[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]


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  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.

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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.
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    \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).
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    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.
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    \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.
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    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.
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    \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).
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    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.
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    \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).
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    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.
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    \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).
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    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\
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    \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).
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    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\
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    \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).
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    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.
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    \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.
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    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\
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    \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.
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    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.
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    \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).
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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\
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    \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).
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    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\
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    \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.
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    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\
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    \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).
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    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\
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    \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).
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    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.
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    \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).
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    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.
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    \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).
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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.
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    \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\
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    \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.
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    \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\
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    \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).
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    (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).
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    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.
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    \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.
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    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.
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    \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).
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    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\
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    \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.
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    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