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[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Notices]
[Pages 39798-39802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14189]

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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. 87, No. 127 / Tuesday, July 5, 2022 / 
Notices

[[Page 39798]]

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Assembly of the Administrative Conference of the United 
States adopted three recommendations at its hybrid (virtual and in-
person) Seventy-seventh Plenary Session: (a) Contractors in Rulemaking, 
(b) Improving Notice of Regulatory Changes, and (c) Automated Legal 
Guidance at Federal Agencies.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2022-1, Kazia 
Nowacki; for Recommendation 2022-2, Matthew A. Gluth; and for 
Recommendation 2022-3, Alexandra F. Sybo. For each of these 
recommendations the address and telephone number are: Administrative 
Conference of the United States, Suite 706 South, 1120 20th Street NW, 
Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov.
    The Assembly of the Conference met during its Seventy-seventh 
Plenary Session on June 16, 2022, to consider three proposed 
recommendations and conduct other business. All three recommendations 
were adopted.
    Recommendation 2022-1, Contractors in Rulemaking. This 
recommendation identifies best practices for managing contractors that 
assist agencies in the rulemaking process. It recommends that agencies 
exercise proper oversight to avoid contracting out inherently 
governmental functions or other activities that should be performed by 
federal employees, clearly delineate responsibility between contractors 
and agency staff, institute safeguards to prevent or remediate 
conflicts of interest, and ensure transparency in connection with their 
contracting activities.
    Recommendation 2022-2, Improving Notice of Regulatory Changes. This 
recommendation offers best practices for agencies to ensure that 
members of the public receive effective notice of regulatory changes, 
focusing especially on the needs of parties with limited resources to 
monitor agency actions. It recommends that agencies consider a variety 
of possible strategies for improving notice of regulatory changes, 
including providing updates on agency websites, allowing the public to 
sign up for electronic notifications, announcing updates via email 
distribution lists, and coordinating with organizations that can 
provide updates to their members.
    Recommendation 2022-3, Automated Legal Guidance at Federal 
Agencies. This recommendation identifies best practices for agencies to 
use when designing and updating automated tools, such as interactive 
chatbots and virtual assistants, to provide legal guidance to the 
public. It addresses factors agencies should consider in deciding 
whether to utilize automated legal guidance tools, how agencies that 
utilize those tools can ensure that the information they provide is 
accurate and current, and how agencies can ensure that recipients of 
such guidance understand its limitations and do not rely on it to their 
detriment.
    The Conference based its recommendations on research reports and 
prior history that are posted at: https://www.acus.gov/meetings-and-events/plenary-meeting/77th-plenary-session.
    Authority: 5 U.S.C. 595.

    Dated: June 28, 2022.
Shawne C. McGibbon,
General Counsel.

Appendix--Recommendations of the Administrative Conference of the 
United States

Administrative Conference Recommendation 2022-1

Contractors in Rulemaking

Adopted June 16, 2022

    Agencies rely on private contractors to perform many kinds of 
services in support of their rulemaking activities. These services 
can occur at any stage of the rulemaking process. Functions that 
agencies assign to contractors include conducting research 
undergirding a rule; preparing regulatory impact analyses; 
facilitating meetings with interested persons; and tabulating, 
categorizing, or summarizing public comments the agency receives. As 
with other agency functions, contracting out specific rulemaking 
functions may help increase staffing flexibility to ease workloads, 
lower administrative costs, provide topic-specific expertise or 
access to technology that agencies do not possess internally, and 
provide alternative perspectives on particular issues.\1\
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    \1\ See Bridget C.E. Dooling & Rachel Augustine Potter, 
Contractors in Rulemaking (May 9, 2022) (report to the Admin. Conf. 
of the U.S.).
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    Agencies' use of contractors, however, may also raise 
distinctive concerns in the rulemaking context.\2\ Agencies must 
ensure that they comply with applicable legal obligations and must 
exercise their discretion in a way that avoids ethics violations, 
promotes efficiency, and ensures that agency officials exercise 
proper oversight of contractors.
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    \2\ Cf. Admin. Conf. of the U.S., Recommendation 85-2, Agency 
Procedures for Performing Regulatory Analysis of Rules, ] 6, 50 FR 
28,364, 28,365 (July 12, 1985).
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    Among the applicable legal obligations is the prohibition on 
contracting out ``inherently governmental functions.'' \3\ 
Inherently governmental functions are those that are ``so intimately 
related to the public interest as to require performance by Federal 
Government employees.'' \4\ They include

[[Page 39799]]

``functions that require either the exercise of discretion in 
applying Federal Government authority or the making of value 
judgments in making decisions for the Federal Government . . . .'' 
\5\
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    \3\ See 48 CFR 7.503; Publication of the Office of Federal 
Procurement Policy (OFPP) Policy Letter 11-01, Performance of 
Inherently Governmental and Critical Functions, 76 FR 56,227 (Oct. 
12, 2011) [hereinafter OFPP Policy Letter]; Off. of Mgmt. & Budget, 
Exec. Off. of the President, OMB Circular A-76, Performance of 
Commercial Activities (Revised 2003). The prohibition is reflected 
in the Federal Activities Inventory Reform (FAIR) Act of 1998, 
Public Law 105-270, 112 Stat. 2382 (1998) [hereinafter FAIR Act], 
and the National Defense Authorization Act (NDAA) for Fiscal Year 
2009, Public Law 110-417, 321, 122 Stat. 4356, 4411-12 (2008).
    \4\ OFPP Policy Letter, supra note 3, Sec.  3, at 56,236; accord 
FAIR Act, supra note 3, Sec.  5, at 2384.
    \5\ OFPP Policy Letter, supra note 3, Sec.  3(a), at 56,236; 
accord FAIR Act, supra note 3, Sec.  5(2)(B), at 2385.
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    Whereas ``determining'' the content of a regulation is an 
inherently governmental function,\6\ providing ``[s]ervices that 
involve or relate to the development of regulations'' is not.\7\ 
Rather, the provision of such services is considered to be ``closely 
associated with the performance of inherently governmental 
functions.'' \8\ When agencies allow contractors to perform 
functions closely associated with inherently governmental functions, 
they must exercise heightened caution.\9\ They must, in particular, 
``give special consideration to Federal employee performance of 
[such] functions and, when such work is performed by contractors, 
provide greater attention and an enhanced degree of management 
oversight of the contractors' activities to ensure that contractors' 
duties do not expand to include performance of inherently government 
functions.'' \10\
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    \6\ 48 CFR 7.503(c)(5); accord OFPP Policy Letter, supra note 3, 
app. A, ex. 7, at 56,240.
    \7\ 48 CFR 7.503(d)(4); accord OFPP Policy Letter, supra note 3, 
app. B, ex. 1(d), at 56,241.
    \8\ OFPP Policy Letter, supra note 3, app. B, at 56,241; accord 
48 CFR 7.503(d).
    \9\ See OFPP Policy Letter, supra note 3, Sec.  4(a)(2), at 
56,236.
    \10\ Id.
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    Agencies must also consider potential ethical issues when 
contracting out rulemaking functions. Because contractors are, with 
a few exceptions, generally not subject to the ethics laws governing 
federal employees, there are potential ethics-related risks against 
which agencies must protect and which may not be addressed 
adequately under existing procurement regulations.\11\ The risks of 
conflicts of interest (both organizational and personal) and misuse 
of confidential information may be especially salient when 
contractors support a policymaking function such as rulemaking.\12\ 
Agencies can mitigate these risks by establishing and internally 
disseminating policies and procedures governing the use and 
management of contractors in rulemaking, which may include any 
requirement that the agency disclose its use of contractors.
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    \11\ See, e.g., 48 CFR subparts 3.11 (Preventing Personal 
Conflicts of Interest for Contractor Employees Performing 
Acquisition Functions), 9.5 (Organizational and Consultant Conflicts 
of Interest).
    \12\ See Admin. Conf. of the U.S., Recommendation 2011-3, 
Compliance Standards for Government Contractor Employees--Personal 
Conflicts of Interest and Use of Certain Non-Public Information, 76 
FR 48,792 (Aug. 9, 2011).
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    In addition to legal and ethical issues, agencies must also 
consider the potential negative consequences of using contractors to 
perform rulemaking-related functions, including whether repeated 
reliance on contractors might compromise their ability to maintain 
necessary career staff with appropriate skills. Agencies may also 
wish to consider alternative methods to contracting when they need 
to expand internal capacity in connection with rulemaking, such as 
using executive branch rotations, fellowship programs, or federally 
funded research and development centers, or by assigning temporary 
employees under the Intergovernmental Personnel Act.\13\
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    \13\ See 5 U.S.C. 3371-75; see also 5 CFR part 334.
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    This Recommendation provides guidance to agencies for when they 
are considering contracting out certain rulemaking-related 
functions. Recognizing that agencies' needs vary enormously, it 
addresses a range of legal, ethical, prudential, and practical 
considerations that agencies should take into account when using 
contractors.

Recommendation

Internal Management

    1. Agencies that use contractors to perform rulemaking-related 
functions should adopt and publish written policies related to their 
use. These policies should cover matters such as:
    a. The types of rulemaking functions considered to be inherently 
governmental functions or closely associated with inherently 
governmental functions;
    b. Internal procedures to ensure that agency employees do not 
contract out inherently governmental functions and to ensure 
increased scrutiny when contracting out functions that are closely 
associated with inherently governmental functions;
    c. Requirements for internal disclosure of the functions 
contractors undertake with regard to specific rulemakings;
    d. Standards for when contractors should identify themselves as 
such in communications with the public in connection with 
rulemakings; and
    e. Ethical rules applicable to contractors, including their 
employees.
    2. To enhance their management of contractors, agencies should 
consider providing rulemaking-specific training for employees on 
agency policies and ethical restrictions applicable to contractors. 
Agencies should also consider designating an agency office or 
officer to answer questions about the use of contractors to perform 
rulemaking-related functions and be responsible for deciding whether 
a function is inherently governmental.
    3. When agencies rely on contractors in a rulemaking, they 
should ensure that agency employees can identify contractors and are 
aware of contractors' assigned functions. Agencies should 
specifically focus on whether contractors should work in the same 
space as agency employees, how and to what extent they may 
participate in meetings with agency leadership or other meetings at 
which substantive policy is decided, and whether they should be 
provided with their own agency email addresses.
    4. Agencies should consider ways to share information about 
contractors in rulemaking within and across agencies. This might 
include using existing contracting databases or schedules to promote 
greater coordination and efficiency concerning existing contracts 
for rulemaking-related functions, as well as informal sharing of 
practices for managing contractors.

Ethics

    5. When selecting and managing contractors for rulemaking-
related functions, agencies should evaluate whether any firm under 
consideration to serve as a contractor may have an actual or 
perceived organizational conflict of interest in connection with any 
assigned function. When a potential organizational conflict exists 
or arises, agencies should either select another contractor or put 
in place appropriate protections to ensure that the contractor's 
outside interests do not undermine its ability to perform its 
assigned functions in a way that does not create an actual or 
perceived conflict of interest.
    6. When contracting out rulemaking-related functions for which 
there is a risk of a personal conflict of interest by an employee of 
the contractor, agencies should provide in the contract that the 
contractor will not assign functions to any employee who has an 
actual or perceived conflict of interest and, as appropriate, will 
train employees on recognizing and disclosing personal conflicts. 
The contract should also provide that, in the event that an employee 
performs a function despite the existence of a personal conflict of 
interest, the contractor will disclose the conflict to the agency 
and undertake appropriate remedial action.
    7. When contracting out rulemaking-related functions for which 
there is a risk of misuse of confidential information, agencies 
should provide in the contract that the contractor will ensure that 
any employee handling such information has been appropriately 
trained on the necessary safeguards. The contract should also 
provide that the contractor will disclose any misuse of confidential 
information to the agency and undertake appropriate remedial 
actions.

Transparency

    8. When an agency uses a contractor to perform an activity 
closely associated with an inherently governmental function in a 
specific rulemaking, the agency should disclose the contractor's 
role in the rulemaking docket, the notice of proposed rulemaking, or 
the preamble to the final rule. Agencies should, unless legally 
precluded from doing so, also disclose the identity of the 
contractor.
    9. Agencies should ensure that their contracts with contractors 
will allow the agencies to meet legal requirements for disclosure of 
information in connection with the rulemaking process and judicial 
review.

Intergovernmental Guidance

    10. The Office of Management and Budget should consider 
assessing whether current agency practices align with broader 
procurement best practices and whether to provide guidance on 
contractor-performed functions associated with rulemaking processes. 
Among other things, this guidance might provide specific examples of 
rulemaking-related functions that qualify as inherently governmental 
functions and should not be contracted out or that are closely 
associated with inherently governmental functions such that agencies

[[Page 39800]]

should exercise heightened caution when contracting out those 
functions.

Administrative Conference Recommendation 2022-2

Improving Notice of Regulatory Changes

Adopted June 16, 2022

    Each year federal agencies issue hundreds of thousands of pages 
of legislative rules, guidance documents, adjudicative orders, 
notices, and other materials that affect administrative programs. 
Although the law generally requires these materials to be made 
publicly available,\1\ individuals and organizations often lack the 
resources or expertise to track and understand regulatory changes 
that might affect them. This is particularly true for small entities 
and members of communities that have been historically underserved 
by government programs.\2\ Without effective notice of regulatory 
changes, interested persons may miss out on benefits to which the 
law entitles them or find themselves subject to enforcement actions 
for noncompliance with legal requirements of which they were 
unaware, and other potentially interested persons may be unaware of 
regulatory changes that affect them. A lack of effective notice may 
also make it less likely that regulated parties will come into 
compliance with their legal obligations without the need for an 
agency to undertake an enforcement action.\3\
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    \1\ See, e.g., 5 U.S.C. 552(a); 44 U.S.C. 1505.
    \2\ Exec. Order No. 13,985, 86 FR 7009 (Jan. 25, 2021).
    \3\ See Joshua Galperin & E. Donald Elliott, Providing Effective 
Notice of Regulatory Changes (May 17, 2022) (report to the Admin. 
Conf. of the U.S.).
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    Although agencies must comply with legal requirements for 
notice, agencies can take a variety of steps to improve notice of 
regulatory changes. This is of particular importance when a change 
is significant, meaning that it could reasonably be expected to 
change the behavior of regulated parties or regulatory 
beneficiaries.\4\ An agency might consider strategies such as 
publishing information about the change on its website, issuing a 
press release or fact sheet summarizing and explaining the change, 
communicating the change using social media or email lists, holding 
a public meeting to explain and answer questions about the change, 
and creating and updating agency reference guides. Agencies should 
also consider designing their websites to organize and present 
information in a way that makes significant regulatory changes clear 
and obvious to users and allows them to identify particular topics 
on which they wish to receive email alerts.
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    \4\ Reference to ``significant'' regulatory changes in this 
Recommendation does not refer to ``significant'' or ``major'' rules 
as those terms are used in Executive Order 12,866 and the 
Congressional Review Act.
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    An agency's strategy for notifying potentially interested 
persons of a particular regulatory change will depend, in large 
part, on the agency's objectives; the nature, purpose, and 
significance of the regulatory change; and the characteristics of 
the persons who would potentially be interested in the change. This 
Recommendation provides a framework for developing effective notice 
strategies and for evaluating their effectiveness for future 
improvement.\5\
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    \5\ The Administrative Conference in recent years has issued 
several recommendations on providing public access to legal 
materials related to administrative programs, including agency 
guidance documents, adjudicative rules, and adjudicative decisions. 
See, e.g., Admin. Conf. of the U.S., Recommendation 2021-7, Public 
Availability of Inoperative Agency Guidance Documents, 87 FR 1718 
(Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 2020-6, 
Agency Litigation web pages, 86 FR 6624 (Jan. 22, 2021); Admin. 
Conf. of the U.S., Recommendation 2020-5, Publication of Policies 
Governing Agency Adjudicators, 86 FR 6622 (Jan. 22, 2021); Admin. 
Conf. of the U.S., Recommendation 2019-3, Public Availability of 
Agency Guidance Documents, 84 FR 38,931 (Aug. 8, 2019); Admin. Conf. 
of the U.S., Recommendation 2018-5, Public Availability of 
Adjudication Rules, 84 FR 2142 (Feb. 6, 2019); Admin. Conf. of the 
U.S., Recommendation 2017-1, Adjudication Materials on Agency 
websites, 82 FR 31,039 (July 5, 2017). This Recommendation expands 
on those recommendations by specifically addressing strategies for 
improving public notice of significant regulatory changes that 
agencies make through such materials.
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    This Recommendation acknowledges differences across agencies in 
terms of the number and kinds of significant regulatory changes they 
make, their resources and capacities for providing notice, and the 
resources and capacities of potentially interested persons for 
following regulatory changes. Appropriate notice strategies will 
therefore differ among agencies. Accordingly, although it is likely 
that agencies following this Recommendation will employ some of the 
strategies enumerated, this Recommendation should not be understood 
as necessarily advising agencies to employ every strategy for every 
significant regulatory change.

Recommendation

Developing and Reviewing Notice Plans

    1. Agencies should develop written notice plans, as appropriate, 
for providing effective notice of significant regulatory changes. A 
significant regulatory change is any change in law or policy, 
however announced, that can reasonably be expected to alter the 
behavior of potentially interested persons. Notice plans should:
    a. Identify persons who may be interested in the agency's 
significant regulatory changes;
    b. Specify strategies the agency proposes to use to provide 
notice;
    c. Assess the expected costs and benefits of each strategy; and
    d. Establish processes and metrics for evaluating the 
effectiveness of each strategy.
    2. In developing their notice plans, agencies should consider 
the categories of persons who may be interested in the agency's 
significant regulatory changes and the optimal approach to tailoring 
notice to each of the different categories of persons.
    3. In developing their notice plans, agencies should consider 
the variety of legal materials, including legislative rules, 
guidance documents, and adjudicative decisions, through which 
significant regulatory changes are made and the optimal approach to 
tailoring notice based upon the nature of each change and the 
categories of persons it affects.
    4. In developing their notice plans, agencies should obtain 
feedback from potentially interested persons as to which methods for 
providing notice they consider most effective.
    5. Agencies should consider whether individual significant 
regulatory changes might warrant additional strategies not included 
in the agency's notice plan, either because they affect persons not 
previously regulated or new regulatory beneficiaries, or because the 
potentially interested persons have specific needs for effective 
notice.
    6. Agencies should periodically evaluate which strategies are 
most effective at notifying potentially interested persons, 
including historically underserved communities, of significant 
regulatory changes. In doing so, agencies should obtain feedback 
from potentially interested persons regarding which methods for 
providing notice they consider most effective and suggestions for 
improvement.

Strategies for Providing Effective Notice

    7. Although no single technique will work for all agencies or in 
all circumstances, in assessing the strategies they wish to 
undertake both as a general matter and with regard to specific 
significant regulatory changes, agencies should consider whether 
such strategies:
    a. Are cost-effective;
    b. Are likely to increase compliance with legal obligations and 
reduce the need for enforcement;
    c. Are targeted to reach members of historically underserved 
communities and potentially interested persons who may have less 
capacity to monitor changes;
    d. Reduce the administrative burden for regulated persons to 
assemble changes that emerge from a combination of agency materials;
    e. Have proved effective when used by other agencies to provide 
notice; and
    f. Provide opportunities for interested persons to identify 
areas about which they would like to receive notice of significant 
regulatory changes.
    8. Agencies should consider publishing in the Federal Register 
regulatory changes for which they anticipate the most widespread 
public interest, even when not required by law to do so.
    9. When agencies publish guidance documents announcing 
significant regulatory changes on their websites, they should 
consider publishing notices in the Federal Register alerting 
potentially interested persons that the documents are available.
    10. Agencies should seek to organize and present material on 
their websites in a way that makes significant regulatory changes 
clear and obvious to potentially interested persons and provides 
clear instructions to users regarding how to access materials 
announcing significant regulatory changes.
    11. Agencies should consider optimizing their websites to 
improve the visibility of significant regulatory changes in 
commercial search engines.

[[Page 39801]]

    12. Agencies should consider publishing summaries of legal 
materials organized by topic. This approach is particularly useful 
in providing notice when regulatory changes emerge from different 
agencies or when agencies announce policy through adjudications or 
guidance documents, because it can be difficult for potentially 
interested persons to synthesize the changes. Agencies that publish 
such summaries should revise those summaries promptly to reflect 
significant regulatory changes. Agencies must, however, balance the 
benefits of providing such summaries of the law against the costs in 
terms of staff time and potential oversimplification of the 
applicable law.
    13. Agencies should consider issuing press releases when they 
make significant regulatory changes. This approach is particularly 
useful in alerting both potentially interested persons who may be 
subject to new or expanded regulatory requirements that have not 
previously affected them and potentially interested persons who may 
have less capacity to monitor changes.
    14. Agencies should consider developing and using email 
distribution lists to inform potentially interested persons about 
significant regulatory changes. Email distribution lists are an 
effective way to provide notice to targeted groups of discrete and 
defined potentially interested persons, such as specific community 
or advocacy groups, at low cost. Agencies should, however, bear in 
mind the following limitations of email distribution lists:
    a. Email distribution lists are less effective in providing 
notice to large groups of individuals or those not previously 
affected by regulatory requirements;
    b. Potentially interested persons must know that lists exist and 
affirmatively sign up for them; and
    c. Overuse of email distribution lists could result in a 
significant regulatory change being obscured by less relevant 
messages. Agencies can mitigate this risk by allowing users to opt 
in to receiving notice on narrowly defined topics.
    15. Agencies should consider using available technologies such 
as web forms to allow interested persons to identify particular 
topics on which they wish to receive notice.
    16. Agencies should consider using social media, which is 
inexpensive and far-reaching, to publicize significant regulatory 
changes.
    17. Agencies should consider using blogs on their websites to 
inform potentially interested persons about significant regulatory 
changes. Blogs allow agencies to tailor notice to the interests and 
needs of particular groups and provide notice in ways that are 
accessible to those groups.
    18. Agencies should consider hosting public meetings or 
participating in conferences or other meetings convened by outside 
organizations to share information and answer questions about 
significant regulatory changes. Agencies must, however, balance the 
advantages of such meetings against the cost in terms of staff time 
and administration.
    19. When agencies host public meetings to share information 
about significant regulatory changes, they should generally provide 
a means for potentially interested persons to attend or participate 
remotely. By so doing, they can expand access for members of 
historically underserved communities, potentially interested persons 
who live far from where the agency holds meetings, and potentially 
interested persons who face other accessibility issues.
    20. Agencies should consider training and equipping front-line 
agency employees, including those in field offices, to answer 
questions about significant regulatory changes.
    21. Agencies should consider identifying and working with state 
and local governments and intermediary organizations (e.g., trade 
associations, professional associations, community organizations, 
and advocacy groups) that can assist in providing effective notice 
to potentially interested persons.

Oversight and Assessment

    22. Agencies should consider designating an officer or office to 
coordinate and support the development, implementation, and 
evaluation of notice plans. This officer or office should:
    a. Be responsible for evaluating the effectiveness of the 
agency's notice plan;
    b. Keep abreast of technological developments for improving 
notice strategies, such as new social media platforms or improved 
methods for indexing and organizing documents on the agency's 
website;
    c. Evaluate practices that other agencies use to provide notice 
of significant regulatory changes; and
    d. Make recommendations for improving the agency's practices and 
procedures for providing effective notice of significant regulatory 
changes to potentially interested persons.
    23. Agencies should share information with each other about 
their experiences with and practices for improving notice of 
significant regulatory changes.

Administrative Conference Recommendation 2022-3

Automated Legal Guidance at Federal Agencies

Adopted June 16, 2022

    Federal agencies increasingly automate the provision of legal 
guidance to the public through online tools and other 
technologies.\1\ The Internal Revenue Service, for example, 
encourages taxpayers to seek answers to questions regarding various 
tax credits and deductions through its online ``Interactive Tax 
Assistant,'' and the United States Citizenship and Immigration 
Services suggests that potential green card holders and citizens 
with questions about their immigration rights communicate with its 
interactive chatbot, ``Emma.'' Almost a dozen federal agencies have 
either implemented or piloted such automated legal guidance tools in 
just the past three years.\2\
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    \1\ This Recommendation defines ``guidance'' broadly to include 
interpretive rules, general statements of policy, and other 
materials that agencies consider to be guidance documents. See 
Admin. Conf. of the U.S., Recommendation 2019-3, Public Availability 
of Agency Guidance Documents, 84 FR 38,931 (Aug. 8, 2019).
    \2\ They include the Department of the Army, the Department of 
Education, the Environmental Protection Agency, the General Services 
Administration, the Food and Drug Administration, the Internal 
Revenue Service, the National Institutes of Health, the Patent and 
Trademark Office, the Social Security Administration, United States 
Citizenship and Immigration Services, and the Veterans Benefits 
Administration.
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    Automated legal guidance tools can take several forms. The most 
common are chatbots and virtual assistants. The simplest chatbots 
provide standardized responses based on keywords included in a 
user's question. Although the terms can overlap, virtual assistants 
tend to be more versatile than chatbots and can often perform 
additional tasks such as making an appointment or filling out a form 
in response to a conversation.\3\ More robust tools rely on natural 
language processing or artificial intelligence to interpret natural 
language and generate an individualized response.\4\
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    \3\ See Joshua D. Blank & Leigh Osofsky, Automated Legal 
Guidance at Federal Agencies 1, 10 (May 26, 2022) (report to the 
Admin. Conf. of the U.S.).
    \4\ See Admin. Conf. of the U.S., Statement #20, Agency Use of 
Artificial Intelligence, 86 FR 6616 (Jan. 22, 2021); Blank & 
Osofsky, supra note 3.
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    Agencies use automated legal guidance tools for a number of 
reasons. They include: efficiently allocating limited staff 
resources; improving user experience and service delivery; and 
enhancing the quality, consistency, and predictability of guidance, 
as well as the speed with which it is provided to the public. 
Because they are always available from any location and can 
efficiently and effectively provide answers to common questions, 
automated legal guidance tools have the potential to revolutionize 
the provision of agency guidance to the public.
    Agencies generally take the position that users cannot rely on 
automated legal guidance. As this Recommendation recognizes, 
agencies must be clear in disclosing this position to users. That is 
true, of course, of all forms of guidance documents.\5\ Automated 
legal guidance may, however, create an especially heightened risk of 
a user's relying on the guidance issued in a way that the issuing 
agency does not intend. Since users often enter specific facts 
relating to their circumstances, users may assume that the automated 
guidance tool is giving a customized response that has accounted for 
all of the facts that have been entered, which may or may not be the 
case.
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    \5\ See Admin. Conf. of the U.S., Recommendation 2019-3, Public 
Availability of Agency Guidance Documents, ]] 11-12, 84 FR 38,931, 
38,933 (Aug. 8, 2019); Admin. Conf. of the U.S., Recommendation 
2019-1, Agency Guidance Through Interpretive Rules, ]] 6, 11, 84 FR 
38,927, 38,929 (Aug. 8, 2019); Admin. Conf. of the U.S., 
Recommendation 2017-5, Agency Guidance Through Policy Statements, ]] 
4-6, 82 FR 61,734, 61,736 (Dec. 29, 2017).
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    The Administrative Conference has adopted several 
recommendations on the development, use, and public availability of

[[Page 39802]]

agency guidance documents.\6\ This Recommendation builds on those 
recommendations by identifying best practices for agencies to 
consider when they develop, use, and manage automated legal guidance 
tools. In identifying these best practices, the Conference 
recognizes that automated legal guidance tools may not be suitable 
for all agencies and administrative programs and that even when 
agencies use them, agencies will need to provide additional guidance 
by other means, including live person-to-person support.
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    \6\ See Admin. Conf. of the U.S., Recommendation 2021-7, Public 
Availability of Inoperative Agency Guidance Documents, 87 FR 1718 
(Jan. 12, 2022); Admin. Conf. of the U.S., Recommendation 2019-3, 
Public Availability of Agency Guidance Documents, 84 FR 38,931 (Aug. 
8, 2019); Admin. Conf. of the U.S., Recommendation 2019-1, Agency 
Guidance Through Interpretive Rules, 84 FR 38,927 (Aug. 8, 2019); 
Admin. Conf. of the U.S., Recommendation 2017-5, Agency Guidance 
Through Policy Statements, 82 FR 61,734 (Dec. 29, 2017); Admin. 
Conf. of the U.S., Recommendation 2014-3, Guidance in the Rulemaking 
Process, 79 FR 35,992 (June 25, 2014).
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Recommendation

Design and Management

    1. Agencies should explore the possible benefits of offering 
automated legal guidance tools, including enhancing administrative 
efficiency and helping the public understand complex laws using 
plain language. This is especially true for those agencies that have 
a high volume of individual interactions with members of the public 
who may not be familiar with legal requirements.
    2. Agencies should also weigh the potential downsides of 
offering automated legal guidance tools, including potentially 
oversimplifying the law and creating confusion as to whether and 
when the agency intends users to rely on the guidance issued. To 
avoid such confusion, agencies should follow the recommendations set 
forth in Paragraphs 18-20.
    3. Agencies using automated legal guidance tools should design 
and manage them in ways that promote fairness, accuracy, clarity, 
efficiency, accessibility, and transparency.
    4. Agencies should ensure that automated legal guidance tools do 
not displace other agency mechanisms for increasing access to the 
underlying law.
    5. Agencies should adopt clear procedures for designing, 
maintaining, and reviewing the content embedded in automated legal 
guidance tools and should publish these procedures on their 
websites. These procedures should incorporate periodic user testing 
and other forms of evaluation by internal and external researchers 
to ensure accessibility and effectiveness.
    6. The General Services Administration should regularly evaluate 
the relative costs and benefits of using outside vendors for the 
production of automated legal guidance tools and share their 
evaluations with agencies.

Accessibility

    7. Agencies should utilize human-centered design methodologies, 
empirical customer research, and user testing, as described and 
defined in Executive Order 14,058, Transforming Federal Customer 
Experience and Service Delivery to Rebuild Trust in Government (86 
FR 71,357 (Dec. 13, 2021)), in designing and maintaining their 
automated legal guidance tools.
    8. Agencies should, consistent with applicable laws and 
policies, design and periodically review and, when necessary, 
reconfigure automated legal guidance tools to ensure that they meet 
the needs of the particular populations that are intended to utilize 
the automated legal guidance tools.
    9. Agencies should ensure that information provided by automated 
legal guidance tools is stated in plain language understandable by 
the particular populations that are intended to use these tools, 
consistent with the Plain Writing Act of 2010 (5 U.S.C. 301 note); 
Recommendation 2017-3, Plain Language in Regulatory Drafting (82 FR 
61,728 (Dec. 14, 2017)); and other applicable laws, policies, and 
Conference recommendations.
    10. Agencies should design automated legal guidance tools to put 
users in contact with a human customer service representative to 
whom they can address questions in the event that a question is not 
answered by an automated legal guidance tool or if the users are 
having difficulty using the tools.

Transparency

    11. When the underlying law is unclear or unsettled, or when the 
application of the law is especially fact-dependent, agencies should 
be transparent about the limitations of the advice the user is 
receiving. To the extent practicable, agencies should also provide 
access through automated legal guidance tools to the legal materials 
underlying the tools, including relevant statutes, rules, and 
judicial or adjudicative decisions.
    12. Agencies should disclose how they store and use the data 
obtained through automated legal guidance tools.
    13. Agencies should update the content of automated legal 
guidance tools to reflect legal developments or correct errors in a 
timely manner. Agencies should also maintain an electronic, publicly 
accessible, searchable archive that identifies and explains the 
updates. Agencies should provide the date on which the tool was last 
updated.
    14. When automated legal guidance tools provide programmed 
responses to users' questions, agencies should publish the questions 
and responses so as to provide an immediate and comprehensive source 
of information regarding the tools. Agencies should post this 
information in an appropriate location on their websites and make it 
accessible through the automated legal guidance tool to which it 
pertains.
    15. When automated legal guidance tools learn to provide 
different answers to users' questions over time, agencies should 
publish information related to how the machine learning process was 
developed and how it is maintained and updated. Agencies should post 
this information in an appropriate location on their websites and 
make it accessible through the automated legal guidance tool to 
which it pertains.
    16. Agencies that use automated legal guidance tools should 
provide users the ability to offer feedback or report errors.
    17. When applicable, agencies should provide disclaimers that 
the automated legal guidance tool is not human.

Reliance

    18. Agencies should allow users to obtain a written record of 
their communication with automated legal guidance tools and should 
include date and time stamps on the written record.
    19. Agencies should consider whether, or under what 
circumstances, a person's good faith reliance on guidance provided 
by an automated legal guidance tool should serve as a defense 
against a penalty or other consequences for noncompliance with an 
applicable legal requirement, and they should prominently announce 
that position to users.
    20. If an agency takes the position that it can depart from an 
interpretation or explanation provided by an automated legal 
guidance tool, including in the application of penalties for 
noncompliance, it should prominently announce its position to users, 
including in the written record of the communication with the 
automated legal guidance tool.

[FR Doc. 2022-14189 Filed 7-1-22; 8:45 am]
BILLING CODE 6110-01-P
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