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Notices

Federal Register
Vol. 86, No. 13
Friday, January 22, 2021

This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public. Notices of hearings and investigations,
committee meetings, agency decisions and
rulings, delegations of authority, filing of
petitions and applications and agency
statements of organization and functions are
examples of documents appearing in this
section.

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

the United States.
ACTION: Notice.

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SUMMARY: The Administrative

Conference of the United States adopted
six recommendations and one official
statement at its virtual Seventy-third
Plenary Session. The appended
recommendations address: (a) Rules on
Rulemakings; (b) Protected Materials in
Public Rulemaking Dockets; (c) Agency
Appellate Systems; (d) Government
Contract Bid Protests Before Agencies;
(e) Publication of Policies Governing
Agency Adjudicators; and (f) Agency
Litigation Webpages. The official
statement addresses Agency use of
Artificial Intelligence.
FOR FURTHER INFORMATION CONTACT: For
Recommendations 2020–1 and 2020–2,
Todd Rubin; for Recommendation
2020–3, Gavin Young; for
Recommendations 2020–4 and 2020–6,
and Statement #20, Mark Thomson; and
for Recommendation 2020–5, Leigh
Anne Schriever. For each of these
actions the address and telephone
number are: Administrative Conference
of the United States, Suite 706 South,
1120 20th Street NW, Washington, DC
20036; Telephone 202–480–2080.
SUPPLEMENTARY INFORMATION: The
Administrative Conference Act, 5 U.S.C.
591–596, established the Administrative
Conference of the United States. The
Conference studies the efficiency,
adequacy, and fairness of the
administrative procedures used by
Federal agencies and makes
recommendations to agencies, the
President, Congress, and the Judicial
Conference of the United States for
procedural improvements (5 U.S.C.
594(1)). For further information about
the Conference and its activities, see
www.acus.gov. At its virtual Seventy-

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third Plenary Session on December 16–
17, 2020, the Assembly of the
Conference adopted six
recommendations and one official
statement.
Recommendation 2020–1, Rules on
Rulemakings. This recommendation
encourages agencies to consider issuing
rules governing their rulemaking
procedures. It identifies subjects that
agencies should consider addressing in
their rules on rulemakings—without
prescribing any particular procedures—
and it urges agencies to solicit public
input on these rules and make them
publicly available.
Recommendation 2020–2, Protected
Materials in Public Rulemaking Dockets.
This recommendation offers agencies
best practices for protecting sensitive
personal and confidential commercial
information in public rulemaking
dockets. It identifies, in particular, best
practices for agencies to use when
redacting, summarizing, and aggregating
comments that contain such
information. It also encourages agencies
to provide public notices that
discourage commenters from submitting
such information in the first place.
Recommendation 2020–3, Agency
Appellate Systems. This
recommendation offers agencies best
practices to improve administrative
review of hearing-level adjudicative
decisions with respect to case selection,
decision-making process and
procedures, management oversight, and
public disclosure and transparency. In
doing so, it encourages agencies to
identify the objectives of such review
and structure their appellate systems to
serve those objectives.
Recommendation 2020–4,
Government Contract Bid Protests
Before Agencies. This recommendation
suggests improvements to the
procedures governing agency-level
procurement contract disputes—
commonly called bid protests—under
the Federal Acquisition Regulation and
agency-specific regulations to make
those procedures more simple,
transparent, and predictable. It urges
agencies to clarify what types of
decisions can be the subjects of agencylevel bid protests, what processes and
deadlines will govern such protests, and
who in the agency will decide such
protests; make it easier for protesters to
get information about the decisions they

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protest; and publish more data on
agency-level protests.
Recommendation 2020–5, Publication
of Policies Governing Agency
Adjudicators. This recommendation
encourages agencies to disclose policies
governing the appointment and
oversight of adjudicators that bear on
their impartiality and constitutional
status. It offers best practices on how to
provide descriptions of, and access to,
such policies on agency websites.
Recommendation 2020–6, Agency
Litigation Webpages. This
recommendation offers agencies best
practices for making their federal court
filings and relevant court opinions
available to the public on their websites,
with particular emphasis on materials
from litigation dealing with agency
regulatory programs. It provides
guidance on the types of litigation
materials that will be of greatest interest
to the public and on how agencies can
disseminate the materials in a way that
makes them easy to find.
Statement #20, Agency Use of
Artificial Intelligence. This statement
identifies issues agencies should
consider when adopting, revamping,
establishing policies and practices
governing, and regularly monitoring
artificial intelligence systems. Among
the topics it addresses are transparency,
harmful biases, technical capacity,
procurement, privacy, security,
decisional authority, and oversight.
The Appendix below sets forth the
full texts of these six recommendations
and the official statement. The
Conference will transmit the
recommendations and statement to
affected agencies, Congress, and the
Judicial Conference of the United States,
as appropriate. The recommendations
and statement are not binding, so the
entities to which they are addressed will
make decisions on their
implementation.
The Conference based these
recommendations and the statement on
research reports that are posted at:
https://www.acus.gov/meetings-andevents/plenary-meeting/73rd-plenarysession. Committee-proposed drafts of
the recommendations and statement,
and public comments received in
advance of the plenary session, are also
available using the same link.

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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
Dated: January 14, 2021.
Shawne C. McGibbon,
General Counsel.

Appendix—Recommendations and
Statement of the Administrative
Conference of the United States
Administrative Conference Recommendation
2020–1
Rules on Rulemakings
Adopted December 16, 2020
Numerous agencies have promulgated
rules setting forth the policies and
procedures they will follow when conducting
informal rulemakings under 5 U.S.C. 553.1
The rules can cover a variety of practices,
including processes for initiating and seeking
public input on new rules, coordinating with
the Office of Management and Budget and
other agencies as a rule is being formulated,
and obtaining approval from agency
leadership before a proposed rule is issued or
finalized. Agencies refer to these rules by
different names. This Recommendation calls
them ‘‘rules on rulemakings.’’
Rules on rulemakings vary—in terms of the
particular matters they address, their scope
and comprehensiveness, and other
characteristics—but they share several
common features. First, they authoritatively
reflect the agency’s position as to what
procedures it will observe when adopting
new rules. By ‘‘authoritative,’’ this
Recommendation means that a rule on
rulemakings sets forth the procedures that
agency officials responsible for drafting and
finalizing new rules will follow in at least
most cases within the rule on rulemakings’
scope, though it may contemplate the
possibility that agency leadership could
authorize an alternative set of procedures.2
Second, rules on rulemakings do more than
simply summarize or explain rulemaking
requirements of the Administrative
Procedure Act and other statutes, although
they often serve an explanatory function at
the same time that they set forth the
procedures the agencies will follow in
conducting rulemakings. Rules on
rulemakings set forth additional
commitments by an agency concerning how
it will conduct rulemakings. And third,
agencies disseminate rules on rulemakings
publicly rather than only internally. They
appear on agency websites and are often
published not only in the Federal Register
but also in the Code of Federal Regulations
(CFR).
Rules on rulemakings can serve at least
four important objectives. First, they promote
efficiency by ensuring that both agency
officials and those outside the agency know
where to go to find the agency’s rulemaking
policies. Second, they promote predictability

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1 This Recommendation does not address

rulemakings subject to the formal hearing
requirements of the Administrative Procedure Act.
See 5 U.S.C. 556–57.
2 Cf. 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).

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by informing the public that the agency will
follow particular procedures, thereby
allowing the public to plan their
participation in the rulemaking process
accordingly. Third, they promote
accountability by ensuring that agency
leadership has approved the policies and
procedures the agency will follow. And they
can also provide accountability in connection
with individual rulemakings by creating an
internal approval process by which agency
leadership reviews proposed and final rules.
Finally, they promote transparency by
affording the public access to the agency’s
internal procedures pertaining to its
rulemaking process.
In promulgating a rule on rulemakings, an
agency may wish to solicit public input to
inform the rule’s development, even if such
a rule is subject to 5 U.S.C. 553’s exemption
from notice-and-comment procedures as a
rule of procedure, general statement of
policy, or otherwise. In soliciting public
input, agencies may wish to use mechanisms
that facilitate more robust participation,
including by underrepresented
communities.3 As the Administrative
Conference has acknowledged in past
recommendations, public comment can both
provide valuable input from the public and
enhance public acceptance of an agency’s
rules.4
An agency may also wish to publish its
rule on rulemakings in the CFR. Doing so can
enhance transparency and facilitate
accountability. Importantly, publishing a rule
on rulemakings in the CFR does not, by itself,
make the rule on rulemakings judicially
enforceable.5
This Recommendation does not seek to
resolve whether, when, or on what legal
bases a court might enforce a rule on
rulemakings against an agency.6
Recommendation
1. Agencies should consider promulgating
rules on rulemakings setting forth the
policies and procedures they will follow in
informal rulemaking under 5 U.S.C. 553.
2. In issuing rules on rulemakings, agencies
should consider including provisions
addressing the following topics (which
3 See, e.g., 2 U.S.C. 1534 (Unfunded Mandates
Reform Act); 5 U.S.C. 609 (Regulatory Flexibility
Act); Exec. Order No. 13,175, Consultation and
Coordination with Indian Tribal Governments, 65
FR 67249 (Nov. 11, 2000).
4 See Admin. Conf. of the U.S., Recommendation
92–1, The Procedural and Practice Rule Exemption
from the APA Notice-and-Comment Rulemaking
Requirements, 57 FR 30102 (July 8, 1992); see also
Recommendation 2019–1, supra note 2;
Recommendation 2017–5, supra note 2.
5 See, e.g., Health Ins. Ass’n of Am. v. Shalala, 23
F.3d 412, 423 (D.C. Cir. 1994) (stating that
‘‘publication in the Code of Federal Regulations, or
its absence’’ is only ‘‘a snippet of evidence of
agency intent’’ that the published pronouncement
be given binding effect).
6 Some rules on rulemakings include a statement
that they do not create any substantive or
procedural rights or benefits. This Recommendation
does not address whether such disclaimers should
be included or what legal effect they may have on
judicial review. These questions cannot be
answered in isolation from the broader question of
when a rule on rulemakings is judicially
enforceable.

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reflect topics frequently covered in existing
rules on rulemakings):
a. Procedures prior to the issuance of a
notice of proposed rulemaking;
b. Procedures connected with the noticeand-comment process;
c. Procedures connected with the
presidential review process, if applicable;
d. Procedures for handling post-comment
period communications;
e. Internal approval procedures for issuing
and finalizing rules; and
f. Procedures for reassessing existing rules.
The appendix gives examples of particular
subtopics agencies may wish to consider
under each of these topics.
3. Agencies should make rules on
rulemakings available in a prominent, easyto-find place on the portion of their websites
dealing with rulemaking matters.
Additionally, agencies should consider
publishing them in the Federal Register and
the Code of Federal Regulations. When
posting rules on rulemakings on their
websites, agencies should use techniques like
linked tabs, pull-down menus, indexing,
tagging, and sorting tables to ensure that
relevant documents are easily findable.
Agencies should also design their search
engines to allow people to easily identify
relevant documents.
4. In addition to issuing rules on
rulemakings, agencies should consider
explaining in accessible language how the
rulemaking process works in order to educate
the public. Such explanations might be
integrated within a rule on rulemakings or
might be contained in separate explanatory
documents (e.g., documents identifying
frequently asked questions). When providing
such explanations, an agency should, to the
extent practicable, distinguish between
procedures it intends to follow and material
provided purely by way of background.
5. Agencies should consider a broad range
of means of seeking public input on rules on
rulemakings, even if the Administrative
Procedure Act does not require it.
6. Agencies should consider the extent to
which procedures required by a rule on
rulemakings should be made internally
waivable and, if so, by whom. For example,
they might consider drafting a rule on
rulemakings in a way that allows high-level
agency officials to permit other officials to
use alternative procedures.
Appendix
Non-Exhaustive List of Topics for Agencies
To Consider Including Within Their Rules
on Rulemakings
(a) Procedures Prior to the Issuance of a
Notice of Proposed Rulemaking
Subtopic Examples:
(1) Regulatory planning; 7
(2) Issuing advance notices of proposed
rulemaking and obtaining feedback from
members of the public using means other
than the notice-and-comment process, such
7 See Admin. Conf. of the U.S., Recommendation
2015–1, Promoting Accuracy and Transparency in
the Unified Agenda, 80 FR 36757 (June 26, 2015).

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as requests for information and focus
groups; 8
(3) Accepting, reviewing, and responding
to petitions for rulemaking; 9
(4) Considering options besides
rulemaking;
(5) Performing ex ante regulatory analyses
(e.g., benefit-cost analysis and regulatory
flexibility analysis); 10
(6) Using plain language in regulatory
drafting; 11
(7) Preparing for potential judicial review
of rulemakings, including deciding whether
to make any of the provisions of a rule
severable; 12
(8) Conducting negotiated rulemaking; 13
and
(9) Establishing an effective date for rules.
(b) Procedures Connected With the Noticeand-Comment Process
Subtopic Examples:
(1) Materials to be published on
Regulations.gov with the notice; 14
(2) Minimum comment periods to be
allowed; 15
(3) Policies on ex parte contacts; 16
(4) Handling external merits
communications not filed as comments;
(5) Incorporating standards by reference; 17
(6) Using social media to engage the public
in rulemaking; 18
(7) Obtaining feedback from American
Indian tribes, other historically
underrepresented or under-resourced groups,
and state and local governments; 19
(8) Posting, analyzing, and responding to
public comments, including comments that
may contain confidential commercial
information, protected personal information,
or other kinds of sensitive submissions; 20

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

2018–7, Public Engagement in Rulemaking, 84 FR
2146 (Feb. 6, 2019).
9 See Admin. Conf. of the U.S., Recommendation
2014–6, Petitions for Rulemaking, 79 FR 75117
(Dec. 17, 2014).
10 See Admin. Conf. of the U.S., Recommendation
2012–1, Regulatory Analysis Requirements, 77 FR
47801 (Aug. 10, 2012).
11 See Admin. Conf. of the U.S., Recommendation
2017–3, Plain Language in Regulatory Drafting, 82
FR 61728 (Dec. 29, 2017).
12 See Admin. Conf. of the U.S., Recommendation
2018–2, Severability in Agency Rulemaking, 83 FR
30685 (June 29, 2018).
13 See Admin. Conf. of the U.S., Recommendation
2017–2, Negotiated Rulemaking and Other Options
for Public Engagement, 82 FR 31040 (July 5, 2017).
14 See Admin. Conf. of the U.S., Recommendation
2018–6, Improving Access to Regulations.gov’s
Rulemaking Dockets, 84 FR 2143 (Feb. 6, 2019).
15 See Admin. Conf. of the U.S., Recommendation
2011–2, Rulemaking Comments, 76 FR 48791 (Aug.
9, 2011).
16 See Admin. Conf. of the U.S., Recommendation
2014–4, ‘‘Ex Parte’’ Communications in Informal
Rulemaking, 79 FR 35993 (June 25, 2014).
17 See Admin. Conf. of the U.S., Recommendation
2011–5, Incorporation by Reference, 77 FR 2257
(Jan. 17, 2012).
18 See Admin. Conf. of the U.S., Recommendation
2013–5, Social Media in Rulemaking, 78 FR 76269
(Dec. 17, 2013).
19 See Recommendation 2018–7, supra note 8.
20 See Admin. Conf. of the U.S., Recommendation
2020–2, Protected Materials in Public Rulemaking
Dockets, 86 FR (approved Dec. 16, 2020); Admin.

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(9) Waiving or invoking of Administrative
Procedure Act exemptions to notice and
comment; 21 and
(10) Using interim final rules or direct final
rules.22
(c) Procedures Connected With the
Presidential Review Process, if Applicable
Subtopic Examples:
(1) Interacting with the Office of
Information and Regulatory Affairs, the
Office of the Federal Register, the Regulatory
Information Service Center, the Small
Business Administration’s Office of
Advocacy, and other offices with
government-wide rulemaking
responsibilities;
(2) Participating in the interagency review
process; and
(3) Procedures related to international
regulatory cooperation.23
(d) Procedures for Handling Post-Comment
Period Communications
Subtopic Examples:
(1) Provisions pertaining to reply
comments 24 and
(2) Handling late-filed comments.25
(e) Internal Approval Procedures for Issuing
and Finalizing Rules
Subtopic Examples:
(1) Procedures for submitting rules to
offices with legal, economic, and other
responsibilities within the agency for
review 26 and
(2) Procedures for submitting rules to the
relevant agency official for final approval.
(f) Procedures for Reassessing Existing Rules
Subtopic Examples:
(1) Issuing regulatory waivers and
exemptions; 27
(2) Engaging in retrospective review of
rules; 28
(3) Maintaining and preserving rulemaking
records, including transparency of such
records and the handling of confidential
commercial information, protected personal
information, or other kinds of sensitive
information contained therein; 29 and
Conf. of the U.S., Recommendation 2011–1, Legal
Considerations in e-Rulemaking, 76 FR 48789 (Aug.
9, 2011).
21 See Recommendation 92–1, supra note 4.
22 See Admin. Conf. of the U.S., Recommendation
95–4, Procedures for Noncontroversial and
Expedited Rulemakings, 60 FR 43108 (Aug. 18,
1995).
23 See Admin. Conf. of the U.S., Recommendation
2011–6, International Regulatory Cooperation, 77
FR 2259 (Jan. 17, 2012).
24 See Recommendation 2011–2, supra note 15.
25 See id.
26 See Admin. Conf. of the U.S., Recommendation
2019–5, Agency Economists, 84 FR 71349 (Dec. 27,
2019).
27 See Admin. Conf. of the U.S., Recommendation
2017–7, Regulatory Waivers and Exemptions, 82 FR
61742 (Dec. 29, 2017).
28 See Admin. Conf. of the U.S., Recommendation
2014–5, Retrospective Review of Agency Rules, 79
FR 75114 (Dec. 17, 2014).
29 See Admin. Conf. of the U.S., Recommendation
2013–4, Administrative Record in Informal
Rulemaking, 78 FR 41358 (July 10, 2013).

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(4) Handling rules that have been vacated
or remanded without vacatur.30
Administrative Conference Recommendation
2020–2
Protected Materials in Public Rulemaking
Dockets
Adopted December 16, 2020
As part of the rulemaking process, agencies
create public rulemaking dockets, which
consist of all rulemaking materials agencies
have: (1) Proactively published online or (2)
made available for public inspection in a
reading room. Public rulemaking dockets
include materials agencies generate
themselves and comments agencies receive
from the public. Their purpose is to provide
the public with the information that
informed agencies’ rulemakings.1
The Administrative Conference has issued
several recommendations to help agencies
balance the competing considerations of
transparency and confidentiality in managing
their public rulemaking dockets.2 This
project builds on these recommendations.
The scope of the Recommendation is
limited to personal information and
confidential commercial information that
agencies have decided to withhold from their
public rulemaking dockets, which this
Recommendation calls ‘‘protected material.’’
The Recommendation specifies how agencies
should consider handling protected material.
For purposes of this Recommendation,
personal information is information about an
individual including his or her education,
financial transactions, medical history,
criminal or employment history, or similarly
sensitive information, and that contains his
or her name, or the identifying number,
symbol, or other identifying particular
30 See Admin. Conf. of the U.S., Recommendation
2013–6, Remand Without Vacatur, 78 FR 76272
(Dec. 17, 2013).
1 The public rulemaking docket is distinguished
from ‘‘the administrative record for judicial
review,’’ which is intended to provide courts with
a record for evaluating challenges to the rule, and
the ‘‘rulemaking record,’’ which means all
comments and materials submitted to agencies
during comment periods and any other materials
agencies considered during the course of the
rulemaking. See Admin. Conf. of the U.S.,
Recommendation 2013–4, The Administrative
Record in Informal Rulemaking, 78 FR 41358 (July
10, 2013).
2 Recommendation 2011–1, Legal Considerations
in e-Rulemaking, advises agencies to allow
submitters to flag confidential information,
including trade secrets, and advises agencies to
devise procedures for reviewing and handling such
information. Admin. Conf. of the U.S.,
Recommendation 2011–1, Legal Considerations in
e-Rulemaking, ¶ 1, 76 FR 48789, 48790 (Aug. 9,
2011). Recommendation 2013–4, supra note 1, ¶ 11,
advises agencies to develop guidance on managing
and segregating protected information, such as
confidential commercial information and sensitive
personal information, while disclosing nonprotected materials; see also Admin. Conf. of the
U.S., Recommendation 89–7, Federal Regulation of
Biotechnology, 54 FR 53494 (Dec. 29, 1988); Admin.
Conf. of the U.S., Recommendation 82–1,
Exemption (b)(4) of the Freedom of Information Act,
47 FR 30702 (July 15, 1982); Admin. Conf. of the
U.S., Recommendation 80–6, Intragovernmental
Communications in Informal Rulemaking
Proceedings, 45 FR 86408 (Dec. 31, 1980).

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assigned to the individual.3 Confidential
commercial information is commercial
information that is customarily kept private,
or at least closely held, by the person or
business providing it.4 Other types of
information, such as national security
information and copyrighted materials, are
beyond the Recommendation’s scope. The
Recommendation is also limited to
addressing procedures for protecting
materials that agencies decide warrant
protection. It is not intended to define the
universe of protected materials. In particular,
the Recommendation does not address any
issue that may arise if agencies choose to rely
on protected material in explaining their
rulemakings, whether in notices of proposed
rulemaking, regulatory impact analyses, or
otherwise.
Agencies accept public comments for their
public rulemaking dockets primarily through
Regulations.gov, their own websites, and
email. Regulations.gov and many agency
websites that accept comments expressly
notify the public that agencies may publish
the information submitted in public
comments.5 When people submit comments
to agencies, however, agencies typically do
not immediately publish the comments.
Instead, agencies generally take time to
screen comments before publishing them.
Most agencies perform at least some kind of
screening during this period.
For all agencies, whether to withhold or
disclose protected material is governed by
various laws: Some mandate disclosure,
some mandate withholding, and some leave
agencies with substantial discretion in
deciding whether to disclose. Although a full
description of those laws is beyond the scope
of this Recommendation, a brief overview of
at least some of this body of law helps to
identify the issues agencies face.
The Administrative Procedure Act requires
agencies to ‘‘give interested persons an
opportunity to participate in rulemaking
through submission of written data, views, or
arguments.’’ 6 The United States Court of
Appeals for the D.C. Circuit has interpreted
this provision to ordinarily require that
agencies make publicly available the critical
information—including studies, data, and
methodologies—underlying proposed rules.7
The Privacy Act and the Trade Secrets Act
place limits on the disclosure norm
discussed above. Generally, the Privacy Act
prevents agencies from disclosing any
information about a person, such as medical
records, educational background, and

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3 See Privacy Act of 1974 § 3, 5 U.S.C. 552a(a)(4).
4 See Food Mktg. Inst. v. Argus Leader Media, 139
S. Ct. 2356, 2363 (2019); see also Exec. Order No.
12,600, Predisclosure Notification Procedures for
Confidential Commercial Information, 52 FR 23781
(June 23, 1987).
5 See Christopher Yoo, Protected Materials in
Public Rulemaking Dockets 24 (Nov. 24, 2020)
(report to the Admin. Conf. of the U.S.), https://
www.acus.gov/report/final-report-protectedmaterials-public-rulemaking-dockets.
6 5 U.S.C. 553(c).
7 Portland Cement Ass’n v. Ruckelshaus, 486 F.2d
375, 393 (D.C. Cir. 1973). In addition to these public
transparency requirements, there are a number of
federal record-retention requirements of which
agencies should be aware. See, e.g., 44 U.S.C. 3301.

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employment history, contained in agencies’
systems of records, without that person’s
written consent.8 The Trade Secrets Act
generally prevents agencies from disclosing
trade secrets and other kinds of confidential
commercial information, such as corporate
losses and profits.9
Both the Privacy Act and the Trade Secrets
Act have exceptions. For the Privacy Act, the
main exception relevant to this
Recommendation is for information required
to be released under the Freedom of
Information Act (FOIA).10 The Trade Secrets
Act only has one exception, which covers
any materials authorized to be disclosed by
statute (including FOIA) or regulation.11
Whether a particular piece of personal or
confidential commercial information meets
one of these exceptions often involves a
complex determination that depends upon
the exact type of information at issue and its
contemplated use, and agencies must
determine the applicability of the exceptions
on a case-by-case basis. For example,
whether FOIA authorizes disclosure of
confidential commercial information may
turn in part on whether agencies in receipt
of the information assured submitters that the
information would be withheld from the
public.12 If agencies offer assurances that
they will not disclose confidential
commercial information, agencies and
submitters may rely on those assurances as
a defense against compelled disclosure under
FOIA. In many cases, agencies assure
companies that they will not disclose such
information in order to encourage companies
to submit it.
Particular cases are governed by specific
requirements of law, not broad categorical
labels. But agencies often consider certain
categories of personal information and
confidential commercial information to be
protected material (e.g., trade secrets, social
security numbers, bank account numbers,
passport numbers, addresses, email
addresses, medical information, and
information concerning a person’s finances).
There are many ways protected material
may arrive at the agency in a rulemaking. A
person might submit his or her own
information, intentionally or unintentionally,
and then ask the agency not to disclose it. A
third party might submit another person’s
information, with or without that person’s
knowledge. A company might submit a
document containing its own confidential
commercial information, intentionally or
unintentionally, with or without the agency’s
prior assurance of protection. Or a company
might submit another company’s or person’s
information. Depending on the information
in question and the manner in which it was
submitted, there may be issues of waiver of
statutory protection. Such questions, like all
questions regarding the substance of the laws
governing protected material, are beyond this
Recommendation’s scope, but they illustrate
the various considerations that agencies and
8 5 U.S.C. 552a(b).
9 18 U.S.C. 1905.
10 5 U.S.C. 552a(b)(2).
11 See CNA Fin. Corp. v. Donovan, 830 F.2d 1132,
1137–43 (D.C. Cir. 1987).
12 See Food Mktg. Inst., 139 S. Ct. at 2361.

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the public often face in the submission and
handling of such material.
This Recommendation proposes steps
agencies can take to withhold protected
materials from their public rulemaking
dockets while still providing the public with
the information upon which agencies relied
in formulating proposed rules.13
Recommendation
Recommendations for All Agencies
1. To reduce the risk that agencies will
inadvertently disclose protected material,
agencies should describe what kinds of
personal and confidential commercial
information qualify as protected material and
should clearly notify the public about their
treatment of protected material. An agency’s
notifications should:
a. Inform members of the public that
comments are generally subject to public
disclosure, except when disclosure is limited
by law;
b. Inform members of the public whether
the agency offers assurances of protection
from disclosure for their confidential
commercial information and, if so, how to
identify such information for the agency;
c. Provide guidance to the public
concerning the submission of protected
material that pertains to third parties,
including instructions that the disclosure of
some protected material may be prohibited
by law;
d. Advise members of the public to review
their comments for the material identified
above in (c) and, if they find such material,
to remove any such material that is not
essential to the comment;
e. Inform members of the public that they
may request, during the period between
when a comment is received and when it is
made public, that protected material they
inadvertently submitted be withheld from the
public rulemaking docket;
f. Inform members of the public that they
may request, after the agency has published
any comment, that protected material
pertaining to themselves or to their
dependents within the comment be removed
from the public rulemaking docket; and
g. Inform members of the public that the
agency reserves the right to redact or
aggregate any part of a comment if the agency
determines that it constitutes protected
material, or may withhold a comment in its
entirety if it determines that redaction or
aggregation would insufficiently prevent the
disclosure of this material.
2. Agencies should include the
notifications described in Paragraph 1, or a
link to those notifications, in at least the
following places:
a. Within the rulemaking documents on
which agencies request comments, such as a
13 Permitting the submission of anonymous and
pseudonymous comments is one way that some
agencies attempt to reduce the privacy risks
commenters face when submitting protected
material. Issues regarding the submission of
anonymous and pseudonymous comments are
being considered in an ongoing project of the
Administrative Conference titled Mass, ComputerGenerated, and Fraudulent Comments and are
beyond the scope of this Recommendation.

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notice of proposed rulemaking or an advance
notice of proposed rulemaking;
b. On agencies’ own comment submission
forms, if agencies have them;
c. Within any automatic emails that
agencies send acknowledging receipt of a
comment;
d. On any part of agencies’ websites that
describe their rulemaking process or within
any rules on rulemakings they may have, as
described in Recommendation 2020–1, Rules
on Rulemakings; and
e. Within any notices of public meetings
pertaining to a rule.
3. The General Services Administration’s
eRulemaking Program Management Office
should work with agencies that participate in
Regulations.gov to include or refer to the
notifications described in Paragraph 1 within
any automated emails Regulations.gov sends
acknowledging receipt of a comment.
4. If a submitter notifies an agency that the
submitter inadvertently included protected
material in the submitter’s comment, the
agency should act as promptly as possible to
determine whether such material warrants
withholding from the public rulemaking
docket and, if so, withhold it from the public
rulemaking docket, or, if already disclosed,
remove it from the public rulemaking docket.
If an agency determines that such material
does not qualify as protected, it should
promptly notify the submitter of this finding
with a brief statement of reasons.
5. Agencies should allow third parties to
request that protected material pertaining to
themselves or a dependent be removed from
the public rulemaking docket. Agencies
should review such requests and, upon
determining that the material subject to the
request qualifies as protected material,
should remove it from the public rulemaking
docket as promptly as possible. If an agency
determines that the material does not qualify
as protected, it should promptly notify the
requestor of this finding with a brief
statement of reasons.
Recommendations for Agencies That Screen
Comments for Protected Material Before
Publication in the Public Rulemaking Docket
6. Agencies that screen comments for
protected material before publication in the
public rulemaking docket, either as required
by law or as a matter of discretion, should
redact the protected material and publish the
rest of the comment. Redaction should be
thorough enough to prevent the public from
discerning the redacted material, but not so
broad as to prevent the public from viewing
non-protected material.
7. If redaction is not feasible within a
comment, agencies should consider
presenting the data in a summarized form.
8. If redaction is not feasible across
multiple, similar comments, agencies should
consider presenting any related information
in an aggregated form. Agencies should work
with data science experts and others in
relevant disciplines to ensure that
aggregation is thorough enough to prevent
someone from disaggregating the
information.
9. If the approaches identified in
Paragraphs 6–8 would still permit a member
of the public to identify protected material,

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agencies should withhold the comment in its
entirety. When doing so, they should
describe the withheld material for the public
in as much detail as possible without
compromising its confidentiality.
10. When deciding whether and how to
redact, aggregate, or withhold protected
material, agencies should explore using
artificial intelligence-based tools to aid in
identifying protected material. Agencies
should consult with private sector experts
and technology-focused agencies, such as the
General Services Administration’s
Technology Transformation Service and the
Office of Management and Budget’s United
States Digital Service, to determine which
tools are most appropriate and how they can
best be deployed given the agencies’
resources.
Recommendations for Agencies That Offer
Assurances of Protection From Disclosure of
Confidential Commercial Information
11. Agencies that offer assurances of
protection from disclosure of confidential
commercial information should decide how
they will offer such assurances. Agencies can
choose to inform submitters, directly upon
submission, that they will withhold
confidential commercial information from
the public rulemaking docket; post a general
notice informing submitters that confidential
commercial information will be withheld
from the public rulemaking docket; or both.
12. Such agencies should adopt policies to
help them identify such information.
Agencies should consider including the
following, either in tandem or as alternatives,
as part of their policies, including within any
rules on rulemakings they may have, as
described in Recommendation 2020–1, Rules
on Rulemakings:
a. Instructing submitters to identify clearly
that the document contains confidential
commercial information;
b. Instructing submitters to flag the
particular text within the document that
constitutes confidential commercial
information; and
c. Instructing submitters to submit both
redacted and unredacted versions of a
comment that contains confidential
commercial information.
Administrative Conference Statement #20
Agency Use of Artificial Intelligence
Adopted December 16, 2020
Artificial intelligence (AI) techniques are
changing how government agencies do their
work.1 Advances in AI hold out the promise
1 There is no universally accepted definition of
‘‘artificial intelligence,’’ and the rapid state of
evolution in the field, as well as the proliferation
of use cases, makes coalescing around any such
definition difficult. See, e.g., John S. McCain
National Defense Authorization Act for Fiscal Year
2019, Public Law 115–232, 238(g), 132 Stat. 1636,
1697–98 (2018) (using one definition of AI); Nat’l
Inst. of Standards & Tech., U.S. Leadership in AI:
A Plan for Federal Engagement in Developing
Technical Standards and Related Tools 7–8 (Aug.
9, 2019) (offering a different definition of AI).
Generally speaking, AI systems tend to have
characteristics such as the ability to learn to solve
complex problems, make predictions, or undertake
tasks that heretofore have relied on human decision

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of lowering the cost of completing
government tasks and improving the quality,
consistency, and predictability of agencies’
decisions. But agencies’ uses of AI also raise
concerns about the full or partial
displacement of human decision making and
discretion.
Consistent with its statutory mission to
promote efficiency, participation, and
fairness in administrative processes,2 the
Administrative Conference offers this
Statement to identify issues agencies should
consider when adopting or modifying AI
systems and developing practices and
procedures for their use and regular
monitoring. The Statement draws on a pair
of reports commissioned by the
Administrative Conference,3 as well as the
input of AI experts from government,
academia, and the private sector (some ACUS
members) provided at meetings of the ad hoc
committee of the Administrative Conference
that proposed this Statement.
The issues addressed in this Statement
implicate matters involving law, policy,
finances, human resources, and technology.
To minimize the risk of unforeseen problems
involving an AI system, agencies should,
throughout an AI system’s lifespan, solicit
input about the system from the offices that
oversee these matters. Agencies should also
keep in mind the need for public trust in
their practices and procedures for use and
regular monitoring of AI technologies.
1. Transparency
Agencies’ efforts to ensure transparency in
connection with their AI systems can serve
many valuable goals. When agencies set up
processes to ensure transparency in their AI
systems, they should consider publicly
identifying the processes’ goals and the
rationales behind them. For example,
agencies might prioritize transparency in the
service of legitimizing its AI systems,
facilitating internal or external review of its
AI-based decision making, or coordinating its
AI-based activities. Different AI systems are
likely to satisfy some transparency goals
more than others. When possible, agencies
should use metrics to measure the
performance of their AI-transparency
processes.
In setting transparency goals, agencies
should consider to whom they should be
making or intervention. There are many illustrative
examples of AI that can help frame the issue for the
purpose of this Statement. They include, but are not
limited to, AI assistants, computer vision systems,
biomedical research, unmanned vehicle systems,
advanced game-playing software, and facial
recognition systems as well as application of AI in
both information technology and operational
technology.
2 See 5 U.S.C. 591.
3 David Freeman Engstrom, Daniel E. Ho,
Catherine M. Sharkey, & Mariano-Florentino
Cuéllar, Government by Algorithm: Artificial
Intelligence in Federal Administrative Agencies
(Feb. 2020) (report to the Admin. Conf. of the U.S.),
https://www.acus.gov/report/government-algorithmartificial-intelligence-federal-administrativeagencies; Cary Coglianese, A Framework for
Governmental Use of Machine Learning (Dec. 8,
2020) (report to the Admin. Conf. of the U.S.),
https://www.acus.gov/report/frameworkgovernmental-use-machine-learning-final-report.

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transparent. For instance, depending on the
nature of their operations, agencies might
prioritize transparency to the public, courts,
Congress, or their own officials.
The appropriate level or nature of
transparency and interpretability in agencies’
AI systems will also depend on context. In
some contexts, such as adjudication, reasongiving requirements may call for a higher
degree of transparency and interpretability
from agencies regarding how their AI systems
function. In other contexts, such as
enforcement, agencies’ legitimate interests in
preventing gaming or adversarial learning by
regulated parties could militate against
providing too much information (or specific
types of information) to the public about AI
systems’ processes. In every context, agencies
should consider whether particular laws or
policies governing disclosure of information
apply.
In selecting and using AI techniques,
agencies should be cognizant of the degree to
which a particular AI system can be made
transparent to appropriate people and
entities, including the general public. There
may be tradeoffs between explainability and
accuracy in AI systems, so that transparency
and interpretability might sometimes weigh
in favor of choosing simpler AI models. The
appropriate balance between explainability
and accuracy will depend on the specific
context, including agencies’ circumstances
and priorities.
The proprietary nature of some AI systems
may also affect the extent to which they can
be made transparent. When agencies’ AI
systems rely on proprietary technologies or
algorithms the agencies do not own, the
agencies and the public may have limited
access to the information about the AI
techniques. Agencies should strive to
anticipate such circumstances and address
them appropriately, such as by working with
outside providers to ensure they will be able
to share sufficient information about such a
system. Agencies should not enter into
contracts to use proprietary AI systems
unless they are confident that actors both
internal and external to the agencies will
have adequate access to information about
the systems.
2. Harmful Bias
At their best, AI systems can help agencies
identify and reduce the impact of harmful
biases.4 Yet they can also unintentionally
create or exacerbate those biases by encoding
and deploying them at scale. In deciding
whether and how to deploy an AI system,
agencies should carefully evaluate the
harmful biases that might result from the use
of the AI system as well as the biases that
might result from alternative systems (such
as an incumbent system that the AI system
would augment or replace). Because different
types of bias pose different types of harms,
the outcome of the evaluation will depend on
agencies’ unique circumstances and priorities
and the consequences posed by those harms
in those contexts.
4 While the term bias has a technical, statistical
meaning, the Administrative Conference here uses
the term more generally, to refer to common or
systematic errors in decision making.

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AI systems can be biased because of their
reliance on data reflecting historical human
biases or because of their designs. Biases in
AI systems can increase over time through
feedback. That can occur, for example, if the
use of a biased AI system leads to systematic
errors in categorizations, which are then
reflected in the data set or data environment
the system uses to make future predictions.
Agencies should be mindful of the
interdependence of the models, metrics, and
data that underpin AI systems.
Identifying harmful biases in AI systems
can pose challenges. To identify and mitigate
biases, agencies should, to the extent
practical, consider whether other data or
methods are available. Agencies should
periodically examine and refresh AI
algorithms and other protocols to ensure that
they remain sufficiently current and reflect
new information and circumstances relevant
to the functions they perform.
Data science techniques for identifying and
mitigating harmful biases in AI systems are
developing. Agencies should stay up to date
on developments in the field of AI,
particularly on algorithmic fairness; establish
processes to ensure that personnel that reflect
various disciplines and relevant perspectives
are able to inspect AI systems and their
decisions for indications of harmful bias; test
AI systems in environments resembling the
ones in which they will be used; and make
use of internal and external processes for
evaluating the risks of harmful bias in AI
systems and for identifying such bias.
3. Technical Capacity
AI systems can help agencies conserve
resources, but they can also require
substantial investments of human and
financial capital. Agencies should carefully
evaluate the short- and long-term costs and
benefits of an AI system before committing
significant resources to it. Agencies should
also ensure they have access to the technical
expertise required to make informed
decisions about the type of AI systems they
require; how to integrate those systems into
their operations; and how to oversee,
maintain, and update those systems.
Given the data science field’s ongoing and
rapid development, agencies should consider
cultivating an AI-ready workforce, including
through recruitment and training efforts that
emphasize AI skills. When agency personnel
lack the skills to develop, procure, or
maintain AI systems that meet agencies’
needs, agencies should consider other means
of expanding their technical expertise,
including by relying on tools such as the
Intergovernmental Personnel Act,5 prize
competitions, cooperative research and
development agreements with private
institutions or universities, and consultation
with external technical advisors and subjectmatter experts.
4. Obtaining AI Systems
Decisions about whether to obtain an AI
system can involve important trade-offs.
Obtaining AI systems from external sources
might allow agencies to acquire more
sophisticated tools than they could design on
5 5 U.S.C. 3371–76.

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their own, access those tools sooner, and save
some of the up-front costs associated with
developing the technical capacity needed to
design AI systems.6 Creating AI tools within
agencies, by contrast, might yield tools that
are better tailored to the agencies’ particular
tasks and policy goals. Creating AI systems
within agencies can also facilitate
development of internal technical capability,
which can yield benefits over the lifetime of
the AI systems and in other technological
tasks the agencies may confront.
Certain government offices are available to
help agencies with decisions and actions
related to technology.7 Agencies should make
appropriate use of these resources when
obtaining an AI system. Agencies should also
consider the cost and availability of the
technical support necessary to ensure that an
AI system can be maintained and updated in
a manner consistent with its expected life
cycle and service mission.
5. Data
AI systems require data, often in vast
quantities. Agencies should consider whether
they have, or can obtain, data that
appropriately reflect conditions similar to the
ones the agencies’ AI systems will address in
practice; whether the agencies have the
resources to render the data into a format that
can be used by the agencies’ AI systems; and
how the agencies will maintain the data and
link them to their AI systems without
compromising security or privacy. Agencies
should also review and consider statutes and
regulations that impact their uses of AI as a
potential collector and consumer of data.8
6. Privacy
Agencies have a responsibility to protect
privacy with respect to personally
identifiable information in AI systems. In a
narrow sense, this responsibility demands
that agencies comply with requirements
related to, for instance, transparency, due
process, accountability, and information
quality and integrity established by the
Privacy Act of 1974, Section 208 of the
E-Government Act of 2002, and other
applicable laws and policies.9 More broadly,
agencies should recognize and appropriately
manage privacy risks posed by an AI system.
Agencies should consider privacy risks
6 Agencies may also obtain AI systems that are
embedded in commercial products. The
considerations applicable to such embedded AI
systems should reflect the fact that agencies may
have less control over their design and
development.
7 Within the General Services Administration, for
example, the office called 18F routinely partners
with government agencies to help them build and
buy technologies. Similarly, the United States
Digital Service (which is within the Executive
Office of the President) has a staff of technologists
whose job is to help agencies build better
technological tools. While the two entities have
different approaches—18F acts more like an
information intermediary and the Digital Service
serves as an alternative source for information
technology contracts—both could aid agencies with
obtaining, developing, and using different AI
techniques.
8 See, e.g., Paperwork Reduction Act, 44 U.S.C.
3501–20.
9 See, e.g., 5 U.S.C. 552a(e), (g), & (p); 44 U.S.C.
3501 note.

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throughout the entire life cycle of an AI
system from development to retirement and
assess those risks, as well as associated
controls, on an ongoing basis. In designing
and deploying AI systems, agencies should
consider using relevant privacy risk
management frameworks developed through
open, multi-stakeholder processes.10
7. Security
Agencies should consider the possibility
that AI systems might be hacked,
manipulated, fooled, evaded, or misled,
including through manipulation of training
data and exploitation of model sensitivities.
Agencies must ensure not only that their data
are secure, but also that their AI systems are
trained on those data in a secure manner,
make forecasts based on those data in a
secure way, and otherwise operate in a
secure manner. Agencies should regularly
consider and evaluate the safety and security
of AI systems, including resilience to
vulnerabilities, manipulation, and other
malicious exploitation. In designing and
deploying AI systems, agencies should
consider using relevant government guidance
or voluntary consensus standards and
frameworks developed through open, multistakeholder processes.11
8. Decisional Authority
Agencies should be mindful that most AI
systems will involve human beings in a range
of capacities—as operators, customers,
overseers, policymakers, or interested
members of the public. Human factors may
sometimes undercut the value of using AI
systems to make certain determinations.
There is a risk, for example, that human
operators will devolve too much
responsibility to AI systems and fail to detect
cases in which the AI systems yield
inaccurate or unreliable determinations. That
risk may be acceptable in some settings—
such as when the AI system has recently
been shown to perform significantly better
than alternatives—but unacceptable in
others.
Similarly, if agency personnel come to rely
reflexively on algorithmic results in
exercising discretionary powers, use of an AI
system could have the practical effect of
curbing the exercise of agencies’ discretion or
shifting it from the person who is supposed
to be exercising it to the system’s designer.
Agencies should beware of such potential
shifts of practical authority and take steps to
ensure that appropriate officials have the

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

Publication SP–800–37 revision 2, Risk
Management Framework for Information Systems
and Organizations: A System Lifecycle Approach
for Security and Privacy (Dec. 2018); Office of
Mgmt. & Budget, Exec. Off. of the President,
Circular A–130, Managing Information as a
Strategic Resource (July 28, 2016); see also Nat’l
Inst. of Standards & Tech., NIST Privacy
Framework: A Tool for Improving Privacy Through
Enterprise Risk Management, Version 1.0 (Jan. 16,
2020).
11 See supra note 10; see also Office of Mgmt. &
Budget, Exec. Off. of the President, M–21–06,
Guidance for Regulation of Artificial Intelligence
Applications (Nov. 17, 2020); Nat’l Inst. for
Standards & Tech., Framework for Improving
Critical Infrastructure Cybersecurity (Apr. 16, 2018).

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knowledge and power to be accountable for
decisions made or aided by AI techniques.
Finally, there may be some circumstances
in which, for reasons wholly apart from
decisional accuracy, agencies may wish to
have decisions be made without reliance on
AI techniques, even if the law does not
require it. In some contexts, accuracy and
fairness may not be the only relevant values
at stake. In making decisions about their AI
systems, agencies may wish to consider
whether people will perceive the systems as
unfair, inhumane, or otherwise
unsatisfactory.12
9. Oversight
It is essential that agencies’ AI systems be
subject to appropriate and regular oversight
throughout their lifespans. There are two
general categories of oversight: External and
internal. Agencies’ mechanisms of internal
oversight will be shaped by the demands of
external oversight. Agencies should be
cognizant of both forms of oversight in
making decisions about their AI systems.
External oversight of agencies’ uses of AI
systems can come from a variety of
government sources, including inspectors
general, externally facing ombuds, the
Government Accountability Office, and
Congress. In addition, because agencies’ uses
of AI systems might lead to litigation in a
number of circumstances, courts can also
play an important role in external oversight.
Those affected by an agency’s use of an AI
system might, for example, allege that use of
the system violates their right to procedural
due process.13 Or they might allege that the
AI system’s determination violated the
Administrative Procedure Act (APA) because
it was arbitrary and capricious.14 When an AI
system narrows the discretion of agency
personnel, or fixes or alters the legal rights
and obligations of people subject to the
agency’s action, affected people or entities
might also sue on the ground that the AI
system is a legislative rule adopted in
violation of the APA’s requirement that
legislative rules go through the notice-andcomment process.15 Agencies should
consider these different forms of potential
external oversight as they are making and
documenting decisions and the underlying
processes for these AI systems.
Agencies should also develop their own
internal evaluation and oversight
mechanisms for their AI systems, both for
initial approval of an AI system and for
12 Cf. Admin. Conf. of the U.S., Recommendation
2018–3, Electronic Case Management in Federal
Administrative Adjudication, 83 FR 30,686 (June
29, 2018) (suggesting, in the context of case
management systems, that agencies consider
implementing electronic systems only when they
conclude that doing so would lead to benefits
without impairing either the objective ‘‘fairness’’ of
the proceedings or the subjective ‘‘satisfaction’’ of
those participating in those proceedings).
13 Courts would analyze such challenges under
the three-part balancing framework from Mathews
v. Eldridge, 424 U.S. 319, 335 (1976).
14 See 5 U.S.C. 706(2)(A). Courts would likely
review such challenges under the standard set forth
in Motor Vehicle Manufacturers Ass’n v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 43
(1983).
15 See 5 U.S.C. 553(b)–(c).

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regular oversight of the system, taking into
account their system-level risk management,
authorization to operate, regular monitoring
responsibilities, and their broader enterprise
risk management responsibilities.16
Successful internal oversight requires
advance and ongoing planning and
consultation with the various offices in an
agency that will be affected by the agency’s
use of an AI system, including its legal,
policy, financial, human resources,
internally-facing ombuds, and technology
offices. Agencies’ oversight plans should
address how the agencies will pay for their
oversight mechanisms and how they will
respond to what they learn from their
oversight.
Agencies should establish a protocol for
regularly evaluating AI systems throughout
the systems’ lifespans. That is particularly
true if a system or the circumstances in
which it is deployed are liable to change over
time. In these instances, review and
explanation of the system’s functioning at
one stage of development or use may become
outdated due to changes in the system’s
underlying models. To enable that type of
oversight, agencies should monitor and keep
track of the data being used by their AI
systems, as well as how the systems use
those data. Agencies may also wish to secure
input from members of the public or private
evaluators to improve the likelihood that
they will identify defects in their AI systems.
To make their oversight systems more
effective, agencies should clearly define goals
for their AI systems. The relevant question
for oversight purposes will often be whether
the AI system outperforms alternatives,
which may require agencies to benchmark
their systems against the status quo or some
hypothetical state of affairs.
Finally, AI systems can affect how
agencies’ staffs do their jobs, particularly as
agency personnel grow to trust and rely on
the systems. In addition to evaluating and
overseeing their AI systems, agencies should
pay close attention to how agency personnel
interact with those systems.
Administrative Conference Recommendation
2020–3
Agency Appellate Systems
Adopted December 16, 2020
In Recommendation 2016–4,1 the
Administrative Conference offered best
practices for evidentiary hearings in
administrative adjudications. Paragraph 26
recommended that agencies provide for
‘‘higher-level review’’ (or ‘‘agency appellate
review’’) of the decisions of hearing-level
adjudicators.2 This Recommendation offers
16 See Office of Mgmt. & Budget, Circular A–130,
supra note 10; Office of Mgmt. & Budget, Exec.
Office of the President, Circular A–123,
Management’s Responsibilities for Enterprise Risk
Management and Internal Control (July 15, 2016).
1 Admin. Conf. of the U.S., Recommendation
2016–4, Evidentiary Hearings Not Required by the
Administrative Procedure Act, 81 FR 94,314 (Dec.
23, 2016).
2 Recommendation 2016–4 addressed agency
adjudications in which an evidentiary hearing,
though not governed by the formal hearing
provisions of the Administrative Procedure Act

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best practices for such review. The
Administrative Conference intends this
Recommendation to cover appellate review
of decisions resulting from (1) hearings
governed by the formal hearing provisions of
the Administrative Procedure Act (APA) and
(2) evidentiary hearings that are not governed
by those provisions but are required by
statute, regulation, or executive order.
Agencies may also decide to apply this
Recommendation to appellate review of
decisions arising from other hearings,
depending on their level of formality.
Appellate review of hearing-level decisions
can be structured in numerous ways. Two
structures are most common. In the first,
litigants appeal directly to the agency head,
which may be a multi-member board or
commission. In the second, litigants appeal
to an appellate adjudicator or group of
adjudicators—often styled as a board or
council—sitting below the agency head. The
appellate decision may be the agency’s final
action or may be subject to further appeal
within the agency (usually to the agency
head).
The Administrative Conference has twice
before addressed agency appellate review. In
Recommendations 68–6 and 83–3, it
provided guidance to agencies when
establishing new, and reviewing existing,
organizational structures of appellate
review.3 Both recommendations focused on
the selection of ‘‘delegates’’—individual
adjudicators, review boards composed of
multiple adjudicators, or panels composed of
members of a multi-member agency—to
exercise appellate review authority vested in
agency heads (including boards and
commissions). Recommendation 83–3 also
addressed when agencies should consider
providing appellate review as a matter of
right and when as a matter of discretion, and,
in the case of the latter, under what criteria.
With the exception of the appropriate
standard for granting review, this
Recommendation’s focus lies elsewhere. It
addresses, and offers best practices with
respect to, the following subjects: First, an
agency’s identification of the purpose or
objective served by its appellate review;
second, its selection of cases for appellate
review, when review is not required by
statute; third, its procedures for review;
fourth, its appellate decision-making
processes; fifth, its management,
(APA) (5 U.S.C. 554, 556–57), is required by statute,
regulation, or executive order. Those adjudications,
which are often as formal as APA adjudications in
practice, far outnumber so-called APA
adjudications. Although Recommendation 2016–4
addresses only non-APA adjudications, most of its
best practices are as applicable to APA
adjudications as non-APA adjudications. Some
such practices, in fact, are modeled on the APA’s
formal hearing provisions.
3 Admin. Conf. of the U.S., Recommendation 83–
3, Agency Structures for Review of Decisions of
Presiding Officers Under the Administrative
Procedure Act, 48 FR 57,461 (Dec. 30, 1983);
Admin. Conf. of the U.S., Recommendation 68–6,
Delegation of Final Decisional Authority Subject to
Discretionary Review by the Agency, 38 FR 19,783
(July 23, 1973). Both recommendations concerned
only the review of decisions in proceedings
governed by the formal hearing provisions of the
APA. Their principles, though, are not so confined.

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

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e. The standard of review;
f. The allowable and required submissions
by litigants and their required form and
contents;
g. The procedures and criteria for
designating decisions as precedential and the
legal effect of such designations;
h. The record on review and the
opportunity, if any, to submit new evidence;
i. The availability of oral argument or other
form of oral presentation;
j. The standards of and procedures for
reconsideration and reopening, if available;
k. Any administrative or issue exhaustion
requirements that must be satisfied before
seeking agency appellate or judicial review,
including whether agency appellate review is
a mandatory prerequisite to judicial review;
l. Openness of proceedings to the public
and availability of video or audio streaming
or recording;
m. In the case of multi-member appellate
boards, councils, and similar entities, the
authority to assign decision-making authority
to fewer than all members (e.g., panels); and
n. Whether seeking agency appellate
review automatically stays the effectiveness
of the appealed agency action until the
appeal is resolved (which may be necessary
for appellate review to be mandatory, see 5
U.S.C. 704), and, if not, how a party seeking
agency appellate review may request such a
stay and the standards for deciding whether
to grant it.
3. Agencies should include in the
procedural regulations governing their
appellate programs: (a) A brief statement or
explanation of each program’s review
authority, structure, and decision-making
components; and (b) for each provision based
on a statutory source, an accompanying
citation to that source.
4. When revising existing or adopting new
appellate rules, agencies should consider the
appellate rules (Rules 400–450) in the
Administrative Conference’s Model Rules of
Agency Adjudication (rev. 2018).
5. When materially revising existing or
adopting new appellate rules, agencies
should use notice-and-comment procedures
or other mechanisms for soliciting public
input, notwithstanding the procedural rules
exemption of 5 U.S.C. 553(b)(A), unless the
costs clearly outweigh the benefits of doing
so.
Case Selection for Appellate Review
6. Based on the agency-specific objectives
of appellate review, agencies should decide
whether the granting of review should be
mandatory or discretionary (assuming they
have statutory authority to decide); if
discretionary, the criteria for granting review
should track the objectives of the appellate
system, and they should be published in the
procedural regulations.
7. Agencies should consider implementing
procedures for sua sponte appellate review of
non-appealed hearing-level decisions, as well
as for the referral of cases or issues by
hearing-level adjudicators to the appellate
entity for interlocutory review.
Appellate Decision-Making Processes and
Decisions
8. Whenever possible, agencies should
consider maintaining electronic case

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management systems that ensure that hearing
records are easily accessible to appellate
adjudicators. Such systems may include the
capability for electronic filing.
9. Although the randomized assignment of
cases to appellate adjudicators is typically an
appropriate docketing method for an agency
appellate system, agencies should consider
the potential benefits of sorting and grouping
appeals on the appellate docket, such as
reduced case processing times and more
efficient use of adjudicators’, staff attorneys’,
and law clerks’ skills and time. Criteria for
sorting and grouping cases may include the
size of a case’s record, complexity of a case’s
issues, subject matter of a case, and similarity
of a case’s legal issues to those of other
pending cases.
10. Consistent with the objectives of the
agency’s appellate system and in light of the
costs of time and resources, agencies should
consider adopting an appellate model of
judicial review in which the standard of
review is not de novo with respect to
findings of fact and application of law to
facts. For similar reasons, many agencies
should consider limiting the introduction of
new evidence on appeal that is not already
in the administrative record from the
hearing-level adjudication.
11. Taking agency resources into account,
agencies should emphasize concision,
readability, and plain language in their
appellate decisions and explore the use of
decision templates, summary dispositions,
and other quality-improving measures.
12. Agencies should establish clear criteria
and processes for identifying and selecting
appellate decisions as precedential,
especially for appellate systems with
objectives of policymaking or inter-decisional
consistency.
13. Agencies should assess the value of
oral argument and amicus participation in
their appellate system based on the agencies’
identified objectives for appellate review and
should establish rules governing both.
Criteria that may favor oral argument and
amicus participation include issues of high
public interest; issues of concern beyond the
parties to the case; specialized or technical
matters; and a novel or substantial question
of law, policy, or discretion.
Administration, Management, and
Bureaucratic Oversight
14. Agency appellate systems should
promptly transmit their precedential
decisions to all appellate program
adjudicators and, directly or through hearinglevel programs, to hearing-level adjudicators
(as appropriate). Appellate programs should
include in their transmittals, when feasible,
brief summaries of the decision.
15. Agencies should notify their
adjudicators of significant federal court
decisions reviewing the agencies’ decisions
and, when providing notice, explain the
significance of those decisions to the
program. As appropriate, agencies should
notify adjudicators if the agency will not
acquiesce in a particular decision of the
federal courts of appeals.
16. Agencies in which decision making
relies extensively on their own precedential
decisions should consider preparing or

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having prepared indexes and digests—with
annotations and comments, as appropriate—
to identify those decisions and their
significance.
17. As appropriate, agency appellate
systems should communicate with agency
rule-writers and other agency policymakers—
and institutionalize communication
mechanisms—to address whether recurring
issues in their decisions should be addressed
by rule rather than precedential case-by-case
adjudication.
18. The Office of the Chairman of the
Administrative Conference should provide
for, as authorized by 5 U.S.C. 594(2), the
‘‘interchange among administrative agencies
of information potentially useful in
improving’’ agency appellate systems. The
subjects of interchange might include
electronic case management systems,
procedural innovations, quality-assurance
reviews, and common management
problems.
Public Disclosure and Transparency
19. Agencies should disclose on their
websites any rules (sometimes styled as
‘‘orders’’), and statutes authorizing such
rules, by which an agency head has delegated
review authority to appellate adjudicators.
20. Regardless of whether the Government
in the Sunshine Act (5 U.S.C. 552b) governs
their appellate review system, agencies
should consider announcing, livestreaming,
and maintaining video recordings on their
websites of appellate proceedings (including
oral argument) that present significant legal
and policy issues likely to be of interest to
regulated parties and other members of the
public. Brief explanations of the issues to be
addressed by oral argument may usefully be
included in website notices of oral argument.
21. Agencies should include on their
websites brief and accessibly written
explanations as to how their internal
decision-making processes work and, as
appropriate, include links to explanatory
documents appropriate for public disclosure.
Specific subjects that agencies should
consider addressing include: The process of
assigning cases to adjudicators (when fewer
than all of the programs’ adjudicators
participate in a case), the role of staff, and the
order in which cases are decided.
22. When posting decisions on their
websites, agencies should distinguish
between precedential and non-precedential
decisions. Agencies should also include a
brief explanation of the difference.
23. When posting decisions on their
websites, agencies should consider
including, as much as practicable, brief
summaries of precedential decisions and, for
precedential decisions at least, citations to
court decisions reviewing them.
24. Agencies should include on their
websites any digests and indexes of decisions
they maintain. It may be appropriate to
remove material exempt from disclosure
under the Freedom of Information Act or
other laws.
25. Agencies should affirmatively solicit
feedback concerning the functioning of their
appellate systems and provide a means for
doing so on their websites.

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Administrative Conference Recommendation
2020–4
Government Contract Bid Protests Before
Agencies
Adopted December 17, 2020
Federal law establishes policies and
procedures governing how federal executive
agencies procure supplies and services.1 The
primary source of these policies and
procedures is the Federal Acquisition
Regulation (FAR),2 which applies to all
executive-agency acquisitions of supplies
and services with appropriated funds by and
for the use of the federal government, unless
expressly excluded. Other relevant policies
and procedures are found in federal statutes
and agencies’ own procurement rules.
If a vendor believes a federal executive
agency has not complied with the law or the
terms of a solicitation, it may file what is
called a bid protest—that is, a written
objection to a government agency’s conduct
in acquiring supplies and services for its
direct use or benefit.3 Responding to bid
protests can require agencies to reevaluate
their procurement processes and, sometimes,
make improvements. That, in turn, results in
more competitive, fairer, and more
transparent procurement processes,
benefiting vendors, agencies, and ultimately
the public.
To file a bid protest, an actual or
prospective vendor must show that it is an
‘‘interested party’’—meaning that its direct
economic interest would be adversely
affected by the award of, or failure to award,
the contract in question 4—and that it
suffered prejudice because of an error in the
procurement process. Ordinarily, vendors
who meet those requirements may file bid
protests in any of three forums: (1) The
procuring agency,5 (2) the Government
Accountability Office (GAO),6 or (3) the
1 See Federal Acquisition Regulation, 48 CFR ch.
1; see also Competition in Contracting Act of 1984,
Public Law 98–369, div. B, tit. VII, 98 Stat. 494,
942–85 (codified, as amended, in various parts of
the U.S. Code); Federal Acquisition Streamlining
Act of 1994, Public Law 103–355, 108 Stat. 3243;
Federal Acquisition Reform Act of 1996, Public Law
104–106, 110 Stat. 186 (later renamed the ClingerCohen Act of 1996); Exec. Order No. 12,979, Agency
Procurement Protests, 60 FR 55,171 (Oct. 25, 1995).
2 See 48 CFR ch. 1.
3 See Admin. Conf. of the U.S., Recommendation
95–5, Government Contract Bid Protests, 60 FR
43,108, 43,113 (Aug. 18, 1995).
4 See 4 CFR 21.0(a)(1) (defining ‘‘interested party’’
for purposes of bid protest proceedings before the
Government Accountability Office); 48 CFR 33.101
(defining ‘‘interested party’’ for purposes of bid
protest proceedings before procuring agencies);
CliniComp Int’l, Inc. v. United States, 904 F.3d
1353, 1358 (Fed. Cir. 2018) (defining ‘‘interested
party’’ for purposes of 28 U.S.C. 1491(b), which
covers actions in the Court of Federal Claims).
There are some instances in which Congress has
restricted the ability to file a protest, regardless of
whether a vendor is an ‘‘interested party.’’ See, e.g.,
41 U.S.C. 4106(f) (limiting the ability to protest the
issuance or proposed issuance of a task or delivery
order); 48 CFR 16.505(a)(10) (same).
5 See 48 CFR 33.103.
6 See 31 U.S.C. 3552(a), 3553(a). For civilian
agencies, GAO has exclusive jurisdiction over
protests of task and delivery orders in excess of $10
million, unless the protest is on the grounds that

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United States Court of Federal Claims
(COFC),7 and depending on where the protest
is initiated, may be able to file protests in
series. For example, a protest may be filed
first at the agency, then (if unsuccessful at
the agency) at GAO, and then (if again
unsuccessful) at COFC.8 The procedural tools
available in a given forum, along with other
strategic and cost considerations, typically
drive vendors’ decisions about where to file
their bid protests.
Bid protests filed with procuring agencies
are commonly referred to as agency-level
protests. Agency-level protests have
important benefits for the public, contractors,
procuring agencies, and COFC and GAO. By
‘‘provid[ing] for inexpensive, informal,
procedurally simple, and expeditious
resolution of protests,’’ 9 agency-level protest
mechanisms allow small businesses (among
other vendors) to affordably contest agencies’
procurement decisions. They also give
procuring agencies the chance to review and
improve their own procurement practices.
And they funnel some protests away from
COFC and GAO, reducing the likelihood that
the number of protests will overwhelm those
institutions.
Vendors, however, seldom file agency-level
protests. Although there is little data on the
number of agency-level protests filed each
year, available evidence suggests that
substantially more protests are filed with
COFC and GAO each year than with
procuring agencies.10 There are several
reasons why vendors may forego agency-level
protests. Those reasons implicate the themes
of transparency, predictability, and
accountability.
First, some vendors report shying away
from agency-level protests because they
perceive the agency as unlikely to change its
decision.11 Sometimes, for instance, the
official responsible for soliciting or awarding
a procurement contract is also responsible for
handling any agency-level protests that are
filed regarding the procurement. This
perception of a pre-judgment by the agency
may cause some vendors to file their protests
at GAO or COFC, rather than at the agency
level.
Second, some vendors report that they
view agency-level protest processes as
opaque.12 Agencies do not publish or provide
comprehensive data on their bid protest
decisions. And the FAR and agency-specific
bid protest rules establish few hard-and-fast
the order increases the scope, period, or maximum
value of the contract. See 41 U.S.C. 4106(f); 48 CFR
16.505(a)(10).
7 See 28 U.S.C. 1491(b).
8 See Admin. Conf. of the U.S., Info. Interchange
Bull. No. 007, Agency Bid Protests (June 2020),
https://www.acus.gov/fact-sheet/iib-007-agency-bidprotests.
9 See Exec. Order. No. 12,979, Agency
Procurement Protests, 60 FR 55,171, 55,171 (Oct.
25, 1995).
10 See Christopher Yukins, Stepping Stones to
Reform: Making Agency-Level Bid Protests Effective
for Agencies and Bidders by Building on Best
Practices from Across the Federal Government 12–
13 (May 1, 2020) (report to the Admin. Conf. of the
U.S.), https://www.acus.gov/report/agency-levelbid-protests-final-report.
11 Id. at 23.
12 Id. at 13.

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requirements for the process. For example,
although the FAR states that ‘‘[a]gencies shall
make their best efforts to resolve agency
protests within 35 days after [an agency-level
protest] is filed,’’ 13 that language is hortatory
and does not establish any binding deadlines
for agency decisions. Nothing in the FAR
does. The failure to provide for any binding
deadlines distinguishes the FAR from other
federal procurement statutes, such as the
Contract Disputes Act,14 which sets or
requires contracting officers to set firm
deadlines for deciding most claims 15 and
provides that the passage of the deadline for
a claim means the claim is deemed denied.16
Third, some vendors report being
dissuaded by their inability to compel
production of the procurement record as part
of an agency-level protest.17 The FAR gives
disappointed offerors the right to an agency
debriefing—a procedure whereby contracting
personnel provide offerors with an
explanation of the agency’s evaluation
process and an assessment of the offerors’
proposals. But nothing in the FAR guarantees
vendors the right to view the procurement
record itself. The FAR provides only that
agencies ‘‘may exchange relevant
information’’ with agency-level protesters.18
By contrast, vendors who file bid protests at
GAO may demand to see the entire record of
the procurement, and procuring agencies
must respond to such requests within
twenty-five days and produce the responsive
documents within thirty days (unless they
are withheld for a valid reason).19
Finally, some vendors deem agency-level
protests to be too risky.20 In many cases,
vendors who do not obtain relief through an
agency-level protest will seek relief from
GAO by pursuing their protest in that forum.
But GAO’s deadline for filing such ‘‘followon protests’’ often begins to run as soon as
the vendor has actual or constructive notice
of some ‘‘adverse agency action,’’ which can
occur before a protester receives the decision
in its agency-level protest.21 In this way,
delayed notification about an agency’s
decision in a bid protest can seriously
prejudice protesters’ rights at GAO.22 This
causes some vendors to forego agency-level
protests altogether.23
The perception that agency-level protests
lack transparency, predictability, and
accountability also makes it more likely that
protesters who do file at the agency level and
whose protests are denied will file follow-on
protests with GAO or COFC. Such follow-on
protests not only tax the limited resources of
GAO and COFC, but also can disrupt
activities at procuring agencies. For instance,
just as the filing of an agency-level protest
automatically prohibits the contract from
being awarded or performed until the agency

14 41 U.S.C. 7101–09.
15 See id. § 7103(f)(1)–(2).
16 See id. § 605(c)(5).
17 Yukins, supra note 10, at 39.
18 48 CFR 33.103(g) (italics added).
19 4 CFR 21.3(c)–(d); 48 CFR 33.104(a).
20 Yukins, supra note 10, at 31.
21 See 4 CFR 21.0(e), 21.2.
22 See Yukins, supra note 10, at 13–14, 18–19.
23 See id. at 23.

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denies or dismisses the protest and takes
some adverse action,24 a follow-on protest at
GAO may automatically prevent the contract
from being awarded or performed (if the
requisite filing deadlines are met) until GAO
denies or dismisses the protest.25 Thus, when
an agency-level protest is followed by
another protest at GAO, delays in
procurements can be substantial.
Protesters, agencies, and the public would
all benefit from an improved agency-level
protest system. Protesters would benefit
because agency-level protests are typically
the least formal and least costly types of bid
protest procedures. Agencies would benefit
from an improved agency-level protest
system because greater use of agency-level
protests means more agency control over the
timing and conduct of protests and more
opportunities for agencies to superintend
their own procurement processes. And the
public would benefit from more competitive,
fairer, and more transparent agency
procurements.
Because an improved agency-level protest
system is of significant value to contractors,
agencies, and the public, this
Recommendation identifies changes to make
it more likely vendors will avail themselves
of agency-level protest procedures. The
recommended changes reflect three
overarching principles—transparency,
simplicity, and predictability—meant to
address contractors’ principal concerns about
agency-level protest systems.
Recommendation
Identification of Decisions Subject to
Agency-Level Protests
1. Agencies should clearly identify which
categories of procurement decisions may or
may not be made the subjects of agency-level
protests.
Transparency for the Process and Personnel
for Agency-Level Protests
2. Agencies should formalize and compile
in a document that is publicly available
online the procedures they apply in
adjudicating agency-level protests. In so
doing, they should be guided by the
principles set out in Recommendation 2018–
5, Public Availability of Adjudication Rules.
3. Agencies should clearly identify who
within the agency will adjudicate an agencylevel protest. They should consider
designating at least one Agency Protest
Official (APO)—a person who specializes in
handling agency-level protests—to oversee
and coordinate agency-level protests and
hear protests brought to a level above the
contracting officer. Agencies lacking the
resources to designate their own APO might
consider sharing an APO with other agencies.
Notice of the Timeline for Agency-Level
Protests
4. Agencies should consider adopting
presumptive timelines for agency-level

13 48 CFR 33.103(g).

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24 48 CFR 33.103(f). Under certain circumstances,
the agency can override the regulatory stay for
agency-level protests. See 48 CFR 33.103(f)(1), (f)(3).
25 31 U.S.C. 3553(c)(1), (d)(3). Under certain
circumstances, the agency can override the
statutory stay for protests to GAO. See 31 U.S.C.
3553(c)–(d); 48 CFR 33.104(b)–(c).

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protests, similar to the ones under the
Contract Disputes Act. Agencies should also
make best efforts to notify protesters of the
timelines applicable to their agency-level
protests.
5. Agencies should clearly and
immediately provide written notice to
protesters of any adverse agency action
affecting the rights of the protester under the
challenged procurement. Agency rules
should provide that protests are deemed
denied after a specified number of days
without a decision and that agencies may
grant case-specific extensions based on
identified criteria.
Compiling the Record and Making It
Available
6. Agencies should make available to
protesters as much of the procurement record
as is feasible. To address confidential
information in the record, agencies should
consider using tools such as enhanced
debriefings.
7. Agencies should consider adopting a
thirty-day deadline, running from the date a
protest is filed, for providing protesters with
as much of the procurement record as is
feasible.
Protecting Against Adverse Consequences
8. Although the Federal Acquisition
Regulation (FAR) prohibits the award of a
contract or continued performance under an
awarded contract during an agency-level
protest, agencies should provide for a short
extension of the stay after a final decision in
an agency-level bid protest as permitted by
the FAR. The short extension should be of
sufficient duration (e.g., five days) to give the
protester time to bring a follow-on protest at
the Government Accountability Office (GAO)
or the United States Court of Federal Claims
after the agency’s decision.
9. Congress should provide that, if a
protester promptly files a GAO protest after
an adverse decision in an agency-level
protest, the agency shall not award the
contract or commence performance under the
contract during the pendency of the GAO
protest, subject to potential override in
urgent and compelling circumstances.
10. GAO should amend its bid protest
procedures to ensure that follow-on protests
at GAO are handled on an expedited basis,
to the extent feasible.

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Publishing Data on Agency-Level Protests
11. Agencies should collect and annually
publish data about the bid protests they
adjudicate. To the extent feasible, the data
should at least include what the GAO
currently provides in its annual reports about
the bid protests it adjudicates (e.g., the
number of bid protests filed with the agency;
the effectiveness rate of agency-level bid
protests (the ratio of protests sustained or in
which corrective action is afforded versus
total agency-level protests filed); the number
of merits decisions by the agency; the
number of decisions sustaining the protest;
the number of decisions denying the protest;
and the time required for bid protests to be
resolved).

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Administrative Conference Recommendation
2020–5
Publication of Policies Governing Agency
Adjudicators
Adopted December 17, 2020
[NOTE: Appendix B referenced in this
Recommendation has been omitted from this
notice because of the inaccessible images it
contains. The full appendix may be found
online at https://www.acus.gov/
recommendation/publication-policiesgoverning-agency-adjudicators.]
Federal agency officials throughout the
country preside over hundreds of thousands
of adjudications each year.1 As the
Administrative Conference has previously
observed, litigants, their lawyers, and other
members of the public benefit from having
ready online access to procedural rules,
decisions, and other key materials associated
with adjudications.2 They also benefit from
having ready online access to the policies
and practices by which agencies appoint and
oversee administrative law judges and other
adjudicators. The availability of these
policies and practices helps inform the
public about, among other things, any actions
agencies have taken to ensure the
impartiality of administrative adjudicators 3
and promotes an understanding of
adjudicators’ constitutional status under the
Appointments Clause and other
constitutional provisions. The
Administrative Conference acknowledges
ongoing litigation regarding the
constitutional status of many agency
adjudicators and the continuing validity of
the means and circumstances of their
appointment and removal.4
Agencies may benefit from disclosures
about agency adjudicators because it allows
them to compare their own policies with
those made publicly available by other
agencies. Agencies’ proactive disclosures,
which may sometimes already be required
under the Freedom of Information Act and
the E-Government Act, may also be more
cost-effective than agencies’ responding to
individual requests for information.5
Like other recent recommendations
regarding adjudicators,6 this
Recommendation pertains to officials who
1 See Admin. Conf. of the U.S., Recommendation
2016–2, Aggregate Agency Adjudication, 81 FR
40,260, 40,260 (June 21, 2016).
2 Admin. Conf. of the U.S., Recommendation
2018–5, Public Availability of Adjudication Rules,
84 FR 2142 (Feb. 6, 2019); Admin. Conf. of the U.S.,
Recommendation 2017–1, Adjudication Materials
on Agency Websites, 82 FR 31,039 (July 5, 2017).
3 Cf. Admin. Conf. of the U.S., Recommendation
2018–4, Recusal Rules for Administrative
Adjudicators, 84 FR 2139 (Feb. 6, 2019).
4 See, e.g., Lucia v. SEC, 138 S. Ct. 2044 (2018);
Arthrex v. Smith & Nephew, 941 F.3d 1320 (Fed.
Cir. 2019), cert. granted, __S. Ct. __(Oct. 13, 2020)
(No. 19–1434).
5 FOIA Improvement Act of 2016, Public Law
114–185, 2, 130 Stat. 538, 538 (amending 5 U.S.C.
552(a)(2)); E-Government Act of 2002, Public Law
140–347, 206, 116 Stat. 2899, 2916 (amending 44
U.S.C. 3501).
6 See, e.g., Admin. Conf. of the U.S.,
Recommendation 2018–4, Recusal Rules for
Administrative Adjudicators, 84 FR 2139 (Feb. 6,
2019).

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preside over (1) hearings governed by the
formal hearing provisions of the
Administrative Procedure Act (APA) 7 and (2)
hearings that are not governed by those
provisions but are required by statute,
regulation, or executive order. It also covers
officials (agency heads excluded) who review
hearing-level adjudicators’ decisions on
appeal. For ease of reference, this
Recommendation refers to the covered
adjudicators as either ‘‘administrative law
judges’’ (ALJs) or ‘‘administrative judges’’
(AJs).8 Agencies may decide to include on
their websites the disclosures identified in
this Recommendation for other adjudicators,
depending on the level of formality of the
proceedings over which they preside and
whether they serve as full-time adjudicators.
Agencies may also decide to make similar
disclosures with respect to agency heads if
their websites do not already provide
sufficient information.
This Recommendation focuses on policies
and practices relating to adjudicators that
agencies should disclose, including those
addressing appointment and qualifications;
compensation (including salaries, bonuses,
and performance incentives); duties and
responsibilities; supervision and assignment
of work; position within agencies’
organizational hierarchies; methods of
evaluating performance; limitations on ex
parte communications and other policies
ensuring separation between adjudicative
and enforcement functions; recusal and
disqualification; the process for review of
adjudications; and discipline and removal.
Many of the policies and practices
applicable to ALJs governing these matters
are already publicly available because they
are in the APA, Office of Personnel
Management rules, or other legal authorities.9
Nevertheless, agencies that employ ALJs can
take steps to improve the public’s access to
this information.
ALJs, in any case, make up a small portion
of federal adjudicators. There are many more
AJs than ALJs.10 AJs are regulated by a
complex mix of statutory provisions,
including civil service laws, agency rules
codified in the Code of Federal Regulations,
and agency-specific policies that take a
variety of forms. Many types of information
about AJs reside in these sources, but they
may be difficult to find.11 Some relevant
7 See 5 U.S.C. 554, 556–57.
8 The vast majority of ALJs work at the Social
Security Administration. AJs work at many
different agencies under a variety of titles,
including not only ‘‘Administrative Judge’’ but also,
by way of example, ‘‘Hearing Officer,’’
‘‘Immigration Judge,’’ ‘‘Veterans Law Judge,’’
‘‘Administrative Patent Judge,’’ and
‘‘Administrative Appeals Judge.’’
9 5 U.S.C. 554, 557, 3105, 4301, 5372, 7521; 5 CFR
pt. 930, subpt. B; Exec. Order No. 13,843, Executive
Order Excepting Administrative Law Judges from
the Competitive Service, 83 FR 32,755 (July 13,
2018) (issued July 10, 2018).
10 Kent Barnett et al., Non-ALJ Adjudicators in
Federal Agencies: Status, Selection, Oversight, and
Removal 1 (Sept. 24, 2018) (report to the Admin.
Conf. of the U.S.), https://www.acus.gov/report/nonalj-adjudicators-federal-agencies-status-selectionoversight-and-removal-1.
11 Leigh Anne Schriever, Public Availability of
Information About Adjudicators 10 (Nov. 23, 2020)

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sources may not be publicly available,
including internal administrative and
personnel manuals, position descriptions,
and labor agreements. This is particularly
true with respect to certain kinds of policies,
such as those relating to compensation and
performance incentives.12 Of course, the
Administrative Conference recognizes that
some of these agency policies and practices
may qualify for an exemption under the
Freedom of Information Act,13 Privacy Act,14
or other laws and executive-branch policies.
Agency websites are the most helpful
location for agencies to make relevant
policies and practices publicly available.
Individuals most naturally seek information
about administrative policies and practices
on agencies’ websites. Agencies can situate
information about their adjudicators in a
logical and easily identifiable place on their
websites and structure their websites to
synthesize policies in plain language and
link to information from many different
sources.15
This Recommendation encourages agencies
to post on their websites clear and readily
accessible descriptions of the policies
governing the appointment and oversight of
ALJs and AJs, and to include links to relevant
legal documents. How, exactly, they should
do so will of course depend on the specific
features of their adjudicative programs and
their institutional needs.

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Recommendation
1. Each adjudicative agency should
prominently display on its website a short,
straightforward description of all generally
applicable policies and practices, along with
the legal authority, governing the
appointment and oversight of Administrative
Law Judges (ALJs) and Administrative Judges
(AJs), including, as applicable, those that
address:
a. Procedures for assessing, selecting, and
appointing candidates for adjudicator
positions and the legal authority under
which such appointments are made;
b. Placement of adjudicators within
agencies’ organizational hierarchies;
c. Compensation structure and
performance incentives, such as bonuses,
nonmonetary awards, and promotions;
d. Procedures for assigning cases;
e. Assignment, if any, of nonadjudicative
duties to adjudicators;
f. Limitations on ex parte communications,
including between adjudicators and other
agency officials, related to the disposition of
individual cases, as well as other policies
ensuring a separation of adjudication and
enforcement functions;
g. Standards for recusal by and
disqualification of adjudicators;
h. Administrative review of adjudicators’
decisions;
(report to the Admin. Conf. of the U.S.), https://
www.acus.gov/report/final-report-publicavailability-information-about-agency-adjudicators.
12 Id. at 7.
13 5 U.S.C. 552.
14 Id. § 552a.
15 Cf. Admin. Conf. of the U.S., Recommendation
2017–3, Plain Language in Regulatory Drafting, 82
FR 61,728 (Dec. 29, 2017).

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i. Supervision of adjudicators by higherlevel officials;
j. Evaluation of adjudicators, including
quantitative and qualitative methods for
appraising adjudicators’ performances, such
as case-processing goals, if any; and
k. Discipline and removal of adjudicators.
Agencies may choose not to provide access
to policies covered by a Freedom of
Information Act exemption.
2. On the same web page as the
information described in Paragraph 1
appears, each adjudicative agency should
post links to key legal documents or, when
links are not available, citations to such
documents. These documents may include
(a) federal statutes, including relevant
provisions of the Administrative Procedure
Act (APA) and other laws applicable to ALJs
and AJs; (b) agency-promulgated rules
regarding adjudicators, including Office of
Personnel Management rules applicable to
ALJs; (c) publicly available agencypromulgated guidance documents relating to
adjudicators, including manuals, bench
books, and other explanatory materials; (d)
delegations of authority; and (e) position
descriptions. To the extent that some policies
concerning adjudicators may be a matter of
custom, such as assignment of
nonadjudicative duties, each adjudicative
agency should consider documenting those
policies to make them publicly accessible to
the extent practicable.
3. The web page containing the
information described in Paragraphs 1 and 2
should present the materials in a clear,
logical, and comprehensive fashion. One
possible method of presenting this
information appears in Appendix A. The
appendix gives one example for ALJs and
another for AJs.
4. If an agency’s mission consists
exclusively or almost exclusively of
conducting adjudications, the agency should
provide a link to the web page containing the
information described in Paragraphs 1 and 2
on the agency’s homepage. If conducting
adjudications is one of an agency’s many
functions, the agency should provide a link
to these materials from a location on the
website that is both dedicated to adjudicative
materials and logical in terms of a user’s
likelihood of finding the documents in the
selected location. One example would be an
enforcement or adjudication page or the
homepage for the component in which a
particular category of adjudicators works.
Citations to agency web pages that currently
provide this information in a way that makes
it easy for the public to locate, as well as
descriptions of how to find those pages on
agency websites, appear in Appendix B.
Appendix A
Sample Website Text for Administrative Law
Judges
About Our Administrative Law Judges
Administrative Law Judges (ALJs) at
[agency] conduct hearings and decide cases
under [insert name of authorizing act]. They
are part of the [agency component in which
ALJs are located], which is directed by [title
of office head] and has offices in [cities]. Visit
[link to agency organization chart] to see how
[office] relates to other offices at [agency].

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6623

[Agency] is committed to ensuring that all
hearings and appeals are conducted in a fair
and equitable manner. Parties are entitled to
a due process hearing presided over by an
impartial, qualified ALJ. ALJs resolve cases
involving [kinds of cases ALJs hear] in a fair,
transparent, and accessible manner. Our ALJs
are appointed by [agency official], and are
[describe qualifications]. ALJs are paid
according to the [pay scale for ALJs with link
to the scale] scale set by statute under 5
U.S.C. 5372, subject to annual pay
adjustments.
Cases are assigned to ALJs [in each
geographic office] in rotation so far as
practicable. The ALJ assigned to your case is
responsible for [job duties, like taking
evidence, hearing objections, issuing
decisions]. ALJs are required by statute to
perform their functions impartially. 5 U.S.C.
556(b). To ensure impartiality, they do not
take part in investigative or enforcement
activities, nor do they report to officials in
the [agency]’s investigative or enforcement
components. 5 U.S.C. 554(d), 3105. The ALJ
assigned to your case may not communicate
privately about the facts of your case with
other agency officials. [More details on
[agency]’s rules about communicating with
ALJs are available [location of agencyspecific ex parte prohibitions]].
By law, [agency] does not reward or
discipline ALJs for their decisions. A federal
statute provides that [agency] may remove, or
take certain other disciplinary actions,
against an ALJ it employs only for good cause
established and determined by the Merit
Systems Protection Board on the record after
opportunity for hearing before the Board. 5
U.S.C. 7521.
The agency has adopted rules of recusal
[link] that allow a participant to request that
the ALJ in charge of his or her case be
disqualified if the participant believes the
ALJ cannot fairly and impartially decide the
case.
If you are dissatisfied with an ALJ’s
decision, you can request reconsideration
from the ALJ or appeal that decision to
[agency office/official]. Visit [link] for
information on appealing an ALJ decision.
[Agency office/official] may also review your
case on [its/his or her] own initiative if there
is an issue with the ALJ’s decision.
For Further Information:
• Hiring process: [link]
• Pay rates: [link]
• How cases are assigned to ALJs: [link]
• Communicating with ALJs (ex parte
communications): [link]
• Process for addressing allegations that an
ALJ has a conflict of interest (recusal and
disqualification procedures): [link]
• How to appeal an ALJ decision: [link]
• Case-processing goals: [link]
• Process for addressing allegations of ALJ
misconduct: [link]
See also:
• Statutory provisions governing ALJs: 5
U.S.C. 554, 557, 3105, 4301, 5372, 7521
• OPM’s regulations governing ALJs: 5 CFR
930.205–930.207, 930.211
• MSPB’s regulations governing ALJs: 5 CFR
1201.127–1201.142
• [Additional legal provisions governing
ALJs]

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• Executive Orders pertaining to ALJs: E.O.
13,843 (giving agencies control over the
hiring process of ALJs) [add other pertinent
EOs]

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Sample Website Text for Administrative
Judges
If agencies have different kinds of
adjudicators, they should consider providing
a separate web page for each.
About Our [Insert Adjudicator Title]
[Adjudicator title] at [agency] [conduct
hearings and decide cases/review appeals]
under [name of authorizing act(s)]. They are
part of the [agency component in which
adjudicators are located], which is directed
by [title of office head] and has offices in
[cities]. Visit [link to agency organization
chart] to see how [office] relates to other
offices at [agency].
[Agency] is committed to ensuring that all
hearings and appeals are conducted in a fair
and equitable manner. Parties are entitled to
a due process hearing presided over by an
impartial, qualified [adjudicator title].
[Adjudicator title] resolve cases involving
[kinds of cases] in a fair, transparent, and
accessible manner. Our [adjudicator title] are
appointed pursuant to [authorizing statute]
by [agency official] [for terms of [number of
years] years], and are [describe
qualifications]. [Adjudicator title] are paid
according to [[the pay scale for the
adjudicator with link to the scale] or [the
discretion of the agency head]].
Cases are [describe how cases are
assigned]. The [adjudicator title] assigned to
your case is responsible for [job duties, like
taking evidence, hearing objections, issuing
decisions]. [Description of policies (if any
exist) that ensure the agency component or
adjudicators remain independent from
investigative or enforcement activities].
[Description of rules about ex parte
communications, if any exist].
[Agency official or body] is responsible for
evaluating the quality of [adjudicator title]
decisions, and [agency official or body]
conducts performance reviews of
[adjudicator title]. [Agency official/entity
from another agency] may remove the
[adjudicator title] or [agency official or body/
other entity] may discipline the [adjudicator
title] by [kinds of discipline] when
warranted.
The agency has adopted rules of recusal
[link] that allow a participant to request that
the [adjudicator title] in charge of his or her
case be disqualified if the participant
believes the [adjudicator title] cannot fairly
and impartially decide the case.
If you are dissatisfied with an [adjudicator
title] decision, you can request
reconsideration from the [adjudicator title] or
appeal that decision to [agency office/
official]. Visit [link] for information on
appealing an [adjudicator title] decision.
[Agency office/official] may also review your
case on [its/his or her] own initiative if there
is an issue with the [adjudicator title]’s
decision.
For Further Information:
• Hiring process: [link]
• Pay rates: [link]
• Bonuses and performance incentives: [link]

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• How cases are assigned to [adjudicator
title]: [link]
• Communicating with [adjudicator title] (ex
parte communications): [link]
• Process for addressing allegations that an
[adjudicator title] has a conflict of interest
(recusal and disqualification procedures):
[link]
• How to appeal an [adjudicator title]
decision: [link]
• Case-processing goals: [link]
• Process for addressing allegations of
[adjudicator title] misconduct: [link]
See also:
• Statutory provisions regarding [adjudicator
title], including the appointment authority:
[statutory citations]
• Agency regulations governing [adjudicator
title]: [CFR provisions]
Appendix B
[Note: Appendix B has been omitted from
this notice because of the inaccessible images
it contains. The full appendix may be found
online at https://www.acus.gov/
recommendation/publication-policiesgoverning-agency-adjudicators.]
Administrative Conference Recommendation
2020–6
Agency Litigation Web Pages
Adopted December 17, 2020
Federal agencies and their component
units 1 participate in thousands of court cases
every year. Most such cases result in ‘‘agency
litigation materials,’’ which this
Recommendation defines as including
agencies’ publicly filed pleadings, briefs, and
settlements, as well as court decisions, where
such materials bear on agencies’ regulatory or
enforcement activities.
Public access to agency litigation materials
is desirable for at least two reasons. First,
because agency litigation materials often
clarify how the federal government interprets
and aims to enforce federal law, they can
help people understand their legal
obligations. Second, public access to agency
litigation materials promotes accountable and
transparent government. Those two reasons
distinguish agency litigation materials from
litigation filings by private parties.
However valuable public access to agency
litigation materials might be, federal law does
little to mandate it. When it comes to
agencies’ own litigation filings, only the
Freedom of Information Act (FOIA) requires
disclosure, and then only when members of
the public specify the materials in which
they are interested (and no FOIA exception
applies).2 In the same vein, the EGovernment Act of 2002 requires federal
courts to make their written opinions,
including opinions in cases involving federal
agencies, available on websites.3 But that
1 The term ‘‘component units’’ encompasses an
agency’s sub-units, which are often identified under
terms like ‘‘agency,’’ ‘‘bureau,’’ ‘‘administration,’’
‘‘office,’’ ‘‘division,’’ or ‘‘service.’’ For example, the
United States Fish and Wildlife Service is a
component unit of the Department of the Interior,
and the Office of Water is a component unit of the
United States Environmental Protection Agency.
2 See 5 U.S.C. 552(a)(3).
3 See 44 U.S.C. 3502(a).

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requirement has not always made judicial
opinions readily accessible to the public,
partly because most courts’ websites lack
functions and features that would allow users
to easily identify cases about specific topics
or agencies.
The most comprehensive source of agency
litigation materials is the federal courts’
Public Access to Court Electronic Records
(PACER) service, which provides the public
with instantaneous access to virtually every
document filed in every federal court. But
PACER searches often cost money, and the
costs can add up quickly, especially when
users are uncertain about what cases or
documents they are trying to find. PACER’s
limited search functionality also makes it
difficult to find cases involving particular
agencies, statutes, regulations, or types of
agency action. For example, a person
interested in identifying ongoing cases to
which the United States Fish and Wildlife
Service (FWS) is a party would have to
search for a host of terms—including ‘‘United
States Fish and Wildlife Service,’’ ‘‘U.S. Fish
and Wildlife Service,’’ and the names of
FWS’s recent directors—just to come close to
identifying all such cases. Even after
conducting all those searches, the person
would still have to scroll through and
eliminate search results involving state fishand-wildlife agencies and private citizens
with the same names as FWS’s recent
directors. Similarly, were a person interested
in finding cases about FWS’s listing of
species under the Endangered Species Act
(ESA), PACER would not afford that person
any way to filter search results to include
only cases about ESA listings. The person’s
only option would be to open and review
documents in potentially thousands of cases.
The cost and time involved in performing
this type of research limit PACER’s
usefulness as a tool for locating and
searching agency litigation materials. And
although paid legal services, such as Westlaw
and Lexis, have far greater search capabilities
than PACER, their costs can dissuade many
individuals and researchers.
Agency litigation web pages, by contrast,
can be a convenient way for the public to
examine agency litigation materials. For
purposes of this Recommendation, an agency
litigation web page is a web page on an
agency’s website that systematically catalogs
and links to agency litigation materials that
may aid the public in understanding the
agency’s regulatory or enforcement activities.
When agencies maintain up-to-date, searchfriendly agency litigation web pages, the
public can visit them and quickly find
important filings in court cases concerning
matters of interest. Agency litigation web
pages thus make it easier for the public to
learn about the law and to hold government
accountable for agencies’ actions.
Several federal agencies already maintain
agency litigation web pages.4 A survey of
websites for twenty-five federal agencies
revealed a range of practices regarding
4 See Mark Thomson, Report on Agency Litigation
web pages 14–16 (Nov. 24, 2020) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/
report/report-agency-litigation-web pages.

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agency litigation web pages.5 The survey
suggests that most federal agencies do not
maintain active agency litigation web pages.
Among those that do, the quality of the
agency litigation web pages varies
appreciably. Some contain vast troves of
agency litigation materials; others contain
much more limited collections. Some are
updated regularly; others are updated only
sporadically. Some are easy to locate and
search; others are not. In short, there appears
to be no standard practice for publishing and
maintaining agency litigation web pages, save
that all the surveyed agency litigation web
pages contained only the publicly filed
versions of agency litigation materials, with
all confidential material—such as trade
secrets and personally identifiable
information—redacted.
An inspection of agencies’ litigation web
pages suggests four general features that
make an agency litigation web page useful.
First, an agency’s litigation web page must be
easy to find. Second, it must contain a
representative and up-to-date collection of
agency litigation materials. Third, those
materials must be easy to search and sort.
And fourth, the agency’s litigation web page
must give visitors the information they need
to understand the materials on the web page,
including information about materials the
agency omitted from the web page and the
criteria the agency employed to determine
which materials to include on the web page.
Agency litigation web pages can promote
transparency and accountability. The
Administrative Conference recognizes,
however, that creating and maintaining a
useful agency litigation web page takes time,
money, and effort. An agency’s decision to
launch an agency litigation web page will
necessarily be informed by considerations
such as the agency’s mission, litigation
portfolio, existing technological capacity,
budget, and the anticipated benefits—to the
agency and the public—of creating an agency
litigation web page.6 Further, an agency’s
decisions about what content to include on
an agency litigation web page should be
tailored to the agency’s particular
circumstances. An agency that litigates
thousands of cases each year, for example,
could choose to feature only a representative
sample of agency litigation materials on its
agency litigation web page.
Similarly, an agency that litigates many
repetitive, fact-based cases could reasonably
choose to post documents from just a few
representative cases instead of posting
5 See id. at 12–19 (identifying variations in agency
practices). The survey conducted for this
Recommendation covered all kinds of agencies—big
and small, independent and not, regulatory and
benefit-oriented, and so forth—with the aim of
covering a broad and at least somewhat
representative cross-section of federal agencies. In
particular, the survey focused on agencies that are
frequently in federal court or that are parties to a
significant number of high-profile cases.
6 Most federal agencies do not have independent
litigation authority but are represented in court by
the Department of Justice (DOJ). In most cases, these
agencies designate a DOJ liaison, who is then added
as a recipient for all court filing notices, resulting
in automatic access to all filings via PACER. This
automatic access should enable implementation of
this Recommendation by client agencies.

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documents from all of its cases.7 And an
agency that litigates many different types of
cases, some of obviously greater interest to
the public than others, might appropriately
restrict the contents of its agency litigation
web page to agency litigation materials from
the types of cases that are of greater public
interest, particularly when the agency
determines that the resources required to
post more agency litigation materials can be
better applied elsewhere.
Since the decision to create and maintain
an agency litigation web page involves
balancing factors that will differ from agency
to agency, this Recommendation should not
be read to suggest that agency litigation web
pages be created and maintained by all
agencies, especially those that litigate
thousands of cases each year. Nor should this
Recommendation be read as dictating the
precise contents or structure of agency
litigation web pages. While encouraging the
creation and maintenance of agency litigation
web pages, the Administrative Conference
recognizes that an agency’s particular
circumstances might ultimately militate
against creating an agency litigation web page
or might support only the creation of a
comparatively limited version.
At bottom, this Recommendation simply
offers best practices and factors for agencies
to consider in making their agency litigation
materials available on their websites, should
the agencies choose to do so. The
Recommendation leaves the weighing and
balancing of those factors to the sound
discretion of individual agencies.
Recommendation
Providing Access to Agency Litigation
Materials
1. Agencies should consider providing
access on their websites to publicly filed
pleadings, briefs, and settlements, as well as
court decisions bearing on agencies’
regulatory or enforcement activities
(collectively ‘‘agency litigation materials’’).
2. Should an agency choose to post such
material, an agency with a large volume of
court litigation could decide not to post
documents from every case. The agency
might, for instance, post examples of filings
from routine litigation and all or a portion of
the filings from cases raising important or
unusual questions.
3. In determining whether to provide
access to agency litigation materials on their
websites, and in determining which types of
agency litigation materials to include on their
websites, among the factors agencies should
consider are the following:
a. The public’s interest in having ready
access to certain categories of the agency’s
litigation materials;
b. The extent to which providing access to
agency litigation materials on the agency’s
website will advance the agency’s mission;
7 Cf. Admin. Conf. of the U.S., Recommendation
2017–1, Adjudication Materials on Agency
websites, 82 FR 31,039, 31,040 (July 5, 2017)
(‘‘Agencies that adjudicate large volumes of cases
that do not vary considerably in terms of their
factual contexts or the legal analyses employed in
their dispositions should consider disclosing on
their websites a representative sampling of actual
cases and associated adjudication materials.’’).

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c. The internal benefits of maintaining a
web page providing access to certain types of
agency litigation materials;
d. The costs of creating and maintaining a
web page providing access to the types of
agency litigation materials the agency sees fit
to include;
e. The nature of the agency’s litigation
portfolio, including the quantity of litigation
materials the agency generates each year;
f. The degree to which the agency’s
existing technological capacity can
accommodate the creation and maintenance
of a web page providing access to certain
types of agency litigation materials;
g. The availability and cost of other
technological services that may more reliably
and effectively give access to agency
litigation material because of its scale or
volume and the wide variety of issues and
matters involved; and
h. The risk of disclosure or increased
dissemination of confidential or sensitive
information of private litigants.
4. In determining which agency litigation
materials to include on their websites,
agencies should ensure that they have
implemented appropriate safeguards to
protect relevant privacy or business interests
implicated by the disclosure of agency
litigation materials. Each agency should
implement a protocol to ensure that, before
a document is posted to the agency’s
litigation web page, the document has been
reviewed and determined not to contain
confidential information, such as trade
secrets and personal identifying information.
5. Agencies should disclose materials in a
way that gives a full and accurate picture of
their litigating positions. To provide proper
context, agencies should:
a. Use objective, clear, and publicly posted
criteria to determine which agency litigation
materials the agencies will publish on their
websites;
b. Regularly review their websites to
ensure the agency litigation materials posted
there (especially court opinions) are
complete and up-to-date, and consider
including notations regarding when material
on the web page was last updated;
c. Provide appropriate context for agency
litigation materials, at least when failure to
do so might confuse or mislead the public;
d. Explain the types of litigation in which
the agency is involved and other ways to
search for any additional agency litigation
materials not included on the agency’s
litigation web page, as well as opposing
counsel’s litigation filings;
e. When resources permit, consider posting
opposing parties’ litigation filings when they
are significant or important to understanding
an issue;
f. Neither present litigation materials as a
means of setting policy, nor use those
materials to circumvent rulemaking
processes;
g. Ensure that descriptions of agency
litigation materials, if any, fairly reflect the
litigation; and
h. Recognize that some types of agency
litigation materials may be of greater
significance than others.
6. Agencies that choose to post significant
quantities of agency litigation materials on

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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices

their websites should consider grouping
together links to those materials on a single,
dedicated web page (an ‘‘agency litigation
web page’’). If an agency is organized so that
its component units have their own litigation
portfolios, some or all of the component units
may wish to have their own agency litigation
web pages, or the agency may wish to
maintain an agency litigation web page
compiling litigation materials from or
relating to the agency’s component units.
Making It Easy To Locate Agency Litigation
Web Pages
7. Agencies that post agency litigation
materials on their websites should make sure
that website users can easily locate those
materials. Agencies can accomplish this goal
by:
a. Displaying links to agency litigation web
pages in readily visible locations on the
homepage for the agency’s website; and
b. Maintaining a search engine and a site
map or index, or both, on the agency’s
homepage.
8. When an agency collects its component
units’ litigation materials on a single agency
litigation web page, those component units’
websites should clearly note that fact and
include links to the agency’s litigation web
page. When an agency’s component units
maintain their own litigation web pages, the
agency’s website should clearly note that fact
and include links to the component units’
litigation web pages.
Making It Easy To Find Relevant Materials
on Agency Litigation Web Pages
9. Agencies and their component units
should have substantial flexibility in
organizing materials. Agencies should
consider grouping together materials from the
same and related cases on their agency
litigation web pages. Agencies might, for
example, consider providing a separate
docket page for each case, with a link to the
docket page on their agency litigation web
pages. Agencies should also consider linking
to the grouped-together materials when
issuing press releases concerning a particular
litigation.
10. Agencies should consider offering
general and advanced search and filtering
options within their agency litigation web
pages. The search and filtering options could,
for instance, allow users to sort, narrow, or
filter searches according to criteria such as
action or case type, date, topic, case number,
party name, a relevant statute or regulation,
or specific words and phrases, along with
any other criteria the agency decides are
especially useful given its litigation
activities.
[FR Doc. 2021–01273 Filed 1–21–21; 8:45 am]
BILLING CODE 6110–01–P

ACTION: Notice.
SUMMARY: This notice lists all

newspapers that will be used by the
Ranger Districts, Grasslands, Forests and
the Regional Office of the Southern
Region to publish notices required
under 36 CFR parts 218 and 219. The
intended effect of this action is to
inform members of the public which
newspapers will be used by the Forest
Service to publish legal notices
regarding proposed actions, notices of
decisions and notices indicating
opportunities to file objections.
DATES: Use of these newspapers for
purposes of publishing legal notice of
decisions and notices of the opportunity
to object under 36 CFR 218 and 36 CFR
219 shall begin the first day after the
date of this publication.
ADDRESSES: Robert Bergstrom,
Administrative Review Coordinator,
Southern Region, Planning, 1720
Peachtree Road NW, Atlanta, Georgia
30309.
FOR FURTHER INFORMATION CONTACT:
Robert Bergstrom, Administrative
Review Coordinator by telephone at
(404) 606–6151 or by email at
robert.bergstrom@usda.gov.
SUPPLEMENTARY INFORMATION:
Responsible Officials in the Southern
Region will give notice of the
opportunity to object to a proposed
project under 36 CFR part 218, or
developing, amending or revising land
management plans under 36 CFR 219 in
the following newspapers which are
listed by Forest Service administrative
unit. The timeframe for filing a
comment, appeal or an objection shall
be based on the date of publication of
the notice of the proposed action in the
newspaper of record for projects subject
to 36 CFR 218 or 36 CFR 219. Where
more than one newspaper is listed for
any unit, the first newspaper listed is
the newspaper of record that will be
utilized for publishing the legal notice
of decisions and calculating timeframes.
Secondary newspapers listed for a
particular unit are those newspapers the
Deciding Officer/Responsible Official
expects to use for purposes of providing
additional notice. The following
newspapers will be used to provide
notice:
Southern Region

jbell on DSKJLSW7X2PROD with NOTICES

DEPARTMENT OF AGRICULTURE
Forest Service
Media Outlets for Publication of Legal
and Action Notices in the Southern
Region
AGENCY: Forest Service, USDA.

VerDate Sep<11>2014

19:27 Jan 21, 2021

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Regional Forester Decisions
Affecting National Forest System
lands in more than one administrative
unit of the 15 in the Southern Region:—
‘‘Atlanta Journal—Constitution’’,
published daily in Atlanta, Georgia.
Affecting National Forest System
lands in only one administrative unit or

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only one Ranger District will appear in
the newspaper of record elected by the
National Forest, National Grassland,
National Recreation Area, or Ranger
District as listed below.
National Forests in Alabama, Alabama
Forest Supervisor Decisions
Affecting National Forest System
lands in more than one Ranger District
of the 6 in the National Forests in
Alabama:—‘‘Montgomery Advertiser’’,
published daily in Montgomery,
Alabama. Affecting National Forest
System lands in only one Ranger
District will appear in the newspaper of
record elected by the Ranger District as
listed below.
District Ranger Decisions
Bankhead Ranger District:—
‘‘Northwest Alabamian’’, published biweekly (Wednesdays & Saturdays) in
Haleyville, Alabama.
Conecuh Ranger District:—‘‘The
Andalusia Star News’’, published biweekly (Wednesday and Saturday) in
Andalusia, Alabama.
Oakmulgee Ranger District:—‘‘The
Tuscaloosa News’’, published daily in
Tuscaloosa, Alabama.
Shoal Creek Ranger District:—‘‘The
Anniston Star’’ published daily in
Anniston, Alabama.
Talladega Division:—‘‘The Anniston
Star’’, published daily in Anniston,
Alabama.
Talladega Ranger District:—‘‘The
Daily Home’’, published daily in
Talladega, Alabama.
Tuskegee Ranger District:—‘‘Tuskegee
News’’, published weekly (Thursday) in
Tuskegee, Alabama.
Chattahoochee-Oconee National Forest,
Georgia
Forest Supervisor Decisions
‘‘The Times’’, published daily in
Gainesville, Georgia.
District Ranger Decisions
Blue Ridge Ranger District:—‘‘The
News Observer’’, (newspaper of record)
published weekly (Wednesdays) in Blue
Ridge, Georgia.
‘‘North Georgia News’’, (newspaper of
record) published weekly (Wednesdays)
in Blairsville, Georgia.
Conasauga Ranger District:—‘‘Daily
Citizen’’, published daily in Dalton,
Georgia.
Chattooga River Ranger District:—
‘‘The Northeast Georgian’’, (newspaper
of record) published bi-weekly
(Wednesdays & Fridays) in Cornelia,
Georgia.
‘‘Clayton Tribune’’, (newspaper of
record) published weekly (Thursdays)
in Clayton, Georgia.

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