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.

Notices Federal Register

39798 

Vol. 87, No. 127 

Tuesday, July 5, 2022 

1See Bridget C.E. Dooling & Rachel Augustine 

Potter, Contractors in Rulemaking (May 9, 2022) 

(report to the Admin. Conf. of the U.S.). 2Cf. 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). 3See 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). 

4OFPP Policy Letter, supra note 3, § 3, at 56,236; 

accord FAIR Act, supra note 3, § 5, at 2384. 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendations 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

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-andevents/plenary-meeting/77th-plenarysession. 

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

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. 

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 


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5OFPP Policy Letter, supra note 3, § 3(a), at 

56,236; accord FAIR Act, supra note 3, § 5(2)(B), at 

2385. 

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. 

8OFPP Policy Letter, supra note 3, app. B, at 

56,241; accord 48 CFR 7.503(d). 

9See OFPP Policy Letter, supra note 3, § 4(a)(2), 

at 56,236. 

10 Id. 

11See, 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). 

12See 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). 13See 5 U.S.C. 3371–75; see also 5 CFR part 334. 

‘‘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

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

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. 

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

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 rulemakingrelated 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 rulemakingrelated 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 


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1See, e.g., 5 U.S.C. 552(a); 44 U.S.C. 1505. 

2Exec. Order No. 13,985, 86 FR 7009 (Jan. 25, 

2021). 

3See Joshua Galperin & E. Donald Elliott, 

Providing Effective Notice of Regulatory Changes 

(May 17, 2022) (report to the Admin. Conf. of the 

U.S.). 

4Reference 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. 

5The 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. 

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

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. 

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

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. 


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1This 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). 

2They 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. 

3See 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.). 

4See Admin. Conf. of the U.S., Statement #20, 

Agency Use of Artificial Intelligence, 86 FR 6616 

(Jan. 22, 2021); Blank & Osofsky, supra note 3. 

5See 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). 

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 farreaching, 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

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

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. 

The Administrative Conference has 

adopted several recommendations on the 

development, use, and public availability of 


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39802 Federal Register / Vol. 87, No. 127 / Tuesday, July 5, 2022 / Notices 

6See 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). 

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. 

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 

U.S. COMMISSION ON CIVIL RIGHTS 

Sunshine Act Meetings 

AGENCY: Commission on the Social 

Status of Black Men and Boys 

(CSSBMB), U.S. Commission on Civil 

Rights. 

ACTION: Notice of CSSBMB public 

briefing. 

DATES: Friday, July 8, 2022. 1:00 p.m.– 

3:30 p.m. EDT. 

ADDRESSES: The Briefing will take place 

virtually via YouTube: https://

www.youtube.com/user/USCCR/videos. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Marvin Williams, 202–339– 

2371,pressbmb@usccr.gov. 

SUPPLEMENTARY INFORMATION: In 

accordance with Public Law 116–156, 

1134 Stat. 700 (2020), the Commission 

on the Social Status of Black Men and 

Boys (CSSBMB) will hold a public 

briefing focused on preventative 

strategies to mitigate the social 

disparities of Black men in America. 

This briefing is open to the public via 

livestream on the Commission on Civil 

Rights’ YouTube Page at https://

www.youtube.com/user/USCCR/videos. 

(Streaming information subject to 

change.) Public participation is 

available for the event with view access, 

along with an audio option for listening. 

Computer assisted real-time 

transcription (CART) will be provided. 

The web link to access CART (in 

English) on Friday, July 8, 2022, is 


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