because it 
runs only on ``days of continuous session''--that is, on every 
calendar day except those falling in periods when, pursuant to a 
concurrent resolution, at least one chamber adjourns for more than 
three days. As a practical matter, there is seldom a difference 
between 60 days of continuous session and 60 calendar days because 
recent Congresses have made regular use of pro forma sessions to 
avoid adjournments of more than three days. Nevertheless, having to 
calculate the introduction period according to days of continuous 
session rather than calendar days can mislead people unfamiliar with 
the concept of days of continuous session or with recent Congresses' 
uses of pro forma sessions. Moreover, because modern Congresses 
invoke pro forma sessions in a way that negates almost any practical 
difference between days of continuous session and calendar days, the 
CRA's use of days of continuous session to calculate the 
introduction period accomplishes little beyond complicating the 
process of ascertaining the period's end date.
    The introduction period is not the only complicated timing 
provision in the CRA. Another--sometimes called the ``lookback 
period''--provides that if, within 60 days of session in the Senate 
or 60 legislative days in the House after Congress receives a rule, 
Congress adjourns its annual session sine die (i.e., for an 
indefinite period), the periods to submit and act on a disapproval 
resolution ``reset'' in their entirety in the next session of 
Congress.\3\ In that next session, the reset period begins on the 
15th day of the session in the Senate and the 15th legislative day 
in the House. The lookback period thus ensures that Congress has the 
full periods contemplated by the CRA to disapprove a rule, even if 
the rule is submitted near the end of a session of Congress.
---------------------------------------------------------------------------

    \3\ Id. 801(d)(1).
---------------------------------------------------------------------------

    The lookback period is anomalous and difficult to ascertain for 
several reasons. Whereas most of the time periods set forth in the 
CRA are calculated in calendar days, the lookback period is 
calculated using Senate session days and House legislative days--
terms of art with which most people are unfamiliar.\4\ The lookback 
period is also unpredictable because House legislative and Senate 
session days do not always correspond to each other, and the 
chambers regularly modify their anticipated calendar of session or 
legislative days, often with little advance notice. In addition, 
using legislative and session days to calculate the lookback period 
means interested members of Congress can strategically lengthen or 
shorten the period, either by having legislative or session days 
extend for multiple calendar days or cramming several legislative or 
session days into a single calendar day. Perhaps most troublesome: 
Whereas most time periods under the CRA are calculated 
prospectively--that is, by counting forward from an established 
starting date--the lookback period is calculated retrospectively--
that is, by counting backward from an end date that is not known 
until Congress adjourns sine die. The lookback period's 
retrospective quality makes it effectively impossible to calculate 
in real time because the date on which the lookback period begins is 
only knowable once the period has closed. For those and other 
reasons, the public, members of Congress, congressional staff, and 
agencies sometimes struggle to anticipate when the CRA's lookback 
period will commence, or determine when it did commence, during a 
given session of Congress.\5\
---------------------------------------------------------------------------

    \4\ A Senate session day is ``[a] calendar day on which [the 
Senate] convenes and then adjourns or recesses until a later 
calendar day,'' while a House legislative day commences when the 
House convenes and continues until the House adjourns. See Richard 
S. Beth & Valerie Heitshusen, Cong. Rsch. Serv., R42977, Sessions, 
Adjournments, and Recesses of Congress 2, 6 (2016), available at 
https://crsreports.congress.gov/product/pdf/R/R42977.
    \5\ In recent years, the lookback period has tended to commence 
between mid-July and early August, with the precise date varying 
from year to year. See Jesse M. Cross, Technical Reform of the 
Congressional Review Act 35 (Oct. 8, 2021) (draft report to the 
Admin. Conf. of the U.S.). In setting a commencement date for the 
lookback period, Congress may wish to consider the relationship 
between the CRA and what are sometimes called midnight rules (that 
is, rules published in the final months of an administration). See 
Admin. Conf. of the U.S., Recommendation 2012-2, Midnight Rules, 77 
FR 47802 (Aug. 10, 2012).
---------------------------------------------------------------------------

    Complicating matters still further, the CRA's key dates do not 
necessarily align in ways that make sense. For instance, the CRA 
expressly provides that the introduction and lookback periods 
commence when an 801(a) report is submitted to Congress. But other, 
related CRA time periods--such as the periods for discharging a 
joint resolution from committee (the discharge period) and for fast-
tracking a rule through the Senate (the Senate action period)--
commence running only after Congress receives the report and the 
rule is published in the Federal Register. This can lead to 
anomalous situations. Members of Congress might, for instance, 
timely introduce joint resolutions of disapproval under the CRA and 
yet be unable to avail themselves of the CRA's fast-track 
procedures.
    At present, problems with synchronizing related CRA time windows 
are addressed primarily through interpretations from the Senate and 
House Parliamentarians. For example, the Senate Parliamentarian has 
interpreted the lookback and introduction periods to commence only 
after the 801(a) report has been submitted to Congress and the rule 
has been published in the Federal Register, thereby harmonizing the 
starting dates for those periods with the starting dates for the 
discharge and Senate action periods.
    But relying on the Parliamentarians' interpretations creates its 
own problems. Chief among them is that the interpretations are not 
always easily accessible by the public. Although some of the 
Parliamentarians' interpretations are publicly available, many are 
not. Indeed, the formal rulings of the Senate Parliamentarian have 
not been published in decades. In the case of the interpretations 
that are collected and published, moreover, most members of the 
public are either unaware of the interpretations' existence or 
unsure how to access them.

Initiating CRA Review of Actions for Which Agencies Do Not Submit 
801(a) Reports

    Still another criticism of the CRA concerns what Congress should 
do to enable CRA review of agency actions for which agencies do not 
submit 801(a) reports. The CRA itself does not say what to do in 
those situations, even though studies show they arise frequently.
    Absent statutory text addressing the subject, Congress has 
adopted a process through which it initiates review of such agency 
actions by requesting an opinion from the GAO. That process begins 
when members of Congress or committees request a GAO opinion on 
whether an agency action qualifies as a ``rule'' under the CRA. If 
GAO concludes that it does, a member or a committee provides for 
publication of the GAO opinion in the Congressional Record. 
Publication in the Congressional Record is then deemed to be the 
date that triggers the time periods for CRA review of the agency 
action.
    Although that process has worked tolerably well as a response to 
the problem of unreported rules, it lacks a clear basis in the CRA's 
text. There are also aspects of it that warrant revisiting. For 
example, there is no time limit for using the current, de facto 
procedure, meaning Congress might use it to subject a decades-old 
action to CRA review.\6\
---------------------------------------------------------------------------

    \6\ The role proposed for GAO in Paragraph 7 is applicable 
solely for purposes of triggering the expedited congressional review 
procedures under 5 U.S.C. 802; it does not have any impact on when a 
rule is effectuated under 5 U.S.C. 801. Cf. Bowsher v. Synar, 478 
U.S. 714 (1986).
---------------------------------------------------------------------------

* * * * *
    This Recommendation provides targeted, technical reforms to 
address many of the criticisms just identified--including criticisms 
of the hand-delivery requirement, criticisms prompted by the 
confusion surrounding key dates under CRA, and criticisms of the 
process for initiating CRA review of agency actions for which 
agencies do not submit 801(a) reports.

Recommendation

Requiring Electronic Submission of Reports Required by 5 U.S.C. 
801(a)(1)(A)

    1. Congress should amend 5 U.S.C. 801(a)(1)(A) to provide that 
the reports required by that provision (801(a) reports) be submitted 
to Congress and the Government Accountability Office (GAO) 
electronically rather than by hard copy.
    2. In the event Congress does not enact the amendment described 
in Paragraph 1, both houses of Congress should modify their rules or 
policies to require electronic submission of 801(a) reports.
    3. In the event that Congress, in some manner, mandates 
electronic submission of

[[Page 1721]]

801(a) reports, it should establish procedures governing how 
agencies may electronically submit 801(a) reports.

Simplifying and Clarifying the Procedures for Determining Relevant 
Dates Under 5 U.S.C. 801 and 802

    4. Congress should simplify 5 U.S.C. 801(d)(1) by setting a 
fixed month and day after which, each year, rules submitted to 
Congress under the Congressional Review Act (CRA) will be subject to 
the CRA's review process during the following session of Congress.
    5. Congress should amend 5 U.S.C. 802(a), which establishes the 
period during which joint resolutions of disapproval under the CRA 
may be introduced, to either:
    a. Eliminate the requirement that joint resolutions be 
introduced during a particular period;
    b. Align the dates on which the period commences and ends with 
the period during which the Senate may act on a proposed joint 
resolution of disapproval submitted under the CRA; or
    c. Align the date on which the period commences with the period 
during which the Senate may so act and provide that such period ends 
a fixed number of calendar days from such commencement.
    6. Congress should review and, where appropriate, enact 
Parliamentarian interpretations that bear on calculating deadlines 
under the CRA, either as statutory law or as formal rules of the 
houses. If Congress does not enact those interpretations into 
statutory law, it should ensure that they are published in a manner 
that is accessible to the public.

Initiating Review of Agency Actions for Which Agencies Do Not Submit 
801(a) Reports

    7. If Congress continues the practice of requesting an opinion 
from the GAO on whether an agency action, for which the agency did 
not submit an 801(a) report, qualifies as a ``rule'' under the CRA 
to initiate the expedited process for congressional review outlined 
in 5 U.S.C. 802, it should provide a transparent mechanism for doing 
so. To that end, Congress should amend Chapter 8 of title 5 of the 
United States Code to enact the process it currently relies on to 
initiate CRA review (while clarifying that such amendment is solely 
for purposes of implementing 5 U.S.C. 802). Under such process:
    a. Any member of Congress or committee may request the opinion 
of the GAO on whether an agency action qualifies as a ``rule'' under 
the CRA;
    b. After soliciting views from the agency, GAO responds by 
issuing an opinion as to whether the agency action in question 
qualifies as a ``rule'';
    c. If GAO concludes that the action amounts to a rule under the 
CRA, any member of Congress or committee may provide for publication 
of the GAO opinion in the Congressional Record; and
    d. Publication of the GAO opinion in the Congressional Record is 
the date that triggers the time periods for CRA review of the agency 
rule.
    8. If Congress amends the CRA to enact the procedure described 
in Paragraph 7, it should impose time limits within which the steps 
in Paragraph 7 must be taken.

Administrative Conference Recommendation 2021-9

Regulation of Representatives in Agency Adjudicative Proceedings

Adopted December 16, 2021

    Many agencies have adopted rules governing the participation and 
conduct of attorneys and non-attorneys who represent parties in 
adjudicative proceedings. These rules may address a wide array of 
topics, including who can represent parties in adjudications, how 
representatives must conduct themselves, and how the agency enforces 
rules of conduct.\1\ Some agencies have drafted their own rules. 
Others have adopted rules developed by state bar associations or the 
American Bar Association's (ABA) Model Rules of Professional 
Conduct. Agencies provide public access to their rules in different 
ways, including publishing them in the Federal Register and Code of 
Federal Regulations and posting them on their websites. Some 
agencies have provided explanatory materials to help 
representatives, parties, and the public understand how the rules 
operate.
---------------------------------------------------------------------------

    \1\ See George M. Cohen, Regulation of Representatives in Agency 
Adjudicative Proceedings (Dec. 3, 2021) (report to the Admin. Conf. 
of the U.S.).
---------------------------------------------------------------------------

    Agency authority to set qualifications for who may serve as a 
representative depends on whether the potential representative is an 
attorney or non-attorney. For attorneys, the generally applicable 
Agency Practice Act provides, with some exceptions, that ``any 
individual who is a member in good standing of the bar of the 
highest court of a State may represent a person before an agency,'' 
\2\ though some statutes authorize agencies to impose additional 
qualification requirements. Agencies generally have greater 
discretion under the Administrative Procedure Act and agency- or 
program-specific statutes to determine whether persons who are not 
attorneys may act as representatives and, if they may, to establish 
the qualifications for doing so.
---------------------------------------------------------------------------

    \2\ 5 U.S.C. 500(b).
---------------------------------------------------------------------------

    As a general matter, agencies have legal authority to establish 
rules governing the conduct of representatives and to take actions 
against representatives found to have violated such rules.\3\ Courts 
have consistently found such authority inherent in agencies' general 
rulemaking power or their power to protect the integrity of their 
processes.\4\ Agencies' disciplinary authority is not limitless, 
however, and agencies must determine what their governing statutes 
allow.
---------------------------------------------------------------------------

    \3\ See, e.g., 5 U.S.C. 301.
    \4\ See, e.g., Checkovsky v. SEC, 23 F.3d 452, 456 (D.C. Cir. 
1994); Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986); Polydoroff 
v. ICC, 773 F.2d 372, 374 (D.C. Cir. 1985); Touche Ross & Co. v. 
SEC, 609 F.2d 570, 580-82 (2d Cir. 1979); Koden v. U.S. DOJ, 564 
F.2d 228, 233 (7th Cir. 1977).
---------------------------------------------------------------------------

    Agencies that adopt rules governing representatives will need to 
make a number of decisions as they decide the type of rules to adopt 
and how they will apply those rules. They must determine whether the 
rules will apply only to attorney representatives or will also apply 
to other representatives. They must decide whether to borrow 
language from rules drafted by other entities (state bars, ABA) or 
to draft their own rules. They must determine the particular conduct 
that the rules will regulate and whether to apply the same rules to 
attorneys and non-attorneys. And if they decide to adopt rules 
governing who may practice before the agency, they must ensure that 
they comply with the Agency Practice Act for rules applied to 
attorneys and determine the qualification standards, if any, they 
will establish for non-attorneys.
    Once agencies have decided to adopt rules, they also must 
determine how to enforce those rules. Agencies may enforce rules in 
various ways, ranging from reminders or warnings to more serious 
actions, including disqualifying a representative from appearing in 
the current adjudication or future adjudications or imposing a 
monetary penalty. Agencies must determine that they have the legal 
authority to undertake any such actions. Agencies also must 
determine whether to implement a program for reciprocal discipline, 
which involves imposing discipline on a representative found to have 
engaged in misconduct by another jurisdiction, or for referral 
procedures, which involve reporting attorneys' misconduct to another 
jurisdiction for purposes of taking possible disciplinary action.
    Agencies that have adopted rules must ensure that 
representatives, parties, and the public can easily access the 
rules. Agencies also must decide whether to provide additional 
explanatory materials and, if so, ensure that those are also easily 
accessible.
    This Recommendation recognizes that agency adjudicative 
proceedings vary widely in their purpose, complexity, and governing 
law. Some processes are trial-like; others are informal. Some are 
adversarial; others are non-adversarial. Given the extensive 
variation in agencies' needs and available resources, this 
Recommendation focuses primarily on setting forth the various 
options agencies should consider in deciding whether to adopt rules 
and deciding on the content of those rules. It takes no position on 
whether agencies should allow non-attorney representatives. For 
agencies that decide to adopt rules for attorneys and, if they elect 
to do so, for non-attorneys, the Recommendation offers best 
practices for seeking to ensure that those rules are disseminated 
widely and that representatives, parties, and the public can 
understand the rules and how agencies go about enforcing them.
    Although the Recommendation does not endorse harmonization of 
rules for its own sake, it does urge agencies to consider whether 
achieving greater uniformity among different adjudicative components 
within the agency or even across adjudicative components of multiple 
agencies might prove valuable for representatives who practice 
before a variety of components or agencies. It also recommends that 
the Administrative

[[Page 1722]]

Conference's Office of the Chairman consider preparing model rules 
that agencies can use when drafting their own rules.

Recommendation

Adoption of Rules Governing Participation and Conduct

    1. For federal agency adjudication systems in which parties are 
represented--either by attorneys or non-attorney representatives--
agencies should consider adopting rules governing the participation 
and conduct of representatives in adjudicative proceedings to 
promote the accessibility, fairness, integrity, and efficiency of 
adjudicative proceedings.

Rules of Conduct

    2. Agencies should consider whether to adopt or reference rules 
promulgated by other authorities or professional organizations or 
instead draft their own rules. Agencies should ensure that the rules 
are appropriate for the adjudicative proceedings they conduct and 
consider whether any modifications to adopted rules should be 
included. Agencies should consider whether any rules applicable to 
attorneys should be applied to non-attorneys and whether they should 
be modified before doing so.
    3. Possible topics that agencies might consider in their rules 
include representatives' actions that are likely to occur during a 
particular adjudication and actions that might occur outside a 
particular adjudication but that might still adversely affect the 
conduct of agency adjudications. Topics agencies might consider 
include the following:
    a. Engaging in conduct that disrupts or is intended to disrupt 
an adjudication;
    b. Making unauthorized ex parte contacts with agency officials;
    c. Engaging in representation of a client that conflicts with 
other interests, including representation of another client, or the 
attorney's personal interests;
    d. Filing frivolous claims or asserting frivolous defenses;
    e. Engaging in conduct that is prejudicial to the administration 
of justice, including conduct not limited to that occurring during 
an adjudication;
    f. Failing to provide competent representation;
    g. Improperly withdrawing from client representation;
    h. Unreasonably delaying the conduct of an adjudication;
    i. Making a material intentional false statement;
    j. Improperly seeking to influence the conduct of a judge or 
official;
    k. Being convicted of a crime or being subject to an official 
finding of a civil violation that reflects adversely on the 
attorney's fitness to represent clients before the agency; and
    l. Knowingly disobeying or attempting to disobey agency rules 
(including conduct rules) or adjudicators' directions, or knowingly 
assisting others in doing so.
    4. Agencies should consider whether divergence among rules 
governing different types of adjudicative proceedings would create 
needless complexity in practicing before the agency. This might 
entail harmonizing rules among different components of the agency. 
It might also involve harmonization of style or language across 
rules as well as cross-referencing of other rules of the agency. 
Agencies should also consider whether to harmonize rules across 
agencies, especially in cases in which the same representatives 
commonly appear before a group of agencies (e.g., financial 
agencies).

Agency Action in Response to Allegations of a Violation of Rules

    5. Agencies should specify in their rules how they will respond 
to an allegation of a violation of their conduct rules, and they 
should publish these rules consistent with Paragraphs 9 through 12. 
Among other topics, agencies should address:
    a. Who can make a complaint and how to make it;
    b. How notice of a complaint should be provided to the 
representative who is the subject of the complaint;
    c. Who adjudicates the complaint;
    d. The procedure for adjudicating the complaint, including any 
rules governing the submission of evidence and the making of 
arguments;
    e. The manner in which a decision will be issued, including any 
applicable timeline for issuing a decision;
    f. Procedures for appealing a decision;
    g. Who is responsible for enforcing the decision within the 
agency and communicating the decision to other relevant authorities; 
and
    h. The process for identifying and dismissing complaints that 
are frivolous, repetitive, meant to harass, or meant primarily to 
delay agency action, including any consequences for persons filing 
such complaints.

Agency Action in Response to a Violation of Rules

    6. Rules should address what actions an agency may take in the 
case of a violation of the rules consistent with their authority to 
do so, including informal warnings short of sanctions and the range 
of available sanctions.
    7. For rules applicable to attorneys, agencies should consider 
whether to adopt any reciprocal disciplinary procedures or referral 
procedures.

Who Can Practice Before Agencies

    8. Agencies should, in compliance with the Agency Practice Act 
(5 U.S.C. 500), only establish additional rules governing which 
attorney representatives can practice before the agencies if 
authorized to do so by separate statute. With respect to non-
attorneys, agencies should determine what rules, if any, they will 
establish to govern who can practice before the agencies.

Transparency

    9. Agencies should publish their rules governing 
representatives' conduct in the Federal Register and codify them in 
the Code of Federal Regulations.
    10. When agencies adopt rules promulgated by another entity, 
which may in some instances be copyrighted, they should ensure that 
the rules are reasonably available to the public such as by 
providing links on the agencies' websites or other mechanisms for 
easily accessing those rules.
    11. Agencies should also publish their rules governing 
representatives' conduct on a single web page or in a single 
document on their websites and clearly label them using a term such 
as ``Rules of Conduct for Representatives.'' The agency should 
indicate clearly whether the rules apply only to attorneys, non-
attorneys, or both.
    12. On the web page or in the document described in Paragraph 
11, agencies should also publish information concerning 
qualifications for representatives (including for non-attorneys as 
applicable), how to file a complaint, and a summary of the 
disciplinary process.
    13. On the web page or in the document described in Paragraph 
11, agencies should consider providing comments, illustrations, and 
other explanatory materials to help clarify how the rules work in 
practice.
    14. Agencies should consider publishing disciplinary actions, or 
summaries of them, on the web page or in the document described in 
Paragraph 11 so as to promote transparency regarding the types of 
conduct that lead to disciplinary action. When necessary to preserve 
recognized privacy interests, the agency may consider redacting 
information about particular cases or periodically providing summary 
reports describing the rules violated, the nature of the misconduct, 
and any actions taken.

Model Rules

    15. ACUS's Office of the Chairman should consider promulgating 
model rules of conduct that would address the topics in this 
Recommendation. The model rules should account for variation in 
agency practice and afford agencies the flexibility to determine 
which rules apply to their adjudicative proceedings. In doing so, 
the Office of the Chairman should seek the input of a diverse array 
of agency officials and members of the public, including 
representatives who appear before agencies, and the American Bar 
Association.

Administrative Conference Recommendation 2021-10

Quality Assurance Systems in Agency Adjudication

Adopted December 16, 2021

    A quality assurance system is an internal review mechanism that 
agencies use to detect and remedy both problems in individual 
adjudications and systemic problems in agency adjudicative programs. 
Through well-designed and well-implemented quality assurance 
systems, agencies can proactively identify both problems in 
individual cases and systemic problems, including misapplied legal 
standards, inconsistent applications of the law by different 
adjudicators, procedural violations, and systemic barriers to 
participation in adjudicatory proceedings (such as denials of 
reasonable accommodation). Identifying such problems enables 
agencies to ensure adherence to their own policies and improve the 
fairness (and perception of fairness), accuracy, inter-

[[Page 1723]]

decisional consistency, timeliness, and efficiency of their 
adjudicative programs.\1\
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    \1\ Daniel E. Ho, David Marcus & Gerald K. Ray, Quality 
Assurance Systems in Agency Adjudication (Nov. 30, 2021) (report to 
the Admin. Conf. of the U.S.).
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    In 1973, the Administrative Conference recommended the use of 
quality assurance systems to evaluate the accuracy, timeliness, and 
fairness of adjudication of claims for public benefits or 
compensation.\2\ Since then, many agencies, including those that 
adjudicate other types of matters, have implemented or considered 
implementing quality assurance systems, often to supplement other 
internal review mechanisms such as agency appellate systems.\3\ 
Unlike agencies' appellate systems, quality assurance systems are 
not primarily concerned with error correction in individual cases, 
and they may assess numerous adjudicatory characteristics that are 
not typically subject to appellate review, such as effective case 
management. Nor are they avenues for collateral attack on individual 
adjudicatory dispositions. Also, quality assurance systems are 
distinct from agencies' procedures that deal with allegation of 
judicial misconduct. This Recommendation accounts for these 
developments and provides further guidance for agencies that may 
wish to implement new or to improve existing quality assurance 
systems.
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    \2\ Admin. Conf. of the U.S., Recommendation 73-3, Quality 
Assurance Systems in the Adjudication of Claims of Entitlement to 
Benefits or Compensation, 38 FR 16840 (June 27, 1973).
    \3\ Admin. Conf. of the U.S., Recommendation 2020-3, Agency 
Appellate Systems, 86 FR 6618 (Jan. 22, 2021).
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    How agencies structure their quality assurance systems can have 
important consequences for their success. For example, quality 
assurance systems that overemphasize timeliness as a measure of 
quality may overlook problems of decisional accuracy. Quality 
assurance personnel must have the expertise and judgment necessary 
to accurately and impartially perform their responsibilities. 
Quality assurance personnel must use methods for selecting and 
reviewing cases that allow them to effectively identify case-
specific and systemic problems. Agencies must determine how they 
will use information collected through quality assurance systems to 
correct problems that threaten the fairness (and perception of 
fairness), accuracy, inter-decisional consistency, timeliness, and 
efficiency of their adjudicative programs. Agencies also must design 
quality assurance systems to comply with all applicable 
requirements, such as the statutory prohibition against rating the 
job performance of or granting any monetary or honorary award to an 
administrative law judge.\4\
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    \4\ See, e.g., 5 U.S.C. 4301; 5 CFR 930.206.
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    There are many methods of quality review that agencies can use, 
independently or in combination, depending upon the needs and goals 
of their adjudicative programs. For example, agencies can adopt a 
peer review process by which adjudicators review other adjudicators' 
decisions and provide feedback before decisions are issued. Agencies 
can prepare and circulate regular reports for internal use that 
describe systemic trends identified by quality assurance personnel. 
Agencies can also use information from quality assurance systems to 
identify training needs and clarify or improve policies.
    Agencies, particularly those with large caseloads, may also 
benefit from using data captured in electronic case management 
systems. Through advanced data analytics and artificial intelligence 
techniques (e.g., machine-learning algorithms), agencies can use 
such data to rapidly and efficiently identify anomalies and systemic 
trends.\5\
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    \5\ Admin. Conf. of the U.S., Statement #20, Agency Use of 
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021); Admin. Conf. of 
the U.S., Recommendation 2018-3, Electronic Case Management in 
Federal Administrative Adjudication, 83 FR 30686 (June 29, 2018).
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    This Recommendation recognizes that agencies have different 
quality assurance needs and available resources. What works best for 
one agency may not work for another. What quality assurance 
techniques agencies may use may also be constrained by law. Agencies 
must take into account their own unique circumstances when 
implementing the best practices that follow.

Recommendation

Review and Development of Quality Assurance Standards

    1. Agencies with adjudicative programs that do not have quality 
assurance systems--that is, practices for assessing and improving 
the quality of decisions in adjudicative programs--should consider 
developing such systems to promote fairness, the perception of 
fairness, accuracy, inter-decisional consistency, timeliness, 
efficiency, and other goals relevant to their adjudicative programs.
    2. Agencies with adjudicative programs that have quality 
assurance systems should review them in light of the recommendations 
below.
    3. Agencies' quality assurance systems should assess whether 
decisions and decision-making processes:
    a. Promote fairness and the appearance of fairness;
    b. Accurately determine the facts of the individual matters;
    c. Correctly apply the law to the facts of the individual 
matters;
    d. Comply with all applicable requirements;
    e. Are completed in a timely and efficient manner; and
    f. Are consistent across all adjudications of the same type.
    4. Agencies should consider both reviews that address decisions' 
likely outcomes before reviewing tribunals, and reviews of 
adjudicators' decisional reasoning, which address policy compliance, 
consistency, and fairness.
    5. A quality assurance system should review the work of 
adjudicators and all related personnel who have important roles in 
the adjudication of cases, such as attorneys who assist in drafting 
decisions, interpreters who assist in hearings, and staff who assist 
in developing evidence.
    6. Analyzing decisions of agency appellate and judicial review 
bodies may help quality assurance personnel assess whether the 
adjudicatory process is meeting the goals outlined in Paragraph 3. 
But agencies should not rely solely on such decisions to set and 
assess standards of quality because appealed cases may not be 
representative of all adjudications.

Quality Assurance Personnel

    7. Agencies should ensure that quality assurance personnel can 
perform their functions in a manner that is, and is perceived as, 
impartial, including being able to perform such functions without 
pressure, interference, or expectation of employment consequences 
from the personnel whose work they review.
    8. Agencies should ensure that quality assurance personnel 
understand all applicable substantive and procedural requirements 
and have the expertise necessary to review the work of all personnel 
who have important roles in adjudicating cases.
    9. Agencies should ensure that quality assurance personnel have 
sufficient time to fully and fairly perform their assigned 
functions.
    10. Agencies should consider whether quality assurance systems 
should be staffed by permanent or temporary personnel, or some 
combination of the two. Personnel who perform quality assurance 
functions on a permanent basis may gain more experience and 
institutional knowledge over time than will personnel who perform on 
a temporary basis. Personnel who perform quality assurance on a 
temporary basis, however, may be more likely to contribute different 
experiences and new perspectives.

Timing of and Process for Quality Assurance Review

    11. Agencies should consider at what points in the adjudication 
process quality assurance review should occur. In some cases, review 
that occurs before adjudicators issue their decisions, or during a 
period when agency appellate review is available, could allow errors 
to be corrected before decisions take effect. However, agencies 
should take care that pre-disposition review does not interfere with 
adjudicators' qualified decisional independence and comports with 
applicable restrictions governing ex parte communications, internal 
separation of decisional and adversarial personnel, and decision 
making based on an exclusive record.
    12. Agencies should consider implementing peer review programs 
in which adjudicators can provide feedback to other adjudicators.
    13. Agencies should consider a layered approach to quality 
assurance that employs more than one methodology. As resources 
allow, this may include formal quality assessments and informal peer 
review on an individual basis, sampling and targeted case selection 
on a systemic basis, and case management systems with automated 
adjudication support tools.
    14. In selecting cases for quality assurance review, agencies 
should consider the following methods:
    a. Review of every case, which may be useful for agencies that 
adjudicate a small

[[Page 1724]]

number of cases but impractical for agencies that adjudicate a high 
volume of cases;
    b. Random sampling, which can be more efficient for agencies 
that decide a high volume of cases but may cause quality assurance 
personnel to spend too much time reviewing cases that are unlikely 
to present issues of concern;
    c. Stratified random sampling, a type of random sampling that 
over-samples cases based on chosen characteristics, which may help 
quality assurance personnel focus on specific legal issues or 
factual circumstances associated with known problems, but may 
systematically miss certain types of problems; and
    d. Targeted selection of cases, which allows agencies to 
directly select decisions that contain specific case characteristics 
and may help agencies study known problems but may miss identifying 
other possible problems.

Data Collection and Analysis

    15. Agencies, particularly those with large caseloads, should 
consider what data would be useful and how data could be used for 
quality assurance purposes. Agencies should ensure that, for each 
case, an electronic case management or other system includes the 
following information:
    a. The identities of adjudicators and any personnel who assisted 
in evaluating evidence, writing decisions, or performing other case-
processing tasks;
    b. The procedural history of the case, including any actions and 
outcomes on administrative or judicial review;
    c. The issues presented in the case and how they were resolved; 
and
    d. Any other data the agency determines to be helpful.
    16. Agencies should regularly evaluate their electronic case 
management or other systems to ensure they are collecting the data 
necessary to assess and improve the quality of decisions in their 
programs.
    17. Agencies, particularly those with large caseloads, should 
consider whether to use data analytics and artificial intelligence 
(AI) tools to help quality assurance personnel identify potential 
errors or other quality issues. Agencies should ensure that they 
have the technical capacity, expertise, and data infrastructure 
necessary to build and deploy such tools; that any data analytics or 
AI tools the agencies use support, but do not displace, evaluation 
and judgment by quality assurance personnel; and that such systems 
comply with legal requirements for privacy and security and do not 
create or exacerbate harmful biases.

Use of Quality Assurance Data and Findings

    18. Agencies should not use information gathered through quality 
assurance systems in ways that could improperly influence decision 
making or personnel matters.
    19. Agencies should provide, consistent with Paragraph 11, 
individualized feedback for adjudicators and other personnel who 
assist in evaluating evidence, writing decisions, or performing 
other case-processing tasks within a reasonable amount of time and 
include any relevant positive and negative feedback.
    20. Agencies should establish regular communications mechanisms 
to facilitate the dissemination of various types of quality 
assurance information within the agency. Agencies should:
    a. Communicate information about systemic recurring or emerging 
problems identified by quality assurance systems to all personnel 
who participate in the decision-making process and to training 
personnel;
    b. Communicate, as appropriate, with agency rule-writers and 
operations support personnel to allow them to consider whether 
recurring problems identified by quality assurance systems should be 
addressed or clarified by rules, operational guidance, or decision 
support tools; and
    c. Consider whether to communicate information to appellate 
adjudicators or other agency officials who are authorized to remedy 
problems identified by quality assurance systems in issued 
decisions.

Public Disclosure and Transparency

    21. Agencies should provide access on their websites to all 
rules and any associated explanatory materials that apply to quality 
assurance systems, including standards for evaluating the quality of 
agency decisions and decision-making processes.
    22. Agencies should consider whether to publicly disclose data 
in case management systems in a de-identified form (i.e., with all 
personally identifiable information removed) to enable continued 
research by individuals outside of the agency.

Assessment and Oversight

    23. Agencies with quality assurance systems should assess 
periodically whether those systems achieve the goals they were 
intended to accomplish, including by affirmatively soliciting 
feedback from the public, adjudicators, and other agency personnel 
concerning the functioning of their quality assurance systems.

[FR Doc. 2022-00463 Filed 1-11-22; 8:45 am]
BILLING CODE 6110-01-P