```

[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106406-106412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31352]

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Notices
                                                Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 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 www.acus.gov.
    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: https://www.acus.gov/event/82nd-plenary-session.
    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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.).
---------------------------------------------------------------------------

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.
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    \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.
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    \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.
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    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
```