Notice2022-14189
Adoption of Recommendations
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Published
July 5, 2022
Issuing agencies
Administrative Conference of the United States
Abstract
The Assembly of the Administrative Conference of the United States adopted three recommendations at its hybrid (virtual and in- person) Seventy-seventh Plenary Session: (a) Contractors in Rulemaking, (b) Improving Notice of Regulatory Changes, and (c) Automated Legal Guidance at Federal Agencies.
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[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Notices]
[Pages 39798-39802]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14189]
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Notices
Federal Register
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or proposed rules that are applicable to the public. Notices of hearings
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Federal Register / Vol. 87, No. 127 / Tuesday, July 5, 2022 /
Notices
[[Page 39798]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Assembly of the Administrative Conference of the United
States adopted three recommendations at its hybrid (virtual and in-
person) Seventy-seventh Plenary Session: (a) Contractors in Rulemaking,
(b) Improving Notice of Regulatory Changes, and (c) Automated Legal
Guidance at Federal Agencies.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2022-1, Kazia
Nowacki; for Recommendation 2022-2, Matthew A. Gluth; and for
Recommendation 2022-3, Alexandra F. Sybo. For each of these
recommendations the address and telephone number are: Administrative
Conference of the United States, Suite 706 South, 1120 20th Street NW,
Washington, DC 20036; Telephone 202-480-2080.
SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C.
591-596, established the Administrative Conference of the United
States. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by Federal agencies and makes
recommendations to agencies, the President, Congress, and the Judicial
Conference of the United States for procedural improvements (5 U.S.C.
594(1)). For further information about the Conference and its
activities, see <a href="http://www.acus.gov">www.acus.gov</a>.
The Assembly of the Conference met during its Seventy-seventh
Plenary Session on June 16, 2022, to consider three proposed
recommendations and conduct other business. All three recommendations
were adopted.
Recommendation 2022-1, Contractors in Rulemaking. This
recommendation identifies best practices for managing contractors that
assist agencies in the rulemaking process. It recommends that agencies
exercise proper oversight to avoid contracting out inherently
governmental functions or other activities that should be performed by
federal employees, clearly delineate responsibility between contractors
and agency staff, institute safeguards to prevent or remediate
conflicts of interest, and ensure transparency in connection with their
contracting activities.
Recommendation 2022-2, Improving Notice of Regulatory Changes. This
recommendation offers best practices for agencies to ensure that
members of the public receive effective notice of regulatory changes,
focusing especially on the needs of parties with limited resources to
monitor agency actions. It recommends that agencies consider a variety
of possible strategies for improving notice of regulatory changes,
including providing updates on agency websites, allowing the public to
sign up for electronic notifications, announcing updates via email
distribution lists, and coordinating with organizations that can
provide updates to their members.
Recommendation 2022-3, Automated Legal Guidance at Federal
Agencies. This recommendation identifies best practices for agencies to
use when designing and updating automated tools, such as interactive
chatbots and virtual assistants, to provide legal guidance to the
public. It addresses factors agencies should consider in deciding
whether to utilize automated legal guidance tools, how agencies that
utilize those tools can ensure that the information they provide is
accurate and current, and how agencies can ensure that recipients of
such guidance understand its limitations and do not rely on it to their
detriment.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/meetings-and-events/plenary-meeting/77th-plenary-session">https://www.acus.gov/meetings-and-events/plenary-meeting/77th-plenary-session</a>.
Authority: 5 U.S.C. 595.
Dated: June 28, 2022.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2022-1
Contractors in Rulemaking
Adopted June 16, 2022
Agencies rely on private contractors to perform many kinds of
services in support of their rulemaking activities. These services
can occur at any stage of the rulemaking process. Functions that
agencies assign to contractors include conducting research
undergirding a rule; preparing regulatory impact analyses;
facilitating meetings with interested persons; and tabulating,
categorizing, or summarizing public comments the agency receives. As
with other agency functions, contracting out specific rulemaking
functions may help increase staffing flexibility to ease workloads,
lower administrative costs, provide topic-specific expertise or
access to technology that agencies do not possess internally, and
provide alternative perspectives on particular issues.\1\
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\1\ See Bridget C.E. Dooling & Rachel Augustine Potter,
Contractors in Rulemaking (May 9, 2022) (report to the Admin. Conf.
of the U.S.).
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Agencies' use of contractors, however, may also raise
distinctive concerns in the rulemaking context.\2\ Agencies must
ensure that they comply with applicable legal obligations and must
exercise their discretion in a way that avoids ethics violations,
promotes efficiency, and ensures that agency officials exercise
proper oversight of contractors.
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\2\ Cf. Admin. Conf. of the U.S., Recommendation 85-2, Agency
Procedures for Performing Regulatory Analysis of Rules, ] 6, 50 FR
28,364, 28,365 (July 12, 1985).
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Among the applicable legal obligations is the prohibition on
contracting out ``inherently governmental functions.'' \3\
Inherently governmental functions are those that are ``so intimately
related to the public interest as to require performance by Federal
Government employees.'' \4\ They include
[[Page 39799]]
``functions that require either the exercise of discretion in
applying Federal Government authority or the making of value
judgments in making decisions for the Federal Government . . . .''
\5\
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\3\ See 48 CFR 7.503; Publication of the Office of Federal
Procurement Policy (OFPP) Policy Letter 11-01, Performance of
Inherently Governmental and Critical Functions, 76 FR 56,227 (Oct.
12, 2011) [hereinafter OFPP Policy Letter]; Off. of Mgmt. & Budget,
Exec. Off. of the President, OMB Circular A-76, Performance of
Commercial Activities (Revised 2003). The prohibition is reflected
in the Federal Activities Inventory Reform (FAIR) Act of 1998,
Public Law 105-270, 112 Stat. 2382 (1998) [hereinafter FAIR Act],
and the National Defense Authorization Act (NDAA) for Fiscal Year
2009, Public Law 110-417, 321, 122 Stat. 4356, 4411-12 (2008).
\4\ OFPP Policy Letter, supra note 3, Sec. 3, at 56,236; accord
FAIR Act, supra note 3, Sec. 5, at 2384.
\5\ OFPP Policy Letter, supra note 3, Sec. 3(a), at 56,236;
accord FAIR Act, supra note 3, Sec. 5(2)(B), at 2385.
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Whereas ``determining'' the content of a regulation is an
inherently governmental function,\6\ providing ``[s]ervices that
involve or relate to the development of regulations'' is not.\7\
Rather, the provision of such services is considered to be ``closely
associated with the performance of inherently governmental
functions.'' \8\ When agencies allow contractors to perform
functions closely associated with inherently governmental functions,
they must exercise heightened caution.\9\ They must, in particular,
``give special consideration to Federal employee performance of
[such] functions and, when such work is performed by contractors,
provide greater attention and an enhanced degree of management
oversight of the contractors' activities to ensure that contractors'
duties do not expand to include performance of inherently government
functions.'' \10\
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\6\ 48 CFR 7.503(c)(5); accord OFPP Policy Letter, supra note 3,
app. A, ex. 7, at 56,240.
\7\ 48 CFR 7.503(d)(4); accord OFPP Policy Letter, supra note 3,
app. B, ex. 1(d), at 56,241.
\8\ OFPP Policy Letter, supra note 3, app. B, at 56,241; accord
48 CFR 7.503(d).
\9\ See OFPP Policy Letter, supra note 3, Sec. 4(a)(2), at
56,236.
\10\ Id.
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Agencies must also consider potential ethical issues when
contracting out rulemaking functions. Because contractors are, with
a few exceptions, generally not subject to the ethics laws governing
federal employees, there are potential ethics-related risks against
which agencies must protect and which may not be addressed
adequately under existing procurement regulations.\11\ The risks of
conflicts of interest (both organizational and personal) and misuse
of confidential information may be especially salient when
contractors support a policymaking function such as rulemaking.\12\
Agencies can mitigate these risks by establishing and internally
disseminating policies and procedures governing the use and
management of contractors in rulemaking, which may include any
requirement that the agency disclose its use of contractors.
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\11\ See, e.g., 48 CFR subparts 3.11 (Preventing Personal
Conflicts of Interest for Contractor Employees Performing
Acquisition Functions), 9.5 (Organizational and Consultant Conflicts
of Interest).
\12\ See Admin. Conf. of the U.S., Recommendation 2011-3,
Compliance Standards for Government Contractor Employees--Personal
Conflicts of Interest and Use of Certain Non-Public Information, 76
FR 48,792 (Aug. 9, 2011).
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In addition to legal and ethical issues, agencies must also
consider the potential negative consequences of using contractors to
perform rulemaking-related functions, including whether repeated
reliance on contractors might compromise their ability to maintain
necessary career staff with appropriate skills. Agencies may also
wish to consider alternative methods to contracting when they need
to expand internal capacity in connection with rulemaking, such as
using executive branch rotations, fellowship programs, or federally
funded research and development centers, or by assigning temporary
employees under the Intergovernmental Personnel Act.\13\
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\13\ See 5 U.S.C. 3371-75; see also 5 CFR part 334.
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This Recommendation provides guidance to agencies for when they
are considering contracting out certain rulemaking-related
functions. Recognizing that agencies' needs vary enormously, it
addresses a range of legal, ethical, prudential, and practical
considerations that agencies should take into account when using
contractors.
Recommendation
Internal Management
1. Agencies that use contractors to perform rulemaking-related
functions should adopt and publish written policies related to their
use. These policies should cover matters such as:
a. The types of rulemaking functions considered to be inherently
governmental functions or closely associated with inherently
governmental functions;
b. Internal procedures to ensure that agency employees do not
contract out inherently governmental functions and to ensure
increased scrutiny when contracting out functions that are closely
associated with inherently governmental functions;
c. Requirements for internal disclosure of the functions
contractors undertake with regard to specific rulemakings;
d. Standards for when contractors should identify themselves as
such in communications with the public in connection with
rulemakings; and
e. Ethical rules applicable to contractors, including their
employees.
2. To enhance their management of contractors, agencies should
consider providing rulemaking-specific training for employees on
agency policies and ethical restrictions applicable to contractors.
Agencies should also consider designating an agency office or
officer to answer questions about the use of contractors to perform
rulemaking-related functions and be responsible for deciding whether
a function is inherently governmental.
3. When agencies rely on contractors in a rulemaking, they
should ensure that agency employees can identify contractors and are
aware of contractors' assigned functions. Agencies should
specifically focus on whether contractors should work in the same
space as agency employees, how and to what extent they may
participate in meetings with agency leadership or other meetings at
which substantive policy is decided, and whether they should be
provided with their own agency email addresses.
4. Agencies should consider ways to share information about
contractors in rulemaking within and across agencies. This might
include using existing contracting databases or schedules to promote
greater coordination and efficiency concerning existing contracts
for rulemaking-related functions, as well as informal sharing of
practices for managing contractors.
Ethics
5. When selecting and managing contractors for rulemaking-
related functions, agencies should evaluate whether any firm under
consideration to serve as a contractor may have an actual or
perceived organizational conflict of interest in connection with any
assigned function. When a potential organizational conflict exists
or arises, agencies should either select another contractor or put
in place appropriate protections to ensure that the contractor's
outside interests do not undermine its ability to perform its
assigned functions in a way that does not create an actual or
perceived conflict of interest.
6. When contracting out rulemaking-related functions for which
there is a risk of a personal conflict of interest by an employee of
the contractor, agencies should provide in the contract that the
contractor will not assign functions to any employee who has an
actual or perceived conflict of interest and, as appropriate, will
train employees on recognizing and disclosing personal conflicts.
The contract should also provide that, in the event that an employee
performs a function despite the existence of a personal conflict of
interest, the contractor will disclose the conflict to the agency
and undertake appropriate remedial action.
7. When contracting out rulemaking-related functions for which
there is a risk of misuse of confidential information, agencies
should provide in the contract that the contractor will ensure that
any employee handling such information has been appropriately
trained on the necessary safeguards. The contract should also
provide that the contractor will disclose any misuse of confidential
information to the agency and undertake appropriate remedial
actions.
Transparency
8. When an agency uses a contractor to perform an activity
closely associated with an inherently governmental function in a
specific rulemaking, the agency should disclose the contractor's
role in the rulemaking docket, the notice of proposed rulemaking, or
the preamble to the final rule. Agencies should, unless legally
precluded from doing so, also disclose the identity of the
contractor.
9. Agencies should ensure that their contracts with contractors
will allow the agencies to meet legal requirements for disclosure of
information in connection with the rulemaking process and judicial
review.
Intergovernmental Guidance
10. The Office of Management and Budget should consider
assessing whether current agency practices align with broader
procurement best practices and whether to provide guidance on
contractor-performed functions associated with rulemaking processes.
Among other things, this guidance might provide specific examples of
rulemaking-related functions that qualify as inherently governmental
functions and should not be contracted out or that are closely
associated with inherently governmental functions such that agencies
[[Page 39800]]
should exercise heightened caution when contracting out those
functions.
Administrative Conference Recommendation 2022-2
Improving Notice of Regulatory Changes
Adopted June 16, 2022
Each year federal agencies issue hundreds of thousands of pages
of legislative rules, guidance documents, adjudicative orders,
notices, and other materials that affect administrative programs.
Although the law generally requires these materials to be made
publicly available,\1\ individuals and organizations often lack the
resources or expertise to track and understand regulatory changes
that might affect them. This is particularly true for small entities
and members of communities that have been historically underserved
by government programs.\2\ Without effective notice of regulatory
changes, interested persons may miss out on benefits to which the
law entitles them or find themselves subject to enforcement actions
for noncompliance with legal requirements of which they were
unaware, and other potentially interested persons may be unaware of
regulatory changes that affect them. A lack of effective notice may
also make it less likely that regulated parties will come into
compliance with their legal obligations without the need for an
agency to undertake an enforcement action.\3\
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\1\ See, e.g., 5 U.S.C. 552(a); 44 U.S.C. 1505.
\2\ Exec. Order No. 13,985, 86 FR 7009 (Jan. 25, 2021).
\3\ See Joshua Galperin & E. Donald Elliott, Providing Effective
Notice of Regulatory Changes (May 17, 2022) (report to the Admin.
Conf. of the U.S.).
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Although agencies must comply with legal requirements for
notice, agencies can take a variety of steps to improve notice of
regulatory changes. This is of particular importance when a change
is significant, meaning that it could reasonably be expected to
change the behavior of regulated parties or regulatory
beneficiaries.\4\ An agency might consider strategies such as
publishing information about the change on its website, issuing a
press release or fact sheet summarizing and explaining the change,
communicating the change using social media or email lists, holding
a public meeting to explain and answer questions about the change,
and creating and updating agency reference guides. Agencies should
also consider designing their websites to organize and present
information in a way that makes significant regulatory changes clear
and obvious to users and allows them to identify particular topics
on which they wish to receive email alerts.
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\4\ Reference to ``significant'' regulatory changes in this
Recommendation does not refer to ``significant'' or ``major'' rules
as those terms are used in Executive Order 12,866 and the
Congressional Review Act.
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An agency's strategy for notifying potentially interested
persons of a particular regulatory change will depend, in large
part, on the agency's objectives; the nature, purpose, and
significance of the regulatory change; and the characteristics of
the persons who would potentially be interested in the change. This
Recommendation provides a framework for developing effective notice
strategies and for evaluating their effectiveness for future
improvement.\5\
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\5\ The Administrative Conference in recent years has issued
several recommendations on providing public access to legal
materials related to administrative programs, including agency
guidance documents, adjudicative rules, and adjudicative decisions.
See, e.g., Admin. Conf. of the U.S., Recommendation 2021-7, Public
Availability of Inoperative Agency Guidance Documents, 87 FR 1718
(Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 2020-6,
Agency Litigation web pages, 86 FR 6624 (Jan. 22, 2021); Admin.
Conf. of the U.S., Recommendation 2020-5, Publication of Policies
Governing Agency Adjudicators, 86 FR 6622 (Jan. 22, 2021); Admin.
Conf. of the U.S., Recommendation 2019-3, Public Availability of
Agency Guidance Documents, 84 FR 38,931 (Aug. 8, 2019); 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). This Recommendation expands
on those recommendations by specifically addressing strategies for
improving public notice of significant regulatory changes that
agencies make through such materials.
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This Recommendation acknowledges differences across agencies in
terms of the number and kinds of significant regulatory changes they
make, their resources and capacities for providing notice, and the
resources and capacities of potentially interested persons for
following regulatory changes. Appropriate notice strategies will
therefore differ among agencies. Accordingly, although it is likely
that agencies following this Recommendation will employ some of the
strategies enumerated, this Recommendation should not be understood
as necessarily advising agencies to employ every strategy for every
significant regulatory change.
Recommendation
Developing and Reviewing Notice Plans
1. Agencies should develop written notice plans, as appropriate,
for providing effective notice of significant regulatory changes. A
significant regulatory change is any change in law or policy,
however announced, that can reasonably be expected to alter the
behavior of potentially interested persons. Notice plans should:
a. Identify persons who may be interested in the agency's
significant regulatory changes;
b. Specify strategies the agency proposes to use to provide
notice;
c. Assess the expected costs and benefits of each strategy; and
d. Establish processes and metrics for evaluating the
effectiveness of each strategy.
2. In developing their notice plans, agencies should consider
the categories of persons who may be interested in the agency's
significant regulatory changes and the optimal approach to tailoring
notice to each of the different categories of persons.
3. In developing their notice plans, agencies should consider
the variety of legal materials, including legislative rules,
guidance documents, and adjudicative decisions, through which
significant regulatory changes are made and the optimal approach to
tailoring notice based upon the nature of each change and the
categories of persons it affects.
4. In developing their notice plans, agencies should obtain
feedback from potentially interested persons as to which methods for
providing notice they consider most effective.
5. Agencies should consider whether individual significant
regulatory changes might warrant additional strategies not included
in the agency's notice plan, either because they affect persons not
previously regulated or new regulatory beneficiaries, or because the
potentially interested persons have specific needs for effective
notice.
6. Agencies should periodically evaluate which strategies are
most effective at notifying potentially interested persons,
including historically underserved communities, of significant
regulatory changes. In doing so, agencies should obtain feedback
from potentially interested persons regarding which methods for
providing notice they consider most effective and suggestions for
improvement.
Strategies for Providing Effective Notice
7. Although no single technique will work for all agencies or in
all circumstances, in assessing the strategies they wish to
undertake both as a general matter and with regard to specific
significant regulatory changes, agencies should consider whether
such strategies:
a. Are cost-effective;
b. Are likely to increase compliance with legal obligations and
reduce the need for enforcement;
c. Are targeted to reach members of historically underserved
communities and potentially interested persons who may have less
capacity to monitor changes;
d. Reduce the administrative burden for regulated persons to
assemble changes that emerge from a combination of agency materials;
e. Have proved effective when used by other agencies to provide
notice; and
f. Provide opportunities for interested persons to identify
areas about which they would like to receive notice of significant
regulatory changes.
8. Agencies should consider publishing in the Federal Register
regulatory changes for which they anticipate the most widespread
public interest, even when not required by law to do so.
9. When agencies publish guidance documents announcing
significant regulatory changes on their websites, they should
consider publishing notices in the Federal Register alerting
potentially interested persons that the documents are available.
10. Agencies should seek to organize and present material on
their websites in a way that makes significant regulatory changes
clear and obvious to potentially interested persons and provides
clear instructions to users regarding how to access materials
announcing significant regulatory changes.
11. Agencies should consider optimizing their websites to
improve the visibility of significant regulatory changes in
commercial search engines.
[[Page 39801]]
12. Agencies should consider publishing summaries of legal
materials organized by topic. This approach is particularly useful
in providing notice when regulatory changes emerge from different
agencies or when agencies announce policy through adjudications or
guidance documents, because it can be difficult for potentially
interested persons to synthesize the changes. Agencies that publish
such summaries should revise those summaries promptly to reflect
significant regulatory changes. Agencies must, however, balance the
benefits of providing such summaries of the law against the costs in
terms of staff time and potential oversimplification of the
applicable law.
13. Agencies should consider issuing press releases when they
make significant regulatory changes. This approach is particularly
useful in alerting both potentially interested persons who may be
subject to new or expanded regulatory requirements that have not
previously affected them and potentially interested persons who may
have less capacity to monitor changes.
14. Agencies should consider developing and using email
distribution lists to inform potentially interested persons about
significant regulatory changes. Email distribution lists are an
effective way to provide notice to targeted groups of discrete and
defined potentially interested persons, such as specific community
or advocacy groups, at low cost. Agencies should, however, bear in
mind the following limitations of email distribution lists:
a. Email distribution lists are less effective in providing
notice to large groups of individuals or those not previously
affected by regulatory requirements;
b. Potentially interested persons must know that lists exist and
affirmatively sign up for them; and
c. Overuse of email distribution lists could result in a
significant regulatory change being obscured by less relevant
messages. Agencies can mitigate this risk by allowing users to opt
in to receiving notice on narrowly defined topics.
15. Agencies should consider using available technologies such
as web forms to allow interested persons to identify particular
topics on which they wish to receive notice.
16. Agencies should consider using social media, which is
inexpensive and far-reaching, to publicize significant regulatory
changes.
17. Agencies should consider using blogs on their websites to
inform potentially interested persons about significant regulatory
changes. Blogs allow agencies to tailor notice to the interests and
needs of particular groups and provide notice in ways that are
accessible to those groups.
18. Agencies should consider hosting public meetings or
participating in conferences or other meetings convened by outside
organizations to share information and answer questions about
significant regulatory changes. Agencies must, however, balance the
advantages of such meetings against the cost in terms of staff time
and administration.
19. When agencies host public meetings to share information
about significant regulatory changes, they should generally provide
a means for potentially interested persons to attend or participate
remotely. By so doing, they can expand access for members of
historically underserved communities, potentially interested persons
who live far from where the agency holds meetings, and potentially
interested persons who face other accessibility issues.
20. Agencies should consider training and equipping front-line
agency employees, including those in field offices, to answer
questions about significant regulatory changes.
21. Agencies should consider identifying and working with state
and local governments and intermediary organizations (e.g., trade
associations, professional associations, community organizations,
and advocacy groups) that can assist in providing effective notice
to potentially interested persons.
Oversight and Assessment
22. Agencies should consider designating an officer or office to
coordinate and support the development, implementation, and
evaluation of notice plans. This officer or office should:
a. Be responsible for evaluating the effectiveness of the
agency's notice plan;
b. Keep abreast of technological developments for improving
notice strategies, such as new social media platforms or improved
methods for indexing and organizing documents on the agency's
website;
c. Evaluate practices that other agencies use to provide notice
of significant regulatory changes; and
d. Make recommendations for improving the agency's practices and
procedures for providing effective notice of significant regulatory
changes to potentially interested persons.
23. Agencies should share information with each other about
their experiences with and practices for improving notice of
significant regulatory changes.
Administrative Conference Recommendation 2022-3
Automated Legal Guidance at Federal Agencies
Adopted June 16, 2022
Federal agencies increasingly automate the provision of legal
guidance to the public through online tools and other
technologies.\1\ The Internal Revenue Service, for example,
encourages taxpayers to seek answers to questions regarding various
tax credits and deductions through its online ``Interactive Tax
Assistant,'' and the United States Citizenship and Immigration
Services suggests that potential green card holders and citizens
with questions about their immigration rights communicate with its
interactive chatbot, ``Emma.'' Almost a dozen federal agencies have
either implemented or piloted such automated legal guidance tools in
just the past three years.\2\
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\1\ This Recommendation defines ``guidance'' broadly to include
interpretive rules, general statements of policy, and other
materials that agencies consider to be guidance documents. See
Admin. Conf. of the U.S., Recommendation 2019-3, Public Availability
of Agency Guidance Documents, 84 FR 38,931 (Aug. 8, 2019).
\2\ They include the Department of the Army, the Department of
Education, the Environmental Protection Agency, the General Services
Administration, the Food and Drug Administration, the Internal
Revenue Service, the National Institutes of Health, the Patent and
Trademark Office, the Social Security Administration, United States
Citizenship and Immigration Services, and the Veterans Benefits
Administration.
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Automated legal guidance tools can take several forms. The most
common are chatbots and virtual assistants. The simplest chatbots
provide standardized responses based on keywords included in a
user's question. Although the terms can overlap, virtual assistants
tend to be more versatile than chatbots and can often perform
additional tasks such as making an appointment or filling out a form
in response to a conversation.\3\ More robust tools rely on natural
language processing or artificial intelligence to interpret natural
language and generate an individualized response.\4\
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\3\ See Joshua D. Blank & Leigh Osofsky, Automated Legal
Guidance at Federal Agencies 1, 10 (May 26, 2022) (report to the
Admin. Conf. of the U.S.).
\4\ See Admin. Conf. of the U.S., Statement #20, Agency Use of
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021); Blank &
Osofsky, supra note 3.
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Agencies use automated legal guidance tools for a number of
reasons. They include: efficiently allocating limited staff
resources; improving user experience and service delivery; and
enhancing the quality, consistency, and predictability of guidance,
as well as the speed with which it is provided to the public.
Because they are always available from any location and can
efficiently and effectively provide answers to common questions,
automated legal guidance tools have the potential to revolutionize
the provision of agency guidance to the public.
Agencies generally take the position that users cannot rely on
automated legal guidance. As this Recommendation recognizes,
agencies must be clear in disclosing this position to users. That is
true, of course, of all forms of guidance documents.\5\ Automated
legal guidance may, however, create an especially heightened risk of
a user's relying on the guidance issued in a way that the issuing
agency does not intend. Since users often enter specific facts
relating to their circumstances, users may assume that the automated
guidance tool is giving a customized response that has accounted for
all of the facts that have been entered, which may or may not be the
case.
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\5\ See Admin. Conf. of the U.S., Recommendation 2019-3, Public
Availability of Agency Guidance Documents, ]] 11-12, 84 FR 38,931,
38,933 (Aug. 8, 2019); Admin. Conf. of the U.S., Recommendation
2019-1, Agency Guidance Through Interpretive Rules, ]] 6, 11, 84 FR
38,927, 38,929 (Aug. 8, 2019); Admin. Conf. of the U.S.,
Recommendation 2017-5, Agency Guidance Through Policy Statements, ]]
4-6, 82 FR 61,734, 61,736 (Dec. 29, 2017).
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The Administrative Conference has adopted several
recommendations on the development, use, and public availability of
[[Page 39802]]
agency guidance documents.\6\ This Recommendation builds on those
recommendations by identifying best practices for agencies to
consider when they develop, use, and manage automated legal guidance
tools. In identifying these best practices, the Conference
recognizes that automated legal guidance tools may not be suitable
for all agencies and administrative programs and that even when
agencies use them, agencies will need to provide additional guidance
by other means, including live person-to-person support.
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\6\ See Admin. Conf. of the U.S., Recommendation 2021-7, Public
Availability of Inoperative Agency Guidance Documents, 87 FR 1718
(Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 2019-3,
Public Availability of Agency Guidance Documents, 84 FR 38,931 (Aug.
8, 2019); Admin. Conf. of the U.S., Recommendation 2019-1, Agency
Guidance Through Interpretive Rules, 84 FR 38,927 (Aug. 8, 2019);
Admin. Conf. of the U.S., Recommendation 2017-5, Agency Guidance
Through Policy Statements, 82 FR 61,734 (Dec. 29, 2017); Admin.
Conf. of the U.S., Recommendation 2014-3, Guidance in the Rulemaking
Process, 79 FR 35,992 (June 25, 2014).
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Recommendation
Design and Management
1. Agencies should explore the possible benefits of offering
automated legal guidance tools, including enhancing administrative
efficiency and helping the public understand complex laws using
plain language. This is especially true for those agencies that have
a high volume of individual interactions with members of the public
who may not be familiar with legal requirements.
2. Agencies should also weigh the potential downsides of
offering automated legal guidance tools, including potentially
oversimplifying the law and creating confusion as to whether and
when the agency intends users to rely on the guidance issued. To
avoid such confusion, agencies should follow the recommendations set
forth in Paragraphs 18-20.
3. Agencies using automated legal guidance tools should design
and manage them in ways that promote fairness, accuracy, clarity,
efficiency, accessibility, and transparency.
4. Agencies should ensure that automated legal guidance tools do
not displace other agency mechanisms for increasing access to the
underlying law.
5. Agencies should adopt clear procedures for designing,
maintaining, and reviewing the content embedded in automated legal
guidance tools and should publish these procedures on their
websites. These procedures should incorporate periodic user testing
and other forms of evaluation by internal and external researchers
to ensure accessibility and effectiveness.
6. The General Services Administration should regularly evaluate
the relative costs and benefits of using outside vendors for the
production of automated legal guidance tools and share their
evaluations with agencies.
Accessibility
7. Agencies should utilize human-centered design methodologies,
empirical customer research, and user testing, as described and
defined in Executive Order 14,058, Transforming Federal Customer
Experience and Service Delivery to Rebuild Trust in Government (86
FR 71,357 (Dec. 13, 2021)), in designing and maintaining their
automated legal guidance tools.
8. Agencies should, consistent with applicable laws and
policies, design and periodically review and, when necessary,
reconfigure automated legal guidance tools to ensure that they meet
the needs of the particular populations that are intended to utilize
the automated legal guidance tools.
9. Agencies should ensure that information provided by automated
legal guidance tools is stated in plain language understandable by
the particular populations that are intended to use these tools,
consistent with the Plain Writing Act of 2010 (5 U.S.C. 301 note);
Recommendation 2017-3, Plain Language in Regulatory Drafting (82 FR
61,728 (Dec. 14, 2017)); and other applicable laws, policies, and
Conference recommendations.
10. Agencies should design automated legal guidance tools to put
users in contact with a human customer service representative to
whom they can address questions in the event that a question is not
answered by an automated legal guidance tool or if the users are
having difficulty using the tools.
Transparency
11. When the underlying law is unclear or unsettled, or when the
application of the law is especially fact-dependent, agencies should
be transparent about the limitations of the advice the user is
receiving. To the extent practicable, agencies should also provide
access through automated legal guidance tools to the legal materials
underlying the tools, including relevant statutes, rules, and
judicial or adjudicative decisions.
12. Agencies should disclose how they store and use the data
obtained through automated legal guidance tools.
13. Agencies should update the content of automated legal
guidance tools to reflect legal developments or correct errors in a
timely manner. Agencies should also maintain an electronic, publicly
accessible, searchable archive that identifies and explains the
updates. Agencies should provide the date on which the tool was last
updated.
14. When automated legal guidance tools provide programmed
responses to users' questions, agencies should publish the questions
and responses so as to provide an immediate and comprehensive source
of information regarding the tools. Agencies should post this
information in an appropriate location on their websites and make it
accessible through the automated legal guidance tool to which it
pertains.
15. When automated legal guidance tools learn to provide
different answers to users' questions over time, agencies should
publish information related to how the machine learning process was
developed and how it is maintained and updated. Agencies should post
this information in an appropriate location on their websites and
make it accessible through the automated legal guidance tool to
which it pertains.
16. Agencies that use automated legal guidance tools should
provide users the ability to offer feedback or report errors.
17. When applicable, agencies should provide disclaimers that
the automated legal guidance tool is not human.
Reliance
18. Agencies should allow users to obtain a written record of
their communication with automated legal guidance tools and should
include date and time stamps on the written record.
19. Agencies should consider whether, or under what
circumstances, a person's good faith reliance on guidance provided
by an automated legal guidance tool should serve as a defense
against a penalty or other consequences for noncompliance with an
applicable legal requirement, and they should prominently announce
that position to users.
20. If an agency takes the position that it can depart from an
interpretation or explanation provided by an automated legal
guidance tool, including in the application of penalties for
noncompliance, it should prominently announce its position to users,
including in the written record of the communication with the
automated legal guidance tool.
[FR Doc. 2022-14189 Filed 7-1-22; 8:45 am]
BILLING CODE 6110-01-P
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</html>Indexed from Federal Register on July 5, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.