[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Notices]
[Pages 2257-2265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-621]
========================================================================
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.
========================================================================
Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 /
Notices
[[Page 2257]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Administrative Conference of the United States adopted
four recommendations at its Fifty-fifth Plenary Session. The appended
recommendations address incorporation by reference, international
regulatory cooperation, the Federal Advisory Committee Act, and agency
innovations in e-rulemaking.
FOR FURTHER INFORMATION CONTACT: For Recommendations 2011-5 and 2011-8,
Emily Schleicher Bremer, Attorney Advisor, and for Recommendations
2011-6 and 2011-7, Reeve T. Bull, Attorney Advisor. For all four
recommendations the address and phone number is: 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 for improvements to agencies, the President, Congress,
and the Judicial Conference of the United States (5 U.S.C. 594(1)). For
further information about the Conference and its activities, see http://www.acus.gov.
At its Fifty-fifth Plenary Session, held December 8-9, 2011, the
Assembly of the Conference adopted four recommendations. Recommendation
2011-5, ``Incorporation by Reference,'' addresses legal and policy
issues related to agencies' incorporation by reference in the Code of
Federal Regulations of standards or other materials that have been
published elsewhere. Agencies have promulgated thousands of regulations
that incorporate by reference standards published elsewhere. The
practice raises common issues that individual agencies deal with
differently. The recommendation consolidates the dispersed knowledge of
affected agencies, identifies best practices, and recommends ways to
improve the process.
Recommendation 2011-6, ``International Regulatory Cooperation,''
addresses how U.S. regulators can interact with foreign authorities to
accomplish their domestic regulatory missions and eliminate unnecessary
non-tariff barriers to trade. The project updates Administrative
Conference Recommendation 91-1, ``Federal Agency Cooperation with
Foreign Government Regulators.'' The recommendation includes proposals
for enhanced cooperation and information gathering, more efficient
deployment of limited resources, and better information exchanges.
Recommendation 2011-7, ``The Federal Advisory Committee Act--Issues
and Proposed Reforms,'' addresses the issue of whether the Federal
Advisory Committee Act (``FACA'') is functioning effectively and
efficiently almost 40 years after its enactment. The recommendation
offers three sets of proposed revisions to the existing FACA regime to
make the law more relevant in light of agency experience with FACA and
21st century technologies. Specifically, the recommendation includes
proposals designed to clarify the scope of FACA and its implementing
regulations, alleviate certain procedural burdens associated with the
existing regime, and promote ``best practices'' aimed at enhancing the
transparency and objectivity of the advisory committee process.
Recommendation 2011-8, ``Agency Innovations in E-Rulemaking,''
addresses how Federal agency rulemaking can be improved by better use
of Internet-based technologies. The recommendation proposes ways
agencies can make rulemaking information, including open dockets,
comment policies, and materials from completed rulemakings, more
accessible electronically. The recommendation also addresses the issue
of improving e-rulemaking participation by those who have historically
faced barriers to access, including non-English speakers, users of low-
bandwidth Internet connections, and individuals with disabilities.
The Appendix (below) sets forth the full text of these four
recommendations. The Conference will transmit them to affected agencies
and to appropriate committees of the United States Congress. The
recommendations are not binding, so the relevant agencies, the
Congress, and the courts will make decisions on their implementation.
The Conference based these recommendations on research reports that
it has posted at: http://www.acus.gov/events/55th-plenary-session/. A
video of the Plenary Session is available at the same Web address, and
a transcript of the Plenary Session will be posted once it is
available.
Dated: January 10, 2012.
Paul R. Verkuil,
Chairman.
APPENDIX--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES
Administrative Conference Recommendation 2011-5
Incorporation by Reference
Adopted December 8, 2011
Incorporation by reference allows agencies to comply with the
requirement of publishing rules in the Federal Register to be
codified in the Code of Federal Regulations (CFR) by referring to
material published elsewhere.\1\ The practice is first and foremost
intended to--and in fact does--substantially reduce the size of the
CFR. But it also furthers important, substantive regulatory
policies, enabling agencies to draw on the expertise and resources
of private sector standard developers to serve the public interest.
Incorporation by reference allows agencies to give effect to a
strong federal policy, embodied in the National Technology Transfer
and Advancement Act of 1995 and OMB Circular A-119, in favor of
agency use of voluntary consensus standards.\2\ This
[[Page 2258]]
federal policy benefits the public, private industry, and standard
developers.
---------------------------------------------------------------------------
\1\ See 5 U.S.C. 552(a)(1); 1 CFR 51.1-51.11.
\2\ See National Technology Transfer and Advancement Act of
1995, Public Law 104-113 (1996); Office of Mgmt. & Budget, Exec.
Office of the President, OMB Circular A-119, Federal Participation
in the Development and Use of Voluntary Consensus Standards and in
Conformity Assessment Activities (1998); see also Administrative
Conference of the United States, Recommendation 78-4, Federal Agency
Interaction with Private Standard-Setting Organizations in Health
and Safety Regulation, 44 FR 1,357 (Jan. 5, 1979) (recommending
agencies use voluntary consensus standards in health and safety
regulation). Circular A-119 defines voluntary consensus standards as
those created by private or international organizations whose
processes provide attributes of openness, balance, due process, an
appeal, and decision making by general agreement (but not
necessarily unanimity). See also American National Standards
Institute, ``ANSI Essential Requirements: Due process requirements
for American National Standards'' (2010).
---------------------------------------------------------------------------
The Conference has conducted a study of agency experience with
the practice of incorporation by reference, including the use of
voluntary consensus standards. The study focused on three issues
agencies frequently confront when incorporating by reference: (1)
Ensuring materials incorporated by reference are reasonably
available to regulated and other interested parties; (2) updating
regulations that incorporate by reference; and (3) navigating
procedural requirements and resolving drafting difficulties when
incorporating by reference. Agencies have used a variety of
approaches to address these issues within the constraints of federal
law and regulatory policy. This recommendation identifies and
encourages those approaches that have proven most successful.
Availability of Incorporated Materials. Ensuring that regulated
and other interested parties have reasonable access to incorporated
materials is perhaps the greatest challenge agencies face when
incorporating by reference. When the relevant material is
copyrighted--as is often the case with voluntary consensus
standards--access issues are particularly problematic. There is some
ambiguity in current law regarding the continuing scope of copyright
protection for materials incorporated into regulations,\3\ as well
as the question of what uses of such materials might constitute
``fair use'' under section 107 of the Copyright Act.\4\ Efforts to
increase transparency of incorporated materials may conflict with
copyright law and with federal policies recognizing the significant
value of the public-private partnership in standards.
---------------------------------------------------------------------------
\3\ See, e.g., Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293
F.3d 791 (5th Cir. 2002) (en banc). This case held that where local
law had incorporated a privately developed building code, a private
party's posting of the resulting local law did not violate
copyright, because the law was in the public domain. Id. at 793,
802. However, the court distinguished cases concerning the
incorporation by reference of materials ``created by private groups
for reasons other than incorporation into law,'' id. at 805, leaving
some uncertainty as to the rule applicable to many voluntary
consensus standards.
\4\ See, e.g., Office of Legal Counsel, Dep't of Justice,
Whether and under what Circumstances Government Reproduction of
Copyrighted Materials Is a Noninfringing ``Fair Use'' under Section
107 of the Copyright Act of 1976 (1999). This opinion noted that
there is no per se rule under which government reproduction of
copyrighted materials for governmental use invariably qualifies as
fair use, but also noted that such reproduction would in many
contexts constitute a noninfringing fair use. The opinion focused on
government reproduction for internal government use and did not
consider government republication of copyrighted materials.
---------------------------------------------------------------------------
This recommendation does not attempt to resolve the questions of
copyright law applicable to materials incorporated by reference into
federal regulations. Rather, the recommendation encourages agencies
to take steps to promote the availability of incorporated materials
within the framework of existing law. This effort is consistent with
the National Science and Technology Council's acknowledgment that
``the text of standards and associated documents should be available
to all interested parties on a reasonable basis, which may include
monetary compensation where appropriate.'' \5\ The Conference's
research reveals that some agencies have successfully worked with
copyright owners to further the goals of both transparency and
public-private collaboration. Some agencies have, for example,
secured permission to make a read-only copy of incorporated material
available in the agency's public, electronic docket during the
pendency of the rulemaking proceeding relating to the material. In
other cases, the copyright owner has made the material publicly
available in read-only form on its own Web site. This recommendation
encourages agencies to take these or other steps to promote
availability of incorporated materials, such as encouraging
copyright owners to make incorporated materials available in
libraries.
---------------------------------------------------------------------------
\5\ See Subcommittee on Standards, Nat'l Sci. & Tech. Council,
Exec. Office of the President, Federal Engagement in Standards
Activities to Address National Priorities: Background and Proposed
Recommendations 11 (Oct. 10, 2011).
---------------------------------------------------------------------------
Updating Regulations. Updating regulations that incorporate by
reference is another challenge. Agencies are legally required to
identify the specific version of material incorporated by reference
and are prohibited from incorporating material dynamically.\6\ When
an updated version of the incorporated material becomes available,
the regulation must be updated if the agency wants the regulation to
incorporate the new version. This can require the agency to engage
in notice-and-comment rulemaking, which entails a significant
investment of agency resources. For agencies that are statutorily
required to provide rulemaking procedures beyond those required by
Section 553 of the Administrative Procedure Act (APA), updating may
prove to be an immense challenge. Nonetheless, agencies have
successfully used a variety of techniques to reduce the time and
cost constraints of updating rules. Some agencies have used
enforcement discretion or ``equivalency determinations'' to avoid
penalizing parties that comply with an updated version of an
incorporated standard that the agency finds to be equivalent to or
superior to the version still incorporated in the agency's
regulations. Other agencies have reduced the burden of updating by
tracking forthcoming revisions through participation in standard-
development activities.\7\ Still others have used direct final
rulemaking to reduce the costs of updating an incorporating
regulation. The recommendation encourages these time- and cost-
saving techniques. This recommendation also proposes a statutory
solution that would streamline the administrative process by which
agencies can revise their regulations to account for updates to the
incorporated material.
---------------------------------------------------------------------------
\6\ See 1 CFR 51.1(f); see also Office of Mgmt. & Budget, Exec.
Office of the President, OMB Circular A-119, Federal Participation
in the Development and Use of Voluntary Consensus Standards and in
Conformity Assessment Activities ] 6(j) (1998).
\7\ See Subcommittee on Standards, Nat'l Sci. & Tech. Council,
Exec. Office of the President, Federal Engagement in Standards
Activities to Address National Priorities: Background and Proposed
Recommendations (Oct. 10, 2011).
---------------------------------------------------------------------------
Complying with Procedural Requirements. Finally, successfully
incorporating by reference requires agencies to comply with detailed
procedures and to draft regulations carefully. The Office of the
Federal Register (OFR) is statutorily charged with approving all
incorporations by reference, and has issued regulations and guidance
establishing policies and procedures for doing so. Procedural errors
can delay the publication of rules that incorporate by reference.
Poor drafting may create confusion among regulated parties or
produce a rule that does not fulfill the agency's regulatory
purpose. The Conference's research revealed that agencies reporting
few or no problems in complying with OFR's incorporation by
reference procedures followed identifiable best practices that other
agencies should consider adopting.
Recommendation
Ensuring Incorporated Materials Are Reasonably Available
1. Agencies considering incorporating material by reference
should ensure that the material will be reasonably available both to
regulated and other interested parties.
2. If an agency incorporates by reference material that is not
copyrighted or subject to other legal protection, the agency should
make that material available electronically in a location where
regulated and other interested parties will be able to find it
easily.
3. When an agency is considering incorporating copyrighted
material by reference, the agency should work with the copyright
owner to ensure the material will be reasonably available to
regulated and other interested parties both during rulemaking and
following promulgation.
(a) Agencies should request owners of copyright in incorporated
material to consent to its free publication, and, if such consent is
given, make the material available as in paragraph (2), above.
(b) If copyright owners do not consent to free publication of
incorporated materials, agencies should work with them and, through
the use of technological solutions, low-cost publication, or other
appropriate means, promote the availability of the materials while
respecting the copyright owner's interest in protecting its
intellectual property.
(c) If more than one standard is available to meet the agency's
need, it should consider the availability of the standards as one
factor in determining which standard to use.
4. In deciding whether to incorporate a particular copyrighted
material by reference, and in working with a copyright owner to
ensure the material is reasonably available, an agency should
consider:
(a) The stage of the regulatory proceedings, because access may
be necessary during
[[Page 2259]]
rulemaking to make public participation in the rulemaking process
effective;
(b) The need for access to achieve agency policy or to subject
the effectiveness of agency programs to public scrutiny;
(c) The cost to regulated and other interested parties to obtain
a copy of the material, including the cumulative cost to obtain
incorporated material that itself incorporates further materials;
and
(d) The types of parties that need access to the incorporated
material, and their ability to bear the costs of accessing such
materials.
5. When considering incorporating by reference highly technical
material, agencies should include in the notice of proposed
rulemaking an explanation of the material and how its incorporation
by reference will further the agency's regulatory purpose.
Updating Incorporations by Reference
6. Agencies should periodically review regulations and make
technical amendments (i.e., nonsubstantive amendments that do not
require notice and comment) as necessary to ensure that complete and
accurate access information \8\ is included in all regulations that
incorporate by reference. Agencies should ensure that they are
notified of all changes to access information.
---------------------------------------------------------------------------
\8\ ``Access information'' informs the public of where it can
inspect or obtain a copy of the incorporated material. See 1 CFR
51.9(b)(4); Nat'l Archives & Records Admin., Federal Register
Document Drafting Handbook Sec. 6.4 (Jan. 2011).
---------------------------------------------------------------------------
7. Agencies that regularly incorporate private standards should
adopt internal procedures to ensure good communication of emerging
revisions to those within the agency charged with making policy
decisions and writing rules. Agencies should consider participating
in standard-setting activities in order to maintain awareness of
emerging revisions.\9\
---------------------------------------------------------------------------
\9\ See Administrative Conference of the United States,
Recommendation 78-4, Federal Agency Interaction with Private
Standard-Setting Organizations in Health and Safety Regulation, 44
FR 1,357 (Jan. 5, 1979).
---------------------------------------------------------------------------
8. Agencies should not address difficulties with updating by
confining incorporations by reference to non-binding guidance
documents. If an agency intends to make compliance with extrinsic
material mandatory, it should incorporate that material by reference
in a legislative rule.
9. In the interests of fairness and transparency, agencies
should publish regulations or guidance establishing the policies and
principles governing equivalency determinations or guiding this use
of enforcement discretion in situations where they have been unable
to update incorporations by reference in regulations.
10. For rulemakings subject to Section 553 of the APA, agencies
should use direct final rulemaking for noncontroversial updates to
incorporations by reference.\10\
---------------------------------------------------------------------------
\10\ See Administrative Conference of the United States,
Recommendation 95-4, Procedures for Noncontroversial and Expedited
Rulemaking, 60 FR 43,108, 43,112 (June 15, 1995).
---------------------------------------------------------------------------
11. Congress should consider authorizing agencies to use
streamlined procedures to update incorporations by reference. An
appropriate statutory solution would:
(a) Provide for interested parties to file a petition for
rulemaking that would notify the agency of a revised standard,
identify the changes from the incorporated version of the standard,
explain why updating would be consistent with the agency's
regulatory purpose, and provide information on the costs and
benefits of incorporating the revised standard;
(b) Vest the agency with authority to determine whether to act
on the petition; and
(c) Authorize agencies to grant the petition by issuing a final
rule, without regard to otherwise applicable rulemaking
requirements, provided that the agency first:
(1) Publishes a notice of the petition in the Federal Register,
indicates in that notice what regulations the requested update would
affect, and provides for public comment on the petition; and
(2) Finds that updating regulations as requested in the petition
is beneficial and consistent with the regulatory purpose of the
relevant regulation.
Navigating Procedural Requirements
12. Each agency that incorporates by reference should task its
Office of the Federal Register (OFR) liaison or another employee
with being a point of contact with OFR and maintaining a close
working relationship between the two agencies. Such agencies should
take advantage of OFR's training opportunities and follow the
procedures of its Document Drafting Handbook (DDH).
13. When considering a regulation that would incorporate by
reference, agencies should ensure legal counsel or other experts in
OFR regulations, DDH, and policy are involved early in the
rulemaking process to reduce the potential for delays in publishing
rules. Agencies considering incorporating by reference should reach
out to OFR staff early in the rulemaking process.
14. OFR should continue and expand upon its efforts to make the
process easier through an electronic submission and review process
for incorporation by reference requests.
Improving Drafting Techniques
15. Agencies should ensure that incorporations by reference
support, rather than detract from, the usefulness and readability of
the Code of Federal Regulations. Incorporated material may provide
detail, but a regulation should, by itself, make the basic concept
of the rule understandable without the need for the reader to refer
to the incorporated material.
16. Agencies should review the language used in material they
are considering incorporating by reference to determine whether it
is mandatory or merely advisory or voluntary. Agencies promulgating
mandatory regulations should take care to specify in the regulation
which portions of the material will be considered mandatory after
incorporation.
17. When an agency incorporates a document that references a
second (or greater) tier document, the agency should acknowledge and
explain the substantive legal effect of the secondarily referenced
document(s). OFR should consider amending the DDH to call attention
to the potential issue of secondary references. If an agency wants
to make a second tier document mandatory, it should ensure that such
material is reasonably available both to the regulated community and
other interested parties.
18. Agencies should be alert to the possibility that some part
of their regulations may inadvertently conflict with a requirement
incorporated by reference. When drafting regulations, agencies
should avoid or resolve any such conflicts.
Administrative Conference Recommendation 2011-6
International Regulatory Cooperation
Adopted December 8, 2011
In June 1991, the Administrative Conference issued
Recommendation 91-1, ``Federal Agency Cooperation with Foreign
Government Regulators,'' finding that ``[i]f American administrative
agencies could ever afford to engage in regulatory activities
without regard to the policies and practices of administrative
agencies abroad, the character and pace of world developments
suggest that that era has come to a close,'' and recommending
practices such as information exchanges and establishment of common
regulatory agendas to facilitate regulatory cooperation. While many
of the issues identified in that recommendation remain relevant
today, the pace of globalization in the past two decades has created
new challenges and dynamics since then. Not only have institutions
promoting international cooperation become more robust, with
relevant developments including the founding of the World Trade
Organization and increasing integration amongst the member states of
the European Union, but the volume of trade in goods, services, and
information across borders has increased dramatically.
Given these developments, the Administrative Conference
commissioned a research project to review international regulatory
cooperation at United States government agencies today, assess how
the 1991 recommendation has been implemented (or not), identify new
challenges that have emerged in the past 20 years, and advise how
the 1991 recommendation might be updated to guide agencies in
improving international coordination today to benefit regulatory
goals and competitiveness. This research shows that, since the 1991
recommendation was adopted, the international coordination efforts
of agencies have greatly expanded. Yet the need for international
coordination has also greatly expanded due to increased trade in
goods, services, and information. Incompatible regulatory
requirements in different countries persist. Sometimes these
regulations are different for non-substantive reasons--regulators
share common goals and methods of regulation, but for historical or
other reasons, regulations remain inconsistent. Sometimes
regulations differ because regulators in different countries do not
agree on important substantive issues, such as how to weigh
scientific evidence or balance competing priorities. When
differences are substantive, they can sometimes be ascribed to
countries' asserting national goals such as protecting health,
[[Page 2260]]
safety, or the environment at the levels that they consider
appropriate. Other substantive differences, however, may disrupt
trade or otherwise operate as de facto protectionist measures.
Moreover, even when standards are aligned, different national
requirements for conformity assessment, such as testing,
certification, inspection, or accreditation, frequently impose their
own costs and delays.
The Administrative Conference finds that improved international
regulatory cooperation is desirable because it can help United
States agencies accomplish their statutory regulatory missions
domestically. Indeed, in some areas like regulating the safety of
food and drugs, a large proportion of which are imported to the
United States, an agency's awareness of and participation in foreign
regulatory processes can help to ensure the safety of products
reaching United States markets. International regulatory cooperation
can also remove non-tariff barriers to trade and exports, promoting
global commerce and United States competitiveness. Moreover, these
benefits of international regulatory cooperation are not
incompatible and can be pursued in unison.
Because of the global nature of the economy, the domestic
regulatory mission of many agencies is affected by what happens
overseas. For example, imports of food and pharmaceutical products
to the United States have greatly increased over the past 20 years,
so that the Food and Drug Administration's (FDA) mission of ensuring
food, drug, and device safety in the United States is necessarily
intertwined with how these products are regulated in their countries
of origin. The Consumer Product Safety Commission faces a similar
challenge. Pollutants do not respect political boundaries, so the
Environmental Protection Agency's success in achieving its mission
in the United States can be affected by environmental regulations in
other countries. Financial institutions in the United States
participate in the global banking system and are exposed to risks in
economies all over the world, which requires financial regulators to
coordinate globally. And trade in data crosses national boundaries,
requiring the Federal Trade Commission to cooperate with other
global regulators in policing Internet fraud.
In addition to the impact on regulatory goals such as health,
safety, environmental and consumer protection in the United States,
inconsistent regulatory regimes can act as barriers to trade. For
example, different food labeling requirements between the United
States and Europe require producers who distribute food in both
markets to produce the same goods in different packaging, depending
on the market, which hinders economies of scale and adds cost and
delay. Another example is that the United States and Europe have
different approaches to regulating the length of tractor-trailers.
Though the American design has better fuel economy, American
manufacturers cannot export trucks that comply with United States
requirements into European markets without significant redesign,
thereby creating an unnecessary barrier to trade.
Many agencies successfully engage in international cooperation
through a variety of different methods, such as coordination in
regulatory promulgation, mutual recognition of inspection and
certification regimes, and coordination and information sharing in
enforcement. Some agencies have long coordinated effectively, both
with respect to domestic and international issues, even when not
mandated to do so. Notably, there is evidence that better
international cooperation can help agencies more proficiently
accomplish their regulatory missions with fewer resources by
dividing work, where appropriate, with foreign counterparts and
mutually recognizing each others' inspection regimes and laboratory
or test results. The FDA believes there is great potential for cost
savings and improved health and safety in mutual reliance on the
data from clinical trials and manufacturing quality inspection
regimes in other countries. For example, the FDA recently concluded
a pilot project with European and Australian regulators to inspect
manufacturing plants in China and other countries that manufacture
active pharmaceutical ingredients. The agencies compared their lists
of plants subject to inspection and the resources that each country
had available, and where two or more agencies were scheduled to
visit the same plant, the agencies agreed on one agency to inspect
that plant or to do a joint inspection, and reallocated resources so
that they could cover more plants. Building on the success of that
pilot, the FDA is now pursuing a similar project with European
regulators for site inspections of clinical trials. These
cooperative approaches, which show potential for cost savings
without diminishing regulatory effectiveness, might be expanded to
other agency settings for further cost-saving effects.
However, global regulatory cooperation can be difficult to
accomplish. Some agencies claim that they lack statutory authority
to account for international effects when making regulatory
decisions. Several agency officials, as well as high-level leaders,
indicated that international regulatory cooperation was a low
priority for certain agency leaders, as it is an issue with little
visibility when accomplished successfully. Some agencies indicated
that legal restrictions on information sharing can hinder
international cooperation. Finally, coordination among some agencies
within the United States government is a challenge, and agencies
focused on trade and competitiveness, such as the Office of the
United States Trade Representative (USTR), are not always aware of
the activities of federal regulators.
Twenty years after the adoption of ACUS Recommendation 91-1,
agencies increasingly recognize that international regulatory
cooperation is an important component of their regulatory missions
in today's globally integrated economy. While progress has been
made, the scope of the problem leaves more work to be done to
eliminate systemic barriers to coordination. The following
recommendation restates the parts of the 1991 recommendation that
remain valid and relevant and also addresses new considerations, to
include promotion of best practices in transparency, mutual
reliance, information sharing, and coordination within the United
States. Accordingly, the recommendation supersedes Recommendation
91-1.
Recommendation
1. Agencies should inform themselves of the existence of foreign
authorities \1\ whose activities may relate to their missions.
Agencies should consider strategies for regulatory cooperation with
relevant foreign authorities when appropriate to further the
agencies' missions or to promote trade and competitiveness when
doing so does not detract from their missions.
---------------------------------------------------------------------------
\1\ Throughout this recommendation, the term ``foreign
authorities'' includes a range of foreign and international
counterparts, including but not limited to foreign government
agencies, regional and international bodies, and, where appropriate,
standard-setting organizations.
---------------------------------------------------------------------------
2. Agencies should review their legal authorization to cooperate
with foreign authorities under their authorizing statutes, bearing
in mind obligations under the World Trade Organization Agreement on
Technical Barriers to Trade and other relevant treaties adopted by
the United States as well as Office of Management and Budget (OMB)
guidance. Where legal authorities do not sufficiently permit
appropriate international cooperation in regulation and enforcement
that would benefit agencies' missions or promote trade and
competitiveness without detracting from their missions, agencies
should recommend corrective legislation to OMB and Congress. Absent
conflict with their legal authority or missions, agencies should
give appropriate consideration to the international implications of
regulatory activities.
3. When agencies conclude that they have legal authority and the
interest in cooperation from foreign authorities, and that
cooperation would further agencies' missions or promote trade and
competitiveness without detracting from their missions, they should
consider various modes of cooperation with those authorities,
including but not limited to:
(a) Establishment of common regulatory agendas;
(b) Exchange of information about present and proposed foreign
regulation;
(c) Concerted efforts to reduce differences between the agency's
rules and those adopted by foreign government regulators where those
differences are not justified;
(d) Holding periodic bilateral or multilateral meetings (either
in person or by teleconference or video conference) to assess the
effectiveness of past cooperative efforts and to chart future ones;
and
(e) Mutual recognition of tests, inspections, clinical trials,
and certifications of foreign agencies.
4. To deploy limited resources more effectively, agencies
should, where appropriate and practicable, identify foreign
authorities that maintain high quality and effective standards and
practices and identify areas in which the tests, inspections, or
certifications by agencies and such foreign agencies overlap. Where
appropriate and practicable, agencies should:
(a) Consider dividing responsibility for necessary tests,
inspections, and
[[Page 2261]]
certifications and mutually recognizing their results;
(b) Create joint technical or working groups to conduct joint
research and development and to identify common solutions to
regulatory problems (for example, through parallel notices of
proposed rulemaking);
(c) Establish joint administrative teams to draft common
procedures and enforcement and dispute resolution policies; and/or
(d) Document and publish cost savings and regulatory benefits
from such mutual arrangements.
5. To assess whether foreign authorities maintain high quality
and effective standards and practices, agencies should develop and
maintain relationships with foreign counterparts by providing
training and technical assistance to foreign authorities and
developing employee exchange programs, as resources permit. Agencies
should also, as resources permit, review whether foreign or
international practices would be appropriate for adoption in the
United States.
6. Agencies should engage in exchanges of information with
foreign authorities to promote better, evidence-based decision-
making. Types of information exchanges can range from formal
agreements to share data to informal dialogues among agency staff.
To the extent practicable, information exchange should be mutually
beneficial and reciprocal. Prior to exchanging information, agencies
must reach arrangements with foreign counterparts that will protect
confidential information, trade secrets, or other sensitive
information.
7. When engaging in regulatory dialogues with foreign
authorities, agencies should seek input and participation from
interested parties as appropriate, through either formal means such
as Federal Register notices and requests for comments or informal
means such as outreach to regulated industries, consumers, and other
stakeholders. Agencies should, where consistent with their statutory
authority, missions, and the public interest, consider petitions by
private and public interest groups for proposed rulemakings that
contemplate the reduction of differences between agency rules and
the rules adopted by foreign authorities, where those differences
are not justified. While international consultations of the sort
described in this recommendation do not usually depart from an
agency's standard practices in compliance with applicable procedural
statutes, an agency engaged in such consultations should describe
those consultations in its notices of proposed rulemaking,
rulemaking records, and statements of basis and purpose under the
Administrative Procedure Act. Where the objective of aligning
American and foreign agency rules has had a significant influence on
the shape of the rule, that fact also should be clearly
acknowledged.
8. Agencies should promote to foreign authorities the principles
that undergird the United States administrative and regulatory
process, including, as appropriate:
(a) Transparency, openness and public participation,
(b) Evidence-based and risk-informed regulation,
(c) Cost-benefit analysis,
(d) Consensus-based standard setting,
(e) Accountability under the law,
(f) Clearly defined roles and lines of authority,
(g) Fair and responsive dispute resolution procedures, and
(h) Impartiality.
An agency engaging in international regulatory cooperation
should also be alert to the possibility that foreign regulatory
bodies may have different regulatory objectives, particularly where
a government-owned or controlled enterprise is involved.
9. When engaging with foreign authorities, agencies should, as
appropriate, share information and consult with other government
agencies having interests that may be affected by the engagement,
including but not limited to OMB's Office of Information and
Regulatory Affairs (OIRA); the Office of the United States Trade
Representative (USTR); and the Departments of Commerce, State, and
Defense.\2\
---------------------------------------------------------------------------
\2\ Agencies should fully comply with 22 CFR 181.4, requiring,
among other things, agencies to consult with OIRA before entering
into international agreements that require significant regulatory
action, and 19 U.S.C. 2541, giving USTR responsibility for
establishing mutual arrangements for standards-related activities.
---------------------------------------------------------------------------
10. The Executive Office of the President should consider
creating a high-level interagency working group of agency heads and
other senior officials to provide government-wide leadership on, and
to evaluate and promote, international regulatory cooperation.
Administrative Conference Recommendation 2011-7
The Federal Advisory Committee Act--Issues and Proposed Reforms
Adopted December 9, 2011
The Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2,
governs the process whereby the President or an administrative
agency obtains advice from groups that include one or more non-
federal employees. It places various limits on the formation of such
groups and requires that group meetings be open to public attendance
and permit at least a limited degree of public participation. Though
Congress has occasionally amended FACA,\1\ the original framework of
the 1972 Act has essentially remained intact to the present day.
Nevertheless, FACA has faced criticism, with some contending that
the Act imposes excessive procedural burdens and others arguing that
it does not require agencies to do enough to promote openness and
transparency. This recommendation offers proposals to Congress, the
General Services Administration (GSA), and agencies that use
advisory committees, to alleviate certain procedural burdens
associated with the existing regime, clarify the scope of the Act,
and enhance the transparency and objectivity of the advisory
committee process.
---------------------------------------------------------------------------
\1\ See, e.g., Federal Advisory Committee Act Amendments of
1997, Public Law 105-153, 111 Stat. 2689 (1997) (exempting meetings
of the National Academy of Sciences and National Academy of Public
Administration from FACA); Unfunded Mandates Reform Act, Public Law
104-4, 109 Stat. 48 (1995) (exempting certain interactions between
federal agencies and state, local, and tribal officials from the
requirements of FACA).
---------------------------------------------------------------------------
Overview of FACA
Congress, the President, and administrative agencies each can
create advisory committees. Advisory committees are classified as
either ``discretionary'' or ``non-discretionary.'' ``Discretionary''
advisory committees include those that an agency forms of its own
initiative or in response to a statute authorizing the creation of a
committee.\2\ ``Non-discretionary'' advisory committees include
those formed by the President and those that Congress, by statute,
specifically directs the President or an agency to establish.\3\
---------------------------------------------------------------------------
\2\ 41 CFR 102-3.50. There are currently 271 committees
established by agencies and 198 committees authorized by statute for
a total of 469 discretionary committees. See FACA Database, http://www.fido.gov/facadatabase/rptgovttotals.asp (last visited October 5,
2011).
\3\ 41 CFR 102-3.50. There are currently 556 committees required
by statute and 48 committees created by the President for a total of
604 non-discretionary committees. See FACA Database, http://www.fido.gov/facadatabase/rptgovttotals.asp (last visited October 5,
2011).
---------------------------------------------------------------------------
FACA furthers three major goals. First, the Act promotes
transparency and public participation in the advisory committee
process, providing for open meetings and permitting interested
members of the public to submit written and/or oral comments to
advisory committees.\4\ Second, the Act seeks to ensure objective
advice and limit the influence of special interests on advisory
committees by requiring that the membership of an advisory committee
``be fairly balanced in terms of the points of view represented and
the functions to be performed by the advisory committee.'' \5\
Third, the Act seeks to preserve federal resources by requiring
justifications for any new committees and periodic review of
existing committees to ensure that they continue to serve a useful
purpose.\6\
---------------------------------------------------------------------------
\4\ 5 U.S.C. App. 2 Sec. 10; House Comm. on Gov't Operations,
The Role & Effectiveness of Fed. Advisory Comms., H.R. Rep. No. 91-
1731, at 17-21 (1970) (hereinafter ``1970 House Report'').
\5\ 5 U.S.C. App. 2 Sec. Sec. 9(b)(2), (c); 1970 House Report
at 19.
\6\ 5 U.S.C. App. 2 Sec. Sec. 7(b), 9(c), 14(a); 1970 House
Report at 4, 12, 15-16.
---------------------------------------------------------------------------
In order to trigger FACA, an assemblage of individuals must
include at least one non-federal employee as well as meet the
following requirements: (a) Work as a group, (b) be ``established''
by statute or ``established or utilized'' by the President or an
administrative agency, and (c) provide ``advice or recommendations''
to the President or a federal agency.\7\ The courts have held that
certain types of interactions do not meet this threshold for
triggering FACA. Specifically, courts have held that (a) assemblages
of persons providing advice to the government individually are not
[[Page 2262]]
``groups'' subject to FACA,\8\ (b) groups formed by private
contractors that are not subject to direct management or control by
an administrative agency are not ``utilized'' by the agency so as to
trigger FACA,\9\ (c) subcommittees that report to a parent committee
are not subject to FACA's open meeting requirements since the
subcommittee does not itself provide ``advice or recommendations''
to the agency,\10\ and (d) groups in which the non-government
members lack a formal vote or veto over the ``advice or
recommendations'' the committee ultimately provides do not implicate
FACA.\11\
---------------------------------------------------------------------------
\7\ 5 U.S.C. App. 2 Sec. 3(2). Nonetheless, FACA specifically
exempts certain meetings that otherwise satisfy these requirements.
See supra note 1.
\8\ Ass'n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898,
913 (D.C. Cir. 1993).
\9\ Byrd v. United States Envtl. Prot. Agency, 174 F.3d 239,
246-47 (D.C. Cir. 1999); Food Chem. News v. Young, 900 F.2d 328, 333
(D.C. Cir. 1990).
\10\ Nat'l Anti-Hunger Coal. v. Exec. Comm. of the President's
Private Sector Survey of Cost Control, 711 F.2d 1071, 1075-76 (D.C.
Cir. 1983); 41 CFR 102-3.35.
\11\ In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005).
---------------------------------------------------------------------------
All advisory committees subject to FACA must comply with a
number of procedural requirements.\12\ Prior to the committee's
commencing its work, an agency creating a discretionary committee
must consult with the General Services Administration (GSA)
regarding the need for the proposed committee, and all committees
must have a charter setting forth the committee's mission.\13\ The
members selected to serve on the proposed committee must reflect an
appropriate balance of the points of view and fields of expertise
relevant to the committee's work.\14\ FACA only requires that
committees achieve balance on factors specifically relevant to the
committee's work, but a number of agencies have adopted policies of
achieving balance on additional factors. Committee members selected
to provide individual expert advice are appointed as ``Special
Government Employees'' (SGEs) and must comply with ethics
requirements similar to those applicable to regular government
employees, whereas members chosen to represent a particular interest
group with a stake in the committee's work are appointed as
``representatives'' and are not subject to ethics requirements.\15\
Once a committee is formed, the agency must announce any committee
meetings in advance in the Federal Register, permit interested
members of the public to attend such meetings,\16\ and receive
comments from individuals interested in the committee's work.\17\
The public, upon request, must be given access to all documents
presented to or prepared for or by the advisory committee.\18\
Finally, agencies must re-charter each existing committee every two
years and, as part of that process, show that the committee has
continued relevance and that the costs of its continued existence do
not outweigh the benefits it provides.\19\
---------------------------------------------------------------------------
\12\ 5 U.S.C. App. 2 Sec. 3(2).
\13\ Id. Sec. Sec. 7(c), 9(c); 41 CFR 102-3.60-75.
\14\ 5 U.S.C. App. 2 Sec. Sec. 5(b)(2), (c); 41 CFR 102-
3.30(c), 102-3.60(b)(3).
\15\ 5 U.S.C. App. 2 Sec. Sec. 5(b)(3), (c); 18 U.S.C. 202(a);
41 CFR 102-3.105(h); U.S. Office of Government Ethics, Memorandum
from J. Jackson Walter, Director of the Office of Government Ethics,
to Heads of Departments & Agencies of the Executive Branch regarding
Members of Federal Advisory Committees & the Conflict-of-Interest
Statutes 3-5 (July 9, 1982).
\16\ Under certain circumstances, a committee may close an
entire meeting or parts thereof. 5 U.S.C. App. 2 Sec. 10(d); 41 CFR
102-3.155. In recent years, the majority of committee meetings have
been either partially or fully closed from public attendance. See
FACA Database: FY 2010 Government Totals, http://fido.gov/facadatabase/rptgovttotals.asp (last visited September 21, 2011)
(noting that, thus far in 2011, 71% of committee meetings have been
completely closed, 4% partially closed, and 25% fully open).
\17\ 5 U.S.C. App. 2 Sec. 10; 41 CFR 102-3.140, 102.3-150.
\18\ 5 U.S.C. App. 2 Sec. 10(b); 41 CFR 102-3.170.
\19\ 5 U.S.C. App. 2 Sec. 14; 41 CFR 102-3.60. In addition to
the re-chartering process, the Administrator of GSA conducts an
annual review of existing committees designed to ensure that such
committees continue to serve useful purposes and to recommend
eliminating any committees that do not, 5 U.S.C. App. 2 Sec. 7(b);
41 CFR 102-3.100(b)(1), and the head of each agency is responsible
for eliminating any advisory committee that no longer justifies the
expenditure of resources required to perpetuate it, 41 CFR 102-
3.30(b), 102-3.105(e).
---------------------------------------------------------------------------
Agencies are also subject to Executive Order 12,838, issued by
President Clinton in 1993, which required agencies to reduce the
number of their discretionary advisory committees by one-third.\20\
The Office of Management & Budget then issued Circular A-135, which
capped the number of agency discretionary committees at the reduced
levels permitted by the Executive Order.\21\ Administrative agencies
collectively can maintain a total of 534 discretionary advisory
committees without exceeding the cap.
---------------------------------------------------------------------------
\20\ Exec. Order No. 12,838, 58 FR 8207 (Feb. 10, 1993).
\21\ Office of Management & Budget, Circular A-135: Management
of Federal Advisory Committees, 59 FR 53856, 53857 (Oct. 26, 1994).
---------------------------------------------------------------------------
In certain instances, agencies may wish to form advisory
committees consisting of representatives from different stakeholder
communities to negotiate the text of a proposed rule.\22\ Congress
has specifically authorized this process, known as ``negotiated
rulemaking,'' in the Negotiated Rulemaking Act of 1990.\23\ In most
instances, negotiated rulemaking committees are subject to FACA,\24\
except as modified by the Negotiated Rulemaking Act or another
statute. The Negotiated Rulemaking Act provides some of the same
protections as FACA, requiring that the agency make certain findings
regarding the need for a negotiated rulemaking committee \25\ and
that negotiated rulemaking committees be balanced to include
representatives from all relevant stakeholder communities.\26\
However, requirements pertaining to notices and openness of meetings
stem from FACA rather than from the Negotiated Rulemaking Act.
---------------------------------------------------------------------------
\22\ David M. Pritzker & Deborah S. Dalton, Negotiated
Rulemaking Sourcebook 1 (Administrative Conference of the U.S.
1995).
\23\ Public Law 101-648, 104 Stat. 4969 (1990) (codified at 5
U.S.C. 561 et seq.).
\24\ 5 U.S.C. 565(a)(1).
\25\ Id. Sec. 563.
\26\ Id. Sec. Sec. 563(a)(2)-(3), 564(a)(3)-(4), 565(a)(1).
---------------------------------------------------------------------------
Research Methodology
Both governmental agencies and private groups have criticized
the existing FACA regime. Many agencies contend that it is overly
cumbersome and limits their ability to obtain outside advice.
Numerous private groups have argued that the statute does not
adequately promote transparency or preserve a role for the public to
participate in the work of committees. Congress has also recently
proposed various reforms to FACA that would, as a general matter,
extend the scope of the Act and require agencies to undertake
various steps to increase transparency in their use of advisory
committees.\27\ In light of the recent interest expressed in
reforming FACA, study of the Act is timely. In order to identify the
problems driving these concerns and formulate potential solutions,
the Conference undertook an extensive study, seeking input from
individuals and groups within and outside of the federal government.
The data-gathering effort included: (a) Two separate surveys, with
one focusing on agency Committee Management Officers (CMOs), who are
responsible for compliance with FACA, and the other focusing on
``clients'' of advisory committees such as agency program officers
and general counsel's offices; (b) a workshop with approximately 50
participants, including numerous agency representatives with
extensive experience in the use of advisory committees and members
of non-governmental organizations that promote government
transparency; and (c) dozens of interviews of FACA experts (not
limited to CMOs) both within and outside of the federal government.
---------------------------------------------------------------------------
\27\ H.R. 3124, 112th Cong. Sec. 3(b) (2011).
---------------------------------------------------------------------------
Research Results
The data gathered suggest that FACA and/or its implementation by
administrative agencies has given rise to at least three types of
problems: (1) Procedural burdens that inhibit the effective use of
advisory committees without substantially furthering the policies of
the Act; (2) confusion about the scope of the statute that may
discourage agencies from using committees or induce them to engage
in ``work-arounds'' to avoid triggering its requirements; and (3)
agency practices that either undermine or fail to fully promote the
transparency and objectivity of the advisory committee process.
The recommendations below propose reforms to address these
problems. The first group of recommendations seeks to alleviate
barriers and perceived barriers \28\ to the government's use of
advisory committees by proposing a simplified process by which
[[Page 2263]]
agencies create advisory committees and select their members and by
recommending the removal of the arbitrary cap on the number of
advisory committees.\29\
---------------------------------------------------------------------------
\28\ The Conference's empirical research indicated that the
principal sources of delay in the committee formation process are
within agencies themselves rather than resulting from delays
associated with GSA's review of proposed committee charters.
Nevertheless, informed observers were concerned that there exists a
widespread perception among agencies that GSA's review of proposed
charters constitutes a de facto approval process rather than a
consultation requirement, thereby causing some agencies to invest
excessive time in drafting committee charters prior to submission to
GSA for review.
\29\ Though the 469 discretionary advisory committees in
existence are currently well short of the 534 discretionary
committees authorized, the cap can nevertheless create procedural
burdens for agencies and inhibit their ability to obtain needed
outside advice. Since GSA allots each agency a specific number of
potential discretionary advisory committees, an agency that intends
to exceed its individual ceiling must request that GSA adjust that
ceiling. Agency officials interviewed as part of the research also
indicated that individuals outside of the CMO's office were
sometimes unsure of whether the agency was likely to exceed its
discretionary committee ceiling and were therefore reluctant to
request additional committees.
---------------------------------------------------------------------------
The second set of recommendations seeks to clarify the Act's
scope in light of cases interpreting the Act and in anticipation of
congressional amendments recently under consideration that might
inhibit agencies' use of advisory committees or lead to use of
alternative procedures to avoid triggering the Act. One such
amendment would require subcommittees to comply with all provisions
of FACA other than chartering, including the open meeting
requirements.\30\ The Conference recommends that if Congress
eliminates the subcommittee exemption, then it should codify what is
currently a regulatory exemption allowing agencies to conduct
preparatory work in closed meetings, without a requirement of
advance public notice.\31\ The Conference also recommends that GSA
clarify the Act's applicability to ``virtual meetings'' conducted
via web forum to ensure that agencies are not chilled from using
this technique and that Congress clarify the applicability of FACA
principles to negotiated rulemaking committees.
---------------------------------------------------------------------------
\30\ H.R. 3124, 112th Cong. Sec. 3(b) (2011).
\31\ Concerns have also been expressed that exemption from FACA
of meetings of committees formed by private contractors at agencies'
behest, and committees wherein all voting members are federal
employees, creates the potential for circumvention of the Act. See
Reeve T. Bull, The Federal Advisory Committee Act: Issues & Proposed
Reforms 17-18, 20-21, 40-42 (September 12, 2011). The Conference
believes that additional research concerning the extent to which
agencies utilize such exemptions and the extent to which their use
thereof defeats the policies the Act was intended to serve would be
beneficial in determining whether such exemptions should be either
eliminated entirely or scaled back so as to apply only in a specific
set of circumstances.
---------------------------------------------------------------------------
The third set of recommendations proposes that both Congress and
agencies adopt certain procedures that would enhance the
transparency and objectivity of the advisory committee process
without imposing onerous procedural or financial burdens on the
agencies. These include ``best practices'' related to committee
formation and operation (such as posting committee documents online,
webcasting committee meetings, and soliciting input on potential
committee members) and recommendations related to the classification
of committee members for purposes of applying ethics standards.
Recommendation
Alleviating Procedural Burdens That Inhibit the Effective Use of
Advisory Committees
1. Congress should amend the Federal Advisory Committee Act
(``FACA'') and the General Services Administration (``GSA'') should
amend its FACA implementing regulations to eliminate any requirement
that agencies consult with the Administrator of GSA prior to forming
or renewing an advisory committee or implementing a major change to
the charter of an existing committee. Specifically, Congress should
delete the phrase ``after consultation with the Administrator'' from
section 9(a)(2) of FACA, and GSA should eliminate or suitably revise
41 CFR 102-3.60, 102-3.85(a), which currently require such
consultation with GSA's Committee Management Secretariat.\32\
Agencies should still be required to prepare and file committee
charters and should be permitted (but not required) to consult with
GSA to obtain advice regarding preparation of the charter or other
aspects of committee formation. Agencies should also still be
required to file charters as under current law,\33\ including filing
with GSA for informational purposes and for inclusion in the FACA
database. GSA should continue to post all committee charters online.
---------------------------------------------------------------------------
\32\ GSA would continue to offer advice on committee formation
and operation to agencies that seek such advice, and its regulations
might authorize agencies to obtain advice on committee formation and
operation from the Committee Management Secretariat.
\33\ 5 U.S.C. App. 2 Sec. 9(c); 41 CFR 102-3.70.
---------------------------------------------------------------------------
2. Agencies should identify and prioritize those factors for
achieving balance among committee members that are directly relevant
to the subject matter and purpose of the committee's work. The
committee charter should include a description of the committee's
mission and the most relevant balance factors.
3. Whenever Congress creates an advisory committee through
legislation, it should indicate its intent as to the mission,
estimated duration, budget, and preferred membership balance for the
committee. Whenever such committees are exempted from the biennial
review process, Congress should provide guidance concerning the
intended duration of each such committee or, alternatively, a clear
explanation of the committee's mission and a provision that the
committee should terminate upon completion of that mission.
4. The President and the Office of Management and Budget should
eliminate the cap on the number of discretionary advisory committees
established by Executive Order 12,838 and Circular A-135.
Clarifying the Scope of FACA
5. Congress should not eliminate the exemption for subcommittees
that report to parent committees currently stated in 41 CFR 102-3.35
unless it codifies an exemption providing that members of committees
or subcommittees may meet to conduct ``preparatory work'' without
complying with the notice and open meeting requirements of the Act.
The statutory definition of ``preparatory work'' should be similar
to that currently provided in FACA's implementing regulations at 41
CFR 102-3.160(a). Congress and/or GSA should also consider including
a clearer list of activities that constitute ``preparatory work''
than that currently contained in the implementing regulations,
including activities such as (i) drafting documents for
consideration at a committee meeting, (ii) conducting research or
preliminary analysis on topics for discussion at a committee
meeting, (iii) engaging in pre-decisional deliberations, (iv)
choosing meeting topics, and (v) considering future projects for the
committee to undertake.
6. GSA should amend section 102-3.140(e) of the FACA
implementing regulations to clarify that, in addition to holding
teleconferenced or webconferenced meetings, agencies also may host
virtual meetings that can occur electronically in writing over the
course of days, weeks or months on a moderated, publicly accessible
web forum. Agencies with advisory committees should be aware that
they have the option of holding committee meetings via such online
forums. To the extent they conduct meetings by web forum, agencies
should monitor the process and determine whether it is an efficient
and transparent means of hosting meetings.
7. Congress should amend the Negotiated Rulemaking Act (5 U.S.C.
561 et seq.) to provide that committees engaged in negotiated
rulemaking are exempt from FACA but that such committees should be
required to announce full committee meetings in advance and open
them to public attendance. The amendments should codify existing
procedures that allow caucuses or other sub-groups of committee
members to meet privately, provided that such caucuses or sub-groups
make no final decisions on behalf of the full committee. In the
event that Congress does eliminate the FACA exemption applicable to
subcommittees of advisory committees, 41 CFR 102-3.35, but does not
exempt negotiated rulemaking committees from FACA, it should create
a carve-out allowing negotiated rulemaking caucuses or other sub-
groups to continue to hold meetings privately so long as they do not
make final decisions on behalf of the full committee.
Enhancing Transparency and Objectivity
8. Congress and agencies should adopt the following procedures
with respect to the ethics requirements applicable to advisory
committee members:
(a) In creating statutory advisory committees, Congress should
specify the intended classification of committee members for
purposes of applying federal ethics laws. Congress should explicitly
classify as ``representatives,'' not subject to ethics standards,
those members who are selected to represent the perspective or
interests of a particular group with a stake in the work of the
advisory committee. It should explicitly classify as ``special
government employees'' (SGEs), subject to specified federal ethics
laws and rules, members who are chosen to provide individual,
independent, expert advice.
(b) Congress and individual agencies should prevent misuse of
the ``representative'' designation by limiting it to
[[Page 2264]]
individuals selected to represent some entity or group with a stake
in the committee's work and should not apply that designation to
persons who, by virtue of their expertise, might be said to
``represent'' a field of study or discipline but do not represent
the views of a particular interest group. Such members are more
appropriately classified as SGEs.\34\
---------------------------------------------------------------------------
\34\ In 2004, the Government Accountability Office issued a
report suggesting that a number of agencies had improperly
classified individuals possessing expertise in a particular field of
study as representatives on the theory that they ``represented''
that discipline. U.S. Gov't Accountability Office, GAO-04-328,
Additional Guidance Could Help Agencies Better Ensure Independence &
Balance 5 (2004). Since that time, the Office of Government Ethics
has issued a number of memoranda to Designated Agency Ethics
Officials clarifying the distinction between SGEs and
representatives and advising agencies to appoint persons selected to
provide independent, expert advice as SGEs. See generally U.S.
Office of Government Ethics, Memorandum from Marilyn L. Glynn,
General Counsel, to Designated Agency Ethics Officials Regarding
Federal Advisory Committee Appointments (Aug. 18, 2005); U.S. Office
of Government Ethics, Memorandum to Designated Agency Ethics
Officials (July 19, 2004). The Office of Government Ethics also
enhanced its examination of agencies' classification of committee
members when conducting an ethics program review. United States
Office of Government Ethics, Ethics Program Review Guidelines 40-45
(Oct. 2004).
---------------------------------------------------------------------------
(c) Agencies that grant conflict of interest waivers under 18
U.S.C. 208(b) should post such waivers on their Web sites without
awaiting a public request for releasing them.\35\ Agencies should
make appropriate provisions for redacting from such waivers
information that they may keep confidential pursuant to 18 U.S.C.
208(d)(1).
---------------------------------------------------------------------------
\35\ The Office of Government Ethics has issued guidance
describing the type of information that a waiver should contain.
U.S. Office of Government Ethics, Memorandum from Robert I. Cusick,
Director, to Designated Agency Ethics Officials Regarding Waivers
under 18 U.S.C. 208 (Feb. 23, 2007).
---------------------------------------------------------------------------
9. Agencies should post on a committee Web site documents
``which were made available to or prepared for or by each advisory
committee'' (i.e., documents that must be made publicly available on
request under section 10(b) of FACA) and that reflect the
substantive work of the committee. Agencies should attempt to post
documents relevant to upcoming meetings (e.g., draft reports,
recommendations, or meeting agendas) as early as possible in advance
of the meeting to which they relate and other materials that
document the events of past meetings (e.g., minutes or transcripts)
as quickly after the meeting as possible.
10. Agencies should provide live webcasts of open committee
meetings and/or post recordings following such meetings unless the
costs are prohibitive. When selecting a webcasting technology,
agencies should assess the likely level of public interest in their
committees' work, the cost of different technologies (as well as the
cost savings such technologies can create), and their available
resources.\36\
---------------------------------------------------------------------------
\36\ GSA has negotiated government-specific terms of service for
a number of technology products and maintains these terms for agency
use on the web at ``apps.gov''; the site includes several free
webcasting programs that agencies should consider using for
providing webcasts of committee meetings.
---------------------------------------------------------------------------
11. Upon creating a new advisory committee, agencies should
announce the committee's mission in the Federal Register and/or on
the agencies' Web site and invite nominations for potential
committee members, from the public, from expert communities with
experience in the subject matter of the committee's assignment, and/
or from groups especially likely to be affected by the committee's
work.
Administrative Conference Recommendation 2011-8
Agency Innovations in E-Rulemaking
Adopted December 9, 2011
The rulemaking function of federal regulatory agencies is
typically accomplished today through ``e-rulemaking'': that is,
through `` `the use of digital technologies in the development and
implementation of regulations,' before or during the informal
rulemaking process, i.e., notice-and-comment rulemaking under the
Administrative Procedure Act (APA).'' \1\ The Web site
www.regulations.gov centralizes much e-rulemaking activity
throughout the executive branch. This recommendation concerns
individual agencies' uses of their own Web sites to promote e-
rulemaking and other agency initiatives and activities.
---------------------------------------------------------------------------
\1\ Administrative Conference of the United States,
Recommendation 2011-1, Legal Considerations in e-Rulemaking 1
(quoting Cary Coglianese, E-Rulemaking: Information Technology and
the Regulatory Process 2 (2004) (working paper), http://lsr.nellco.org/upenn_wps/108).
---------------------------------------------------------------------------
The proliferation of competing demands for communication makes
rulemaking only one of the many priorities under consideration when
agency officials make decisions about the design and functionality
of their Web sites. As a result, there is a risk agencies will make
Web site design decisions without giving due consideration to
enhancing public participation in rulemaking through the use of
electronic media. Indeed, an emerging approach to government Web
site design focuses on giving prominence to ``top tasks'' sought by
members of the public. However, an exclusive focus on current Web
site use or demand may push information about rulemaking, and online
opportunities for public commenting on rulemaking, far into the
background--simply because the volume of Web site traffic generated
by online government services performed by many agencies dwarfs the
traffic related to rulemaking. Rulemaking may never be a ``top
task'' in terms of the numbers of Web users, but in a democracy, few
tasks compare in significance with the ability of government
agencies to create binding law backed up with the threat of civil,
and even criminal, penalties.
The Conference studied the Web sites and e-rulemaking
initiatives of 90 agencies, each of which had reported completing an
average of two or more rulemakings during each six-month period
covered by the semiannual Unified Regulatory Agenda in 2009-2010.
The study reveals that individual agencies have used Web sites in
innovative ways to promote e-rulemaking. For example, agencies have
developed portions of their own Web sites to support rulemaking
efforts. Some agencies have specialized Web pages that allow users
to submit and view comments on all of the agency's open rulemakings,
or to view information on the status of their priority rulemakings.
Links from some agency home pages make rulemaking information easy
to locate. Other agencies have innovated by using social media to
get the public involved in the rulemaking process from the earliest
stages. These social media tools include blogs, Facebook, Twitter,
IdeaScale, and other online discussion platforms.
Agency innovations can improve the availability of information
and engage the public in rulemaking activities, often at no great
cost to the government. A cost-effective technique to improve the
availability of rulemaking information on individual agency Web
sites leverages available centralized data sources. An example of
this approach is found on the Web sites of many members of Congress,
who provide a link on their home page to a page listing all the
legislation the member sponsors. The list is not drawn from the
Member's own database, but rather extracts information from a THOMAS
database of all legislation currently pending in Congress.
Regulations.gov makes a similar tool available to agencies, thus
enabling them to provide easy access to complete and up-to-date
rulemaking information without the necessity of maintaining the
underlying database.
Agency innovations can also further well-established policies in
favor of broadening access by groups that have historically faced
barriers to participating effectively in rulemaking. In 2000,
President Clinton issued Executive Order 13166 in an effort ``to
improve access to * * * programs and activities for persons who, as
a result of national origin, are limited in their English
proficiency.'' \2\ The Office of Management and Budget's policy on
agency Web sites reminds agencies that they are ``required to
provide appropriate access for people with limited English
proficiency.'' \3\ Similarly, until high-speed Internet access is
pervasive across all strata of society, any agency that makes full
public access and participation a priority should explore low
bandwidth options, while also remembering that some members of the
public do not have Internet access at all. In addition, continued
vigilance is needed to ensure that agency Web sites and other
electronic media will be as accessible to individuals with
disabilities as they are to other users. This accessibility may grow
even more challenging in the wake of new techniques for organizing a
large volume of information on a Web site.
---------------------------------------------------------------------------
\2\ Exec. Order No. 13166, 65 FR 50121, 50121 (Aug. 11, 2000).
\3\ OMB Deputy Director for Management Clay Johnson, Memorandum
on Policies for Federal Agency Public Web sites (Dec. 17, 2004),
available at http://www.whitehouse.gov/sites/default/files/omb/memoranda/-fy2005/m05-04.pdf.
---------------------------------------------------------------------------
Individual agency Web sites can also be used to address discrete
deficiencies in the availability of critical rulemaking information.
One such problem is that many
[[Page 2265]]
agencies' policies relating to comments \4\ cannot be found easily
by the public. Even on Web pages dedicated to the submission of
comments, a comment policy is not always visible to the user. A
second difficulty arises with old rulemaking materials, which need
to be preserved for archival, historical, and legal reasons, but are
often difficult for users to find and search. A third issue is that
agency Web sites are uniformly easy to locate, but do not always
include features to ensure that essential information, particularly
about rulemaking, is broadly accessible to the public.
---------------------------------------------------------------------------
\4\ See generally Administrative Conference of the United
States, Recommendation 2011-2, Rulemaking Comments (recommending
that agencies establish and publish certain policies governing
rulemaking comments).
---------------------------------------------------------------------------
The Conference believes that, as a general matter, agencies
should continue to improve their Web sites to facilitate public
accessibility and engagement so as to achieve the promise of e-
rulemaking. This recommendation is intended to broadly encourage
agencies to develop and use innovative, cost-effective ways to use
individual Web sites to solve some of the discrete problems
identified above and generally engage the public in rulemaking.
Recommendation
Increasing the Visibility of Rulemakings
1. Agencies should design and manage their presence on the Web
(including the Web as accessed by mobile devices) with rulemaking
participation in mind.\5\
---------------------------------------------------------------------------
\5\ Throughout this recommendation, the term ``rulemaking''
includes, but is not limited to, the following proceedings,
providing an agency is seeking or intends to seek public comment on
them: planned rulemakings that have appeared in the Unified Agenda,
rules at the advanced notice of proposed rulemaking stage, and
proposed nonlegislative rules. The recommendation also extends to
guidance documents on which an agency is seeking or intends to seek
public comment.
---------------------------------------------------------------------------
2. Each agency should provide access to a one-stop location,
which should be easily reachable from its home page, for all of its
pending rulemakings, highlighting those that are currently open for
comment. This may take the form of providing pinpoint links to
specific information about the agency's rulemakings available on Web
sites such as Regulations.gov, RegInfo.gov, Federal Register 2.0,
and so forth, which would allow the agency to efficiently enable the
public to retrieve all available information the federal government
has about its ongoing rulemakings.
3. Agencies should consider, in appropriate rulemakings, using
social media tools to raise the visibility of rulemakings. When an
agency sponsors a social media discussion of a rulemaking, it should
provide clear notice as to whether and how it will use the
discussion in the rulemaking proceeding.
Making Comment Policies Easy To Locate
4. Agencies should display or link to their comment policies in
prominent or multiple locations on their Web sites.
Improving Access to Agency Web Sites
5. Agencies should continue to improve the accessibility of
their Web sites to members of the public.
6. Agencies should take steps to improve access for persons who
have faced barriers to effectively participating in rulemaking in
the past, including non-English speakers, users of low-bandwidth
Internet connections, and individuals with disabilities.
Ensuring Access to Materials From Completed Rulemakings
7. Agencies should develop systematic protocols to enable the
online storage and retrieval of materials from completed
rulemakings. Such protocols should, to the extent feasible, ensure
that Web site visitors using out-of-date URLs are automatically
redirected to the current location of the material sought.
Periodically Evaluating Agency Use of the Internet in Rulemaking
8. Agencies should periodically evaluate their use of the
Internet in rulemaking and should continue to innovate and
experiment with new and cost-effective ways to engage the public in
rulemaking via the Internet.
[FR Doc. 2012-621 Filed 1-13-12; 8:45 am]
BILLING CODE 6110-01-P