Notice2024-31352
Adoption of Recommendations
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Published
December 30, 2024
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) Eighty-second Plenary Session: Using Algorithmic Tools in Regulatory Enforcement, Public Engagement in Agency Rulemaking Under the Good Cause Exemption, and Nonlawyer Assistance and Representation in Agency Adjudications.
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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106406-106412]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31352]
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Federal Register / Vol. 89 , No. 249 / Monday, December 30, 2024 /
Notices
[[Page 106406]]
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) Eighty-second Plenary Session: Using Algorithmic Tools in
Regulatory Enforcement, Public Engagement in Agency Rulemaking Under
the Good Cause Exemption, and Nonlawyer Assistance and Representation
in Agency Adjudications.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2024-5, Kazia
Nowacki; Recommendation 2024-6, Benjamin Birkhill; and Recommendation
2024-7, Lea Robbins. 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 Eighty-second Plenary
Session on December 12, 2024, to consider three proposed
recommendations and conduct other business. All three recommendations
were adopted.
Recommendation 2024-5, Using Algorithmic Tools in Regulatory
Enforcement. This recommendation provides best practices for using
artificial intelligence, predictive analytics, and other algorithmic
tools to support agencies' regulatory enforcement efforts. It addresses
the potential benefits and risks of using algorithmic tools to detect,
investigate, and prosecute noncompliance with the law and identifies
policies, practices, and organizational structures that agencies can
put in place to ensure they enforce the law fairly, accurately, and
efficiently.
Recommendation 2024-6, Public Engagement in Agency Rulemaking Under
the Good Cause Exemption. This recommendation provides best practices
for public engagement when agencies find good cause to forgo notice-
and-comment rulemaking procedures under the Administrative Procedure
Act. It encourages agencies to use direct final rulemaking, interim
final rulemaking, and alternative methods of public engagement to
ensure robust public participation even when they rely properly on the
good cause exemption.
Recommendation 2024-7, Nonlawyer Assistance and Representation in
Agency Adjudications. This recommendation provides best practices for
agencies to increase the availability of nonlawyer representation and
assistance to participants in their adjudicative systems. It provides
guidance on the establishment of rules authorizing qualification or, as
appropriate, accreditation of nonlawyer representatives; ways to make
such processes accessible and transparent; and strategies for
coordinating with other government agencies and nongovernmental
organizations to increase the availability of representation and
assistance.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/event/82nd-plenary-session">https://www.acus.gov/event/82nd-plenary-session</a>.
Authority: 5 U.S.C. 595.
Dated: December 23, 2024.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2024-5
Using Algorithmic Tools in Regulatory Enforcement
Adopted December 12, 2024
The use of artificial intelligence (AI) and other algorithmic
tools is changing how government agencies do their work. As the
Administrative Conference has recognized, these tools ``hold out the
promise of lowering the cost of completing government tasks and
improving the quality, consistency, and predictability of agencies'
decisions.'' At the same time, these tools ``raise concerns about
the full or partial displacement of human decision making and
discretion.'' \1\ The Conference adopted Statement #20, Agency Use
of Artificial Intelligence, in 2020 to help agencies consider when
and how to use algorithmic tools appropriately.\2\ More recently, it
adopted specific recommendations addressing the use of algorithmic
tools to review regulations,\3\ manage public comments,\4\ and
provide guidance to the public.\5\
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\1\ Admin. Conf. of the U.S., Statement #20, Agency Use of
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021).
\2\ Id.
\3\ Admin. Conf. of the U.S., Recommendation 2023-3, Using
Algorithmic Tools in Retrospective Review of Agency Rules, 88 FR
42,681 (July 3, 2023).
\4\ Admin. Conf. of the U.S., Recommendation 2021-1, Managing
Mass, Computer-Generated, and Falsely Attributed Comments, 86 FR
36,075 (July 8, 2021).
\5\ Admin. Conf. of the U.S., Recommendation 2022-3, Automated
Legal Guidance at Federal Agencies, 87 FR 39,798 (July 5, 2022).
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In this Recommendation, the Conference turns to the use of
algorithmic tools in regulatory enforcement. An algorithmic tool is
a computer-based process that ``uses a series of rules or inferences
drawn from data to transform specified inputs into outputs to make
decisions or support decision making.'' \6\ Many agencies engage in
regulatory enforcement--that is, detecting, investigating, and
prosecuting potential violations of the laws they administer. These
agencies are often ``faced with assuring the compliance of an
increasing number of entities and products without a corresponding
growth in agency resources.'' \7\
[[Page 106407]]
As agencies seek ways to make regulatory compliance ``more effective
and less costly,'' \8\ many are considering how they can use
algorithmic tools to perform regulatory enforcement tasks such as
monitoring compliance; detecting potential noncompliance;
identifying potential subjects for investigation, inspection, or
audit; and gathering evidence to determine whether corrective action
against a regulated person is warranted. Indeed, a report to the
Conference analyzing the use of AI in federal administrative
agencies found that ``AI has made some of its most substantial
inroads in the context of agency enforcement activities.'' \9\
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\6\ Recommendation 2023-3, supra note 3. For purposes of this
Recommendation, ``algorithmic tools'' includes AI technologies but
not basic scientific or computing tools.
\7\ See Admin. Conf. of the U.S., Recommendation 2012-7, Agency
Use of Third-Party Programs to Assess Regulatory Compliance, 78 FR
2941, 2941 (Jan. 15, 2013).
\8\ Id. In Recommendation 2012-7, the Conference noted that
agencies ``may leverage private resources and expertise in ways that
make regulation more effective and less costly.'' Id.
\9\ David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey &
Mariano-Florentino Cu[eacute]llar, Government by Algorithm in
Federal Administrative Agencies 22 (Feb. 2020) (report to the Admin.
Conf. of the U.S.); accord Cary Coglianese, A Framework for
Governmental Use of Machine Learning 31 (Dec. 8, 2020) (report to
the Admin. Conf. of the U.S.).
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The use of algorithmic tools in regulatory enforcement presents
special opportunities for agencies. When used appropriately, such
tools may enable agencies to perform enforcement tasks even more
efficiently, accurately, and consistently. Algorithmic tools may be
particularly useful in performing many of the most time- and
resource-intensive tasks associated with regulatory enforcement,
such as synthesizing voluminous records, determining patterns in
complex filings, and identifying activities that might require
additional review by a human being.
At the same time, significant challenges and concerns arise in
agencies' use of algorithmic tools in regulatory enforcement.\10\
The Conference has previously identified possible risks associated
with agencies' use of algorithmic tools, including insufficient
transparency, internal and external oversight, and explainability;
\11\ the potential to unintentionally create or exacerbate ``harmful
biases'' by encoding and deploying them at scale; \12\ and the
possibility that agency personnel will devolve too much decisional
authority to AI systems.\13\ Such risks are heightened when, as in
the regulatory enforcement context, agencies use algorithmic tools
to make decisions or take actions that affect a person's rights,
civil liberties, privacy, safety, equal opportunities, or access to
government resources or services.\14\
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\10\ Michael Karanicolas, Artificial Intelligence and Regulatory
Enforcement (Dec. 9, 2024) (report to the Admin. Conf. of the U.S.);
cf. Recommendation 2023-3, supra note 3; Admin. Conf. of the U.S.,
Recommendation 2021-10, Quality Assurance Systems in Agency
Adjudication, 87 FR 1722 (Jan. 12, 2022); Recommendation 2021-1,
supra note 4; Statement #20, supra note 1; Admin. Conf. of the U.S.,
Recommendation 2018-3, Electronic Case Management in Federal
Administrative Adjudication, 83 FR 30,686 (June 29, 2018).
\11\ ``Explainability'' allows those using or overseeing AI
systems to ``gain deeper insights into the functionality and
trustworthiness of the system, including its outputs,'' and helps
users understand the potential effects and purposes of an AI system.
Nat'l Inst. Of Standards & Tech., Artificial Intelligence Risk
Management Framework (AI RMF 1.0) 16 (2023) [hereinafter AI RMF
1.0].
\12\ Statement #20, supra note 1, at 6617.
\13\ See id. at 6618.
\14\ See Off. Of Mgmt. & Budget, Exec. Off. Of The President,
M--24--10, Advancing Governance, Innovation, And Risk Management For
Agency Use Of Artificial Intelligence 29 (2024) (providing a
comprehensive definition of ``rights-impacting'' uses of AI).
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Since the Conference issued Statement #20, Congress enacted the
AI in Government Act, which directs the Director of the Office of
Management and Budget (OMB) to provide agencies with guidance on
removing barriers to agency AI use ``while protecting civil
liberties, civil rights, and economic and national security'' and on
best practices for identifying, assessing, and mitigating harmful
bias.\15\ Executive Order 13,960, Promoting the Use of Trustworthy
Artificial Intelligence in the Federal Government, identifies
principles for agencies when designing, developing, acquiring, and
using AI and directs agencies to inventory their uses of AI and make
those inventories publicly available.\16\ Executive Order 14,110,
Safe, Secure, and Trustworthy Development and Use of Artificial
Intelligence, requires agencies to designate Chief AI Officers, who
have primary responsibility for overseeing their agencies' AI use
and coordinating with other agencies, and establishes the Chief AI
Officer Council to coordinate the development and use of AI across
agencies.\17\ OMB Memorandum M-24-10, Advancing Governance,
Innovation, and Risk Management for Agency Use of Artificial
Intelligence, which implements the AI in Government Act and
Executive Order 14,110, provides guidance to agencies on
strengthening the effective and appropriate use of AI, advancing
innovation, and managing risks, particularly those related to
rights-impacting uses of AI.\18\ Memorandum M-24-10 further provides
risk-management practices for agency uses of AI that affect people's
rights, which are derived from the Office of Science and Technology
Policy's Blueprint for an AI Bill of Rights and the National
Institute of Standards and Technology's AI Risk Management
Framework.\19\ Those practices include ``conducting public
consultation; assessing data quality; assessing and mitigating
disparate impacts and algorithmic discrimination; providing notice
of the use of AI; continuously monitoring and evaluating deployed
AI; and granting human consideration and remedies for adverse
decisions made using AI.'' \20\ Additionally, OMB issued Memorandum
M-24-18, Advancing the Responsible Acquisition of Artificial
Intelligence in Government, which ``integrat[es] these
considerations for AI risk management into agency acquisition
planning.'' \21\
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\15\ Pub. L. 116-260, div. U, title 1, Sec. 104 (2020)
(codified at 40 U.S.C. 11301 note).
\16\ See Exec. Order No. 13,960, Promoting the Use of
Trustworthy Artificial Intelligence in the Federal Government, 85 FR
78,939 (Dec. 3, 2020).
\17\ Exec. Order No. 14,110 Sec. 10.1(b), Safe, Secure, and
Trustworthy Development and Use of Artificial Intelligence, 88 FR
75,191, 75,218 (Oct. 30, 2023); OMB Memorandum M-24-10, supra note
14.
\18\ See OMB Memorandum M-24-10, supra note 14, at 29.
\19\ Id.; see also Off. of Sci. & Tech. Pol'y, Exec. Off. of the
President, Blueprint for an AI Bill of Rights (2022); AI RMF 1.0,
supra note 11.
\20\ Exec. Order No. 14,110, supra note 17.
\21\ Off. of Mgmt. & Budget, Exec. Off. of the President, M-24-
18, Advancing the Responsible Acquisition of Artificial Intelligence
in Government (2024), at 1.
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Consistent with these authorities, this Recommendation provides
a framework for using algorithmic tools in regulatory enforcement in
ways that promote the efficient, accurate, and consistent
administration of the law while also safeguarding rights, civil
liberties, privacy, safety, equal opportunities, and access to
government resources and services.
RECOMMENDATION
1. When considering possible uses of algorithmic tools to
perform regulatory enforcement tasks, agencies should consider
whether and to what extent such tools will:
a. Promote efficiency, accuracy, and consistency;
b. Create or exacerbate unlawful or harmful biases;
c. Produce an output that agency decisionmakers can understand
and explain;
d. Devolve decisional authority to automated systems;
e. Adversely affect rights, civil liberties, privacy, safety,
equal opportunities, and access to government resources or services;
f. Use inappropriately or reveal publicly, directly or
indirectly, confidential business information or trade secrets; and
g. Affect the public's perception of the agency and how fairly
it administers regulatory programs.
2. When agencies use algorithmic tools to perform regulatory
enforcement tasks, they should assess the risks associated with
using such tools, including those in Paragraph 1, and put in place
oversight mechanisms and data quality assurance practices to
mitigate such risks. During a risk assessment process, agencies
should consider, among other things, the:
a. Ability to customize tools and systems to the agency's
ongoing needs and to specific use cases;
b. Tendency of such tools to produce unexpected outcomes that
could go beyond their intended uses or have the potential for biased
or harmful outcomes;
c. Training and testing methodologies used in developing and
maintaining such tools;
d. Quality assurance practices available for data collection and
use, including the dependency of such tools on the completeness and
veracity of the underlying data on which they rely; and
e. Oversight procedures available to the agency and the public
to ensure responsible use of such tools.
3. When agencies use algorithmic tools to perform regulatory
enforcement tasks, agencies should ensure that any agency personnel
who use such tools or rely on their outputs to make enforcement
decisions receive adequate training on the capabilities,
[[Page 106408]]
risks, and limits of such tools and understand how to appropriately
assess their outputs before relying on them.
4. When agencies provide notice to regulated persons of an
action taken during an investigation, inspection, audit, or
prosecution, they should specify if an algorithmic tool provided a
meaningful basis for taking that action, consistent with existing
legal requirements.
5. Consistent with legal requirements, agencies should notify
the public on their websites of algorithmic tools they meaningfully
use to investigate, inspect, audit, or gather evidence to discover
non-compliance by regulated entities, along with information about
the sources and nature of the data used by such tools.
6. Agencies that meaningfully use or are considering using
algorithmic tools in regulatory enforcement should engage with
persons interested in or affected by the use of such tools to
identify possible benefits and harms associated with their use.
7. Agencies that use algorithmic tools to perform regulatory
enforcement tasks should provide effective processes whereby persons
can voice concerns or file complaints regarding the use or outcome
resulting from the use of such tools so that agencies may respond or
take corrective action.
8. The Chief AI Officer Council should facilitate collaboration
and the exchange of information among agencies that use or are
considering using algorithmic tools in regulatory enforcement.
Administrative Conference Recommendation 2024-6
Public Engagement in Agency Rulemaking Under the Good Cause Exemption
Adopted December 12, 2024
Public participation plays an essential role in agency
rulemaking. Agencies facilitate such participation through public
engagement activities designed to elicit input from the public,
including efforts to enhance public understanding of the rulemaking
process and foster meaningful public participation in it. As the
Administrative Conference has recognized, ``[b]y providing
opportunities for public input and dialogue, agencies can obtain
more comprehensive information, enhance the legitimacy and
accountability of their decisions, and increase public support for
their rules.'' \1\ The Administrative Procedure Act (APA) recognizes
the value of public participation in rulemaking by generally
requiring agencies to publish a notice of proposed rulemaking in the
Federal Register and provide interested persons an opportunity to
submit written comments on rulemaking proposals.\2\
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\1\ See Admin. Conf. of the U.S., Recommendation 2018-7, Public
Engagement in Rulemaking, 84 FR 2146 (Feb. 6, 2019).
\2\ 5 U.S.C. 553(b)-(c).
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However, notice-and-comment procedures can be time-consuming and
resource-intensive, and there are circumstances in which the costs
of those procedures may outweigh their benefits in terms of public
participation. For this reason, the APA permits agencies to forgo
notice-and-comment procedures when, among other reasons, they find
for ``good cause'' that such procedures would be ``impracticable,
unnecessary, or contrary to the public interest'' and they
incorporate this finding and ``a brief statement of reasons'' for it
in their rules.\3\ Notice and comment may be ``impracticable'' when
an agency ``finds that due and timely execution of its functions
would be impeded by the notice otherwise required [by the APA].''
\4\ Notice and comment may be ``unnecessary'' when a rule is ``a
routine determination, insignificant in nature and impact, and
inconsequential to the industry and to the public'' \5\ or when the
agency lacks discretion regarding the substance of the rule.\6\ And
notice and comment may be ``contrary to the public interest'' in
``the rare circumstance when ordinary procedures--generally presumed
to serve the public interest--would in fact harm that interest.''
\7\
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\3\ Id. Sec. 553(b)(B).
\4\ Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754
(D.C. Cir. 2001); see also Attorney General's Manual on the
Administrative Procedure Act 30-31 (1947).
\5\ Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012)
(quoting Util. Solid Waste Activities Grp., 236 F.3d at 755).
\6\ Metzenbaum v. Fed. Energy Regul. Comm'n, 675 F.2d 1282, 1291
(D.C. Cir. 1982).
\7\ Mack Trucks, Inc., 682 F.3d at 95.
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The Conference has long encouraged robust public participation
in agency rulemaking and has identified effective methods for
engaging with the public outside of, and to supplement, the notice-
and-comment process.\8\ The fact that notice and comment is
unnecessary, impracticable, or contrary to the public interest does
not mean that no public engagement is appropriate. Indeed, such
engagement may be especially important precisely because standard
notice and comment is not occurring. And such engagement can also
help agencies determine whether the good cause exemption is
applicable.
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\8\ See Recommendation 2018-7, supra note 1; see also Admin.
Conf. of the U.S., Office of the Chair, Statement of Principles for
Public Engagement in Agency Rulemaking (rev. Sept. 1, 2023).
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Of course, the same factors that make a comment period
inappropriate may weigh equally against other types of public
engagement as well. Neither the agency nor the public is well served
by needless or counterproductive efforts to engage the public. Such
circumstances are rare, however. The goal of this Recommendation is
to identify ways in which agencies can meaningfully and usefully
engage the public even when relying on the good cause exemption.
Agencies engage with the public in a variety of ways when
invoking the good cause exemption. The two primary rulemaking
mechanisms are usually referred to as direct final rulemaking and
interim final rulemaking.\9\ When notice and comment is unnecessary,
agencies sometimes use direct final rulemaking, in which the agency
simultaneously publishes a final rule and solicits comments on it,
with the rule going into effect only if no significant adverse
comments are received. When notice and comment is impracticable or
contrary to the public interest, agencies sometimes use interim
final rulemaking, in which, at the same time the rule is published,
they request public comment on a final rule for the purpose of
deciding whether to reaffirm, modify, or replace the published rule
in light of those comments. Agencies sometimes also use other, more
informal procedures--including publishing requests for information,
engaging in targeted outreach, and convening listening sessions with
interested persons--when they invoke the good cause exemption.
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\9\ The APA does not define direct final rulemaking or interim
final rulemaking. Agencies developed these terms to describe
commonly used processes for engaging with the public when they
invoke the good cause exemption.
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The Conference has addressed direct final rulemaking and interim
final rulemaking in prior recommendations. In Recommendation 83-2,
The ``Good Cause'' Exemption from APA Rulemaking Requirements, the
Conference encouraged agencies to ``provide a post-promulgation
comment opportunity for rules they adopt under the good cause
exemption.'' \10\ In Recommendation 95-4, Procedures for
Noncontroversial and Expedited Rulemaking, the Conference
recommended that agencies ``use direct final rulemaking in all cases
where the `unnecessary' prong of the good cause exemption is
available, unless the agency determines that the process would not
expedite issuance of such rules,'' and provided best practices for
doing so.\11\ In Recommendation 95-4, the Conference recommended
that agencies use interim final rulemaking when they conclude that
using notice-and-comment procedures would be ``impracticable'' or
``contrary to the public interest,'' and provided best practices for
doing so.\12\
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\10\ Admin. Conf. of the U.S., Recommendation 83-2, The ``Good
Cause'' Exemption from APA Rulemaking Requirements, 48 FR 31180
(July 7, 1983).
\11\ Admin. Conf. of the U.S., Recommendation 95-4, Procedures
for Noncontroversial and Expedited Rulemaking, 60 FR 43110 (Aug. 18,
1995).
\12\ Id.
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The Conference is revisiting the topic of public engagement in
rulemaking under the good cause exemption for two reasons. First,
best practices for public engagement have become increasingly
important as agencies rely more frequently on the good cause
exemption.\13\ Second, there have been legal developments since
1995, particularly a 2020 decision by the Supreme Court on interim
final rulemaking.\14\
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\13\ See, e.g., U.S. Gov't Accountability Off., GAO-13-21,
Agencies Could Take Additional Steps to Respond to Public Comments
(2012); see also Cong. Rsch. Serv., R44356, The Good Cause Exception
to Notice and Comment Rulemaking: Judicial Review of Agency Action
(2016).
\14\ Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 591 U.S. 657, 683 (2020).
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Based on a reexamination of agency rulemaking practices under
the good cause exemption,\15\ this Recommendation identifies best
practices for enhancing public
[[Page 106409]]
engagement in rulemaking under the good cause exemption,
particularly when agencies use direct final rulemaking and interim
final rulemaking. It also encourages agencies to use alternative
methods--such as publishing requests for information, engaging in
targeted outreach, convening listening sessions with interested
persons, and soliciting post-adoption comments--to reap the benefits
of robust public participation even when they rely properly on the
good cause exemption. Recommendations 83-2 and 95-4 are superseded
to the extent that they recommend public engagement practices that
are inconsistent with this Recommendation.
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\15\ See Mark Squillace, Best Practices for Agency Use of the
Good Cause Exemption for Rulemaking (Dec. 4, 2024) (report to the
Admin. Conf. of the U.S.).
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Recommendation
Direct Final Rulemaking
1. Except in the rare instance that an agency determines that
direct final rulemaking would not expedite issuance of a rule, an
agency should use direct final rulemaking when it:
a. For good cause finds that it is ``unnecessary'' to undertake
notice-and-comment rulemaking; and
b. Concludes that the rule is unlikely to elicit any significant
adverse comments.
2. When an agency uses direct final rulemaking, it should
publish in the Federal Register a rule that:
a. Identifies the rule as a ``direct final rule'';
b. Provides a brief statement explaining the basis for the
agency's finding that it is unnecessary to undertake notice-and-
comment rulemaking;
c. Provides a statement of the rule's basis and purpose and
explains the issues the agency considered in developing the rule;
d. Provides a period of at least 30 days during which interested
persons may submit comments regarding the substance of the rule;
e. Explains that the agency will withdraw the direct final rule
if it receives any significant adverse comments and specifies any
additional actions that the agency may take if it withdraws the
direct final rule;
f. Specifies when the rule will take effect if the agency
receives no significant adverse comments (see Paragraph 5);
g. If applicable, specifies whether the agency will issue a
subsequent notice in the Federal Register confirming that the agency
received no significant adverse comments (see Paragraph 5); and
h. Identifies any companion proposed rule, as described in
Paragraph 3.
3. When an agency issues a direct final rule, it may consider
publishing in the same issue of the Federal Register a companion
proposed rule that will serve as a notice of proposed rulemaking if
the agency later withdraws the direct final rule upon receiving any
significant adverse comments. In the event the agency receives
significant adverse comments, the agency should consider providing
an additional period for public comment on the companion proposed
rule.
4. An agency should consider any comment received during direct
final rulemaking to be a significant adverse comment if the comment
explains why:
a. The rule would be inappropriate, including challenges to the
rule's underlying premise or approach; or
b. The rule would be ineffective or unacceptable without a
change.
5. Absent exceptional circumstances for providing a different
effective date, the agency should provide that a direct final rule
will take effect at least 30 days after the close of the comment
period if the agency receives no significant adverse comments or at
least 30 days after publication of a subsequent notice in the
Federal Register confirming that the agency received no significant
adverse comments. An agency that does not publish a confirmation
notice should consider providing an effective date greater than 30
days after the close of the comment period if the agency believes it
is necessary to ensure that it has adequate time to withdraw the
rule in the event it receives significant adverse comments.
6. If the agency receives any significant adverse comments or
otherwise decides to withdraw the direct final rule before it takes
effect, the agency should publish a notice in the Federal Register
that states that the agency is withdrawing the direct final rule and
describes any further rulemaking the agency will conduct on the
matter. If the agency previously requested comments in a companion
proposed rule as described in Paragraph 3, the agency may proceed
with notice-and-comment rulemaking consistent with the proposed
rule.
Interim Final Rulemaking
7. An agency is encouraged to use interim final rulemaking when
it for good cause finds that it is ``impracticable'' or ``contrary
to the public interest'' to undertake notice-and-comment rulemaking.
8. When an agency uses interim final rulemaking, it should
publish in the Federal Register a rule that:
a. Identifies the rule as an ``interim final rule'';
b. Provides a brief statement explaining the basis for the
agency's finding that is ``impracticable'' or ``contrary to the
public interest'' to undertake notice-and-comment rulemaking;
c. Provides a statement of the rule's basis and purpose and
explains the issues the agency considered in developing the rule;
d. Provides a period of at least 30 days (or in most cases at
least 60 days, in particular for ``major rules'' as defined in the
Congressional Review Act) during which interested persons may submit
comments regarding the substance of the rule or the agency's finding
that notice-and-comment rulemaking is impracticable or contrary to
the public interest;
e. Explains that the agency will consider any comments that it
receives in response to the interim final rule;
f. As applicable, sets forth the agency's plans for supplemental
public engagement (see Paragraph 11) and solicits public input on
those public engagement plans;
g. Explains that the rule is being adopted without prior notice
and comment, specifies the date upon which the rule will take
effect, and identifies the rule's expiration date if applicable; and
h. Specifies that the agency will consider the comments and
complete the rulemaking by reaffirming, modifying, or withdrawing
the interim final rule (see Paragraph 9).
9. An agency should conclude the interim final rulemaking by
publishing a new final rule in the Federal Register that responds to
all significant comments and reaffirms, modifies, or withdraws the
interim final rule as appropriate. Consistent with agency resources
and priorities, an agency should publish the new final rule as
expeditiously as possible and should prioritize ``major rules'' as
defined in the Congressional Review Act.
Additional Public Engagement
10. When appropriate, an agency should use additional forms of
public engagement, including those identified in Recommendation
2018-7, Public Engagement in Rulemaking, before considering whether
to invoke the good cause exemption when such engagement would help
the agency (a) determine if notice-and-comment rulemaking is
unnecessary, impracticable, or contrary to the public interest or
(b) develop the rule. The agency should explain in the direct or
interim final rule what additional public engagement the agency
undertook.
11. An agency should consider using supplemental forms of public
engagement after issuing an interim final rule. Consistent with
Executive Order 13,563 and Recommendation 2021-2, Periodic
Retrospective Review, an agency should prioritize for retrospective
review interim final rules that are ``major rules'' as defined in
the Congressional Review Act. An agency should explain in any
subsequent final rule what supplemental public engagement the agency
undertook.
12. Consistent with Recommendation 2014-4, ``Ex Parte''
Communications in Informal Rulemaking, an agency should disclose ex
parte communications that occur during supplemental public
engagement. For purposes of applying Recommendation 2014-4, an
interim final rule should be considered the equivalent of a notice
of proposed rulemaking.
Administrative Conference Recommendation 2024-7
Nonlawyer Assistance and Representation in Agency Adjudications
Adopted December 12, 2024
Millions of people each year participate in administrative
adjudicative proceedings to access federal programs and resolve
legal issues. Some adjudicative proceedings are simple enough--or
could be made simple enough--for people to navigate on their own,
and the Administrative Conference has identified best practices for
reducing administrative burdens and assisting self-represented
parties.\1\ But many adjudicative
[[Page 106410]]
proceedings are so complex, or involve such significant stakes, that
people engaging with them benefit from representation by individuals
with expertise in those programs or assistance from individuals who
can help them navigate the proceedings.
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\1\ See Admin. Conf. of the U.S., Recommendation 2023-6,
Identifying and Reducing Burdens on the Public in Administrative
Proceedings, 89 FR 1511 (Jan. 10, 2024); Admin. Conf. of the U.S.,
Recommendation 2016-6, Self-Represented Parties in Administrative
Proceedings, 81 FR 94319 (Dec. 23, 2016).
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It is helpful to distinguish between ``representation'' and
``assistance.'' Representation is used to denote that the individual
is ``standing in the shoes'' of the participant and can speak for
that individual even when they are not present. Other activities
that likely indicate representation include counseling on
eligibility for an agency program or signing official records.\2\
``Assistance'' is broader and used to indicate many other forms of
help that may be beneficial to a person in dealing with an agency;
this may include educating someone on process, counseling someone
about rights and remedies generally, and, in some cases, helping
someone navigate a form or benefits application. In most cases,
representation will include various forms of assistance, but
assistance does not include representation.
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\2\ Admin. Conf. of the U.S., Recommendation 86-1, Nonlawyer
Assistance and Representation, 51 FR 25641, 25642 n.2 (July 16,
1986).
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Representation and assistance, whether by lawyers or nonlawyers,
are particularly valuable, even in seemingly straightforward
adjudicatory proceedings, when they help people access relevant and
accurate information about agency programs, program eligibility, and
information on how to complete forms correctly and submit required
information.\3\ For example, although the use of digital
technologies, such as online forms and virtual hearings, is an
effective strategy for increasing accessibility, it can also act as
a barrier for people who lack access to digital tools or lack the
skills to navigate these systems. Such challenges can be present for
anyone, but those lacking representation or assistance may become so
overwhelmed that they forgo rights and benefits to which they are
entitled.\4\ More generally, a lack of representation or assistance
often can lead to incorrect or unfair outcomes.
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\3\ White House Legal Aid Interagency Roundtable, Access to
Justice in Federal Administrative Proceedings: Nonlawyer Assistance
and Other Strategies 1 (2023) [hereinafter WH-LAIR Report].
\4\ Pamela Herd, Donald Moynihan, & Amy Widman, Identifying and
Reducing Burdens in Administrative Processes 41 (Dec. 5, 2023)
(report to the Admin. Conf. of the U.S.).
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Representation and assistance not only help participants in
adjudicatory proceedings but also benefit agencies. Without
representation or assistance, an individual may be less likely to
properly and timely complete adjudicative requirements, which can
delay proceedings. Additionally, those without representation or
assistance may require more support from the agency, including the
adjudicator, which can strain resources and reduce efficiency.\5\
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\5\ Recommendation 2016-6, supra note 1, at 94,320; see also,
Recommendation 86-1, supra note 2, at 25,642; WH-LAIR Report, supra
note 3, at 19 (``Studies show that legal assistance improves legal
outcomes.'').
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Many people, however, particularly low-income people and members
of historically underserved communities, are unable to access
representation or assistance.\6\ One barrier is the shortage of
affordable legal services. This concern is particularly acute in
remote and rural areas, where not only are lawyers relatively scarce
and may not have relevant expertise, but they may not be accessible
to people who need them due to the long distances required to visit
in person, inability to consult virtually, and other barriers.
---------------------------------------------------------------------------
\6\ See Amy Widman, Nonlawyer Assistance and Representation
(Dec. 9, 2024) (report to the Admin. Conf. of the U.S.).
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Federal agencies have long innovated various ways to widen the
pool of available representatives and expand assistance. For
example, many agencies currently permit participants in agency
adjudications to be represented by qualified or accredited
nonlawyers.\7\ In many instances, the decision maker (whether or not
an administrative law judge) makes an informal determination whether
a representative is ``qualified,'' but some adjudicative systems
provide for a formal accreditation system to determine which
nonlawyer representatives are qualified to practice in those
systems.\8\
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\7\ See 5 U.S.C. 555(b) (``A person compelled to appear in
person before an agency . . . is entitled to be accompanied,
represented, and advised by counsel or, if permitted by the agency,
by other qualified representative.''). Examples of nonlawyers who
represent or assist parties in agency proceedings include other
licensed professionals such as accountants, social workers, and
paralegals; law students; union representatives; human resources
professionals; corporate officers; tribal advocates; agency
employees; community members; and family members. The Conference
recognizes that there is an ongoing discussion about the best way to
describe representatives who do not hold an active law license. For
the purposes of this Recommendation, the Conference refers to this
group as ``nonlawyer representatives'' because it is consistent with
two prior recommendations of the Conference, the Model Rules of
Representative Conduct, and the 2023 report of the White House Legal
Aid Interagency Roundtable. Use of the term ``nonlawyer'' is not
meant to suggest any deficiencies in representation offered by such
individuals, nor should it deter any individual agency from adopting
a different term. The Conference encourages agencies to remain
attentive to the ongoing discussion within the legal community about
terminology in this area and to consider updating their usage
accordingly.
\8\ Federal law may specify criteria or processes that an agency
must use in determining whether a nonlawyer representative is
qualified to represent participants in proceedings before it. See,
e.g., 5 U.S.C. 500(c) (providing that individuals duly qualified to
practice as a certified public accountant in a state may represent
participants in Internal Revenue Service proceedings upon filing
with the agency a written declaration as specified by law).
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Increasing availability of nonlawyer representation and
assistance can be particularly beneficial in meeting the needs of
communities of special populations, including veterans and
servicemembers, members of tribal communities, people with
disabilities, people with criminal records, immigrants, and disaster
survivors.\9\ Members of such communities often benefit from
representation and assistance provided by nongovernmental
organizations, advocacy groups, and others already operating to meet
the needs and face the challenges within such communities. These
community ties function as a way to build trust among participants
and serve as a deep source of knowledge and expertise that can bear
on representation and assistance. That trust can in turn inspire
public confidence in agency adjudication. Agencies can engage with
such groups to help increase availability and awareness of nonlawyer
representation and assistance in these communities.
---------------------------------------------------------------------------
\9\ See WH-LAIR Report, supra note 3, at vii.
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There are barriers to increasing availability of nonlawyer
representation and assistance, including barriers that agencies may
be able to address through their rules regarding representation and
assistance. Agencies vary in their requirements, oversight, and
encouragement of such representation and assistance. While
reasonable requirements for qualification or accreditation, as well
as continuing education, help ensure the quality and competence of
representation, overly burdensome requirements can unnecessarily
reduce the availability of nonlawyer representation. When agencies
do not affirmatively inform participants of the availability of such
representation or assistance, participants may not be aware of these
resources.
The issue of nonlawyer representation and assistance has been a
long-standing concern of the Conference. As early as 1986, the
Conference recommended that agencies permit and encourage nonlawyer
representation and assistance because of the substantial number of
individuals needing or desiring representation and assistance in
filling out forms, filing claims, and appearing in agency
proceedings who were unable to afford or otherwise obtain such
representation or assistance by lawyers.\10\ In 2023, the Conference
adopted two recommendations addressing agency adjudicatory processes
that encourage agencies to allow participants in many adjudications
``to be represented by a lawyer or a lay person with relevant
expertise'' \11\ and to establish ``rules authorizing accredited or
qualified nonlawyer representatives to practice before the agency.''
\12\ And in 2024, the Conference's Chair released Model Rules of
Representative Conduct, that, among other topics, address the
qualifications and conduct of nonlawyer representatives.\13\
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\10\ Recommendation 86-1, supra note 2, at 25,642.
\11\ Admin. Conf. of the U.S., Recommendation 2023-5, Best
Practices for Adjudication Not Involving an Evidentiary Hearing, 89
FR 1509 (Jan. 10, 2024).
\12\ Recommendation 2023-6, supra note 1, at 1513.
\13\ Admin. Conf. of the U.S., Model Rules of Representative
Conduct (2024). The Model Rules were developed by a working group of
public- and private-sector representatives.
---------------------------------------------------------------------------
This Recommendation expands on the Conference's previous
recommendations by identifying best practices for incorporating and
increasing representation and assistance by permitting broader
practice by nonlawyers in different types of adjudicative systems
and providing guidance to make processes governing nonlawyer
representation and assistance more accessible and transparent.
[[Page 106411]]
Recommendation
Availability of Nonlawyer Assistance
1. Agencies should permit nonlawyers--including friends, family
members, and other individuals--to assist participants throughout
the adjudicative process. For example, agencies should freely allow
nonlawyers to help participants navigate and complete forms, obtain
necessary documents and records, and accompany participants to
interviews and hearings for moral support, unless there is reason to
exclude such individuals (e.g., allowing participation in an
interview or hearing could cause a disruption or adversely affect
testimony).
2. Agencies should encourage and expand opportunities for
nonlawyer assistance through programs that authorize, educate, and/
or certify individuals to provide participants with information,
support, and dedicated assistance, either by staffing and operating
such programs directly or providing guidance and/or grant funding to
nonprofit organizations to perform those functions.
Availability of Nonlawyer Representation
3. To increase the availability of representation for
participants in their adjudications, agencies should establish rules
authorizing qualified (see paragraphs 4-5) and, as appropriate,
accredited (see paragraphs 6-9) nonlawyer representatives to
practice before them.
Qualifications of Nonlawyer Representatives
4. Agencies should establish reasonable qualifications required
for nonlawyer representatives to practice before them, without
adding unnecessary burdens. When determining whether a nonlawyer is
qualified to represent a participant in an agency proceeding,
agencies should consider the factors listed in the Model Rules of
Representative Conduct, such as the representative's relationship to
the participant; their knowledge, expertise, experience, or skill;
and their fitness to serve.
5. Agencies should have a process for determining whether an
individual who has been disbarred should thereby be disqualified
from serving as a nonlawyer representative in a particular case.
Accreditation of Nonlawyer Representatives
6. In addition to establishing qualifications for nonlawyer
representatives, the following types of agencies should consider
developing and implementing accreditation programs for nonlawyer
representatives to help ensure the quality and competency of
representation in their adjudicative proceedings:
a. Agencies conducting adversarial adjudications with
evidentiary hearings;
b. Agencies that adjudicate a high volume of cases involving
historically underserved communities; and
c. Agencies with adjudications that involve specialized or
technical subject matter.
7. Agencies with accreditation programs should consider
implementing reasonable initial and continuing education
requirements for nonlawyer representatives, either by providing such
education directly or by working with organizations that employ,
educate, or mentor nonlawyer representatives. In doing so, agencies
should avoid imposing education requirements that unnecessarily
burden representatives.
8. Agencies regularly should review the requirements of their
accreditation programs to ensure they are reasonable and beneficial
without adding unnecessary burdens.
9. Agencies with programs for accrediting, educating, and
regulating nonlawyer representatives who practice before them should
have funding to ensure availability of representation and reduce
wait times for accreditation.
Oversight and Enforcement
10. Agencies should establish rules to govern the conduct and
ethical obligations of nonlawyer representatives.
11. Agencies should establish procedures for reviewing
allegations or evidence of noncompliance by nonlawyer
representatives with their rules of conduct; adjudicating
allegations that nonlawyer representatives have violated those
rules; and imposing sanctions on nonlawyer representatives found to
have violated the rules of conduct. Agencies should also ensure they
have procedures for enforcing such sanctions.
12. Agencies should provide for administrative review of any
sanctions imposed on nonlawyer representatives for violation of
relevant conduct rules.
13. Agencies may consider using the Model Rules of
Representative Conduct as a resource in establishing the rules and
procedures outlined in paragraphs 10-12.
Transparency With Regard to Representation and Assistance
14. To improve participants' awareness of options for
representation and assistance, including by qualified or accredited
nonlawyers, agencies should inform participants about such options
early and throughout adjudications, including at levels of decision
making prior to an opportunity for a hearing and by posting relevant
information on their websites.
15. Agencies should publish the following in the Code of Federal
Regulations and on their websites:
a. Rules prescribing the qualifications required for nonlawyer
representatives;
b. Rules for accrediting, educating, and regulating nonlawyer
representatives, for agencies with formal accreditation programs;
and
c. Rules governing the conduct and ethical obligations of
nonlawyer representatives, as well as procedures for adjudicating
alleged violations of these rules and imposing sanctions.
16. To inform and protect participants, agencies should publish
on their websites the names of nonlawyer representatives who have
been sanctioned, the nature of the sanction, and, as relevant, the
specified period of the sanction. Agencies may omit certain
information regarding the nature of the violation or sanction as
necessary to preserve recognized privacy interests. Agencies should
consider establishing, when appropriate, procedures for removing
information about sanctioned representatives from their websites
after a certain period of time has elapsed or a sanction is no
longer in effect.
Coordination and Collaboration With Regard to Representation and
Assistance
17. Agencies with overlapping subject matters, similar
adjudication systems, or similar regulatory structures for nonlawyer
representation should identify opportunities for interagency
coordination of accreditation or education programs for nonlawyer
representatives, to save resources and promote consistency.
18. When authorized by law, agencies should expand grant funding
opportunities for nonprofit organizations that employ, educate, or
mentor nonlawyers who represent or assist participants.
19. Agencies should work with law and other professional school
clinics to expand programs that allow students to represent
participants under the supervision of lawyers or other accredited
professionals or to provide assistance to participants.
20. Agencies should engage with community-based organizations,
nongovernmental organizations, advocacy groups, and other
organizations that can assist in building trust among participants
and improve nonlawyer representation and assistance by bringing
knowledge of and expertise in issues facing those communities.
21. Agencies should collaborate with state bar associations and
other relevant licensing authorities to reduce the effect that state
prohibitions against unauthorized practice of law may have on the
ability of nonlawyers to represent parties before them.
Data
22. Agencies should gather and maintain baseline comparative
data on representation, including by nonlawyers, to (1) help
agencies and others assess whether rules and procedures regarding
nonlawyer representation are achieving agency goals in making such
representation available and accessible; and (2) identify
opportunities for expanding access to representation. Such data
should include, at a minimum, the type and number of nonlawyer
representatives; the outcomes, in aggregate, of cases in which
parties have no representation, lawyer representation, or nonlawyer
representation; the number of pending applications for
accreditation; and average wait time for applications to be
reviewed. Agencies should make data regarding representation
publicly available, including on their websites, and regularly
update it.
23. To the extent practicable, agencies should gather and
maintain data on assistance, including by nonlawyers, to assess
participants' experiences with and access to various forms of
assistance. Agencies may collect such information by, for example,
surveying participants regarding whether they received any
assistance, the type of assistance they received, and the
effectiveness of such assistance. To help with the assessment of
funding opportunities, agencies may also require grantees, as a
condition of their grants, to report on the types of assistance they
provide, the number of participants they assist, and the outcomes of
such assistance (e.g., the individual applied for benefits).
Agencies should make data on assistance publicly available,
[[Page 106412]]
including on their websites, and regularly update it.
[FR Doc. 2024-31352 Filed 12-27-24; 8:45 am]
BILLING CODE 6110-01-P
</pre></body>
</html>Indexed from Federal Register on December 30, 2024.
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.