[Federal Register Volume 78, Number 242 (Tuesday, December 17, 2013)]
[Notices]
[Pages 76269-76276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29949]


 ========================================================================
 Notices
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
 and investigations, committee meetings, agency decisions and rulings, 
 delegations of authority, filing of petitions and applications and agency 
 statements of organization and functions are examples of documents 
 appearing in this section.
 
 ========================================================================
 

  Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / 
Notices  

[[Page 76269]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations and Statement Regarding 
Administrative Practice and Procedure

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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

SUMMARY: The Administrative Conference of the United States adopted 
three recommendations at its Fifty-Ninth Plenary Session. The appended 
recommendations address the use of social media to support agency 
rulemaking activities, provide guidance to courts and agencies in 
connection with the judicial remedy of remanding an agency action 
without vacating that action, and offer best practices to facilitate 
cross-agency collaboration under the Government Performance and Results 
Act (GPRA) Modernization Act of 2010. The Conference also adopted one 
formal statement at the Plenary Session on improving the timeliness of 
regulatory review by the Office of Information and Regulatory Affairs.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2013-5, Emily 
Bremer; for Recommendation 2013-6, Stephanie Tatham; for Recommendation 
2013-7, Funmi Olorunnipa; and for Statement  18, Reeve Bull or 
Funmi Olorunnipa. For all four of these actions 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 
www.acus.gov.
    At its Fifty-Ninth Plenary Session, held December 5-6, 2013, the 
Assembly of the Conference adopted three recommendations and one formal 
statement. Recommendation 2013-5, ``Social Media in Rulemaking,'' 
provides guidance to agencies on whether, how, and when social media 
might be used both lawfully and effectively to support rulemaking 
activities.
    Recommendation 2013-6, ``Remand Without Vacatur,'' examines the 
judicial remedy of remand without vacatur on review of agency actions 
and equitable factors that may justify its application. The 
recommendation offers guidance for courts that remand agency actions 
and for agencies responding to judicial remands.
    Recommendation 2013-7, ``The GPRA Modernization Act of 2010: 
Examining Constraints To, and Providing Tools For, Cross-Agency 
Collaboration,'' examines perceived and real constraints to cross-
agency collaboration under the Government Performance and Results Act 
(GPRA) Modernization Act and highlights tools available to help 
agencies collaborate. It offers guidance to help increase transparency, 
improve information sharing, and facilitate better agency reporting 
under the Act. The recommendation is also aimed at enhancing the role 
of agency attorneys and other agency staff in facilitating cross-agency 
collaboration.
    Statement  18, ``Improving the Timeliness of OIRA 
Regulatory Review,'' highlights potential mechanisms for improving 
review times of rules under review by the Office of Information and 
Regulatory Affairs (OIRA), including promoting enhanced coordination 
between OIRA and agencies prior to the submission of rules, encouraging 
increased transparency concerning the reasons for delayed reviews, and 
ensuring that OIRA has adequate staffing to complete reviews in a 
timely manner.
    The Appendix below sets forth the full texts of these three 
recommendations and the statement. The Conference will transmit them to 
affected agencies, relevant committees of Congress, and the Judicial 
Conference of the United States, as appropriate. 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 and the statement on 
research reports that are posted at: www.acus.gov/59th. A video of the 
Plenary Session is available at the same web address and a transcript 
of the Plenary Session will be posted when it is available.

    Dated: December 12, 2013.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2013-5

Social Media in Rulemaking

Adopted December 5, 2013

    In the last decade, the notice-and-comment rulemaking process 
has changed from a paper process to an electronic one. Many 
anticipated that this transition to ``e-Rulemaking'' \1\ would 
precipitate a ``revolution,'' making rulemaking not just more 
efficient, but also more broadly participatory, democratic, and 
dialogic. But these grand hopes have not yet been realized. Although 
notice-and-comment rulemaking is now conducted electronically, the 
process remains otherwise recognizable and has undergone no 
fundamental transformation.
---------------------------------------------------------------------------

    \1\ The Conference has previously defined ``e-Rulemaking'' as 
``the use of digital technologies in the development and 
implementation of regulations before or during the informal process, 
i.e., notice-and-comment rulemaking under the Administrative 
Procedure Act (APA).'' Recommendation 2011-1, Legal Considerations 
in e-Rulemaking, 76 FR 48,789, 48,789 (Aug. 9, 2011) (internal 
quotation marks and footnote omitted).
---------------------------------------------------------------------------

    At the same time, the Internet has continued to evolve, moving 
from static, text-based Web sites to dynamic multi-media platforms 
that facilitate more participatory, dialogic activities and support 
large amounts of user-generated content. These ``social media'' 
broadly include any online tool that facilitates two-way 
communication, collaboration, interaction, or sharing between 
agencies and the public. Examples of social media tools currently in 
widespread use include Facebook, Twitter, Ideascale, blogs, and 
various crowdsourcing \2\ platforms. But

[[Page 76270]]

technology evolves quickly, continuously, and unpredictably. It is a 
near certainty that the tools so familiar to us today will evolve or 
fade into obsolescence, while new tools emerge.\3\
---------------------------------------------------------------------------

    \2\ ``Crowdsourcing'' is an umbrella term that includes various 
techniques for distributed problem-solving or production, drawing on 
the cumulative knowledge or labor of a large number of people. 
Wikipedia, the development of the Linux operating system, 
Amazon.com's ``Mechanical Turk'' platform, and public and private 
challenges that award a prize to the best solution to a particular 
problem are all examples of crowdsourcing.
    \3\ One type of emerging technology includes structured 
argumentation tools. These tools may take the form of, for example, 
interactive feedback forms that ask direct and progressively more 
focused questions in sequence or in response to input, thereby 
generating more targeted and substantively useful input from users.
---------------------------------------------------------------------------

    The accessible, dynamic, and dialogic character of social media 
makes it a promising set of tools to fulfill the promise of e-
Rulemaking. Thus, for example, the e-Rulemaking Program Management 
Office, which operates the federal government's primary online 
rulemaking portal, Regulations.gov, has urged agencies to 
``[e]xplore the use of the latest technologies, to the extent 
feasible and permitted by law, to engage the public in improving 
federal decision-making and help illustrate the impact of emerging 
Internet technologies on the federal regulatory process.'' \4\ The 
Conference has similarly, albeit more modestly, recommended that 
``[a]gencies should consider, in appropriate rulemakings, using 
social media tools to raise the visibility of rulemakings.'' \5\
---------------------------------------------------------------------------

    \4\ e-Rulemaking Program Management Office, Improving Electronic 
Dockets on Regulations.gov and the Federal Docket Management System: 
Best Practices for Federal Agencies 8 (2010), available at http://exchange.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.pdf.
    \5\ Recommendation 2011-8, Agency Innovations in e-Rulemaking, 
77 FR 2257, 2265 (Jan. 17, 2012). The Conference has consistently 
supported full and effective public participation in rulemaking, as 
well as the use of new technologies to enhance such participation. 
In Recommendation 95-3, Review of Existing Agency Regulations, the 
Conference encouraged agencies to ``provide adequate opportunity for 
public involvement in both the priority-setting and review 
processes,'' including by ``requesting comments through electronic 
bulletin boards or other means of electronic communication.'' 60 FR 
43,108, 43,109 (Aug. 18, 1995).
---------------------------------------------------------------------------

    Federal agencies have embraced social media to serve a variety 
of non-rulemaking purposes,\6\ but few have experimented with such 
tools in the rulemaking context. One explanation for this reluctance 
is uncertainty about how the Administrative Procedure Act (APA) and 
other requirements of administrative law apply to the use of social 
media, particularly during the process governed by the APA's 
informal rulemaking requirements, beginning when the Notice of 
Proposed Rulemaking (NPRM) has been issued, through the comment 
period, and until the agency issues a final rule.\7\ In particular, 
agencies are uncertain whether public contributions to a blog or 
Facebook discussion are ``comments'' for purposes of the APA, thus 
triggering the agencies' obligations to review and respond to the 
contributions and include them in the rulemaking record. Other 
concerns include how the Paperwork Reduction Act applies to agency 
inquiries through social media,\8\ whether the First Amendment might 
limit an agency from moderating a social media discussion, and how 
individual agencies' ``ex parte'' communications policies might 
apply to the use of social media.
---------------------------------------------------------------------------

    \6\ For example, agencies have enthusiastically embraced social 
media, including Facebook and Twitter, as an effective tool for 
pushing information out to the public, from general information 
about an agency and its mission to more specific notifications of 
services, benefits, or employment opportunities that are available 
from an agency. Agencies have also used social media in more 
interactive ways, such as when nearly three dozen agencies used 
Ideascale to engage the public in the process of developing the 
agencies' Open Government Plans, or to collect metadata, such as 
when the Consumer Financial Protection Bureau used ``heat maps'' 
generated from click-based online user reviews of prototype 
disclosure forms to illustrate which sections of the forms elicited 
the strongest reactions.
    \7\ The Conference recently addressed legal issues related to e-
rulemaking in Recommendation 2011-1, Legal Considerations in e-
Rulemaking, see supra note 1, but did not delve into the unique 
concerns that arise when agencies use social media to support 
rulemaking activities.
    \8\ The Office of Management and Budget has issued helpful 
guidance on these issues. See Memorandum from Cass R. Sunstein, 
Adm'r, Office of Info. & Regulatory Affairs, to the Heads of 
Executive Departments and Independent Regulatory Agencies regarding 
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.
---------------------------------------------------------------------------

    Apart from legal concerns are doubts as to whether, when, and 
how social media will benefit rulemaking. These doubts arise with 
respect to two distinct issues that often overlap. First, can social 
media be used to generate more useful public input in rulemaking? 
Second, is increased lay participation in rulemaking likely to be 
valuable? Experience suggests that both the quality of comments and 
the level of participation in social media discussions are often 
much lower than one might hope. A third-party facilitator may be 
able to help an agency address these issues by encouraging public 
participation, helping participants understand the rulemaking 
process and the agency's proposal, asking follow-up questions to 
produce more substantive input, and actively facilitating engagement 
among participants. Regardless of whether a third-party facilitator 
is used, however, creating the conditions necessary to foster a 
meaningful, productive dialogue among participants requires 
commitment, time, and thoughtful design. Since this kind of 
innovation can be costly, agencies are understandably reluctant to 
expend scarce resources in pursuit of uncertain benefits. Agencies 
also face a variety of practical questions. One such question is 
whether to require participants to identify themselves in agency-
sponsored social media discussions. Another concern is that the use 
of ranking or voting tools may mislead some to believe that 
rulemaking is a plebiscite or allow some participants to improperly 
manipulate the discussion.
    Social media can be valuable during the notice-and-comment phase 
of rulemaking, but on a selected basis. For example, if an agency 
needs to reach an elusive audience or determine public preferences 
or reactions in order to develop an effective regulation, social 
media may enable the collection of information and data that are 
rarely reflected in traditional rulemaking comments. Success 
requires an agency to thoughtfully identify the purpose(s) of using 
social media, carefully select the appropriate social media tool(s), 
and integrate those tools into the traditional notice-and-comment 
process. In addition, agencies must clearly communicate to the 
public how the social media discussion will be used in the 
rulemaking. Although the APA allows agencies the flexibility to be 
innovative, attention should be given to how the APA or other legal 
requirements will apply in the circumstances of a particular 
rulemaking.
    Agencies may find, however, that it is both easier and more 
often valuable to use social media in connection with rulemaking 
activities, but outside the notice-and-comment process. For example, 
social media can be effective for public outreach, helping to 
increase public awareness of agency activities, including 
opportunities to contribute to policy setting, rule development, or 
the evaluation of existing regulatory regimes. The use of social 
media may also be particularly appropriate during the pre-rulemaking 
or policy-development phase. Here, the APA and other legal 
restrictions do not apply, and agencies are often seeking dispersed 
knowledge or answers to more open-ended questions that lend 
themselves to productive discussion through social media. For the 
same reasons, social media may be an effective way for agencies to 
seek input on retrospective review of existing regulations. It also 
may be helpful in connection with a negotiated rulemaking,\9\ where 
these tools may make it easier for the diverse interests to 
collaborate during and between meetings on a solution to the problem 
being addressed.
---------------------------------------------------------------------------

    \9\ See, e.g., Recommendation 85-5, Procedures for Negotiating 
Proposed Regulations (Dec. 13, 1985).
---------------------------------------------------------------------------

    This recommendation provides guidance to agencies on whether, 
how, and when social media might be used both lawfully and 
effectively to support rulemaking activities. It seeks to identify 
broad principles susceptible of application to any social media tool 
that is now available or may be developed in the future. It is 
intended to encourage innovation and facilitate the experimentation 
necessary to develop the most effective techniques for leveraging 
the strengths of social media to achieve the promises of e-
Rulemaking.

Recommendation

    1. Agencies should explore in the rulemaking process the use of 
social media--online platforms that can provide broad opportunities 
for public consultation, discussion, and engagement.

Public Outreach

    2. Agencies should use social media to inform and educate the 
public about agency activities, their rulemaking process in general, 
and specific rulemakings. Agencies should take an expansive approach 
to alerting potential participants to upcoming rulemakings by 
posting to the agency Web site and sending notifications through

[[Page 76271]]

multiple social media channels. Social media may provide an 
effective means to reach interested persons who have traditionally 
been underrepresented in the rulemaking process (including holders 
of affected interests that are highly diffused).
    3. Agencies should recognize that raising awareness among 
missing stakeholders (those directly affected by the proposed rule 
who are historically unlikely to participate in the traditional 
comment process) and other potential new participants in the 
rulemaking process will require new outreach strategies beyond 
simply giving notice in the Federal Register, Regulations.gov, and 
the agency Web site. Social media may be particularly effective for 
successful outreach, and agencies using it for this purpose in 
connection with rulemaking should consider:
    (a) Developing one or more communications plans specifically 
tailored to the rule and to all types of missing stakeholders or 
other potential new participants the agency is trying to engage. 
These plans should be evenhanded and designed to encourage all types 
of stakeholders to participate.
    (b) In outreach messages, clearly explaining the mechanisms 
through which members of the public can participate in the 
rulemaking, what the role of public comments is, and how the agency 
will take comments into account.
    (c) Encouraging public response by being clear and specific 
about how the proposed rule would affect the targeted participants 
and what input will be most useful to the agency.
    (d) Asking all interested organizations to spread the 
participation message to members or followers. Agencies should be 
prepared to explain why individual participation can be beneficial, 
and to encourage organizations to solicit substantive, 
individualized comments from their members.
    (e) Using multilingual social media outlets where appropriate.
    4. The General Services Administration, the e-Rulemaking Program 
Management Office, and other federal agencies, either individually 
or (preferably) collaboratively, should use social media to create 
and distribute more robust educational programs about rulemaking. 
These efforts could include: producing videos about the rulemaking 
process and how to effectively participate through commenting and 
posting on an agency Web site or video-sharing Web site; hosting 
webinars in which agency personnel discuss how to draft useful and 
helpful comments; maintaining an online database of exemplary 
rulemaking comments; or conducting an online class or webinar or 
providing explanatory materials in which officials review a draft 
comment and suggest ways to improve it.
    5. Agencies should explore ways to publicize, and allow members 
of the public to receive, regular, automated updates on developments 
in, at a minimum, significant rulemakings.
    6. Agencies should consider using social media prior to the 
publication of an NPRM or proposed policy where the goal is to 
understand the current state of affairs, collect dispersed 
knowledge, or identify problems. To enhance the amount and value of 
public input, an agency seeking to engage the public for these 
purposes should, to the maximum extent possible, make clear the sort 
of information it is seeking and how the agency intends to use 
public input received in this way. The agency should also directly 
engage with participants by acknowledging submissions, asking 
follow-up questions, and providing substantive responses.
    7. Agencies should consider using social media in support of 
retrospective review of existing regulations, particularly to learn 
what actual experience has been under the relevant regulation(s).

Using Social Media in Notice-and-Comment Rulemaking

    8. Although the use of social media may not be appropriate and 
productive in all rulemakings, agencies may use social media to 
supplement or improve the traditional commenting process. Before 
using social media in connection with a particular rulemaking, 
agencies should identify the specific goals they expect to achieve 
through the use of social media and carefully consider the potential 
costs and benefits.
    9. Agencies should use the social media tools that best fit 
their particular purposes and goals and should carefully consider 
how to effectively integrate those tools into the traditional 
rulemaking process.

Effective Approaches for Using Social Media in Rulemaking

    10. For each rulemaking, agencies should consider maintaining a 
blog or other appropriate social media site dedicated to that 
rulemaking for purposes of providing information, updates, and 
clarifications regarding the scope and progress of the rulemaking. 
Agencies may also wish to explore using such a site to generate a 
dialogue.
    11. When an agency sponsors a social media discussion in 
connection with a notice-and-comment rulemaking, it should determine 
and prominently indicate to the public how the discussion will be 
treated under the APA (for administrative record purposes). The 
agency may decide, for example:
    (a) To include all comments submitted via an agency-administered 
social media discussion in the rulemaking record. Agencies should 
consider using an application programming interface (API) or other 
appropriate technological tool to efficiently transfer content from 
social media to the rulemaking record.
    (b) That no part of the social media discussion will be included 
in the rulemaking docket, that the agency will not consider the 
discussion in developing the rule, and that the agency will not 
respond to the discussion. An agency that selects this option should 
communicate the restriction clearly to the public through 
conspicuous disclaimers on the social media site itself, provide 
instructions on how to submit an official comment to the rulemaking 
docket, and provide a convenient mechanism for doing so. It is 
especially important in these circumstances that the agency clearly 
explain the purpose of a social media discussion the agency does not 
intend to consider in the rulemaking.
    12. When soliciting input through a social media platform, 
agencies should provide a version of the NPRM that is ``friendly'' 
and clear to lay users. This involves, for example, breaking 
preambles into smaller components by subject, summarizing those 
components in plain language, layering more complete versions of the 
preamble below the summaries, and providing hyperlinked definitions 
of key terms. In doing this, the agency should either:
    (a) Publish both versions of the NPRM in the Federal Register; 
or
    (b) Cross-reference the user-friendly version of the NPRM in the 
published NPRM and cross-reference the published NPRM in the user-
friendly version of the NPRM.
    13. Agencies should consider, in appropriate rulemakings, 
retaining facilitator services to manage rulemaking discussions 
conducted through social media. Appropriate rulemakings may include 
those in which:
    (a) Targeted users are inexperienced commenters who may need 
help to prepare an effective comment (e.g., providing comments that 
give reasons rather than just reactions); or
    (b) The issues will predictably produce sharply divided or 
highly emotional reactions.
    14. Agencies should realize that not all rulemakings will be 
enhanced by a crowdsourcing approach. However, when the issue to be 
addressed is the public or user response itself (e.g., when the 
agency seeks to determine the best format for a consumer notice), 
direct submission to the public at large may lead to useful 
information. In addition, agencies should consider encouraging, and 
being receptive to, comments from lay stakeholders with ``situated 
knowledge'' arising out of their real world experience.
    15. Agencies should consider experimenting with collaborative 
drafting platforms, both internally and, potentially, externally, 
for purposes of producing regulatory documents.
    16. If an agency chooses to use voting or ranking tools, the 
agency should explain to the public how it intends to use the input 
generated through those tools (e.g., to help it decide which of 
several potential forms is easiest to use).
    17. Agencies should use social media to notify and educate the 
public about the final agency action produced through a rulemaking.
    18. In appropriate circumstances, agencies should also use 
social media to provide compliance information. For example, an 
agency might use social media to inform and educate the public about 
paperwork requirements associated with a rule or the availability of 
regulatory guidance.
    19. Agencies should collaborate to identify best practices for 
addressing issues that arise in connection with the use of social 
media in rulemaking.

Direct Final Rulemaking

    20. Agencies should consider using social media before or in 
connection with direct final rulemaking to quickly identify whether

[[Page 76272]]

there are significant or meaningful objections that are not 
initially apparent.

Key Legal Considerations

    21. Agencies have maximum flexibility under the APA to use 
social media before an NPRM is issued or after a final rule has been 
promulgated.
    22. Agencies should consider how the First Amendment applies to 
facilitating or hosting social media discussions, such as by making 
it clear through a posted comment policy that all discussions and 
comments on any given agency social media site will be moderated in 
a uniform, viewpoint-neutral manner. Through this posted policy, 
agencies may decide to define or restrict the topics of discussion, 
impose reasonable limitations to preserve decorum, decency, and 
prevent spam or, alternatively, terminate a social media discussion 
altogether.
    23. Agencies that have ``ex parte'' contact policies for 
information obtained in connection with rulemaking should review 
those policies to ensure they address communications made through 
social media.

Administrative Conference Recommendation 2013-6

Remand Without Vacatur

Adopted December 5, 2013

    Remand without vacatur is a judicial remedy that permits agency 
orders or rules to remain in effect after they are remanded by the 
reviewing court for further agency proceedings. Traditionally, 
courts have reversed and set aside agency actions they have found to 
be arbitrary and capricious, unlawful, unsupported by substantial 
evidence, or otherwise in violation of an applicable standard of 
review. Since 1970, however, the remedy of remanding without 
vacating the agency decision has been employed with increasing 
frequency. It has now been applied in more than seventy decisions of 
the Court of Appeals for the District of Columbia Circuit involving 
over twenty federal agencies and encompassing a variety of 
substantive areas of law including air pollution control, 
telecommunications, and national security.\1\
---------------------------------------------------------------------------

    \1\ Stephanie J. Tatham, The Unusual Remedy of Remand Without 
Vacatur, Apendix A (Report to the Administrative Conference of the 
United States, Nov. 14, 2013) [hereinafter Tatham Report]. It has 
also been applied on review of agency action in the Courts of 
Appeals for the Federal, First, Third, Fifth, Eighth, Ninth, and 
Tenth Circuits. Id. at 26-28.
---------------------------------------------------------------------------

    The Administrative Conference conducted a study of remand 
without vacatur that examined existing scholarship on the remedy as 
well as its application by courts in recent years. These 
recommendations and the supporting Report examine the legality and 
application of remand without vacatur in cases involving judicial 
review of agency actions. The Conference accepts the principle that 
remand without vacatur is within the court's equitable remedial 
authority. It recognizes and approves of at least three general 
circumstances in which remand without vacatur may be appropriate. 
Finally, it offers advice to courts that are considering employing 
the remedy and to agencies responding to remands.
    The remedy has generated academic and judicial debate over its 
advisability and legality. Those who support remand without vacatur 
point to the benefits that accrue in a variety of situations, such 
as when application of the device enhances stability in the 
regulatory regime or in regulated markets, protects reliance 
interests, prevents regulatory gaps, allows the government to 
continue collecting fees or processing reimbursements, and ensures 
continued provision of public benefits (including the benefits of 
regulation). Remand without vacatur has also been said to be 
appropriate because it defers to the institutional competence of 
agencies and may reduce agency burdens on remand.
    Nonetheless, remand without vacatur is not without controversy. 
Some scholars argue that it can deprive litigants of relief from 
unlawful or inadequately reasoned agency decisions, reduce 
incentives to challenge improper or poorly reasoned agency behavior, 
promote judicial activism, and allow deviation from legislative 
directives. Critics have also suggested that it reduces pressure on 
agencies to comply with APA obligations and to respond to a judicial 
remand. Given the relative infrequency of application of the remedy, 
these prudential and theoretical concerns, while possible, do not 
appear to cause systemic problems.
    Some judges argue that remand without vacatur contravenes the 
plain language of the judicial review provisions of the APA.\2\ 
However, despite occasional dissents or other separate judicial 
opinions, no cases were identified in which a federal court of 
appeals held that remand without vacatur was unlawful under the APA 
or another statutory standard of review. Rather, courts generally 
accept the remedy as a lawful exercise of equitable remedial 
discretion.\3\
---------------------------------------------------------------------------

    \2\ The APA provides that reviewing courts ``shall * * * hold 
unlawful and set aside agency action, findings, and conclusions'' 
found to violate one of its standards of review. 5 U.S.C. Sec.  
706(2). E.g., Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994) 
(Randolph, J., separate opinion).
    \3\ Remand without vacatur has been described as fitting 
comfortably within a tradition of equitable judicial remedial 
discretion. Ronald M. Levin, ``Vacation'' at Sea: Judicial Remedies 
and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 
315-44 (2003).
---------------------------------------------------------------------------

    The Conference recommends that the remedy continue to be 
considered an authorized exercise of judicial authority on review of 
cases that arise under the Administrative Procedure Act, 5 U.S.C. 
Sec.  706(2), as well as under other statutory review provisions, 
unless they contain an express legislative directive to the 
contrary. In employing remand without vacatur, courts are 
essentially finding that agency errors that are sufficient to 
require remand may not always justify immediately setting aside the 
challenged action. Since this conclusion deviates from customary 
remedial norms, when courts invoke the remedy, they should explain 
their reasons for doing so.
    Equitable considerations that justify leaving the challenged 
agency action in place on remand may exist in a variety of 
circumstances. Longstanding judicial precedent in the DC Circuit 
supports application of the remedy after a finding that a challenged 
agency action, while invalid, is not seriously deficient or when 
vacatur would have disruptive consequences.\4\ Courts also employ 
the remedy when vacatur would not serve the interests of the 
prevailing party that was harmed by the agency's error.\5\ Remand 
without vacatur may be appropriate in these circumstances as well as 
in others not considered here.
---------------------------------------------------------------------------

    \4\ E.g., N. Air Cargo v. U.S. Postal Service, 674 F.3d 852, 
860-61 (D.C. Cir. 2012); Allied-Signal, Inc. v. NRC, 988 F.2d 146, 
150-51 (D.C. Cir. 1993).
    \5\ E.g., Envtl. Def. Fund v. EPA, 898 F.2d 183, 190 (D.C. Cir. 
1990) (``no party to this litigation asks that the court vacate the 
EPA's regulations, and to do so would at least temporarily defeat 
petitioner's purpose, the enhanced protection of environmental 
values covered by the [statutory Prevention of Significant 
Deterioration] provisions''). This reasoning appears to be the basis 
for a substantial number of cases involving the remedy and that 
arise under the Clean Air Act, which comprise a sizeable portion of 
all cases in which it is employed. See also Richard L. Revesz & 
Michael A. Livermore, Retaking Rationality 160-61 (2008) (describing 
how the remedy can provide pro-regulatory plaintiffs with the 
benefit of continuing a weak rule while the case is on remand, 
rather than having no rule in the interim in the event of a 
successful challenge).
---------------------------------------------------------------------------

    When a reviewing court has decided to remand an agency's action, 
it should consider asking the parties for their views on the 
appropriate remedy in light of this decision.\6\ In its final 
decision, the court should specify whether or not it is vacating the 
remanded agency action. Research indicates that ambiguous remand 
orders that do not clearly identify whether an agency's action is 
also vacated occur with some regularity.\7\ This is particularly 
problematic where an agency rule or order regulates conduct of, or 
permits enforcement actions against, individuals or entities not 
party to the litigation, and who cannot seek direct clarification of 
the court's remedial intention.
---------------------------------------------------------------------------

    \6\ Courts have occasionally requested supplemental briefing on 
whether to vacate agency rules after they have announced an 
intention to remand the agency's decision. E.g., Am. Trucking Ass'ns 
v. EPA, 175 F.3d 1027, 1057 (D.C. Cir. 1999), aff'd in part, rev'd 
in part, Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Int'l 
Union, UAW v. OSHA, 938 F.2d 1310, 1325-26 (D.C. Cir. 1991). Courts 
might also consider soliciting the views of the parties at oral 
argument.
    \7\ E.g., PSEG Energy Res. & Trade, LLC v. FERC, 665 F.3d 203 
(D.C. Cir. 2011); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 
(DC Cir. 2008).
---------------------------------------------------------------------------

    Remand without vacatur does not by itself provide relief for 
litigants after successful challenges to agency rules or orders. 
Thus, responsive agency action on remand is a matter of particular 
concern in such cases.\8\ Moreover, difficulties in identifying 
remanded decisions and agency responses can hinder oversight. 
Accordingly, agencies

[[Page 76273]]

should identify or post final judicial opinions vacating, or 
remanding without vacatur, agency rules or orders in the applicable 
online public docket, if any exists, and on agency Web sites, where 
appropriate. Agencies should include a short statement identifying 
the judicial opinion and whether it vacates all or part of the 
challenged rule or order, together with any unique identifiers for 
the affected agency rule or order (such as a Regulation Identifier 
Number). Agencies should additionally work with the Office of the 
Federal Register to remove vacated regulations from the Code of 
Federal Regulations.\9\
---------------------------------------------------------------------------

    \8\ Courts have occasionally retained jurisdiction over cases 
remanded without vacatur to ensure responsive agency action. E.g., 
Nat'l Ass'n of Regulatory Util. Comm'rs v. DOE, 680 F.3d 819, 820 
(D.C. Cir. 2012) (directing compliance within six months and 
retaining jurisdiction ``so that any further review would be 
expedited''). Courts may also ask agencies to report on their 
progress on remand. E.g., Chamber of Commerce v. SEC, 443 F.3d 890, 
909 (D.C. Cir. 2006) (staying the court's mandate that would vacate 
the remanded agency action until further order of the court and 
requiring the SEC to file a status report within 90 days).
    \9\ Anecdotal evidence indicates that occasionally rules that 
have been vacated are not removed from the Code of Federal 
Regulations in a timely fashion. Tatham Report at 38-39, n. 244. 1 
CFR Sec.  21.6 requires agencies to notice expired codified 
regulations in the Federal Register. See, e.g., Electronic On-Board 
Recorders for Hours-of-Service Compliance; Removal of Final Rule 
Vacated by Court 72 FR 28,447 (May 14, 2012).
---------------------------------------------------------------------------

    To further public awareness, the Conference also recommends that 
agencies provide information in the Unified Agenda of Federal 
Regulatory and Deregulatory Actions regarding their future plans 
with respect to rules that are remanded without vacatur. In any 
subsequent proceedings responding to remand without vacatur, 
agencies should identify the initial agency action together with any 
unique identifier, as well as the remanding judicial opinion.

Recommendation

Judicial Authority To Use Remand Without Vacatur

    1. Remand without vacatur should continue to be recognized as 
within the court's equitable remedial authority on review of cases 
that arise under the Administrative Procedure Act (APA) and its 
judicial review provision, 5 U.S.C. Sec.  706(2).
    2. Absent an express legislative directive to the contrary in 
any other statute providing the basis for judicial review of 
challenges to agency action, remand without vacatur should be 
recognized as an authorized remedy in cases that arise under such a 
statute.

Recommendations to Courts

    3. On review of agency action, reviewing courts should specify 
in their judicial opinions or orders whether or not they are 
vacating a remanded agency action.
    4. When courts remand but do not vacate an agency action, they 
should explain the basis for their remedial choice.
    5. In determining whether the remedy of remand without vacatur 
is appropriate, courts should consider equitable factors, including 
whether:
    (a) correction is reasonably achievable in light of the nature 
of the deficiencies in the agency's rule or order;
    (b) the consequences of vacatur would be disruptive; and
    (c) the interests of the parties who prevailed against the 
agency in the litigation would be served by allowing the agency 
action to remain in place.
    6. When a court has decided to remand an agency action, it 
should consider hearing parties' views on whether to vacate the 
agency action and on any related remedial issues.

Recommendations to Agencies

    7. Agencies should specifically identify or post judicial 
decisions vacating or remanding without vacatur agency rules or 
orders in any applicable public docket, and, if appropriate, on the 
agency Web site. When a court remands but does not vacate an 
agency's rule or order, the agency should include a statement 
explicitly advising that the rule or order has not been vacated and 
is still in effect despite the remand.
    8. When a regulation has been vacated, the promulgating agency 
should work with the Office of the Federal Register to remove the 
vacated regulation from the Code of Federal Regulations.
    9. Agencies should provide information in the Unified Agenda of 
Federal Regulatory and Deregulatory Actions regarding their plans 
with respect to rules that are remanded without vacatur.
    10. In their response(s) to a judicial remand without vacatur of 
an agency action, agencies should identify the initial agency action 
as well as the remanding judicial opinion.
    11. In conjunction with a notice of proposed rulemaking in 
response to remand without vacatur, agencies should clearly state 
whether public comments and other materials in the docket for the 
remanded rule will or will not be incorporated into the new 
rulemaking record, if any.

Administrative Conference Recommendation 2013-7

GPRA Modernization Act of 2010: Examining Constraints To, and Providing 
Tools For, Cross-Agency Collaboration

Adopted December 6, 2013

    The Government Performance and Results Act (GPRA) Modernization 
Act of 2010 (GPRAMA) became law on January 4, 2011.\1\ Among other 
things, the Act requires the Executive branch and federal agencies 
to develop cross-agency performance goals and specifies directives 
toward the advancement, use, review, and measurement of cross-agency 
collaboration.\2\ Cross-agency collaboration is widely viewed as a 
powerful means for government reform and performance improvement. 
Under GPRAMA, greater coordination across agencies offers the 
potential for the federal government to address complex policy 
challenges that lie inherently across agency boundaries and 
jurisdictions. In sum, cross-agency collaboration--when used 
thoughtfully for well-selected initiatives--holds great promise as a 
means of improving government performance, efficiency, and 
accountability. The effective development of these management tools 
may have an important role to play during the environment of 
constrained funding that federal agencies may face in the years 
ahead.
---------------------------------------------------------------------------

    \1\ Pub. L. No. 111-352, 124 Stat. 3866 (2011) (codified as 
amended in scattered sections of 5 and 31 U.S.C.). The GPRA 
Modernization Act of 2010 amends the GPRA Act of 1993, Pub. L. No. 
103-62, 107 Stat. 285 (1993).
    \2\ See, e.g., 5 U.S.C. Sec.  306; 31 U.S.C. Sec. Sec.  1115-16, 
1120-25 (setting forth the requirements under GPRAMA).
---------------------------------------------------------------------------

    GPRAMA specifically requires the Office of Management and Budget 
(OMB) to develop long-term, outcome-oriented goals for a limited 
number of cross-cutting management improvement areas (known as 
Cross-Agency Priority (CAP) Goals), on such topics as: finances, 
human capital, information technology, procurement and acquisition 
and real property. CAP goals generally fall into two categories--
mission-support goals, which focus on achieving consolidation of 
standard business functions and systems across agencies; and 
mission-oriented goals, which focus on coordinating authorities to 
pursue shared policy goals that cross-cut agencies. These goals are 
to be developed in coordination with agencies and in consultation 
with the Congress. Accordingly, agencies must proactively engage 
members of Congress and their staffs to inform them about cross-
agency collaborative efforts and successfully navigate congressional 
concerns. Similarly, when reviewing and commenting on pending 
legislation, officials at OMB should consider identifying areas that 
necessitate or allow for cross-agency collaboration, communicating 
with Congress regarding those areas, and seeking statutory direction 
for such collaboration where appropriate.
    The law also requires an agency to describe how it is working 
with other relevant agencies and organizations to achieve individual 
Agency Performance Goals (APGs). GPRAMA also requires the 
development of a federal government-wide performance plan and 
individual agency performance plans; quarterly progress reviews of 
agency goals and the use of performance information to evaluate 
federal government and agency progress toward their stated priority 
goals; and enhanced transparency through the effective operation of 
Performance.gov, a single Web site about the federal government 
priority goals, performance plans, quarterly review results, and 
individual agency performance.
    Within OMB, the Office of Performance and Personnel Management 
(OPPM) leads the effort to drive mission-focused performance gains 
across the federal government. In addition, the Performance 
Improvement Council (PIC), located within the U.S. General Services 
Administration (GSA) and composed of the designated Performance 
Improvement Officers (PIOs) of Federal agencies and departments, as 
well as senior OMB officials, collaborates to improve the 
performance of Federal programs and facilitates information exchange 
among agencies. The PIC also provides support to agency officials by 
aiding the coordination of cross-agency collaboration under GPRAMA.
    As designated agency officials work to implement GPRAMA, they 
may face certain institutional constraints to effective 
collaboration and thus need tools to aid them in their efforts.\3\ 
Some agencies and federal

[[Page 76274]]

officials have developed strategies to address the legal and other 
institutional challenges posed by such collaborative efforts. For 
others, obstacles to the kinds of cross-agency collaboration 
demanded by GPRAMA have proven frustrating and difficult to 
overcome. While a large body of research addresses interagency 
coordination or cross-agency collaboration generally,\4\ little 
attention has been given to exploring the legal barriers and other 
constraints to implementation of GPRAMA--whether real or perceived--
and providing tools that agency officials may use to address such 
constraints.
---------------------------------------------------------------------------

    \3\ See, e.g., Jane Fountain, IBM Center for the Business of 
Government, Implementing Cross Agency Collaboration: A Guide for 
Federal Managers (2013), available at http://www.businessofgovernment.org/sites/default/files/Implementing%20Cross%20Agency%20Collaboration.pdf (setting forth 
institutional constraints to cross-agency collaboration and 
recommending additional guidance from OMB); see also U.S. Gov't 
Accountability Office, GAO-13-518, Managing for Results: Executive 
Branch Should More Fully Implement the GPRA Modernization Act to 
Address Pressing Governance Challenges (2013), available at http://www.gao.gov/assets/660/655541.pdf (discussing some early challenges 
to the implementation of GPRAMA and making recommendations for 
improvement).
    \4\ See, e.g., U.S. Gov't Accountability Office, GAO-12-1022, 
Managing for Results: Key Considerations for Implementing 
Interagency Collaboration Mechanisms (2012), available at http://www.gao.gov/assets/650/648934.pdf (setting forth a number of 
constraints to cross-agency collaboration).
---------------------------------------------------------------------------

    Accordingly, the Conference commissioned the study underlying 
this recommendation to provide attention to the key challenges to 
cross-agency collaboration under GPRAMA, as well as suggesting tools 
for federal officials to implement the Act's collaboration and other 
mandates.\5\ This study examines the use of tools by officials at 
OMB, the PIC, senior agency officials, legal counsel, managers and 
others to overcome and work within institutional challenges to 
cross-agency collaboration. Such tools include the use of 
interagency agreements, memoranda of understanding, forms, 
documents, and other information useful in facilitating cross-agency 
collaboration efforts; the use of shared information systems and the 
sharing of data.
---------------------------------------------------------------------------

    \5\ See Jane Fountain, The GPRA Modernization Act of 2010: 
Examining Constraints To, and Providing Tools For, Cross-Agency 
Collaboration (September 17, 2012) (draft report to the 
Administrative Conference of the U.S.), available at http://www.acus.gov/sites/default/files/documents/Preliminary%20Draft%20GPRAMA%20Report_Fountain_9_20_13.pdf .
---------------------------------------------------------------------------

    Consistent with the Administrative Conference's statutory 
mandate of increasing government efficiency and enhancing 
transparency, the Conference issues this recommendation to suggest 
practices to facilitate cross-agency collaboration under GPRAMA and 
to encourage wider use of tools that may advance such collaboration 
between federal agencies. The Recommendation covers practices and 
tools to better facilitate cross-agency collaboration that must be 
multi-faceted, must address institutional challenges on a number of 
fronts, and must be directed to a number of actors, including OMB 
and the PIC, as well as agency legal counsel and other agency 
officials leading cross-agency collaboration efforts.
    One key challenge faced by agencies and the public is access to 
information regarding agency planning required by GPRAMA. A 
recommended practice to address this challenge should be aimed at 
increasing transparency on Performance.gov. Another challenge agency 
officials face when attempting to determine which tools to use for 
cross-agency collaboration efforts made pursuant to CAP goals under 
GPRAMA is distinguishing between mission-support CAP goals (which 
are designed to achieve consolidation of standard business functions 
and systems across agencies) and mission-oriented CAP goals (which 
are designed to coordinate authorities to pursue policy goals that 
are shared by multiple agencies). A recommended practice to address 
this challenge should provide clarification to allow agency 
officials to distinguish between the two types of goals so they can 
determine which tools to use.
    Another challenge is the varied and incomplete agency response 
to the GPRAMA requirement that in setting APGs, agencies include a 
description of the agencies, programs, activities and other 
organizations that are related to a particular agency goal. A 
recommended practice to address this challenge should focus on 
encouraging agencies to comply with their responsibilities under 
GPRAMA in this regard. Agency general counsels and other agency 
attorneys play a critical role in helping to foster cross-agency 
collaboration. Accordingly, recommended practices that promote the 
dissemination of information helpful to cross-agency collaboration 
efforts among agency attorneys are needed to address challenges 
presented by the lack of information sharing. Practices focused on 
encouraging agency attorneys to foster expertise and experience in 
building and sustaining cross-agency collaboration are also 
recommended. In addition, other agency officials who lead cross-
agency collaboration efforts face a host of challenges as they try 
to move initiatives forward. A number of recommended best practices 
are offered to these officials to ensure that collaborative efforts 
are maximized and the goals for such initiatives are reached.

Recommendation

    1. Increasing Transparency. To increase transparency, the Office 
of Management and Budget (OMB), working with the Performance 
Improvement Council (PIC), should consider making all past and 
current quarterly status update reports, including those that show 
progress on cross-agency priority (CAP) goals, publicly available 
and searchable on the Performance.gov Web site.
    2. Improving Agency Reporting Under GPRAMA. The PIC should work 
with other relevant agency officials to facilitate greater 
compliance with the GPRAMA requirement that agencies identify all 
organizations (including other agencies, programs, or activities) 
that contribute to the achievement of an agency priority goal (APG). 
OMB should continue to encourage agencies to properly report their 
involvement with other agencies that have made contributions to 
progress on their priority goals, including situations in which two 
agencies coordinate on their respective APGs or a particular APG is 
related to a CAP goal.
    3. Improving Information Sharing. To improve the sharing and 
harmonization of data and information systems or subsystems, the 
PIC, in consultation with other relevant agency officials, should 
identify shared systems and cyber infrastructure within agencies 
that may be utilized, with modifications, to further cross-agency 
streamlining and collaboration. When directed and whenever legally 
permissible, agency attorneys charged with interpreting statutory 
language related to data should work with agency officials to 
facilitate the sharing of information and data among agencies.
    4. Facilitating Better Use of Cross-Agency Collaboration. To 
help agency officials better utilize the tools available for cross-
agency collaboration, OMB and the PIC should:
    (a) clarify the distinction between mission-oriented goals 
(which are designed to coordinate authorities to pursue policy goals 
that are shared by multiple agencies) and mission-supported goals 
(which are designed to achieve consolidation of standard business 
functions and systems across agencies), so that agency officials can 
properly identify the relevant tools to use; and
    (b) encourage agencies to have their legal counsel share, when 
feasible, interagency agreements, memoranda of understanding, forms, 
documents and other information containing specific language that 
has proved useful in facilitating cross-agency collaboration 
efforts.
    5. Enhancing the Role of Agency Legal Counsel. To improve cross-
agency collaboration, when directed and to the extent legally 
permissible:
    (a) agency attorneys should work with agency officials to 
develop interagency agreements, memoranda forms, and other documents 
that would facilitate the process of sharing data and information 
between agencies and protect personally identifiable information; 
and
    (b) agency officials who are leading cross-agency collaborative 
initiatives should engage agency attorneys as early as practicable 
and work with them to determine the best way to coordinate 
authority, information, operations, personnel and resources among 
agencies within the confines of relevant legal and statutory 
requirements.
    6. Enhancing the Role of Other Agency Officials. Agency 
officials leading cross-agency initiatives should undertake the 
following best practices to help facilitate effective cross-agency 
collaboration:
    (a) set and communicate clear, compelling direction, strategy 
and shared goals;
    (b) utilize a variety of collaborative techniques to achieve 
stated goals;
    (c) establish specific roles and responsibilities for agency 
staff;
    (d) develop clear decision-making processes, including conflict 
resolution measures;
    (e) where appropriate and permissible, work with relevant non-
federal stakeholders to gain additional perspective, critique, or 
support for cross-agency collaborative efforts; and

[[Page 76275]]

    (f) build shared evaluation, analytical and measurement tools to 
enable the tracking, monitoring, and improvement of output and 
outcomes across agencies and programs engaged in collaborative 
efforts.
    7. Improving Training for Agency Officials. The PIC should work 
with the Office of Personnel Management (OPM) and with relevant 
agency officials to continue to identify and refine training tools 
that build capacity for cross-agency collaboration among agency 
attorneys and other officials.

Administrative Conference Statement 18

Improving the Timeliness of OIRA Regulatory Review

Adopted December 6, 2013

    For more than three decades, the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget has 
conducted centralized review of federal agencies' draft proposed and 
final regulations. The fundamental structures and principles 
governing the regulatory review process are currently set forth in 
Executive Order (EO) 12,866,\1\ and subsequent EOs have reaffirmed 
this system of regulatory review.\2\ Among other things, Executive 
Order 12,866 requires covered agencies to submit all ``significant 
regulatory actions'' to OIRA for review.\3\ The purposes underlying 
the centralized OIRA regulatory review process include: ensuring 
consistency with applicable laws and presidential priorities; 
enhancing coordination of regulatory policy among federal agencies; 
examining economic analyses accompanying the rule; and making the 
regulatory process more efficient.\4\ OIRA regulatory review serves 
to monitor agency rulemaking activity to ensure adherence with 
administration policy \5\ while also seeking to provide a 
``dispassionate and analytical `second opinion' on agency actions.'' 
\6\
---------------------------------------------------------------------------

    \1\ Exec. Order No. 12,866, 58 FR 51,735 (Oct. 4, 1993). These 
basic structures were carried over from Executive Order 12,291, 
issued during the Reagan Administration. Exec. Order No. 12,291, 46 
FR 13,193 (Feb. 19, 1981).
    \2\ See, e.g., Exec. Order No. 13,563, 76 FR 3821 (Jan. 21, 
2011).
    \3\ Exec. Order No. 12,866 Sec.  6(a)(3)(B)-(C); see also id. 
Sec. Sec.  3(b) (generally defining covered ``[a]genc[ies]'' as 
federal departments and other executive branch establishments, but 
not independent regulatory agencies), 3(f) (defining ``[s]ignificant 
regulatory action'').
    \4\ Id. Sec. Sec.  2(a)-(b), 6(a)(3)(B)-(C), 6(b); see also 
Exec. Order No. 13,563 Sec.  1.
    \5\ Sierra Club v. Costle, 657 F.2d 298, 405 (D.C. Cir. 1981) 
(``The court recognizes the basic need of the President and his 
White House staff to monitor the consistency of agency regulations 
with Administration policy. He and his advisors surely must be 
briefed fully and frequently about rules in the making, and their 
contributions to policymaking considered. The executive power under 
our Constitution, after all, is not shared--it rests exclusively 
with the President.'').
    \6\ President Barack H. Obama, Memorandum on Regulatory Review, 
74 FR 5977 (Jan. 30, 2009).
---------------------------------------------------------------------------

    In order to ensure that OIRA review proceeds in a timely manner, 
EO 12,866 generally requires OIRA to ``waive review or notify the 
agency in writing of the results of its review'' within 90 calendar 
days following submission.\7\ The executive order also provides that 
the review process may be extended ``(1) once by no more than 30 
calendar days upon the written approval of the Director and (2) at 
the request of the agency head.'' \8\
---------------------------------------------------------------------------

    \7\ Exec. Order 12,866 Sec.  6(b)(2). Indeed, this Executive 
Order specifically underscores the importance of timeliness in the 
regulatory review when stating: ``An efficient regulatory planning 
and review process is vital to ensure the Federal Government's 
regulatory system best serves the American people.'' Id. Sec.  2.
    \8\ Id. Sec.  6(b)(2)(C).
---------------------------------------------------------------------------

    Executive review of agency rulemaking, and, more precisely, 
OIRA's role in the review process--though not without controversy 
\9\--are now firmly entrenched fixtures of the administrative 
landscape,\10\ and each administration since at least that of 
President Ronald Reagan has endorsed them.\11\ For such reviews to 
be effective, however, they must be timely. All stakeholders in the 
regulatory process--including the submitting agency, potentially 
regulated entities, other interested participants, and the general 
public--have an interest in seeing the OIRA review process operate 
as efficiently as possible for several reasons: agency regulatory or 
scientific assessments may become out of date when reviews are 
overlong; likewise, regulated markets or industries might experience 
uncertainty when proposed or final rules remain stalled in the 
review process; and, for rules related to health or safety, delay in 
the OIRA review process could well have serious social 
consequences.\12\ In addition, the timing of review process should 
be made as transparent as possible.
---------------------------------------------------------------------------

    \9\ See, e.g., Lisa Heinzerling, Statutory Interpretation in the 
Era of OIRA, 33 Fordham Urb. L.J. 1097 (2006); Alan Morrison, 
Commentary, OMB Interference with Agency Rulemaking: The Wrong Way 
to Write a Regulation, 99 Harv. L. Rev. 1059 (1986); Sidney A. 
Shapiro, OMB and the Politicization of Risk Assessment, 37 Envtl. L. 
1083 (2007); cf. Peter L. Strauss, Overseer, or ``The Decider''? The 
President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007).
    \10\ See, e.g., Elena Kagan, Presidential Administration, 114 
Harv. L. Rev. 2245 (2001); Michael A. Livermore & Richard L. Revesz, 
Regulatory Review, Capture, and Agency Inaction, 101 Geo. L.J. 1337 
(2013); Cass R. Sunstein, Commentary, The Office of Information and 
Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838 
(2013).
    \11\ See Special Edition, OIRA Thirtieth Anniversary Conference, 
63 Admin. L. Rev. 1 (2011). Jim Tozzi, who served at the Office of 
Management and Budget for over 10 years and was instrumental in the 
creation of OIRA, suggests that executive rulemaking review began 
during the Nixon Administration. Id. at 37.
    \12\ Institute for Policy Integrity, Public Comment 1-2 (Oct. 
28, 2013) (noting that delays can postpone realization of benefits 
associated with proposed rules, create uncertainty amongst regulated 
parties, and damage public perception of OIRA). For example, at an 
FDA public meeting on September 19-20, 2013, Sandra Eskin, director 
of food safety at the Pew Charitable Trusts, noted several food 
safety rules that were required by the Food Safety Modernization Act 
in January 2011 had not been issued, and said the ``longer it takes 
these rules to be put in place, the more people will needlessly be 
put at risk and the less confidence consumers will have in the 
safety of the food supply.''
---------------------------------------------------------------------------

    Historically, OIRA has completed most of its reviews of agency 
rules well within the 90-day review period.\13\ For example, from 
1994-2011, the average time for OIRA review was 50 days for all 
rules.\14\ Since 2011, however, average OIRA review times have 
trended significantly upward. In 2012, the average time for OIRA 
review for all rules rose to 79 days, and in the first half of 2013, 
the average review time increased even further to 140 days.\15\ It 
is important to note that, as OIRA completes review for rules that 
have been in the backlog for some time, the average review times 
will likely increase, which evidences an improving situation. 
Approximately four dozen reviews completed in 2013 have taken more 
than a year.\16\
---------------------------------------------------------------------------

    \13\ Curtis W. Copeland, Length of Rule Reviews by the Office of 
Information and Regulatory Affairs 25 (Nov. 1, 2013), available at 
http://acus.gov/sites/default/files/documents/Revised%20Draft%20OIRA%20Report% 20110113% 20CIRCULATED.pdf.
    \14\ See Off. Info. & Reg. Aff., Review Counts, http://www.reginfo.gov/public/do/eoCountsSearchInit?action=init (last 
visited Nov. 14, 2013) (allowing searches of OIRA review counts and 
average review times by date range).
    \15\ Id.
    \16\ Off. Info. & Reg. Aff., Executive Order Review Search 
Results, http://www.reginfo.gov/public/do/eoAdvancedSearch (last 
visited Nov. 14, 2013) (allowing identification of the number and 
length of OIRA reviews completed within a date range). The time 
periods cited herein are for formal review after a complete 
rulemaking package is received by OIRA and do not reflect any 
informal review that may have occurred prior to receipt.
---------------------------------------------------------------------------

    However, average review times and the length of completed 
reviews are lagging indicators of OIRA performance, and the recent 
increases in average review times reflect the significant headway 
that OIRA has made during the past year in reducing the backlog of 
rules and improving review timeliness. The number of ongoing reviews 
lasting more than one year has been cut from 51 reviews in mid-May 
2013 to 27 reviews in mid-September 2013. Of the 38 reviews that, as 
of June 30, 2013, had been ongoing for more than a year, 14 of them 
were completed by mid-September 2013. Rules submitted more recently 
were also being reviewed more quickly. Only 10 percent of the 
reviews of rules submitted between September 2012 and February 2013 
took more than six months to complete, compared to nearly 30 percent 
for reviews completed during the first six months of 2013 
(regardless of when they were submitted).
    Senior agency employees provided a variety of perspectives as to 
why they believe that OIRA review times increased in 2012-13, 
including one or more of the following reasons: (1) Concerns by some 
in the Executive Office of the President (EOP) about the issuance of 
potentially costly or otherwise controversial rules during an 
election year, (2) coordinative reviews by other agencies and 
offices within EOP took more time than in preceding years,\17\ and 
(3)

[[Page 76276]]

a reluctance by OIRA to use return letters. Both senior agency 
employees and other observers (including several former OIRA 
officials) also suggested that a decrease in OIRA staffing in recent 
years may have been another contributing factor. In addition, the 
executive review process has become more complicated for all parties 
involved as regulations have grown increasingly complex, interagency 
coordination has become more important, and various transparency and 
procedural requirements have grown more demanding.
---------------------------------------------------------------------------

    \17\ Notwithstanding these concerns about increased review times 
in the period from 2012-13, the Administrative Conference reaffirms 
the importance of the interagency review process to ensuring that 
rulemaking agencies consider input from sister agencies and the EOP. 
See Administrative Conference of the United States, Recommendation 
88-9, Presidential Review of Rulemaking, ] 1, 54 FR 5207 (Feb. 2, 
1989) (``[Presidential review] can improve the coordination of 
agency actions and resolve conflicts among agency rules and assist 
in the implementation of national priorities.'').
---------------------------------------------------------------------------

    The Administrative Conference has long supported effective 
executive review of agency rulemaking, and has emphasized the 
importance of timeliness and transparency in this process. In 
Recommendation 88-9, the Conference stated that ``[t]he process of 
presidential review of rulemaking, including agency participation, 
should be completed in a timely fashion by the reviewing office and, 
when so required, by the agencies, with due regard to applicable 
administrative, executive, judicial and statutory deadlines.'' \18\ 
Similarly, in Recommendation 93-4, the Conference asserted that 
``the reviewing or oversight entity should avoid, to the extent 
possible, extensive delays in the rulemaking process.'' \19\ The 
Conference has also issued several recommendations advocating a 
transparent OIRA review process.\20\
---------------------------------------------------------------------------

    \18\ Administrative Conference of the United States, 
Recommendation 88-9, Presidential Review of Agency Rulemaking, ] 3, 
54 FR 5207 (Feb. 2, 1989).
    \19\ Administrative Conference of the United States, 
Recommendation 93-4, Improving the Environment for Agency 
Rulemaking, 59 FR 4670 (Feb. 22, 1994).
    \20\ Administrative Conference of the United States, 
Recommendation 88-9, Presidential Review of Rulemaking, ] 5, 54 FR 
5207 (Feb. 2, 1989) (``An agency engaged in informal rulemaking 
should be free to receive guidance concerning that rulemaking at any 
time from the President, members of the Executive Office of the 
President, and other members of the Executive Branch, without having 
a duty to place these communications in the public file of the 
rulemaking unless otherwise required by law. However, official 
written policy guidance from the officer responsible for 
presidential review of rulemaking should be included in the public 
file of the rulemaking once a notice of proposed rulemaking or final 
rule to which it pertains is issued or when the rulemaking is 
terminated without issuance of a final rule.''); Administrative 
Conference of the United States. Recommendation 80-6, 
Intragovernmental Communications in Informal Rulemaking Proceedings, 
] 2, 45 FR 86,407 (Dec. 31, 1980) (``When the rulemaking agency 
receives communications from the President, advisers to the 
President, the Executive Office of the President, or other 
administrative bodies which contain material factual information (as 
distinct from indications of governmental policy) pertaining to or 
affecting a proposed rule, the agency should promptly place copies 
of the documents, or summaries of any oral communications, in the 
public file of the rulemaking proceeding.'').
---------------------------------------------------------------------------

    Building upon these prior Conference initiatives addressing 
executive review, the Conference now offers a discrete set of 
principles for improving the timeliness of review and the 
transparency concerning the causes for delay. The OIRA review 
process involves many components and participants. Delays may not be 
attributable to any single cause but rather can arise from multiple 
factors (and complex interactions amongst them) involving numerous 
players, including OIRA, agencies submitting rules for review, and 
other agencies and offices in the interagency review process 
(including other parts of the EOP). As a result, the Conference 
wishes to highlight a number of principles that OIRA and agencies 
should consider to improve review times and enhance transparency 
concerning the timing of the review process.
    The Conference reaffirms its long-term support of the basic 
presidential regulatory review process \21\ and seeks to ensure that 
it functions as effectively and efficiently as practicable. The 
values of transparency, credibility, management effectiveness, and 
the rule of law apply to the executive review process, even if it is 
not subject to judicial oversight.
---------------------------------------------------------------------------

    \21\ See, e.g., Administrative Conference of the United States, 
Recommendation 93-4, Improving the Environment for Agency 
Rulemaking, 59 FR 4670 (Feb. 1, 1994) (``We continue to support 
presidential coordination of agency policymaking as beneficial and 
necessary.''); Administrative Conference of the United States, 
Recommendation 88-9, Presidential Review of Agency Rulemaking, 54 FR 
5207 (Feb. 2, 1989) (``Presidential review should apply generally to 
federal rulemaking. Such review can improve the coordination of 
agency actions and resolve conflicts among agency rules and assist 
in the implementation of national priorities.''); Administrative 
Conference of the United States, Recommendation 80-6, 
Intragovernmental Communications in Informal Rulemaking Proceedings, 
45 FR 86,407 (Dec. 31, 1980) (``Because the President, as the 
nation's Chief Executive, may be deemed accountable for what 
agencies do, efforts to achieve policy coordination through 
Presidential channels have become increasingly significant.'').
---------------------------------------------------------------------------

    The following principles suggest ways that both OIRA and the 
agencies can promote timely and transparent OIRA review:
    1. The Office of Information and Regulatory Affairs (OIRA) 
should, whenever possible, adhere to the timeliness provisions of 
Executive Order (EO) 12,866. The Administrator of OIRA should 
continue to focus on improving OIRA review times. In so doing, the 
Administrator should consider preparing a publicly available 
document that identifies any specific policies that OIRA, regulatory 
agencies, and other agencies participating in interagency review 
should undertake in order to ensure that the measures of timeliness 
return to historical averages under this executive order.
    2. Agencies and OIRA should coordinate prior to the submission 
of a completed rulemaking package. To the extent possible, OIRA 
should use the regulatory planning process created by section 4 of 
EO 12,866 to identify all of the relevant entities, establish lines 
of communication among them, and create workplans with timelines and 
responsibilities for action. The section 4 process should be used to 
identify the principal factual and policy issues likely to be raised 
by a proposed rulemaking and to convey any presidential priorities 
respecting them. OIRA should hold itself available to mediate such 
disputes among the identified agencies as may arise, and to assure 
that all participating agencies place a high priority on the 
resulting processes, so as not to cause undue delays.
    3. Though OIRA has the final authority for determining which 
rules will be classified as ``significant,'' the agency should 
decide the point at which it will submit a draft rule to OIRA for 
review under EO 12,866. Once an agency has submitted a completed 
rulemaking package with approval from the appropriate senior agency 
official(s) within the meaning of EO 12,866, the clock for the 
review period should commence.
    4. In connection with interagency review, OIRA should promptly 
send the draft rule to all of the relevant entities and, to the 
extent feasible, establish a timeline by which these entities should 
submit comments. All participating entities should place a high 
priority on the review process so as to avoid undue delays.
    5. If OIRA concludes that it will be unable to complete the 
review of an agency's draft rule within a reasonable period of time 
after submission, recognizing the timeframes established in section 
6(b)(2) of EO 12,866 and the nature of the matter--but in no event 
beyond 180 days after submission--OIRA should inform the public as 
to the reasons for the delay or return the rule to the submitting 
agency.
    6. OIRA's staffing authorization should be increased to a level 
adequate to ensure that OIRA can conduct its regulatory reviews 
under EO 12,866 in a timely and effective manner. In addition, or as 
an alternative, staff from rulemaking agencies could be detailed to 
OIRA.

[FR Doc. 2013-29949 Filed 12-16-13; 8:45 am]
BILLING CODE 6110-01-P