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

1715 

Vol. 87, No. 8 

Wednesday, January 12, 2022 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendation 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Assembly of the 

Administrative Conference of the 

United States adopted five 

recommendations at its virtual Seventysixth 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 qualityassurance 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-andevents/event/76th-plenary-sessionvirtual. 

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 nonadversarial. 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 


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1This Recommendation applies however 

adjudicative proceedings are conducted, including 

virtually or by telephone or video teleconferencing. 

2 5 U.S.C. 552b. 

3Members 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. § 11(a). 

‘‘Agency proceedings’’ means agency processes for 

rulemaking, adjudication, and licensing. Id. § 11(b). 

5The 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. 

7See Graboyes & Thomson, supra note 3. 

8Although 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. 

arguments.1 Members of the public— 

participants’ family and friends, media 

representatives, representatives of nongovernmental organizations, researchers, and 

others—may seek to observe adjudicative 

proceedings for any number of reasons. 

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. 

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

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; 


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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, screensharing, document-annotation, and filesharing 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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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). 

2See, 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). 

3See Blake Emerson & Ronald Levin, Agency 

Guidance Through Interpretive Rules: Research and 

Analysis (May 28, 2019) (report to the Admin. Conf. 

of the U.S.). 

4See Nicholas R. Parrillo, Agency Guidance 

Through Policy Statements: An Institutional 

Perspective (Oct. 12, 2017) (report to the Admin. 

Conf. of the U.S.). 

5See Recommendation 2019–3, supra note 1. 

6See 44 U.S.C. 3102(2). 

7See 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). 

8See E-Government Act of 2002 § 206, 44 U.S.C. 

3501 note (Federal Management and Promotion of 

Electronic Government Services). 

9See Office of Mgmt. & Budget, Exec. Office of 

the President, OMB Bull. No. 07–02, Final Bulletin 

for Agency Good Guidance Practices (2007). 

10Several 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. 

11See 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.). 

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. 

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

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. 

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

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 crossreferences or links between inoperative 

guidance documents and any operative 

guidance documents replacing or modifying 

them. 

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. 

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; 


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1 5 U.S.C. 801–08. 

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. 

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 


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2 Id. 802(a). 

3 Id. 801(d)(1). 

4A 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). 

6The 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). 

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. 

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. 

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

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

* * * * * 

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 


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1See George M. Cohen, Regulation of 

Representatives in Agency Adjudicative 

Proceedings (Dec. 3, 2021) (report to the Admin. 

Conf. of the U.S.). 

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

3See, e.g., 5 U.S.C. 301. 

4See, 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). 

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. 

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 programspecific statutes to determine whether 

persons who are not attorneys may act as 

representatives and, if they may, to establish 

the qualifications for doing so. 

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. 

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 nonattorneys. 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 


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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 nonattorneys, 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 welldesigned 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 

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Federal Register / Vol. 87, No. 8 / Wednesday, January 12, 2022 / Notices 1723 

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.). 

2Admin. 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). 

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

2020–3, Agency Appellate Systems, 86 FR 6618 

(Jan. 22, 2021). 

4See, e.g., 5 U.S.C. 4301; 5 CFR 930.206. 

5Admin. 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). 

decisional consistency, timeliness, and 

efficiency of their adjudicative programs.1

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. 

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

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

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 


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1724 Federal Register / Vol. 87, No. 8 / Wednesday, January 12, 2022 / Notices 

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 caseprocessing 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 decisionmaking 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 

COMMISSION ON CIVIL RIGHTS 

Notice of Public Meetings of the New 

Mexico Advisory Committee to the U.S. 

Commission on Civil Rights 

AGENCY: U.S. Commission on Civil 

Rights. 

ACTION: Announcement of meetings. 

SUMMARY: Notice is hereby given, 

pursuant to the provisions of the rules 

and regulations of the U.S. Commission 

on Civil Rights (Commission) and the 

Federal Advisory Committee Act that 

the New Mexico Advisory Committee 

(Committee) will hold a meeting via 

videoconference on Tuesday, January 

25, 2022, from 12:00 p.m. to 1:00 p.m. 

Mountain Time for the purpose of 

selecting the Committee’s first project 

topic. 

DATES: The meeting will be held on: 

• Tuesday, January 25, 2022, from 

12:00 p.m. to 1:00 p.m. MT. 

Public Registration Link: https://

tinyurl.com/2p96f52c. 

FOR FURTHER INFORMATION CONTACT: 

Brooke Peery, Designated Federal 

Officer (DFO), at bpeery@usccr.gov or 

(202) 701–1376. 

SUPPLEMENTARY INFORMATION: Members 

of the public may listen to the 

discussion. This meeting is available to 

the public through the public 

registration link listed above. An open 

comment period will be provided to 

allow members of the public to make a 

statement as time allows. The 

conference call operator will ask callers 

to identify themselves, the organization 

they are affiliated with (if any), and an 

email address prior to placing callers 

into the conference room. Callers can 

expect to incur regular charges for calls 

they initiate over wireless lines, 

according to their wireless plan. The 

Commission will not refund any 

incurred charges. Persons with hearing 

impairments may also follow the 

proceedings by first calling the Federal 

Relay Service at 1–800–877–8339 and 

providing the Service with the 

conference call number and conference 

ID number. 

Members of the public are also 

entitled to submit written comments; 

the comments must be received in the 

regional office within 30 days following 

the meeting. Written comments may be 

mailed to the Regional Programs Unit 

Office, U.S. Commission on Civil Rights, 

300 N Los Angeles St., Suite 2010, Los 

Angeles, CA 90012 or emailed to Brooke 

Peery at bpeery@usccr.gov. 

Records generated from this meeting 

may be inspected and reproduced at the 

Regional Programs Unit Office, as they 

become available, both before and after 

the meeting. Records of the meeting will 

be available at: https://

www.facadatabase.gov/FACA/FACA

PublicViewCommitteeDetails?id=

a10t0000001gzlGAAQ. 

Please click on the ‘‘Meeting Details’’ 

and ‘‘Documents’’ links. Persons 

interested in the work of this Committee 

are also directed to the Commission’s 

website, http://www.usccr.gov, or may 

contact the Regional Programs Unit 

office at the above email or street 

address. 

Agenda 

I. Welcome & Roll Call 

II. Approval of Minutes 

III. Discussion 

IV. Public Comment 

V. Adjournment 


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