[Federal Register Volume 80, Number 123 (Friday, June 26, 2015)]
[Notices]
[Pages 36757-36758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15679]


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 Notices
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  Federal Register / Vol. 80, No. 123 / Friday, June 26, 2015 / 
Notices  

[[Page 36757]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendation

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Administrative Conference of the United States adopted one 
recommendation at its Sixty-second Plenary Session. The appended 
recommendation addresses: Promoting Accuracy and Transparency in the 
Unified Agenda.

FOR FURTHER INFORMATION CONTACT: Reeve Bull, Administrative Conference 
of the United States, Suite 706 South, 1120 20th Street NW., 
Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov. At its Sixty-second Plenary Session, held 
June 4, 2015, the Assembly of the Conference adopted one 
recommendation.
    Recommendation 2015-1, Promoting Accuracy and Transparency in the 
Unified Agenda. This recommendation offers suggestions for improving 
the accuracy and transparency of the Unified Agenda of Federal 
Regulatory and Deregulatory Actions. Among other things, it urges 
agencies to consider providing relevant updates between Agenda 
reporting periods, offers recommendations for ensuring that Agenda 
entries are properly categorized by projected issuance date and status, 
and encourages agencies to provide notice when entries are removed from 
the Agenda.
    The Appendix below sets forth the full text of this recommendation. 
The Conference will transmit it to affected agencies and the Congress. 
The recommendation is not binding, so the entities to which it is 
addressed will make decisions on its implementation.
    The Conference based this recommendation on a research report that 
is posted at: www.acus.gov/62nd. A video of the Plenary Session is 
available at: livestream.com/ACUS/62ndPlenary, and a transcript of the 
Plenary Session will be posted when it is available.

    Dated: June 22, 2015.
Shawne C. McGibbon,
General Counsel.

APPENDIX--RECOMMENDATION OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED 
STATES

Administrative Conference Recommendation 2015-1

Promoting Accuracy and Transparency in the Unified Agenda

Adopted June 4, 2015

    The Unified Agenda of Federal Regulatory and Deregulatory 
Actions (typically known simply as the ``Unified Regulatory Agenda'' 
or ``Unified Agenda'') is an important mechanism by which federal 
agencies inform the public of upcoming rules. Required to be 
published on a semiannual basis, the Unified Agenda represents a 
joint enterprise of the Office of Information and Regulatory Affairs 
(OIRA), the Regulatory Information Service Center (RISC) within the 
General Services Administration, and the individual rulemaking 
agencies working on rules. The database used to produce the Unified 
Agenda is the RISC-OIRA Consolidated Information System (ROCIS). 
Publishing upcoming rules in the Unified Agenda satisfies 
requirements of both the Regulatory Flexibility Act \1\ and 
Executive Order 12,866.\2\
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    \1\ 5 U.S.C. 602(a).
    \2\ Exec. Order No. 12,866, 58 FR 51,735, 51,738 (Oct. 4, 1993).
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    The Unified Agenda serves the useful function of notifying 
stakeholders and the general public of upcoming regulatory 
actions.\3\ In an increasingly globalized world, this notice-serving 
function is valuable not only for domestic stakeholders but also for 
foreign businesses and regulators, who must remain apprised of 
developments in U.S. policymaking in order to coordinate effectively 
in promoting international regulatory cooperation.\4\ Thus, it is 
critical to ensure that the information in the Unified Agenda is as 
accurate as possible to allow regulators and stakeholders to plan 
accordingly.
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    \3\ See Curtis W. Copeland, The Unified Agenda: Proposals for 
Reform 7-8 (Apr. 13, 2015), available at https://www.acus.gov/report/final-unified-agenda-report (cataloguing various 
stakeholders' expressions of support for the Unified Agenda and 
recent uses thereof).
    \4\ See Administrative Conference of the United States, 
Recommendation 2011-6, International Regulatory Cooperation, ] 3, 77 
FR 2257, 2260 (Jan. 17, 2012) (advocating the establishment of 
common regulatory agendas among trading partners).
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    At the same time, it is unrealistic to expect that agencies can 
provide perfectly accurate predictions of upcoming actions. There 
will always be some uncertainty, given the dynamic environment in 
which agencies operate, and the information contained in the Unified 
Agenda will never achieve total predictive accuracy. The Agenda 
itself states that agencies are permitted to issue rules that were 
not predicted by the Agenda and are not required to issue rules that 
were so predicted. In addition, agencies may have limited time or 
resources to prepare Agenda entries.
    The Unified Agenda functions reasonably well as a predictor of 
some agency actions, but is less accurate in other areas.\5\ For 
example, estimated action dates may prove incorrect, the 
significance of a regulation may be misclassified, and jointly 
issued rules may inappropriately be characterized differently by 
different agencies. Additionally, some rules are classified as long-
term actions when regulatory activity is imminent, while others 
remain listed as long-term actions after work on them has ceased. 
Occasionally, entries are removed from the Unified Agenda without 
explanation. Finally, a number of regulatory actions have recently 
been placed in a ``pending'' category that is not included in the 
published Unified Agenda.\6\
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    \5\ See generally Copeland, supra note 3.
    \6\ One consequence of eliminating the ``pending'' category and 
moving all active entries to the public-facing Unified Agenda, as 
recommended below, may be an increase in the total number of 
regulations in the Agenda, even though the number of rules under 
development has not actually increased.
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    As technology has evolved, some agencies have begun to provide 
periodic updates on the progress of their rulemaking efforts on 
their Web sites and other media between the semiannual Agenda 
publication dates. Though this may not prove feasible in all 
instances, there are steps that agencies, OIRA, and RISC might take 
to ensure that the public has consolidated access to this 
information to the extent this updating takes place.\7\
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    \7\ It may prove especially valuable for agencies' Unified 
Agenda entries to provide a link to the rulemaking docket on 
``regulations.gov.''
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    The touchstone of the process should be transparency: although 
complete predictive accuracy is infeasible, all agencies that 
contribute to the Unified Agenda should strive to ensure that it 
offers the most up-to-

[[Page 36758]]

date, valuable information possible. The following recommendations 
are designed to identify straightforward, simple steps that OIRA, 
RISC, and rulemaking agencies can take to enhance the predictive 
accuracy of the Unified Agenda and ensure that it remains a valuable 
resource for regulators, stakeholders, and the general public.

Recommendation

    1. Federal agencies should take steps to provide on their Web 
sites and/or, where appropriate, through other media, periodic 
updates concerning rulemaking developments outside of the semiannual 
reporting periods connected with the Unified Agenda. These periodic 
updates would likely focus primarily on concrete actions undertaken 
in connection with particular rules (e.g., noting if a rule has been 
issued since the last Agenda), but could also include changes 
regarding rules still under development (e.g., revisions to 
predicted issuance dates or significance classification). Each 
agency's Unified Agenda entry should include a notice of where 
information about updates can be found; if updates are published on 
the agency's Web site, a link to the appropriate Web pages should be 
included in the Unified Agenda. OIRA and RISC should also facilitate 
sharing among agencies of best practices for providing periodic, 
digital updates on rulemaking developments.
    2. OIRA and RISC should provide a mechanism for linking the 
information contained in the Unified Agenda and other regulatory 
data systems (e.g., the Federal Register and other parts of ROCIS) 
that would, where feasible, enable the Agenda information to be 
updated automatically. For example, if the Unified Agenda indicates 
that a proposed rule is forthcoming, and that rule is published in 
the Federal Register months before the next edition of the Agenda is 
issued, the Federal Register entry should result in an automatic 
update to the Agenda.
    3. Federal agencies should not keep regulations that are still 
under active development in a ``pending'' category. The ``pending'' 
category should be included in the published Unified Agenda. OIRA 
should define the criteria distinguishing between ``long term'' and 
``pending'' actions.
    4. In instances in which a Unified Agenda entry has been in the 
``proposed rule'' or ``final rule'' stage for three or more Agendas 
in a row, the agency should reexamine the entry to determine whether 
action on it is likely in the twelve months after the publication of 
the most recent Agenda. If not, the agency should reclassify the 
entry as a ``long-term'' action or, if the regulatory action is no 
longer in development, remove it from the Unified Agenda entirely, 
with the notation described in recommendation 7. If the agency is 
uncertain as to whether the proposed or final rule might be issued 
within twelve months, it should provide, where appropriate, an 
explanation in the associated Agenda entry.
    5. To the extent feasible, agencies should ensure that any 
regulatory actions that are likely to occur in the ensuing twelve 
months (e.g., hearings or proposed or final rules) are included in 
the appropriate active ``Stage of Rulemaking'' category (i.e., the 
``prerule,'' ``proposed rule,'' or ``final rule'' stage), rather 
than in the ``long-term'' action category. Long-term actions are 
intended to reflect items that are under development but for which 
the agency does not expect to undertake a regulatory action in the 
twelve months after the publication of the most recent Agenda.
    6. In instances in which a Unified Agenda entry has been in the 
``long-term'' category for an extended period of time, the agency 
should reexamine the entry to ensure that it is still under 
development. If not, the agency should remove the entry from the 
Unified Agenda, with the notation described in recommendation 7.
    7. Unified Agenda entries that have previously appeared in the 
Agenda should not simply disappear in the next edition. When an 
agency determines that it no longer intends to pursue any additional 
rulemaking activity with respect to such an entry, the agency should 
reclassify the entry as completed and indicate how the action was 
completed.
    8. For rules expected to be jointly issued by more than one 
agency, the agencies should strive to ensure that the descriptive 
information provided in the Unified Agenda, including the timing of 
the rule's issuance and its classification as a ``significant'' or 
``major'' regulatory action, is accurate across all of the agencies' 
entries. To the extent possible, OIRA and RISC should encourage 
agencies to publish a single Agenda entry for the joint rule. Where 
this is not possible, each agency's Unified Agenda entry should 
include a link to the other associated entry or entries.
    9. At present, the Regulatory Flexibility Act (RFA) elements of 
the Unified Agenda and associated materials are ambiguous, making it 
difficult for agencies to know how to respond. For example, it is 
currently unclear if agencies should indicate whether an upcoming 
regulatory action is expected to have a significant economic impact 
on a substantial number of small entities or whether some type of 
RFA analysis will be conducted. OIRA should change the wording of 
the RFA elements in the Unified Agenda and associated materials to 
reflect the intent more clearly and should provide guidance to 
agencies to ensure that the meaning is clear.

[FR Doc. 2015-15679 Filed 6-25-15; 8:45 am]
 BILLING CODE 6110-01-P