[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Notices]
[Pages 47800-47812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19690]


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  Federal Register / Vol. 77, No. 155 / Friday, August 10, 2012 / 
Notices  

[[Page 47800]]



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 
five recommendations at its Fifty-sixth Plenary Session. The appended 
recommendations address regulatory analysis requirements, midnight 
rules, immigration removal adjudication, the Paperwork Reduction Act, 
and improving coordination of related agency responsibilities.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2012-1, Reeve Bull; 
for Recommendations 2012-2 and 2012-3, Funmi Olorunnipa; for 
Recommendation 2012-4, Emily Bremer; and for Recommendation 2012-5, 
David Pritzker. For all five recommendations the address and phone 
number are: Administrative Conference of the United States, Suite 706 
South, 1120 20th Street NW., Washington, DC 20036; Telephone 202-480-
2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations 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-sixth Plenary Session, held June 14-15, 2012, the 
Assembly of the Conference adopted five recommendations. Recommendation 
2012-1, ``Regulatory Analysis Requirements,'' considers the various 
regulatory analysis requirements imposed upon agencies by both 
executive orders and statutes. It offers recommendations designed to 
ensure that agencies satisfy the existing requirements in the most 
efficient and transparent manner possible. It also provides 
recommendations on streamlining the existing analysis requirements.
    Recommendation 2012-2, ``Midnight Rules,'' addresses several issues 
raised by the publication of rules in the final months of a 
presidential administration. The recommendation offers a number of 
proposals for limiting the practice of issuing midnight rules by 
incumbent administrations and enhancing the powers of incoming 
administrations to review midnight rules.
    Recommendation 2012-3, ``Immigration Removal Adjudication,'' 
addresses the problem of case backlogs in immigration removals. The 
recommendation suggests a number of ways to enhance efficiency and 
fairness in these cases. Officials from the Department of Homeland 
Security (DHS) and the Department of Justice's Executive Office for 
Immigration Review (EOIR) had significant and helpful input during the 
committee process preceding the adoption of the recommendation by the 
full Assembly of the Conference.
    At the end of the first day of the Fifty-sixth Plenary Session, 
during deliberation of Recommendation 2012-3, ``Immigration Removal 
Adjudication,'' the Assembly had to adjourn due to the lack of a 
quorum. That determination came after three amendments proposed by DHS 
to sections 10(b) and 21 of the recommendation failed. There is doubt 
whether a quorum existed at the time the Assembly voted on those 
amendments. Moreover, because those amendments failed by relatively 
narrow margins (one was a tie), they might have succeeded had a quorum 
been present. The following day, after a quorum had been reestablished, 
the full recommendation (including the two sections that had been 
adopted prior to the quorum call) was adopted by a voice vote. In light 
of the uncertainty surrounding the votes on DHS's amendments, DHS and a 
number of other members have taken the reasonable view that those two 
sections carry less persuasive weight than they might otherwise.
    An ex post review of all relevant sources has introduced some 
uncertainty as to whether procedures could have been managed 
differently. Because the mission of the Conference is to ensure 
consensus-driven and fair procedures, the Conference has sought and 
will continue to seek the input of its membership on ways to revise 
quorum procedures in the future, to ensure that the Conference acts 
only through a full quorum of its members. We look forward to working 
with DHS and the Department of Justice to implement the other 35 parts 
of this important and historic recommendation.
    Recommendation 2012-4 addresses a variety of issues that have 
arisen since the Paperwork Reduction Act was last revised in 1995. It 
recommends ways to improve public engagement in the creation and review 
of information collection requests and to make the process more 
efficient for the agencies and the Office of Management and Budget. It 
also suggests ways to streamline the review and approval process 
without increasing the burden on the public of agency information 
collections.
    Recommendation 2012-5 addresses the problem of overlapping and 
fragmented procedures associated with assigning multiple agencies 
similar or related functions, or dividing authority among agencies. The 
recommendation proposes some reforms aimed at improving coordination of 
agency policymaking, including joint rulemaking, interagency 
agreements, agency consultation provisions, and tracking and evaluating 
the effectiveness of coordination initiatives.
    The Appendix (below) sets forth the full text of these five 
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/56th-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.


[[Page 47801]]


    Dated: August 7, 2012.
Paul R. Verkuil,
Chairman.

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

Administrative Conference Recommendation 2012-1

Regulatory Analysis Requirements
Adopted June 14, 2012
    Over the past several decades, the United States Congress and 
various Presidents have imposed numerous regulatory analysis 
requirements on administrative agencies in connection with their 
rulemaking activities. Some of these requirements are relatively 
sweeping measures designed to ensure that agencies' regulations advance 
legitimate goals, such as Executive Order (EO) 12,866's requirement 
that executive agencies analyze the benefits and costs of proposed 
regulations.\1\ Other requirements are more specific mandates that 
agencies take into account certain factors when drafting regulations, 
including the proposed rules' effects on small businesses,\2\ 
intergovernmental relations,\3\ constitutionally protected property 
rights,\4\ or the well-being of families.\5\
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    \1\ See generally Exec. Order No. 12,866, 58 FR 51735 (Oct. 4, 
1993). Independent regulatory agencies, as defined in the Paperwork 
Reduction Act, 44 U.S.C. 3502(5), are not subject to that 
requirement.
    \2\ See Regulatory Flexibility Act, 5 U.S.C. 603-04 (requiring 
agencies to do initial and final ``regulatory flexibility'' 
analyses, describing the impact of the rule on ``small entities'').
    \3\ See generally Exec. Order No. 13,132, 64 FR 43255 (Aug. 10, 
1999).
    \4\ See generally Exec. Order No. 12,630, 53 FR 8859 (Mar. 15, 
1988).
    \5\ See generally Public Law 105-277, Sec.  654, 112 Stat. 2681, 
2681-528-30 (1998).
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    Some of the regulatory analysis requirements created by statute and 
executive orders have similar elements. For instance, the Regulatory 
Flexibility Act (RFA), Paperwork Reduction Act (PRA), Unfunded Mandates 
Reform Act (UMRA), and EO 12866 all require agencies to discuss the 
need for a proposed regulatory action, assess the costs and benefits of 
the proposal, and discuss alternative regulatory actions that could 
have been selected.\6\ EO 13132 requires agencies to consider the 
impact of their regulations on State and local governments, and EO 
13175 similarly requires agencies to assess the impact of proposed 
rules on Native American tribal governments.\7\
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    \6\ Curtis W. Copeland, Regulatory Analysis Requirements: A 
Review and Recommendations for Reform 51 (Feb. 23, 2012) (report to 
the Administrative Conference of the United States), available at 
http://www.acus.gov/wp-content/uploads/downloads/2012/03/COR-Copeland-Report-CIRCULATED.pdf.
    \7\ Id. at 50-51.
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    Nevertheless, even relatively similar analytical requirements have 
distinct scopes, triggering events, and exceptions.\8\ For instance, 
although UMRA and EO 12866 cover the same agencies and require similar 
types of analysis, UMRA covers far fewer rules than the executive 
order. The various requirements also differ in the amount of discretion 
provided to agencies to determine whether an analysis is required. For 
example, EO 12,866's analysis requirement applies in any rulemaking 
with an annual economic effect of $100 million or more. In contrast, 
EOs 13132 and 13175 are triggered when a regulation has ``substantial 
direct effects'' on State or Native American tribal governments, 
respectively, but neither executive order defines the phrase, thereby 
allowing agencies to determine what constitutes a ``substantial direct 
effect.'' \9\ As a result, agencies may adopt differing perspectives on 
events that implicate any given regulatory analysis requirement, 
thereby resulting in inconsistency throughout the government. 
Therefore, although certain aspects of the various analysis 
requirements could theoretically be consolidated,\10\ the numerous 
distinctions among the requirements complicate any effort to 
consolidate and streamline them.
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    \8\ Id. at 44-48.
    \9\ Id. at 50-51.
    \10\ For instance, an economic analysis performed under EO 
12,866 might also meet the requirements of UMRA in those instances 
wherein an agency is subject to both requirements. Id. at 55.
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    In this Recommendation, the Conference has sought to ensure that 
agencies fulfill the various regulatory analysis requirements in the 
most efficient manner possible and to enhance the transparency of the 
process by encouraging agencies to identify explicitly which of the 
requirements apply to any given rulemaking and why any applicable 
analytical requirements are not triggered. Also, agencies should be 
able to refer to a comprehensive list of cross-cutting regulatory 
analysis requirements, and they should identify any agency-specific or 
statute-specific requirements applicable to their rules.\11\
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    \11\ Agencies should consider the applicable regulatory analysis 
requirements throughout rulemaking proceedings and should not limit 
this process to the period immediately preceding the issuance of a 
notice of proposed rulemaking. In this light, agencies should be 
guided by Administrative Conference Recommendation 85-2, Agency 
Procedures for Performing Regulatory Analysis of Rules, which sets 
forth ``specific advice on the use and limits of regulatory analysis 
and on integration of regulatory analysis into the agency rulemaking 
process.'' Administrative Conference of the United States, 
Recommendation 85-2, Agency Procedures for Performing Regulatory 
Analysis of Rules, 50 FR 28364 (July 12, 1985) (preamble). 
Specifically, the recommendation states that ``[i]f regulatory 
analysis is to be used in a rulemaking, the agency decisionmaking 
process should be structured to involve agency regulatory analysts 
early in the evolution of the rule, before alternatives have been 
eliminated. Regulatory analysis should not be used to produce post 
hoc rationalizations for decisions already made, nor should it be 
allowed to unduly delay rulemaking proceedings.'' Id. ] 2(a).
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    In addition, the Conference asks the Executive Office of the 
President and Congress to consider streamlining the existing regulatory 
analysis requirements. It encourages the Executive Office of the 
President and Congress to consider consolidating certain analysis 
requirements to the extent overlap exists and to promote uniformity in 
the determination of whether any given analysis requirement applies. 
Although the Conference seeks to assure that existing analytic 
requirements are applied in the most efficient and transparent manner 
possible, it does not address whether the number or nature of those 
requirements might not be reduced in light of their cumulative impact 
on agencies.

Recommendation

    1. The Executive Office of the President should request that an 
appropriate agency prepare and post on its Web site a chart listing the 
various cross-cutting analytical rulemaking requirements (i.e., those 
that apply generally to a group of agencies rather than a specific 
agency or issue); the chart should provide links to the relevant 
statutes and executive orders establishing these requirements.\12\ The 
chart should be designed to serve as a useful resource to agencies for 
identifying analysis requirements that might apply; it would not 
constitute a formal ``checklist'' that agencies must complete or 
represent a judgment that an agency need comply only with the 
requirements enumerated in the list.
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    \12\ The Administrative Conference can provide appropriate 
assistance in accomplishing this endeavor.
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    2. To the extent certain regulatory analysis requirements are 
agency-specific or statute-specific, affected agencies should prepare 
and post on their Web sites a list of all such additional requirements 
(beyond the cross-cutting requirements described in Recommendation 1), 
along with links to the underlying statutes.
    3. In order to minimize the burden and duplication that agencies 
face in conducting separate regulatory analyses, the Executive Office 
of the President and Congress should review

[[Page 47802]]

requirements on an ongoing basis to determine if any of them should be 
consolidated or eliminated.
    4. The Office of Information and Regulatory Affairs (OIRA) should 
notify agencies that an analytical requirement for which it plays a 
central coordinating role might be satisfied by another applicable 
analytical requirement, and that the agencies may not need to prepare a 
separate analysis to satisfy the former requirement in such 
instances.\13\
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    \13\ Agencies should also be aware that certain analysis 
requirements outside of the purview of OIRA can be satisfied by 
performing similar analysis under a separate requirement. See, e.g., 
Unfunded Mandates Reform Act, 2 U.S.C. 1532(c) (``Any agency may 
prepare any statement required under subsection (a) of this section 
in conjunction with or as a part of any other statement or analysis, 
provided that the statement or analysis satisfies the provisions of 
subsection (a) of this section.''); Regulatory Flexibility Act, 5 
U.S.C. 605(a) (``Any Federal agency may perform the analyses 
required by sections 602, 603, and 604 of this title in conjunction 
with or as a part of any other agenda or analysis required by any 
other law if such other analysis satisfies the provisions of such 
sections.'').
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    5. In developing any future guidance on regulatory analysis 
requirements, OIRA should consider the cumulative impact of those 
requirements and, to the extent possible, integrate the requirements 
into existing formats for analysis.
    6. In the preamble to each significant proposed or final rule, 
agencies should briefly indicate which of the cross-cutting and agency-
specific or statute-specific regulatory analysis requirements arguably 
apply to the particular rulemaking under consideration, and why any 
specific requirement is not triggered.\14\ In so doing, the agency may 
utilize the lists of regulatory analysis requirements described in the 
first and second recommendations. An example for a hypothetical 
regulation that might be construed to have potential effects on the 
economy, states, and the environment but that ultimately does not 
trigger any of the associated regulatory analysis requirements is 
provided in the form of a chart \15\:
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    \14\ As explored above, agencies should not treat this merely as 
a checklist and instead should consider the various analysis 
requirements throughout the rulemaking process. See supra note 11. 
This recommendation is merely intended to ensure that the agency 
provides the public a brief explanation of its determination that 
certain analysis requirements do not apply.
    \15\ As a general matter, the various regulatory analysis 
requirements will fall into three potential categories: (a) the 
analysis requirement applies to the rulemaking; (b) the analysis 
requirement does not apply to the rulemaking but its inapplicability 
is not immediately clear without additional explanation; and (c) the 
analysis requirement clearly does not apply to the rulemaking. An 
agency could use a chart similar to the exemplar provided for 
analysis requirements that fall into the second category. It would 
actually perform the analysis requirements falling into the first 
category, and it would not need to explain the inapplicability of 
requirements falling into the third category. An agency could choose 
to provide an explanation for the inapplicability of requirements in 
the third category. For instance, with respect to the analysis 
requirement created by the Assessment of Federal Regulation and 
Policies on Families (Pub. L. 105-277, sec. 654), an agency might 
add an entry to the chart stating ``Proposed rule will not affect 
family well-being.''

 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Executive Order 12,866..........................  OIRA has determined
                                                   that the proposed
                                                   rule will not have an
                                                   ``annual effect on
                                                   the economy of $100
                                                   million or more or
                                                   adversely affect in a
                                                   material way the
                                                   economy, a sector of
                                                   the economy,
                                                   productivity,
                                                   competition, jobs,
                                                   the environment,
                                                   public health or
                                                   safety, or State,
                                                   local, or tribal
                                                   governments or
                                                   communities,'' and
                                                   does not trigger the
                                                   additional
                                                   information
                                                   requirements of Sec.
                                                    6(a)(3)(C) of EO
                                                   12,866.
Executive Order 12,898..........................  Data available to the
                                                   agency indicate that
                                                   the proposed rule
                                                   does not have
                                                   disproportionately
                                                   high and adverse
                                                   health or
                                                   environmental effects
                                                   on minority or low-
                                                   income populations.
UMRA............................................  Proposed rule will not
                                                   ``result in aggregate
                                                   expenditure by State,
                                                   local, and tribal
                                                   governments, or by
                                                   the private sector,
                                                   of $100,000,000 or
                                                   more in any one year
                                                   (adjusted annually
                                                   for inflation)'' and
                                                   therefore does not
                                                   trigger UMRA
                                                   requirements.
------------------------------------------------------------------------

Administrative Conference Recommendation 2012-2

Midnight Rules
Adopted June 14, 2012
    There has been a documented increase in the volume of regulatory 
activity during the last months of presidential terms.\1\ This includes 
an increase in the number of legislative rules (normally issued under 
the Administrative Procedure Act's (APA) notice and comment procedures) 
\2\ and non-legislative rules (such as interpretive rules, policy 
statements, and guidance documents) as compared to other periods. This 
spurt in late-term regulatory activity has been criticized by 
politicians, academics, and the media during the last several 
presidential transitions. However, the perception of midnight 
rulemaking as an unseemly practice is worse than the reality.
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    \1\ One study shows that, as measured by Federal Register pages, 
rulemaking activity increases by an average of 17 percent in the 
three months following a presidential election. See Antony Davies & 
Veronique de Rugy, Midnight Regulations: An Update (Mercatus Ctr. at 
George Mason Univ., Working Paper, 2008), available at http://mercatus.org/uploadedFiles/Mercatus/Publications/WP0806_RSP_Midnight%20Regulations.pdf (studying the number of pages published 
in the Federal Register over specific time periods in various 
presidential administrations).
    \2\ See 5 U.S.C. 553.
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    The Conference has found that a dispassionate look at midnight 
rules \3\ issued by past administrations of both political parties 
reveals that most were under active consideration long before the 
November election and many were relatively routine matters not 
implicating new policy initiatives by incumbent administrations.\4\ The 
Conference's study found that while there are isolated cases of 
midnight rules that may have been timed to avoid accountability \5\ the 
majority of the rules appear to be the result of finishing tasks that 
were initiated before the Presidential transition period or the result 
of deadlines outside the agency's control (such as year-end statutory 
or court-ordered deadlines). Accordingly, it appears that the increase 
in rulemaking at the end of an administration likely results primarily 
from external delays, the ordinary tendency to work to deadline, or 
simply a natural desire to complete projects before departing. 
Nonetheless, the timing of such rulemaking efforts can put a new 
administration in the awkward position of having to expeditiously 
review a substantial number of rules and other actions to assess the 
quality and consistency with its policies.
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    \3\ The U.S. House of Representatives' Subcommittee on 
Commercial and Administrative Law has previously suggested midnight 
rules as a topic suitable for Conference study. See H. Subcomm. on 
Commercial & Admin. Law, 109th Cong., Interim Report on 
Administrative Law, Process and Procedure for the 21st Century 150 
(Comm. Print 2007). (listing among ``Areas for Additional Research'' 
the following question: ``Should a new President be authorized to 
stay the effectiveness of `midnight rules' that are promulgated 
shortly before a new administration takes office? If so, should 
there be limits on the amount of time rules can be delayed'').
    \4\ See Jack M. Beermann, Midnight Rules: A Reform Agenda (Feb. 
8, 2012) (report to the Administrative Conference of the U.S.), 
available at http://www.acus.gov/wp-content/uploads/downloads/2012/02/Midnight-Rules-Draft-Report-2-8-12.pdf.
    \5\ See, e.g., Beermann, Midnight Rules, supra note 4, at 28 n. 
74, 54 n. 137 (citing examples of cases where an incumbent 
administration may have timed a midnight rule to avoid 
accountability).

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[[Page 47803]]

    In addition, critics have suggested that administrations have used 
the midnight period for strategic purposes. First, administrations are 
said to have reserved particularly controversial rulemakings for the 
final months of an incumbent President's term in order to minimize 
political accountability and maximize influence beyond the incumbent 
administration's term. Such strategic timing is said to weaken the 
check that the political process otherwise provides on regulatory 
activity. Second, there is some concern about the quality of rules that 
may have been rushed through the rulemaking process. Third, some fear 
that midnight rulemaking forces incoming administrations to expend 
substantial time, energy, and political capital to reexamine the rules 
and address perceived problems with them. Although similar concerns 
have been raised with respect to non-legislative rules issued during 
the midnight period, such rules are not the focus of this 
Recommendation because they can be modified or amended without notice 
and comment procedures.
    Given these criticisms, there have been many proposals to reform 
midnight rulemaking, some directed at limiting the ability of incumbent 
administrations to engage in it, some directed at enhancing the ability 
of incoming administrations to revise or rescind the resulting rules, 
and others directed at encouraging incumbent and incoming 
administrations to collaborate and share information during the 
rulemaking process.
    The Conference believes that although it may be desirable to defer 
significant and especially controversial late-term rulemakings until 
after the transition of a presidential administration, shutting the 
rulemaking process down during this period would be impractical given 
that numerous agency programs require constant regulatory activity, 
often with statutory deadlines. Thus, the Conference believes that 
reforms directed at curtailing midnight rules should be aimed as 
precisely as possible at the activities that raise the greatest causes 
for concern. Reforms should target the problems of perceived political 
illegitimacy that arise from rules that that are initiated late in the 
incumbent administration's term or that appear to be rushed through the 
regulatory process.
    Accordingly, this Recommendation proposes reforms aimed at 
addressing problematic midnight rulemaking practices by incumbent 
administrations and enhancing the ability of incoming administrations 
to review midnight rules. This Recommendation defines ``midnight 
rules'' as those promulgated by an outgoing administration after the 
Presidential election. It is directed at addressing midnight rulemaking 
of ``significant'' legislative rules,\6\ although the considerations 
that underlie it may apply to other agency regulatory activities that 
affect the public.
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    \6\ Executive Order 12866 defines a rule as ``significant'' when 
it is likely to have ``an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local, or tribal 
governments or communities; create a serious inconsistency or 
otherwise interfere with an action taken or planned by another 
agency; materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.'' Exec. Order No. 12866, 58 FR 
51735 (Oct. 4, 1993).
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Recommendation

    1. Incumbent administrations should manage each step of the 
rulemaking process throughout their terms in a way that avoids an 
actual or perceived rush of the final stages of the process.
    2. Incumbent administrations should encourage agencies to put 
significant rulemaking proposals out for public comment well before the 
date of the upcoming presidential election and to complete rulemakings 
before the election whenever possible.
    3. When incumbent administrations issue a significant ``midnight'' 
rule--meaning one issued by an outgoing administration after the 
Presidential election--they should explain the timing of the rule in 
the preamble of the final rule (and, if feasible, in the preamble of 
the proposed rule). The outgoing administration should also consider 
selecting an effective date that falls 90 days or more into the new 
administration so as to ensure that the new administration has an 
opportunity to review the final action and, if desired, withdraw it 
after notice and comment, before the effective date.
    4. Incumbent administrations should refrain from issuing midnight 
rules that address internal government operations, such as consultation 
requirements and funding restrictions, unless there is a pressing need 
to act before the transition. While incumbent administrations can 
suggest such changes to the incoming administration, it is more 
appropriate to leave the final decision to those who would operate 
under the new requirements or restrictions.
    5. Incumbent administrations should continue the practice of 
sharing appropriate information about pending rulemaking actions and 
new regulatory initiatives with incoming administrations.

Recommendations to Incoming Presidential Administrations

    6. Where an incoming administration undertakes to review a midnight 
rule that has already been published, and the effective date of the 
rule is not imminent, the administration should, before taking any 
action to alter the rule or its effective date, allow a notice-and-
comment period of at least 30 days. The comment period should invite 
the public to express views on the legal and policy issues raised by 
the rule as well as whether the rule should be amended, rescinded, 
delayed pending further review by the agency, or allowed to go into 
effect. The administration should then take account of the public 
comments in determining whether to amend, rescind, delay the rule, or 
allow the rule to go into effect. If possible, the administration 
should initiate, if not complete, any such process prior to the 
effective date of the rule.
    7. When the imminence of the effective date of a midnight rule 
precludes full adherence to the process described in paragraph six, the 
incoming administration should consider delaying the effective date of 
the rule, for up to 60 days to facilitate its review, if such an action 
is permitted by law.\7\ Before deciding whether to delay the effective 
date, however, the administration should, where feasible, allow at 
least a short comment period regarding the desirability of delaying the 
effective date. If the administration cannot provide a comment period 
before delaying the effective date of the rule, it should instead offer 
the public a subsequent opportunity to comment on when, if ever, the 
rule should take effect and whether the rule itself should be amended 
or rescinded.
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    \7\ The Conference takes no position on whether--absent 
legislation such as paragraph eight suggests--the law authorizes 
administrations to delay the effective dates of rules not yet 
effective without notice and comment, but recognizes that prior 
administrations have done so.
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Recommendation to Congress

    8. In order to facilitate incoming administrations' review of 
midnight rules that would not otherwise qualify for one of the APA 
exceptions to notice and comment, Congress should consider expressly 
authorizing agencies to delay for up to 60 days, without notice and 
comment, the effective dates of such rules that have not yet gone into 
effect but would take effect within the first 60 days of a new 
administration.

[[Page 47804]]

Recommendation to the Office of the Federal Register

    9. The Office of the Federal Register should maintain its current 
practice (whether during the midnight period or not) of allowing 
withdrawal of rules before filing for public inspection and not 
allowing rules to be withdrawn once they have been filed for public 
inspection or published, absent exceptional circumstances.

Administrative Conference Recommendation 2012-3

Immigration Removal Adjudication
Adopted June 15, 2012.
    The U.S. immigration removal adjudication agencies and processes 
have been the objects of critiques by the popular press, organizations 
of various types, legal scholars, advocates, U.S. courts of appeals 
judges, immigration judges, Board of Immigration Appeals members and 
the Government Accountability Office. Critics have noted how the 
current immigration adjudication system fails to meet national 
expectations of fairness and effectiveness. One of the biggest 
challenges identified in the adjudication of immigration removal cases 
is the backlog of pending proceedings and the limited resources to deal 
with the caseload. A March 2012 study by the Transactional Records 
Access Clearinghouse at Syracuse University reports that the number of 
cases pending before immigration courts within the U.S. Department of 
Justice's Executive Office for Immigration Review (EOIR) recently 
reached an all-time high of more than 300,000 cases and that the 
average time these cases have been pending is 519 days.\1\ A February 
2010 study by the American Bar Association's Commission on Immigration 
reports that the number of cases is ``overwhelming'' the resources that 
have been dedicated to resolving them.\2\ Another challenge identified 
is the lack of adequate representation in removal proceedings, which 
can have a host of negative repercussions, including delays, 
questionable fairness, increased cost of adjudicating cases, and risk 
of abuse and exploitation. More than half of respondents in immigration 
removal proceedings and 84 percent of detained respondents are not 
represented.\3\
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    \1\ Immigration Court Backlog Tool, Transactional Records Access 
Clearinghouse, Syracuse Univ. (Mar. 28, 2012), http://trac.syr.edu/phptools/immigration/court_backlog/ (providing comprehensive, 
independent, and nonpartisan information about U.S. federal 
immigration enforcement).
    \2\ Am. Bar Ass'n Comm'n on Immigration, Reforming the 
Immigration System, Proposals to Promote Independence, Fairness, 
Efficiency, and Professionalism in the Adjudication of Removal Cases 
1-49 (2010) available at http://www.americanbar.org/content/dam/aba/migrated/Immigration/PublicDocuments/aba_complete_full_report.authcheckdam.pdf.
    \2\Id.
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    The numerous studies examining immigration removal adjudication 
have focused on the two agencies principally involved: The U.S. 
Department of Homeland Security (DHS), specifically two of its 
component agencies: the United States Citizenship and Immigration 
Services (USCIS) and Immigration and Customs Enforcement (ICE), and 
EOIR. Prior studies about EOIR have noted the limited resources 
available to the agency and called for more resources to hire more 
immigration judges and support staff and thus ease the backlog of 
cases, criticized immigration judge hiring standards and procedures, 
and recommended enhanced orientation, continuing education, and 
performance monitoring.
    Consultants for the Administrative Conference of the United States 
conducted a comprehensive and detailed study of potential improvements 
in immigration removal adjudication.\4\ Following the study and 
consistent with the Conference's statutory mandate of improving the 
regulatory and adjudicatory process, the Conference issues this 
Recommendation directed at reducing the caseload backlog, increasing 
and improving representation, and making the immigration adjudication 
system more modern, functional, effective, transparent and fair. This 
Recommendation urges a substantial number of improvements in 
immigration removal adjudication procedures, but does not address 
substantive immigration reform. A pervading theme of this 
Recommendation is enhancing the immigration courts' ability to dispose 
of cases fairly and efficiently. Many of the reforms are aimed at 
structuring the pre-hearing process to allow more time for immigration 
judges to give complex cases adequate consideration. This 
Recommendation is directed at EOIR and DHS agencies, USCIS and ICE. A 
few parts of this Recommendation would also impact the practices of 
United States Customs and Border Protection (CBP), another component of 
DHS.
---------------------------------------------------------------------------

    \4\  See Lenni B. Benson & Russell R. Wheeler, Enhancing Quality 
and Timeliness in Immigration Removal Adjudication (June 7, 2012) 
(report to the Administrative Conference of the U.S.), available at 
http://www.acus.gov/wp-content/uploads/downloads/2012/06/Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-Final-June-72012.pdf.
---------------------------------------------------------------------------

Recommendation

Part I. Immigration Court Management and Tools for Case Management

A. Recommendations to EOIR Regarding Immigration Court Resources, 
Monitoring Court Performance and Assessing Court Workload
    1. To encourage the enhancement of resources for immigration 
courts, working within and through the U.S. Department of Justice 
(DOJ), the DOJ's Executive Office for Immigration Review (EOIR) should:
    (a) Continue to seek appropriations beyond current services levels 
but also plan for changes that will not require new resources;
    (b) Make the case to Congress that funding legal representation for 
respondents (i.e., non-citizens in removal proceedings), especially 
those in detention, will produce efficiencies and net cost savings; and
    (c) Continue to give high priority for any available funds for 
EOIR's Legal Orientation Program and other initiatives of EOIR's Office 
of Legal Access Programs, which recruit non-profit organizations to 
provide basic legal briefings to detained respondents and seek to 
attract pro bono legal providers to represent these individuals.
    2. To monitor immigration court performance, EOIR should:
    (a) Continue its assessment of the adaptability of performance 
measures used in other court systems;
    (b) Continue to include rank-and-file immigration judges and U.S. 
Department of Homeland Security (DHS) agencies in the assessment of 
immigration courts' performance;
    (c) Continue to incorporate meaningful public participation in its 
assessment; and
    (d) Publicize the results of its assessment.
    3. To refine its information about immigration court workload, EOIR 
should:
    (a) Explore case weighting methods used in other high volume court 
systems to determine the methods' utility in assessing the relative 
need for additional immigration judges and allowing more accurate 
monitoring and analysis of immigration court workload;
    (b) Expand its data collection field, upon introduction of 
electronic filing or other modification of the data collection system, 
to provide a record of the sources for each Notice to Appear form (NTA) 
filed in immigration courts;
    (c) Continue its evaluation of adjournment code data, as an aid to

[[Page 47805]]

system-wide analysis of immigration court case management practices, 
and devise codes that reflect the multiplicity of reasons for an 
adjournment;
    (d) Evaluate the agency's coding scheme to consider allowing judges 
or court administrators to identify what the agency regulations call 
``pre-hearing conferences,'' sometimes known as ``status conferences;'' 
and
    (e) Authorize, as appropriate, a separate docket in individual 
immigration courts for cases awaiting biometric data results with 
special coding for these cases to allow EOIR to measure the degree to 
which these types of security checks are solely responsible for case 
delays.\5\
---------------------------------------------------------------------------

    \5\ In the immigration adjudication context, biometric data are 
collected from respondents and used to perform a background check on 
respondents for security reasons.
---------------------------------------------------------------------------

B. Recommendations to EOIR Regarding Immigration Court Management 
Structure and Court Workforce
    4. EOIR should consider assembling a working group of immigration 
judges and others familiar with court management structures to assist 
in its ongoing evaluation of alternatives to the current Assistant 
Chief Immigration Judge structure used by the agency.
    5. To increase the immigration court workforce, EOIR should:
    (a) Consider the use of temporary immigration judges where 
permitted by its regulations. If temporary immigration judges are used, 
EOIR should use transparent procedures to select such judges and usual 
procedures for monitoring judges' performance;
    (b) Consider the National Association of Immigration Law Judges' 
(NAIJ) proposal for instituting senior status (through part-time 
reemployment or independent contract work) for retired immigration 
judges \6\; and
---------------------------------------------------------------------------

    \6\ See Improving Efficiency and Ensuring Justice in the 
Immigration Court System: Hearing Before the S. Comm. on the 
Judiciary,--112th Cong. (2011) (statement of NAIJ), available at 
http://dl.dropbox.com/u/27924754/NAIJ%20Written%20Statement%20for%20Senate%20Judiciary%20Cmte%205-18-11%20FINAL.pdf (citing the National Defense Authorization Act for FY 
2010, Public Law 111-84 where Congress facilitated part-time 
reemployment of Federal employees retired under CSRS and FERS on a 
limited basis, with receipt of both annuity and salary).
---------------------------------------------------------------------------

    (c) Consider using appropriate government employees as temporary 
immigration court law clerks.
    6. To promote transparency about hiring practices within the agency 
and consistent with any statutory restrictions to protect privacy, EOIR 
should periodically publish summary and comparative data on immigration 
judges, Board of Immigration Appeals members, and support staff as well 
as summary information on judges' prior employment.\7\
---------------------------------------------------------------------------

    \7\ Some examples of the types of data that may be published 
include: year of law school graduation, graduate education, 
languages spoken, past employment with DHS, past employment 
representing respondents in immigration cases, military experience, 
gender and race/ethnicity composition.
---------------------------------------------------------------------------

    7. EOIR should expand its Web page entitled ``Immigration Judge 
Conduct and Professionalism'' that discusses disciplinary action to 
include an explanation of why the agency is barred by statute from 
identifying judges upon whom it has imposed formal disciplinary 
action.\8\
---------------------------------------------------------------------------

    \8\ The Conference takes no position on whether EOIR should 
identify judges upon whom it has imposed formal disciplinary action 
or on the statute barring such action.
---------------------------------------------------------------------------

    8. EOIR should consider incorporating elements of the American Bar 
Association's and the Institute for the Advancement of the American 
Legal System's Judicial Performance Evaluation models into its 
performance evaluation process, including the use of a separate body to 
conduct agency-wide reviews.\9\
---------------------------------------------------------------------------

    \9\ See Quality Judges Initiative, Inst. for the Advancement of 
the Am. Legal Sys., U. Denv. http://www.du.edu/legalinstitute/jpe.html (last visited June 20, 2012) (providing Judicial 
Performance Evaluation resources); Am. Bar Ass'n, Black Letter 
Guidelines for the Evaluation of Judicial Performance (2005), 
available at http://www.abanet.org/jd/lawyersconf/pdf/jpec_final.pdf (providing JPE resources).
---------------------------------------------------------------------------

C. Recommendations to EOIR Regarding Enhancing the Use of Status 
Conferences, Administrative Closures and Stipulated Removals
    9. To enhance the utility of status conferences, EOIR should:
    (a) Assemble a working group to examine immigration judges' 
perceptions of the utility, costs and benefits of such conferences;
    (b) Consider a pilot project to evaluate the effectiveness and 
feasibility of mandatory pre-hearing conferences to be convened in 
specified categories of cases;
    (c) Evaluate situations in which the judge should order the trial 
attorney to produce essential records from the respondent's file;
    (d) Evaluate the use of EOIR's Form-55\10\ and consider creating a 
new form (similar to scheduling orders used in other litigation 
contexts); and
---------------------------------------------------------------------------

    \10\ See Exec. Office for Immigration Review, U.S. Dep't of 
Justice, Record of Master Calendar Pre-Trial Appearance and Order 
(2009), available at http://www.justice.gov/eoir/vll/benchbook/index.html.
---------------------------------------------------------------------------

    (e) Recommend procedures for stipulations by represented parties.
    10. To clarify the proper use of techniques for docket control in 
immigration removal adjudication cases, EOIR should:
    (a) Amend the Office of the Chief Immigration Judge's (OCIJ) 
Practice Manual to specifically define ``Motions for Administrative 
Closure''; and
    (b) Amend appropriate regulations so that once a respondent has 
formally admitted or responded to the charges and allegations in an 
NTA, the government's ability to amend the charges and allegations may 
be considered by the immigration judge in the exercise of his or her 
discretion.
    11. EOIR should expand its review of stipulated removals by 
considering a pilot project to systematically test the utility of 
stipulated removal orders (provided that respondents have been 
counseled by independent attorneys) as a mechanism to (a) reduce 
detention time, (b) allow judges to focus on contested cases, and (c) 
assess whether and when the use of stipulated removals might diminish 
due process protections.
    12. In jurisdictions where DHS routinely seeks stipulated removal 
orders and asks for a waiver of the respondent's appearance, EOIR 
should consider designing a random selection procedure where personal 
appearance is not waived and the respondent is brought to the 
immigration court to ensure that the waivers were knowing and 
voluntary. If undertaking such a project, EOIR should encourage one or 
more advocacy organizations to prepare a video recording (with 
subtitles or dubbing in a number of languages) that explains the 
respondent's removal proceedings, general eligibility for relief, and 
the possibility of requesting a stipulated order of removal should the 
respondent wish to waive both the hearing and any application for 
relief including the privilege of voluntary departure.
D. Recommendation to EOIR and DHS Regarding the BIA
    13. EOIR should finalize its 2008 proposed regulations to allow 
greater flexibility in establishing three-member panels for the Board 
of Immigration Appeals (BIA).

Part II. Immigration Removal Adjudication Cases and Asylum Cases

A. Recommendations to EOIR Regarding Prosecution Arrangements and the 
Responsibilities of Trial Counsel
    14. EOIR should not oppose unit prosecution, which DHS's 
Immigration and Customs Enforcement (ICE) Chief Counsel has devised for 
prosecution in some immigration courts.\11\
---------------------------------------------------------------------------

    \11\ The term ``unit prosecution,'' also sometimes known as 
``vertical prosecution,'' is used in this Recommendation to refer to 
a practice used in some immigration courts, whereby the ICE Chief 
Counsel organizes ICE trial attorneys into teams and then assigns 
the teams to cover the dockets of specific judges.

---------------------------------------------------------------------------

[[Page 47806]]

    15. EOIR should consider providing immigration judges with 
additional guidance directed at ensuring that trial counsel are 
prepared and responsible for necessary actions that the parties must 
complete between hearings. Specifically, EOIR should consider:
    (a) Amending the OCIJ's Practice Manual to explicitly include best 
practices for the activities of trial counsel in immigration removal 
proceedings;
    (b) Instructing judges to document, in the record, the 
responsibilities, commitments, actions and omissions of trial counsel 
in the same case; and
    (c) Clarifying the authority for judges to make conditional 
decisions on applications for relief where trial counsel has not 
provided necessary information.
B. Recommendations to EOIR Regarding Representation
    16. To increase the availability of competent representation for 
respondents, EOIR should:
    (a) Undertake a more intensive assessment of the paraprofessional 
programs that provide legal representation and the accreditation 
process for such programs;
    (b) Continue its assessment of the accuracy and usefulness of the 
pro bono representation lists provided at immigration courts and on the 
agency's Web site; and
    (c) Develop a national pro bono training curriculum, tailored to 
detention and non-detention settings:
    (i) The training curriculum should be developed in consultation 
with groups that are encouraging pro bono representation.
    (ii) The training curriculum should be offered systematically and 
in partnership with educational, CLE and/or non-profit providers.
    17. To enhance the guidance available to legal practitioners and 
pro se respondents, EOIR should:
    (a) Work with a pro bono organization to develop materials that 
explain the legal terms and concepts within the OCIJ Practice Manual;
    (b) Share supplemental instructions developed by individual 
immigration courts or judges to aid the parties in preparing 
submissions to the immigration court; and
    (c) Evaluate the cost and utility of developing access to 
electronically-available information in immigration court waiting rooms 
or similar spaces so that the respondents can access the court Web site 
and find instructional materials.
    18. To enhance the number and value of know-your-rights (KYR) 
presentations given to detained respondents, EOIR should:
    (a) Ensure that KYR presentations are made sufficiently in advance 
of the initial master calendar hearings to allow adequate time for 
detained individuals to consider and evaluate the presentation 
information (to the extent consistent with DHS requirements for KYR 
providers);
    (b) Consider giving LOP providers electronic access to the court 
dockets in the same manner as it is currently provided to DHS attorneys 
representing the government in cases (with appropriate safeguards for 
confidentiality and national security interests); and
    (c) Encourage local EOIR officials to obtain from detention 
officers aggregate data about new detainees (such as, where possible, 
lists of new detainees, their country of origin, and language 
requirements) at the earliest feasible stage for both the immigration 
courts and LOP providers.
    19. EOIR should study and develop the circumstances where the use 
of limited appearances, (the process by which counsel represent a 
respondent in one or more phases of the litigation but not necessarily 
for its entirety), is appropriate and in accordance with existing law. 
After further study, EOIR should consider taking appropriate action 
such as:
    (a) Modifying appropriate and underlying regulations as necessary;
    (b) Issuing an Operating Policies and Procedures Memorandum (OPPM) 
entry to explain to immigration judges the circumstances in which they 
may wish to permit limited appearances and the necessary warnings and 
conditions they should establish; and
    (c) Amending the OCIJ Practice Manual to reflect this modified 
policy.
    20. EOIR should consider whether pro se law clerk offices would 
save costs, enhance fairness, and improve efficiency.
    21. To encourage improvement in the performance of attorneys who 
appear in the immigration court, EOIR should:
    (a) Continue its efforts to implement the statutory grant of 
immigration judge contempt authority;\12\
---------------------------------------------------------------------------

    \12\ Immigration and Nationality Act of 1952 (INA), sec. 
240(b)(1), 8 U.S.C. 1229a(b)(1) (2006).
---------------------------------------------------------------------------

    (b) Evaluate appropriate procedures to allow immigration judges to 
address trial counsel's lack of preparation, lack of substantive or 
procedural knowledge, or other conduct that impedes the court's 
operation; and
    (c) Explore options for developing educational and training 
resources such as seeking pro bono partnerships with reputable 
educational or CLE providers and/or seeking regulatory authority to 
impose monetary sanctions to subsidize the cost of developing such 
materials.
C. Recommendations to DHS Regarding Notice To Appear Forms
    22. DHS should consider revising the NTA form or instruct its 
completing officers to clearly indicate officer's agency affiliation, 
being specific about the entity preparing the NTA, in order to enhance 
the immigration court's ability to better estimate future workload.\13\
---------------------------------------------------------------------------

    \13\ The purpose of this recommendation, coupled with 
Recommendation ] 3b, is to allow EOIR to better refine its 
information about immigration court workload by expanding its data 
collection field to include a record of the sources for each NTA 
form filed in immigration court.
---------------------------------------------------------------------------

    23. DHS should conduct a pilot study evaluating the feasibility of 
requiring (in appropriate cases) the approval of an ICE attorney prior 
to the issuance of any NTA. The pilot study should be conducted in 
offices with sufficient attorney resources and after full study of the 
efficiencies and operational changes associated with this requirement, 
DHS should consider requiring attorney approval in all removal 
proceedings.
D. Recommendations to EOIR Regarding the Asylum Process
    24. To facilitate the processing of defensive asylum applications, 
EOIR should consider having the OCIJ issue an OPPM entry, which:
    (a) Explains that appropriate procedures for a respondent's initial 
filing of an asylum application with the immigration court do not 
require the participation of the judge and oral advisals made on the 
record at the time of the initial filing;\14\
---------------------------------------------------------------------------

    \14\ ``Oral advisal'' is a term used by immigration courts to 
mean warnings given by an immigration judge about the procedural and 
substantive consequences for various actions.
---------------------------------------------------------------------------

    (b) Authorizes court personnel to schedule a telephonic status 
conference with the judge and ICE attorney in any situation where the 
respondent or his/her representative expresses a lack of understanding 
about the asylum filing and advisals;
    (c) Notes that the immigration judge may renew, at the merits 
hearing, the advisal of the danger of filing a frivolous application 
and allow an opportunity for the respondent to withdraw the 
application; and
    (d) Makes clear that the filing with immigration court personnel 
qualifies as

[[Page 47807]]

a filing with the court, satisfies the statutory one-year filing 
deadline in appropriate cases and for the purposes of commencing the 
180-day work authorization waiting period.
    25. EOIR should consider seeking enhanced facilitation of defensive 
asylum applications by amending its current procedure of having judges 
``adjourn'' asylum cases involving unaccompanied juveniles while the 
case is adjudicated within the DHS Asylum Office and instead have the 
judge administratively close the case. If the Office subsequently 
cannot grant the asylum or other relief to the juvenile, the Office can 
refer the case to ICE counsel to initiate a motion to re-calendar the 
removal proceeding before the judge.
    26. EOIR should give priority to the use of adjournment codes for 
the purpose of managing immigration judges' dockets and stop using 
these codes to track the number of days an asylum application is 
pending.
E. Recommendation to DHS Regarding the Asylum Process
    27. DHS should consider revising its regulations and procedures to 
allow asylum and withholding applicants to presumptively qualify for 
work authorization provided that at least 150 days have passed since 
the filing of an asylum application.\15\
---------------------------------------------------------------------------

    \15\ See Benson & Wheeler, Immigration Removal Adjudication, 
supra note 4, at 54-55 (describing in detail how these revised 
regulations would work under this recommendation).
---------------------------------------------------------------------------

F. Recommendations Regarding Further Study of BIA Jurisdiction, 
Immigration Adjudication, and/or the Asylum Process
    28. With the active participation of DHS and EOIR and with input 
from all other relevant stakeholders, a comprehensive study of the 
feasibility and resource implications of the following issues related 
to proposed changes to the asylum process should be conducted:
    (a) Whether DHS should direct some appeals currently in the BIA's 
jurisdiction to more appropriate forums and subject to the availability 
of resources by:
    (i) Seeking statutory and regulatory change to allow all appeals of 
denied I-130 petitions to be submitted to the United States Citizenship 
and Immigration Services' Administrative Appeals Office (AAO);
    (ii) Amending regulations to send all appeals from United States 
Customs and Border Protection (CBP) airline fines and penalties to AAO; 
or alternatively consider eliminating any form of administrative appeal 
and have airlines and other carriers seek review in federal courts; and
    (iii) Creating a special unit for adjudication within the AAO to 
ensure quality and timely adjudication of family-based petitions, which 
should:
    (1) Formally segregate the unit from its other visa petition 
adjudications;
    (2) Issue precedent decisions with greater regularity and increase 
the unit's visibility; and
    (3) Publicize clear processing time frames so that potential 
appellants can anticipate the length of time the agency will need to 
complete adjudication.
    (b) Whether EOIR should seek enhanced facilitation of defensive 
asylum applications by amending its regulations to provide that where 
the respondent seeks asylum or withholding of removal as a defense to 
removal, the judge should administratively close the case to allow the 
respondent to file the asylum application and/or a withholding of 
removal application in the DHS Asylum Office; and if the Office does 
not subsequently grant the application for asylum or withholding, or if 
the respondent does not comply with the Office procedures, that office 
would refer the case to ICE counsel to prepare a motion to re-calendar 
the case before the immigration court.
    (c) Whether the United States Citizenship and Immigration Services 
(USCIS) should expedite the asylum process by:
    (i) Amending its regulations to provide an asylum officer with 
authority to approve qualified asylum applications in the expedited 
removal context;
    (ii) Allocating additional resources to complete the asylum 
adjudication in the expedited removal context; as there may be 
significant net cost savings for other components of DHS and for EOIR;
    (iii) Amending its regulations to clarify that an individual, who 
meets the credible fear standard, could be allowed to complete an 
asylum application with an asylum officer instead of at an immigration 
court; and
    (iv) Allowing an asylum officer to grant an applicant parole into 
the U.S. where the officer believes the individual has a well-founded 
fear of persecution or fear of torture and permit the officer to 
recommend that DHS allow the individual to be released from detention 
on parole pending completion of the asylum process.
    (d) Whether USCIS should clarify that an asylum officer may prepare 
an NTA and refer a case to immigration court where an officer 
determines that a non-citizen meets the credible fear standard but the 
officer believes that the case cannot be adequately resolved based on 
the initial interview and the asylum application prepared in 
conjunction with that interview, or in cases where an officer believes 
there are statutory bars to full asylum eligibility.
    (e) Whether DHS should facilitate the DHS Asylum Office's 
adjudication of certain closely related claims by:
    (i) Amending its regulations to authorize the Office to adjudicate 
eligibility for withholding of or restriction on removal providing also 
that if the Office grants such relief, there would be no automatic 
referral to the immigration court;
    (ii) Amending its regulations to authorize the Office to grant 
``supervisory release,'' identity documents, and work authorization to 
individuals who meet the legal standards for withholding or restriction 
on removal;
    (iii) Developing a procedure in cases where withholding or 
supervisory release are offered requiring the Office to issue a Notice 
of Decision explaining the impediments to asylum, informing an 
applicant of his or her right to seek de novo review of the asylum 
eligibility before the immigration court, and explaining the 
significant differences between asylum and withholding protections; and
    (iv) Developing a procedure to allow such applicants to request 
immigration court review, whereupon the Asylum Office would initiate a 
referral to the immigration court.
G. Recommendations to EOIR and DHS Regarding the Use of VTC and Other 
Technology
    29. EOIR and DHS should provide and maintain the best video 
teleconferencing (VTC) equipment available within resources and the two 
agencies should coordinate, where feasible, to ensure that they have 
and utilize the appropriate amount of bandwidth necessary to properly 
conduct hearings by VTC.
    30. EOIR should consider more systematic assessments of immigration 
removal hearings conducted by VTC in order to provide more insights on 
how to make its use more effective and to ensure fairness. Assessments 
should be periodically published and include:
    (a) Consultation with the DHS Asylum Office regarding its use of 
VTC equipment and review of its best practices for possible adoption 
and integration into EOIR procedures;
    (b) Random selection of hearings conducted by VTC for full 
observation by Assistant Chief Immigration Judges and/or other highly 
trained personnel;

[[Page 47808]]

    (c) Formal evaluation of immigration removal hearings conducted by 
VTC;
    (d) Gathering information, comments and suggestions from parties 
and other various stakeholders about the use of VTC in immigration 
removal hearings; and
    (e) A realistic assessment of the net monetary savings attributable 
to EOIR's use of VTC equipment for immigration removal hearings.
    31. EOIR should:
    (a) Encourage its judges, in writing and by best practices 
training, to (a) be alert to the possible privacy implications of off-
screen third parties who may be able to see or hear proceedings 
conducted by VTC, and (b) take appropriate corrective action where 
procedural, statutory or regulatory rights may otherwise be 
compromised; and
    (b) Consider amending the OCIJ Practice Manual's Sec.  4.9 
(``Public Access'') to remind respondents and their representatives 
that they may alert the judge if they believe unauthorized third 
parties are able to see or hear the proceedings.
    32. EOIR should direct judges to inform parties in hearings 
conducted by VTC who request in-person hearings of the possible 
consequences if the judge grants such a request, including, but not 
limited to, delays caused by the need to re-calendar the hearing to 
such time and place that can accommodate an in-person hearing.
    33. To facilitate more effective representation in removal 
proceedings where VTC equipment is used, EOIR should:
    (a) Provide more guidance to respondents and their counsel about 
how to prepare for and conduct proceedings using VTC in the OCIJ 
Practice Manual and other aids it may prepare for attorneys, and for 
pro se respondents;
    (b) Encourage judges to permit counsel and respondents to use the 
courts' VTC technology, when available, to prepare for the hearing; and
    (c) Encourage judges to use the VTC technology to allow witnesses 
to appear from remote locations when appropriate and when VTC equipment 
is available.
    34. To improve the availability of legal consultation for detained 
respondents and help reduce continuances granted to allow attorney 
preparation, DHS should consider:
    (a) Providing VTC equipment where feasible in all detention 
facilities used by DHS, allowing for private consultation and 
preparation visits between detained respondents and private attorneys 
and/or pro bono organizations;
    (b) Requiring such access in all leased or privately controlled 
detention facilities where feasible;
    (c) In those facilities where VTC equipment is not available, 
designating duty officers whom attorneys and accredited representatives 
can contact to schedule collect calls from the detained respondent 
where feasible; and
    (d) Facilitating the ability of respondents to have private 
consultations with attorneys and accredited representatives.
    35. To improve the availability of legal reference materials for 
detained respondents:
    (a) DHS should make available video versions of the KYR 
presentations on demand in detention facility law libraries; and where 
feasible, to be played on a regular basis in appropriate areas within 
detention facilities; and
    (b) EOIR should assist in or promote the transcription of the text 
of relevant videos into additional languages or provide audio 
translations in the major languages of the detained populations.
    36. EOIR should encourage judges to permit pro bono attorneys to 
use immigration courts' video facilities when available to transmit KYR 
presentations into detention centers and subject to DHS policies on KYR 
presentations.
    37. EOIR should move to full electronic docketing as soon as 
possible.
    (a) Prior to full electronic docketing, EOIR should explore interim 
steps to provide limited electronic access to registered private 
attorneys, accredited representatives, and ICE trial attorneys; and
    (b) EOIR should consider the interim use of document cameras in 
video proceedings prior to the agency's full implementation of 
electronic docketing and electric case files.

Administrative Conference Recommendation 2012-4

Paperwork Reduction Act
Adopted June 15, 2012
    The Paperwork Reduction Act (PRA), enacted in 1980 and revised upon 
its reauthorization in 1986 and 1995, created the Office of Information 
and Regulatory Affairs (OIRA) within the Office of Management and 
Budget (OMB) to oversee information policy within the executive branch. 
The Act requires, among other things, that agencies secure OMB approval 
before collecting information from the public. Since 1995, this has 
meant that agencies must put a proposed information collection request 
out for public comment for 60 days before finalizing it and submitting 
it for OIRA's approval.\1\ An additional 30-day comment period is 
opened while OMB reviews the request.\2\ One of the statute's goals is 
to reduce the burden on the public of agency information requests. The 
burden of such requests on small businesses was of particular concern 
to Congress in drafting and revising the Act. OMB review also ensures 
that agencies employ solid methodologies in designing information 
collections, particularly those seeking to gather statistical data. 
Another, broader goal of the PRA was to encourage agencies to implement 
a life-cycle approach to information management. This means that, from 
the initial stage in which information is collected from the public, 
agencies must give thought to how the information will be used, 
disseminated, stored, and disposed of throughout the entire process.\3\
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    \1\ See 44 U.S.C. 3506(c)(2).
    \2\ See id. sec. 3507(b).
    \3\ See Office of Mgmt. & Budget, Exec. Office of the President, 
OMB Circular A-130, Management of Federal Information Resources 
Sec. Sec.  6(i), (j), (o) (1996).
---------------------------------------------------------------------------

    Experience has shown that, in practice, parts of the PRA have not 
operated as its drafters intended. For example, the 60-day comment 
period was originally intended to facilitate an interactive dialogue 
between an agency and the public, enabling the agency to better craft 
its information collection plan. In practice, however, agencies tend to 
view information collection plans as final before this first comment 
period begins, and members of the public infrequently submit comments. 
These realities undermine the promise of the comment periods as a means 
for facilitating a meaningful dialogue between agencies and the public.
    A related problem is that the PRA was last amended in 1995, and has 
not been updated to account for evolved technologies. Although OMB has 
provided some helpful guidance regarding the application of the PRA to 
social media,\4\ there is concern that provisions of the law adopted 
during the era of the hard-copy information collection paradigm may 
inadvertently create disincentives to agencies' use of modern 
technologies capable of facilitating faster, easier, and more effective 
communication with the public. Finally, over time, the PRA's regulation 
of information collections has

[[Page 47809]]

come to be viewed as its primary component and has overshadowed the 
law's broader information management goals.
---------------------------------------------------------------------------

    \4\ See Memorandum from Cass R. Sunstein, Admin., Office of 
Info. & Regulatory Affairs, to the Heads of Executive Departments 
and Agencies, and Independent Regulatory Agencies, Social Media, 
Web-Based Interactive Technologies, and the Paperwork Reduction Act 
(Apr. 7, 2010), available at http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf.
---------------------------------------------------------------------------

    Some current and former agency officials have expressed concern 
that the PRA may be unduly restrictive, imposing delays and costs on 
the agencies that are disproportionate to the benefits to the public. 
This is not a new concern, and it appears that much of the delay occurs 
within agencies and is not a product of OMB review. Indeed, OMB has 
recently taken steps to make the process easier for agencies, including 
by offering a process for approving generic clearances.\5\ Nonetheless, 
there seem to be occasions in which the PRA impedes agencies from 
undertaking information collections that would not be burdensome to the 
public and would provide information necessary to craft better, less 
burdensome policies. For example, some agency officials have complained 
that the PRA prevents them from using focus groups or related methods 
to collect the information necessary to complete a full, nuanced 
regulatory analysis. Also, if an agency's approach shifts as a 
regulatory action moves forward, so too may its information collection 
needs. In such cases, agencies must initiate the entire PRA process 
again, even if they have already spent significant time and resources 
securing approval for an earlier, slightly different information 
collection request.
---------------------------------------------------------------------------

    \5\ See Memorandum from Cass R. Sunstein, Admin., Office of 
Info. & Regulatory Affairs, to the Heads of Executive Departments 
and Agencies, and Independent Regulatory Agencies, Paperwork 
Reduction Act--Generic Clearances (May 28, 2010), available at 
http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf.
---------------------------------------------------------------------------

    Agencies that rarely undertake information collections also may 
find the process challenging because they are unfamiliar with the PRA 
and find it difficult to obtain reliable guidance or sufficient 
assistance to navigate the process smoothly.
    This recommendation is intended to address these concerns. It seeks 
to serve the congressional purpose of allowing OMB and the agencies to 
better focus on those collections that impose the greatest burden on 
the public and those that can benefit most from OMB review. It focuses 
on the areas where modest reforms can make substantial improvements, 
seeking to maintain the benefits of the current OMB review process 
while reducing the costs.

Recommendation

Improving Public Engagement

    1. Agencies and OMB should take measures to revitalize the 
information collection request process, including the 60-day comment 
period and the 30-day comment period,\6\ to better serve the statutory 
goal of facilitating an interactive dialogue between the public and 
agencies sponsoring information collections and to enable agencies to 
design better information collection requests before submitting them to 
OMB for approval.
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    \6\ See 44 U.S.C. 3506(c)(2).
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    (a) Agencies should avoid viewing an information collection request 
as final prior to the 60-day comment period. Instead, agencies should 
use public engagement as a way of improving their preliminary 
information collection plans. The preliminary information collection 
plan should provide sufficient detail, including drafts of any 
collection instruments (e.g., the survey or form), for the public to 
comment meaningfully.
    (b) For new collections or collections with significant changes, 
agencies should make affirmative efforts to engage the public in 
efforts to design information collection requests and consider using 
alternative means to engage the public (in addition to a formal Federal 
Register notice), such as identifying and reaching out to interested 
parties.
    (c) OMB, in consultation with the Office of the Federal Register, 
should develop best practices for Federal Register notices, including 
the use of plain language, to improve public understanding of requests 
and the information collections they cover. Such best practices should 
include guidance on 60-day notices, 30-day notices, and the PRA 
components of notices of proposed and final rulemakings. It should also 
include guidance on how to clearly and consistently identify various 
types of PRA notices in the ``action'' line of Federal Register 
notices.
    (d) Agencies should post information collection requests on a 
centralized Web site to create a one-stop location for the public to 
view such requests and comments received. The eRulemaking Program 
Management Office (PMO) should consider creating a dedicated page on 
Regulations.gov to facilitate implementation of this recommendation.
    (e) Agencies should, as soon as feasible, post to Regulations.gov 
or the centralized Web site identified in paragraph 1(c) above any 
comments received during the 60-day and 30-day comment periods and 
provide links thereto on their own Web sites.\7\ OMB should also, as 
soon as feasible, post upon receipt on its Web site or on Reginfo.gov 
any comments received during the 30-day comment period.\8\
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    \7\ See Administrative Conference of the United States, 
Recommendation 2011-8, Agency Innovations in E-Rulemaking, 77 FR 
2257, 2264 (Jan. 17, 2012).
    \8\ See Memorandum from Cass R. Sunstein, Admin., Office of 
Info. & Regulatory Affairs, to the President's Management Council, 
Increasing Openness in the Rulemaking Process--Improving Electronic 
Dockets at 2 (May 28, 2010), available at http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/edocket_final_5-28-2010.pdf 
(``OMB expects agencies to post public comments and public 
submissions to the electronic docket on Regulations.gov in a timely 
manner, regardless of whether they were received via postal mail, 
email, facsimile, or web form documents submitted directly via 
Regulations.gov.'').
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    (f) Congress and OMB should look at ways to streamline the public 
participation requirements when agencies seek renewal of approval from 
OMB for collections with no significant change in the collection or the 
circumstances surrounding it so long as the issuing agency demonstrates 
that the information collection has been used.

Using Available Resources To Make the Process Easier

    2. Each agency Chief Information Officer (CIO) should take a 
greater role in assisting and training agency staff to increase 
awareness of the PRA within each agency and better customize training 
to each agency's unique organizational challenges. The CIO Council, in 
consultation with OMB, should develop and disseminate training best 
practices.
    3. Agencies should use all available processes for OMB approval for 
information gathering via voluntary collections (e.g., focus groups), 
including OMB's available generic clearances and fast track procedures. 
OMB is encouraged to continue using its generic clearance authority for 
this and other purposes, as appropriate and permitted by law.
    4. OMB should evaluate existing delegations of information 
collection request review authority to determine how they are working 
and what is required to make them work well.\9\ OMB

[[Page 47810]]

should use the information drawn from this evaluation to consider 
whether time-limited delegations would be useful for other agencies. 
Such time-limited delegations could be set at a particular total or per 
respondent burden-hour threshold and be limited to those collections 
that do not raise novel legal, policy, or methodological issues. OMB 
should evaluate the results of such delegations, including compliance 
with the statutory factors,\10\ and, if the delegations have worked 
well, OMB should consider extending them and determining if other 
similar delegations would be appropriate. Delegations should include a 
requirement to consult with OMB on burden estimates (for delegations 
based on burden) and provide a clear opportunity for OMB and the public 
to request OMB review. Regular evaluations of agency review processes 
should then follow.
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    \9\ OMB has authority under the PRA to delegate authority to 
approve information collections if it ``finds that a senior official 
of an agency * * * is sufficiently independent of program 
responsibility to evaluate fairly whether proposed collections of 
information should be approved and has sufficient resources to carry 
out this responsibility effectively.'' 44 U.S.C. 3507(i)(1). Such a 
delegation is not an exemption, but rather is a shifting of 
responsibility from OMB to the agency for reviewing proposed 
information collections. Currently, OMB has long-standing 
delegations to the Federal Reserve Board and the Managing Director 
of the Federal Communications Commission. 5 CFR pt. 1320 App. A. 
(2010).
    \10\ See 44 U.S.C. 3507(i).
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Reforms To Improve Efficient Use of Resources

    5. Congress should consider amending the PRA to permit OMB to 
define a subset of collections that could be approved for up to five 
years in order to enable OMB to shift its focus to those information 
collections that require the most scrutiny consistent with the 
condition set forth in 1(f).\11\
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    \11\ The PRA currently permits OMB to approve information 
collections for up to three years. See 44 U.S.C. 3507(g).
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    6. Because much of the information reported in the Information 
Collection Budget is now available to the public online, currently 
through Reginfo.gov, Congress should change the annual reporting 
requirement for OMB to require only a discussion of developments and 
trends in government management and collection of information.
    7. OIRA should, in collaboration with individual agencies, provide 
guidance to agencies on communicating effectively with the public 
regarding estimated burdens, including the burdens of alternative 
methods of collection, with the goal of standardizing the estimation of 
respondent burden.
    8. The CIO Council, in consultation with OMB, should develop 
guidance to help agencies better use available technologies to improve 
and streamline the collection of information from the public.

Information Resource Management

    9. To the extent feasible, OMB should emphasize the integration of 
the life-cycle management of information \12\ into the existing 
information collection process. Agencies, with OMB's support, should 
redo their Strategic Information Resources Management plans \13\ to 
make clear how they are complying with the PRA and implementing a life-
cycle approach.
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    \12\ See Office of Mgmt. & Budget, Exec. Office of the 
President, OMB Circular A-130, Management of Federal Information 
Resources Sec. Sec.  6(i), (j) (1996).
    \13\ The PRA requires that agencies, ``in accordance with 
guidance by the Director, develop and maintain a strategic 
information resources management plan that shall describe how 
information resources management activities help accomplish agency 
missions.'' 44 U.S.C. 3506(b)(2). See also Office of Mgmt. & Budget, 
Exec. Office of the President, OMB Circular A-130, Management of 
Federal Information Resources Sec.  8(b) (1996) (providing such 
guidance).
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Administrative Conference Recommendation 2012-5

Improving Coordination of Related Agency Responsibilities
Adopted June 15, 2012
    Many areas of government agency activities are characterized by 
fragmented and overlapping delegations of power to administrative 
agencies. Congress often assigns more than one agency the same or 
similar functions or divides responsibilities among multiple agencies, 
giving each responsibility for part of a larger whole. Instances of 
overlap and fragmentation are common. They can be found throughout the 
administrative state, in virtually every sphere of social and economic 
regulation, in contexts ranging from border security to food safety to 
financial regulation.\14\ The following recommendation suggests some 
reforms aimed at improving coordination of agency policymaking, 
including joint rulemaking, interagency agreements, and agency 
consultation provisions.
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    \14\ As the Comptroller General of the United States has noted, 
``[v]irtually all of the results that the federal government strives 
to achieve require the concerted and coordinated efforts of two or 
more agencies.'' U.S. Gen. Accounting Office, GAO/T-GGD-00-95, 
Managing for Results: Using GPRA to Help Congressional 
Decisionmaking and Strengthen Oversight 19 (2000), available at 
http://www.gao.gov/assets/110/108330.pdf (statement of David M. 
Walker, Comptroller General of the United States, before the 
Subcomm. on Rules & Org. of the H. Comm. on Rules). GAO is now 
required by statute to identify federal programs, agencies, offices, 
and initiatives, either within departments or government-wide, which 
have duplicative goals or activities, and to report annually (Pub. 
L. No. 111-139, sec. 21, 124 Stat. 29 (2010), 31 U.S.C. 712 Note). 
See U.S. Gov't Accountability Office, GAO-11-318SP, Opportunities to 
Reduce Potential Duplication in Government Programs, Save Tax 
Dollars, and Enhance Revenue (2011), available at http://www.gao.gov/new.items/d11318sp.pdf.
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    The study underlying this recommendation \15\ provides a 
comprehensive picture of overlapping and fragmented delegations, and 
makes some practical suggestions for addressing the coordination 
problems they create.\16\ Because characterizing such delegations as 
redundant might suggest literal duplication, the study adopts the more 
nuanced concept of ``shared regulatory space.'' This term includes not 
only literally duplicative or overlapping responsibilities, but also 
instances where cumulative statutory delegations create a situation in 
which agencies share closely related responsibilities for different 
aspects of a larger regulatory, programmatic, or management enterprise.
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    \15\ Jody Freeman & Jim Rossi, Improving Coordination of Related 
Agency Responsibilities (May 30, 2012) (report to the Administrative 
Conference of the U.S.). See also Jody Freeman & Jim Rossi, Agency 
Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 
(2012).
    \16\ The underlying study and this recommendation focus on 
federal government agencies only, and do not address the 
coordination problems presented more generally by federalism due to 
dispersed responsibilities between federal and state governments.
---------------------------------------------------------------------------

    Such delegations may produce redundancy, inefficiency, and gaps, 
but they also create underappreciated coordination challenges. A key 
advantage to such delegations may be the potential to harness the 
expertise and competencies of specialized agencies. But that potential 
can be wasted if the agencies work at cross-purposes or fail to 
capitalize on one another's unique strengths and perspectives. By 
improving efficiency, effectiveness, and accountability, coordination 
can help to overcome potential dysfunctions created by shared 
regulatory space. Greater coordination can reduce costs for both the 
government and regulated entities not only by avoiding literal 
duplication of functions but also by increasing opportunities for 
agencies exercising related responsibilities to manage and reconcile 
differences in approach. Coordination that takes the form of 
interagency consultation can improve the overall quality of 
decisionmaking by introducing multiple perspectives and specialized 
knowledge, and structuring opportunities for agencies mutually to test 
their information and ideas. Coordination instruments can also equip 
and incentivize agencies to monitor each other constructively, which 
should help both the President and Congress to better manage agency 
policy choices and compliance with statutes. It is plausible too, that 
greater

[[Page 47811]]

coordination will make it harder for interest groups to capture the 
administrative process or to play agencies against each other.
    Much coordination occurs against the backdrop of day-to-day, 
informal interactions among agency staffs, including casual 
conversations, meetings, and working groups. However, systematic 
efforts to institutionalize coordination (as opposed to relying 
exclusively on the ad hoc coordination that occurs as a matter of 
course among agencies) will tend to be more stable, visible, and 
durable than relying only on informal networks for promoting 
interagency interactions. This recommendation does not purport to 
address all agency interactions, but focuses on the processes and 
instruments agencies use to memorialize agency interactions and 
agreements. In such instances, this recommendation endorses documented 
coordination policies to help formalize ad hoc approaches and provide 
useful guidelines for agency staff. Coordination policies can be top-
down, through the President's leadership, as well as bottom-up, 
beginning with agencies themselves.
    Presidential leadership can be helpful in addressing the challenges 
posed by fragmented and overlapping delegations, especially in 
instances where there is conflict among agencies, inability of agency 
staffs to coordinate, or a reluctance of agency officials to work 
together. Components of the Executive Office of the President (EOP) 
with relevant policy expertise may be well positioned to promote 
coordination in their respective domains, and efforts in this regard 
could be bolstered. The EOP can play a crucial role in fostering 
coordination by establishing priorities, convening the relevant 
agencies, and managing a process that is conducive to producing 
agreement. For example, the White House Office of Energy and Climate 
Change Policy has been credited with facilitating the joint rulemaking 
effort of EPA and the Department of Transportation, which produced new 
fuel efficiency and greenhouse gas standards,\17\ and the EOP played a 
central role in convening and coordinating the nine-agency memorandum 
of understanding on siting of transmission lines on federal lands.\18\ 
The President recently established an interagency task force to 
coordinate federal regulation of natural gas production.\19\ There are 
many other examples from prior administrations, involving policy 
initiatives large and small.
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    \17\ See Jody Freeman, The Obama Administration's National Auto 
Policy: Lessons from the ``Car Deal,'' 35 Harv. Envtl. L. Rev. 343 
(2011).
    \18\ See Press Release, Advisory Council on Historic 
Preservation, Nine Federal Agencies Enter into a Memorandum of 
Understanding Regarding Transmission Siting on Federal Lands (Oct. 
28, 2009), available at http://www.achp.gov/docs/pressrelease10282009.pdf.
    \19\ Exec. Order No. 13,605, Supporting Safe and Responsible 
Development of Unconventional Domestic Natural Gas Resources, 77 FR 
23107 (Apr. 17, 2012).
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    The President could seek to promote coordination through a 
comprehensive management strategy that puts coordination at its core, 
which might be done via a new executive order tasking one or more EOP 
offices with an oversight role. Promoting consistency in agency 
rulemaking is already explicitly within the mandate of the Office of 
Information and Regulatory Affairs under Executive Order 12,866 and was 
reiterated by President Obama in Executive Order 13,563.\20\ While this 
is compatible with the larger goal of promoting greater interagency 
coordination where agencies exercise overlapping and closely related 
responsibilities, still more could be done. For example, the Office of 
Management and Budget (OMB) could consider ways to achieve coordination 
as part of its implementation of the Government Performance and Results 
Modernization Act (GPRMA),\21\ and propose cross-cutting budget 
allocations (sometimes referred to as ``portfolio budgeting'') to help 
incentivize the agencies to work together on a variety of projects, 
some of which might involve rulemakings. The White House might explore 
ways to strengthen existing interagency task forces or encourage 
similar interagency efforts where their potential benefits have been 
overlooked.\22\ Beyond OMB, other councils and offices within the EOP 
may also play important roles facilitating coordination.
---------------------------------------------------------------------------

    \20\ See also OIRA's March 20, 2012 memorandum to agencies on 
cumulative regulations, which seeks to promote harmonization and 
streamline agency regulations in an effort to reduce the cost of 
agency rules. Memorandum from Cass R. Sunstein, Admin., Office of 
Info. & Regulatory Affairs, to the Heads of Executive Departments 
and Agencies, Cumulative Effects of Regulations (Mar. 20, 2012), 
available at http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/cumulative-effects-guidance.pdf.
    \21\ Public Law 111-352, 124 Stat. 3866 (2011). GPRMA amends the 
Government Performance and Results Act of 1993 (GPRA), Public Law 
103-62, 107 Stat. 285 (1993).
    \22\ The Conference recognizes the special concerns about 
presidential authority with respect to independent regulatory 
agencies. However, various presidential actions have sought to 
extend administration policies to the independent agencies. For 
example, sec. 4 of Executive Order 12,866 ``Regulatory Planning and 
Review,'' includes independent regulatory agencies in its 
requirements for the semiannual Unified Regulatory Agenda and the 
annual Regulatory Plan, ``to the extent permitted by law.'' 
Similarly, Executive Order 13,579, ``Regulation and Independent 
Regulatory Agencies,'' and the further guidance contained in the 
OIRA Administrator's Memorandum for the Heads of Independent 
Regulatory Agencies, M-11-28, ask independent regulatory agencies to 
comply with directives to Executive Branch agencies with respect to 
public participation, regulatory analyses, and retrospective review 
of existing regulations. Memorandum from Cass R. Sunstein, Admin., 
Office of Info. & Regulatory Affairs, to the Heads of Independent 
Regulatory Agencies, Executive Order 13579, ``Regulation and 
Independent Regulatory Agencies'' (July 22, 2011), available at 
http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-28.pdf.
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    However, centralized supervision is not the only means of improving 
agency coordination. Congress could prescribe specific reforms via 
statute. Yet even absent direction from the President or Congress, 
agencies could voluntarily adopt certain targeted reforms. This 
recommendation suggests some initial and relatively modest measures 
that agencies could adopt to help conduct, track and evaluate existing 
coordination initiatives, subject, of course, to budget constraints. 
These include development of agency policies on coordination, sharing 
of best practices, adopting protocols for joint rulemaking and 
memoranda of understanding, ex post evaluation of at least a subset of 
coordination processes, tracking of outcomes and costs, and making 
coordination tools more transparent. These measures are not intended to 
impose substantial additional burdens on agencies, but to the extent 
they do, the recommendation urges OMB to recognize the need to devote 
sufficient resources to allow agencies to participate effectively in 
interagency processes.
    Nor, of course, does this recommendation seek to preclude other 
measures that might promote interagency collaboration, consultation and 
coordination, either at the federal level, or between federal and state 
and local agencies. It is not meant to displace or preclude any 
additional effort, whether under the GPRA amendments or otherwise, to 
develop national strategies. In addition, in many instances, informal 
agency consultation and negotiation work effectively to resolve 
inconsistencies and conflict. This recommendation is meant to augment 
rather than displace such efforts.

Recommendation

1. Developing Agency Coordination Policies

    (a) Federal agencies should identify any areas of shared, 
overlapping or closely related jurisdiction or operation that might 
require, or benefit from,

[[Page 47812]]

interagency coordination.\23\ Federal agencies that share overlapping 
or closely related responsibilities should adopt policies or 
procedures, as appropriate, to document ongoing coordination efforts, 
and to facilitate additional coordination with other agencies.\24\
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    \23\ A recent GAO report on the implementation of the Dodd-Frank 
Act faulted the financial regulatory agencies for not pursuing 
coordination more systematically and noted that the majority of 
agencies reviewed had not developed internal policies on 
coordination. See U.S. Gov't Accountability Office, GAO-12-151, 
Dodd-Frank Act Regulations: Implementation Could Benefit From Better 
Analysis and Coordination 25 (2011) (noting that seven of nine 
regulators reviewed ``did not have written policies and procedures 
to facilitate coordination on rulemaking'').
    \24\ 31 U.S.C. 1115(b)(5)(D) of GPRA, as amended by sec. 3 of 
GPRMA, supra note 8, requires each agency to have an annual 
performance plan providing a description of how its performance 
goals are to be achieved, including how the agency is working with 
other agencies to achieve those goals.
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    (b) Concurrently, the Executive Office of the President (EOP) 
should work with the agencies to develop a policy to promote 
coordination where agencies share overlapping or closely related 
responsibilities. The policy, while maintaining the need for 
flexibility,\25\ should require agencies to address, among other 
things, how they will:
---------------------------------------------------------------------------

    \25\ See Exec. Order No. 13,609, Promoting International 
Regulatory Cooperation, 77 FR 26413 (May 4, 2012), for an approach 
that combines a government-wide policy with individual agency 
responsibilities, coordinated by the Regulatory Working Group. See 
infra note 14.
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    (i) Resolve disagreements over jurisdiction;
    (ii) Share or divide information-production responsibilities;
    (iii) Solicit and address potentially conflicting views on 
executing shared responsibilities;
    (iv) Minimize duplication of effort;
    (v) Identify and resolve differences over the application of 
analytic requirements imposed by statute or executive order; \26\ and
---------------------------------------------------------------------------

    \26\ See generally Curtis W. Copeland, Regulatory Analysis 
Requirements, A Review and Recommendations for Reform (2012) (report 
to the Administrative Conference of the U.S.), available at http://www.acus.gov/wp-content/uploads/downloads/2012/04/COR-Final-Reg-Analysis-Report-for-5-3-12-Mtg.pdf; and Administrative Conference 
Recommendation 2012-1, Regulatory Analysis Requirements.
---------------------------------------------------------------------------

    (vi) Formalize agreements allocating respective responsibilities or 
develop standards or policies jointly, where appropriate.
    In addition, the policy should establish a mechanism by which 
agencies can share best practices and evaluate their coordination 
initiatives ex post, and assist them in doing so effectively and 
efficiently.
    (c) The EOP should effectively utilize the Regulatory Working 
Group, established by Executive Order 12,866, or establish or utilize 
other comparable bodies to assist agencies in identifying opportunities 
for coordination.\27\
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    \27\ Exec. Order No. 12866, sec. 4(d) (announcing the 
establishment of a Regulatory Working Group as ``a forum to assist 
agencies in identifying and analyzing important regulatory 
issues'').
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2. Improving Joint Rulemaking

    The coordination policies and procedures adopted by the EOP and the 
agencies should include best practices for joint rulemaking and 
recommend when agencies should consider using it even when not 
statutorily required to do so. Best practices might include 
establishing joint technical teams for developing the rule and 
requiring early consultation, where appropriate, (a) with the Office of 
Information and Regulatory Affairs (OIRA) regarding joint production of 
cost-benefit analyses and other analyses required by statute or 
executive order, and (b) among agency legal staff and lawyers at the 
Department of Justice who may need ultimately to defend the rule in 
litigation.

3. Improving Interagency Agreements

    (a) The coordination policies and procedures adopted by the EOP and 
the agencies should include best practices for agency agreements such 
as memoranda of understanding (MOUs). Such best practices might include 
specification of progress metrics that will enable agencies to assess 
the effectiveness of their agreement and sunset provisions that would 
require signatory agencies to review MOUs regularly to determine 
whether they continue to be of value.\28\
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    \28\ In several of the examples reviewed in the Freeman/Rossi 
report, supra note 2, the agencies were negotiating new MOUs to 
replace outdated ones (often negotiated by previous 
administrations)--a clear sign that ineffective MOUs can be left to 
languish for too long.
---------------------------------------------------------------------------

    (b) Agencies should make available to the public, in an accessible 
manner, interagency agreements that have broad policy implications or 
that may affect the rights and interests of the general public unless 
the agency finds good cause not to do so.

4. Supporting and Funding Interagency Consultation

    (a) The EOP should encourage agencies to conduct interagency 
consultations early in a decisionmaking process, before initial 
positions are locked in, and to conduct such consultations in a 
continuing and integrated, rather than periodic and reactive, way. To 
this end, when appropriate, the EOP should encourage coordinating 
agencies to establish an interagency team to produce and analyze data 
together over the course of the decisionmaking process, and ensure such 
teams have adequate funding and support.
    (b) The Office of Management and Budget and agencies involved in 
coordinated interagency activities should take into account, in the 
budgetary process, the need for sufficient resources to participate 
effectively in interagency processes, and the need to provide 
specifically for such cross-cutting activities. Further, an action 
agency, on which a duty to consult with other agencies falls, should 
contribute a share of its resources, as appropriate, to the extent it 
possesses the discretion to do so, to support joint technical and 
analytic teams, even if those resources will be consumed in part by 
other agencies.

5. Tracking Total Resources

    To better evaluate the effectiveness of coordination initiatives, 
an appropriate office or offices of the federal government should 
assess the costs and benefits, both quantitative and qualitative, of 
interagency consultations, MOUs, joint rules, and other similar 
instruments. Such offices might include the Government Accountability 
Office or the Congressional Research Service, perhaps with the 
assistance of the Administrative Conference of the United States. To 
minimize the burden on the agencies of such evaluation, at the outset, 
this effort might be limited to high-priority, high-visibility 
interagency coordination efforts, such as important joint rulemakings, 
or equivalent initiatives.

[FR Doc. 2012-19690 Filed 8-9-12; 8:45 am]
BILLING CODE 6110-01-P