Adoption of Recommendations, 75114-75120 [2014-29546]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 79, Number 242 (Wednesday, December 17, 2014)]
[Notices]
[Pages 75114-75120]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29546]


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Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / 
Notices

[[Page 75114]]



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 
three recommendations at its Sixty-First Plenary Session. The appended 
recommendations address: Retrospective Review of Agency Rules; 
Petitions for Rulemaking; and Best Practices for Using Video 
Teleconferencing for Hearings.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2014-5, Reeve Bull; 
for Recommendation 2014-6, Emily Bremer; and for Recommendation 2014-7, 
Amber Williams. For all three of these actions the address and 
telephone 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 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-First Plenary Session, held 
December 4-5, 2014, the Assembly of the Conference adopted three 
recommendations.
    Recommendation 2014-5, Retrospective Review of Agency Rules. This 
recommendation examines agencies' procedures for reanalyzing and 
amending existing regulations and offers recommendations designed to 
promote a culture of retrospective review at agencies. Among other 
things, it urges agencies to plan for retrospective review when 
drafting new regulations; highlights considerations germane to 
selecting regulations for reevaluation; identifies factors relevant to 
ensuring robust review; and encourages agencies to coordinate with the 
Office of Management and Budget, other agencies, and outside entities 
(including stakeholders and foreign regulators) when designing and 
conducting retrospective reviews.
    Recommendation 2014-6, Petitions for Rulemaking. This 
recommendation identifies agency procedures and best practices for 
accepting, processing, and responding to petitions for rulemaking. It 
seeks to ensure that the public's right to petition is a meaningful 
one, while still respecting the need for agencies to retain decisional 
autonomy. Building upon ACUS's previous work on the subject, it 
provides additional guidance that may make the petitioning process more 
useful for agencies, petitioners, and the public.
    Recommendation 2014-7, Best Practices for Using Video 
Teleconferencing for Hearings. This recommendation offers practical 
guidance regarding how best to conduct video hearings, and addresses 
the following subjects: Equipment and environment, training, financial 
considerations, procedural practices, fairness and satisfaction, and 
collaboration among agencies. It also provides for the development of a 
video hearings handbook by ACUS's Office of the Chairman.
    The Appendix below sets forth the full texts of these three 
recommendations. The Conference will transmit them to affected 
agencies, Congress, and the Judicial Conference of the United States. 
The recommendations are not binding, so the entities to which they are 
addressed will make decisions on their implementation.
    The Conference based these recommendations on research reports that 
are posted at: www.acus.gov/61st. A video of the Plenary Session is 
available at: new.livestream.com/ACUS/61stPlenarySession, and a 
transcript of the Plenary Session will be posted when it is available.

    Dated: December 12, 2014.
Shawne C. McGibbon,
General Counsel.

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

Administrative Conference Recommendation 2014-5

Retrospective Review of Agency Rules

Adopted December 4, 2014

Executive Summary

    The following recommendation is intended to provide a framework 
for cultivating a ``culture of retrospective review'' within 
regulatory agencies. It urges agencies to remain mindful of their 
existing body of regulations and the ever-present possibility that 
those regulations may need to be modified, strengthened, or 
eliminated in order to achieve statutory goals while minimizing 
regulatory burdens. It encourages agencies to make a plan for 
reassessing existing regulations and to design new regulations in a 
way that will make later retrospective review easier and more 
effective. It recognizes that input from stakeholders is a valuable 
resource that can facilitate and improve retrospective review. 
Finally, it urges agency officials to coordinate with other agencies 
and the Office of Management and Budget to promote coherence in 
shared regulatory space.

Preamble

    Traditionally, federal regulatory policymaking has been a 
forward-looking enterprise: Congress delegates power to 
administrative agencies to respond to new challenges, and agencies 
devise rules designed to address those challenges. Over time, 
however, regulations may become outdated, and the cumulative burden 
of decades of regulations issued by numerous federal agencies can 
both complicate agencies' enforcement efforts and impose a 
substantial burden on regulated entities. As a consequence, 
Presidents since Jimmy Carter have periodically undertaken a program 
of ``retrospective review,'' urging agencies to reassess regulations 
currently on the books and eliminate, modify, or strengthen those 
regulations that have become outmoded in light of changed 
circumstances.\1\ Agencies have also long been subject to more 
limited regulatory lookback requirements, including the Regulatory 
Flexibility Act, which requires agencies to review regulations 
having ``a significant economic impact upon a substantial number of 
small entities'' \2\

[[Page 75115]]

within ten years of issuance, and program-specific retrospective 
review requirements erected by statute.\3\
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    \1\ Joseph E. Aldy, Learning from Experience: An Assessment of 
Retrospective Reviews of Agency Rules & the Evidence for Improving 
the Design & Implementation of Regulatory Policy 4 (Nov. 17, 2014), 
available at https://www.acus.gov/report/retrospective-review-report.
    \2\ 5 U.S.C. 610.
    \3\ Aldy, supra note 1, at 4.
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    Though historical retrospective review efforts have resulted in 
some notable successes,\4\ especially in those instances in which 
high-level leadership in the executive branch and individual 
agencies has strongly supported these endeavors,\5\ retrospective 
review of regulations has not been held to the same standard as 
prospective review, and the various statutory lookback requirements 
apply only to subsets of regulations. President Barack Obama has 
sought to build on these initiatives in several executive orders. On 
January 18, 2011, he issued Executive Order (E.O.) 13,563,\6\ which 
directed executive branch agencies regularly to reassess existing 
rules to identify opportunities for eliminating or altering 
regulations that have become ``outmoded, ineffective, insufficient, 
or excessively burdensome.'' \7\ Shortly thereafter, he issued 
another order encouraging independent regulatory agencies to pursue 
similar regulatory lookback efforts (E.O. 13,579 \8\) and yet 
another order providing a more detailed framework for retrospective 
review in executive branch agencies (E.O. 13,610 \9\).
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    \4\ See generally Martha Derthick & Paul J. Quirk, The Politics 
of Deregulation (1985).
    \5\ See generally John Kamensky, National Partnership for 
Reinventing Government: A Brief History (Jan. 1999), available at 
https://govinfo.library.unt.edu/npr/whoweare/history2.html 
(highlighting the successes of the Clinton Administration's National 
Performance Review and emphasizing the importance of high-level 
executive branch and agency leadership).
    \6\ 76 FR 3821 (Jan. 21, 2011).
    \7\ Id. Sec.  6.
    \8\ 76 FR 41587 (July 14, 2011).
    \9\ 77 FR 28469 (May 14, 2012).
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    The Administrative Conference has long endorsed agencies' 
efforts to reevaluate and update existing regulations. In 1995, the 
Conference issued a recommendation stating that ``[a]ll agencies 
(executive branch or `independent') should develop processes for 
systematic review of existing regulations to determine whether such 
regulations should be retained, modified or revoked'' and offering 
general guidance by which agencies might conduct that analysis.\10\ 
In addition, in early 2011, shortly after the promulgation of EO 
13,563, the Conference hosted a workshop designed to highlight best 
practices for achieving the EO's goals.\11\
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    \10\ Administrative Conference of the United States, 
Recommendation 95-3, Review of Existing Agency Regulations, 60 FR 
43108, 43109 (Aug. 18, 1995).
    \11\ Administrative Conference of the United States, 
Retrospective Review of Existing Regulations, Workshop Summary (Mar. 
10, 2011), https://www.acus.gov/fact-sheet/retrospective-review-workshop-summary.
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    Administrative law scholars and other experts have debated the 
effectiveness of existing retrospective review efforts. E.O. 13,610 
touts the elimination of ``billions of dollars in regulatory costs 
and tens of millions of hours in annual paperwork burdens'' achieved 
under the EO 13,563 framework and promises additional savings.\12\ 
Cass Sunstein, the former Administrator of the Office of Information 
and Regulatory Affairs (OIRA), has suggested that these initiatives 
have yielded billions of dollars in savings.\13\ Nevertheless, many 
criticize the existing system of regulatory lookback as inadequate, 
especially insofar as it relies upon individual agencies to reassess 
their own regulations and provides few incentives for ensuring 
robust analysis of existing rules.\14\ From the opposite 
perspective, many criticize current retrospective review efforts as 
inherently deregulatory, possessing a strong bias in favor of 
eliminating or weakening regulations rather than strengthening 
regulations that may be insufficiently protective.\15\
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    \12\ Exec. Order No. 13,610, Sec.  1, 77 FR 28469, 28469 (May 
14, 2012).
    \13\ Cass R. Sunstein, Simpler: The Future of Government 180-84 
(2013) (highlighting successful retrospective review efforts, 
including a Department of Health and Human Services reform to 
reporting requirements saving $5 billion over five years and a 
Department of Labor rule to harmonize hazard warnings with the 
prevailing international practice saving $2.5 billion over five 
years); see also Memorandum from President Ronald Reagan on the 
Review of Federal Regulatory Programs (Dec. 15, 1986) (describing 
the results of the Presidential Task Force on Regulatory Relief, 
which included ``substantial changes to over 100 existing burdensome 
rules'' that ``sav[ed] businesses and consumers billions of dollars 
each year'').
    \14\ See, e.g., Reeve T. Bull, Building a Framework for 
Governance: Retrospective Review & Rulemaking Petitions, _ Admin. L. 
Rev. _ (forthcoming 2015); Cary Coglianese, Moving Forward with 
Regulatory Lookback, 30 Yale J. on Reg. 57A, 60A (2013); Michael 
Mandel & Diana G. Carew, Progressive Policy Institute Policy Memo, 
Regulatory Improvement Commission: A Politically Viable Approach to 
U.S. Regulatory Reform 13 (May 2013).
    \15\ See, e.g., Michael A. Livermore & Jason A. Schwarz, 
Unbalanced Retrospective Regulatory Review, Penn Program on 
Regulation RegBlog, July 12, 2012, https://www.regblog.org/2012/07/12-livermore-schwartz-review.html; Rena Steinzor, The Real 
``Tsunami'' in Federal Regulatory Policy, CPRBlog, May 22, 2014, 
https://www.progressivereform.org/CPRBlog.cfm?idBlog=2480725C-9CC8-717D-E8DE6C4C4A5FF6EB.
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    Ultimately, a system of ``self-review,'' in which individual 
agencies are responsible for evaluating their own regulations and, 
to the extent permitted by law, modifying, strengthening, or 
eliminating those that are deemed to be outdated, can only succeed 
if agencies promote a ``culture of retrospective review.'' \16\ 
Without a high-level commitment, any regulatory lookback initiative 
runs the risk of devolving into an exercise of pro forma compliance. 
This might not be an inevitable outcome, however. If the relevant 
agency officials, including both those conducting retrospective 
reviews and those drafting new rules, come to view regulation as an 
ongoing process whereby agency officials recognize the uncertainty 
inherent in the policymaking exercise and continually reexamine 
their regulations in light of new information and evolving 
circumstances, a durable commitment can emerge.\17\ Regulatory 
review should not only be a backward-looking exercise; rather, it 
should be present from the beginning as part of an on-going culture 
of evaluation and iterative improvement. Planning for reevaluation 
and regulatory improvement (including defining how success will be 
measured and how the data necessary for this measurement will be 
collected) should be considered an integral part of the development 
process for appropriate rules. This culture of evaluation and 
improvement is already part of many government programs, but not yet 
of most regulatory programs.
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    \16\ Aldy, supra note 1, at 47-48; Coglianese, supra note 14, at 
66A.
    \17\ Aldy, supra note 1, at 47-48.
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    This recommendation aims to help agencies create such a culture 
of retrospective review. To promote robust retrospective analysis, 
agency officials must see it as critical to advancing their 
missions. To obtain this ``buy-in,'' these officials must have a 
framework for performing the required analysis and possess adequate 
resources for conducting the necessary reviews (such that doing so 
is wholly integrated into agencies' other responsibilities rather 
than serving to displace those existing responsibilities). Given the 
costs of performing robust retrospective analysis, it is critical 
that agencies have adequate resources such that conducting 
retrospective review does not detract from other aspects of their 
regulatory missions. Thus, the recommendation sets forth 
considerations relevant both to identifying regulations that are 
strong candidates for review and for conducting retrospective 
analysis.\18\ In addition, the recommendation encourages agencies to 
integrate retrospective analysis into their policymaking framework 
more generally, urging them not only to reevaluate existing 
regulations but also to design new regulations with an eye towards 
later reexamination and to consider the cumulative regulatory 
burden. In doing so, agencies should identify data collection needs 
and consider other regulatory drafting strategies that can help them 
later determine whether the regulation achieved its purpose.\19\ 
Finally, the recommendation identifies opportunities for conserving 
agency resources by taking advantage of

[[Page 75116]]

internal and external sources of information and expertise. In many 
instances, stakeholders may be able to furnish information to which 
agency officials otherwise lack access.\20\ In other cases, overseas 
regulators may have confronted similar regulatory problems, and 
incorporating these approaches would have the double benefit of 
avoiding duplication of effort and providing opportunities for 
eliminating unnecessary regulatory divergences.\21\ Further, the 
information generated from retrospective review has the potential to 
conserve resources during future regulatory development of similar 
rules by informing ex ante regulatory analysis, which in turn 
improves the quality of new regulations.\22\
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    \18\ In 2011, the Conference recommended that agencies 
periodically review regulations that have incorporated by reference 
material published elsewhere in order to ensure that they are 
updated as appropriate and contain complete and accurate access 
information. Administrative Conference of the United States, 
Recommendation 2011-5, Incorporation by Reference, ]] 6-10, 77 FR 
2257, 2259 (Jan. 17, 2012).
    \19\ Some scholars propose the use of experimental methods and 
data-driven evaluation techniques in order to identify the actual 
impacts caused by regulations and determine whether they are 
achieving their intended outcomes. John DiNardo & David S. Lee, 
Program Evaluation & Research Designs, in 4A Handbook of Labor 
Economics 463-536 (2011); see also generally Joseph S. Wholey, Harry 
P. Hatry, & Kathryn E. Newcomer, Handbook of Practical Program 
Evaluation (3d ed. 2010). This might include, among other things, 
taking the opportunity of pilot projects and regulatory phase-ins to 
test different regulatory approaches. Some scholars also propose the 
use of alternative regulatory mechanisms and other innovative 
approaches designed to lessen regulatory burdens while ensuring 
appropriate levels of regulatory protection.
    \20\ Aldy, supra note 1, at 25-26, 70-71; see generally Bull, 
supra note 14 (proposing a system whereby private entities would use 
petitions for rulemaking to urge agencies to adopt less burdensome 
alternatives to existing regulations while preserving existing 
levels of regulatory protection). Agencies should nevertheless 
recognize that private and non-governmental entities' interests may 
not align with public interests and that established firms may 
actually defend regulations that create barriers to entry for newer, 
smaller competitors. Susan E. Dudley & Jerry Brito, Regulation: A 
Primer 18-19 (2d ed. 2012) (describing the so-called ``bootleggers 
and Baptists'' phenomenon, whereby businesses that benefit from 
market interventions may make common cause with civil society groups 
that advocate such policies for other reasons).
    \21\ Exec. Order No. 13,609, Sec.  1, 77 FR 26413, 26413 (May 4, 
2012); Administrative Conference of the United States, 
Recommendation 2011-6, International Regulatory Cooperation, ] 4, 77 
FR 2259, 2260 (Jan. 17, 2012).
    \22\ Peter H. Schuck, Why Government Fails So Often and How It 
Can Do Better 57 (2014).
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    Though the recommendation identifies certain common principles 
and opportunities for promoting robust retrospective analysis, it 
accepts the fact that each agency must tailor its regulatory 
lookback procedures to its statutory mandates, the nature of its 
regulatory mission, its competing priorities, and its current 
budgetary resources. In short, retrospective review is not a ``one-
size-fits-all'' enterprise. In addition, as optimal regulatory 
approaches may evolve over time, so too may retrospective review 
procedures. Therefore, the recommendation avoids an overly rigid 
framework. Rather, it identifies considerations and best practices 
that, over time, should help foster a regulatory approach that 
integrates retrospective analysis as a critical element of agency 
decisionmaking and that accounts for the uncertainty inherent in 
regulatory policymaking at all stages of the process. The overall 
goal is to move away from a model of retrospective analysis as an 
episodic, top-down reporting and compliance obligation to one where 
agencies internalize a culture of retrospective review as part of 
their general regulatory mission.

Recommendation

Value of Retrospective Review

    1. The Conference endorses the objectives of Executive Orders 
13,563, 13,579, and 13,610 with respect to retrospective review of 
existing regulations. Agencies should work with the Office of 
Management and Budget (OMB), as appropriate, to develop 
retrospective review into a robust feature of the regulatory system.

Integrating Retrospective Review Into New Regulations

    2. When formulating new regulations, agencies should, where 
appropriate, given available resources, priorities, authorizing 
statutes, nature of the regulation, and impact of the regulation, 
establish a framework for reassessing the regulation in the future 
and should consider including portions of the framework in the 
rule's preamble. The rigor of analysis should be tailored to the 
rule being reviewed. The agencies should consider including the 
following in the framework:
    (a) The methodology by which they intend to evaluate the 
efficacy of and the impacts caused by the regulation, including 
data-driven experimental or quasi-experimental designs where 
appropriate, taking into account the burdens to the public in 
supplying relevant data to agencies.
    (b) A clear statement of the rule's intended regulatory results 
with some measurable outcome(s) and a plan for gathering the data 
needed to measure the desired outcome(s). To the extent feasible, 
objectives should be outcome-based rather than output-based. 
Objectives may include measures of both benefits and costs (or cost-
effectiveness), as appropriate.
    (c) Key assumptions underlying any regulatory impact analysis 
being performed on the regulation. This should include a description 
of the level of uncertainty associated with projected regulatory 
costs and benefits, consistent with OMB Circular A-4.
    (d) A target time frame or frequency with which they plan to 
reassess the proposed regulation.
    (e) A discussion of how the public and other governmental 
agencies (federal, state, tribal, and local) will be involved in the 
review.

Agencies that have systematic review plans available on the internet 
that set forth the process and a schedule for their review of 
existing rules may address the recommendations in subparagraphs (a)-
(e), as appropriate, by reference to their plans.
    3. When reviewing new regulations, the Office of Information and 
Regulatory Affairs (OIRA) should facilitate planning for subsequent 
retrospective review to the extent appropriate. Agencies should 
consider including a section in the preamble of their proposed and 
final rules that accounts separately for paperwork burdens 
associated with the collection of data to facilitate retrospective 
review and should note that data gaps can impede subsequent 
retrospective review (though the paperwork burden would still be 
included in the total cost of the instant rule).
    4. Where it is legally permissible and appropriate, agencies 
should consider designing their regulations in ways that allow 
alternative approaches in the rule that could help the agency in a 
subsequent review of the rule to determine whether there are more 
effective approaches to implementing its regulatory objective. For 
example, agencies could allow for experimentation, innovation, 
competition, and experiential learning (calling upon the insights of 
internal statistical offices, as well as policy and program 
evaluation offices, in order to design plans for reassessing 
regulations, to the extent they have such resources). As recommended 
by OMB Circular A-4, agencies should consider allowing states and 
localities greater flexibility to tailor regulatory programs to 
their specific needs and circumstances and, in so doing, to serve as 
a natural experiment to be evaluated by subsequent retrospective 
review. Statutes that authorize shared responsibility among 
different levels of government may be amenable to such flexibility.

Prioritizing Regulations for Retrospective Analysis

    5. In light of resource constraints and competing priorities, 
agencies should adopt and publicize a framework for prioritizing 
rules for retrospective analysis. Agency frameworks should be 
transparent and enable the public to understand why the agency 
prioritized certain rules for review in light of the articulated 
selection criteria. Though considerations will vary from agency to 
agency and program to program, the following factors can help 
identify strong candidates for retrospective review that could 
inform regulatory revision:
    (a) Likelihood of improving attainment of statutory objective;
    (b) Likelihood of increasing net benefits and magnitude of those 
potential benefits;
    (c) Uncertainty about the accuracy of initial estimates of 
regulatory costs and benefits;
    (d) Changes in the statutory framework under which the 
regulation was issued;
    (e) Cumulative regulatory burden created by the regulation at 
issue and related regulations (including those issued by other 
agencies);
    (f) Changes in underlying market or economic conditions, 
technological advances, evolving social norms, public risk 
tolerance, and/or standards that have been incorporated by 
reference;
    (g) Internal agency administrative burden associated with the 
regulation;
    (h) Comments, petitions, complaints, or suggestions received 
from stakeholder groups and members of the public;
    (i) Differences between U.S. regulatory approaches and those of 
key international trading partners;
    (j) Complexity of the rule (as demonstrated by poor compliance 
rates, amount of guidance issued, remands from the courts, or other 
factors); and
    (k) Different treatment of similarly situated persons or 
entities (including both regulated parties and regulatory 
beneficiaries).

To the extent applicable, agencies should consider both the initial 
estimates of regulatory costs and benefits, and any additional 
evidence suggesting that those estimates are no longer accurate.
    6. Though agencies will likely focus their retrospective 
analysis resources primarily on important regulations as identified 
by the foregoing factors, they should also take advantage of simple 
opportunities to improve

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regulations when the changes are relatively minor (e.g., allowing 
electronic filing of forms in lieu of traditional paper filing).

Performing Retrospective Analysis

    7. When conducting retrospective analysis of existing 
regulations, agencies should consider whether the regulations are 
accomplishing their intended purpose or whether they might, to the 
extent permitted by law, be modified, strengthened, or eliminated in 
order to achieve statutory goals more faithfully, minimize 
compliance burdens on regulated entities, or more effectively confer 
regulatory benefits. The level of rigor of retrospective analysis 
will depend on a variety of factors and should be tailored to the 
circumstances. As appropriate and to the extent resources allow, 
agencies should employ statistical tools to identify the impacts 
caused by regulations, including their efficacy, benefits, and costs 
and should also consider the various factors articulated in 
recommendation 5 in determining how regulations might be modified to 
achieve their intended purpose more effectively.
    8. Agencies should consider assigning the primary responsibility 
for conducting retrospective review to a set of officials other than 
those responsible for producing or enforcing the regulation, if 
adequate resources are available. Reviewing officials should 
coordinate and collaborate with rule producers and enforcers.
    9. Agencies should periodically evaluate the results of their 
retrospective reviews and determine whether they are identifying 
common problems with the effectiveness of their rule development and 
drafting practices that should be addressed.

Inter-Agency Coordination

    10. Agencies should coordinate their retrospective reviews with 
other agencies that have issued related regulations in order to 
promote a coherent regulatory scheme that maximizes net benefits. 
Agencies and OMB should also consider creating a high-level 
organization responsible for promoting coordination between agencies 
in their retrospective review efforts (or assigning this function to 
an existing entity, such as the Regulatory Working Group).
    11. In conducting retrospective review, agencies should consider 
regulations adopted by key trading partners and examine the 
possibility of either harmonizing regulatory approaches or 
recognizing foreign regulations as equivalent to their U.S. 
counterparts when doing so would advance the agency mission or 
remove an unnecessary regulatory difference without undermining that 
mission.
    12. OIRA should consider formulating a guidance document that 
highlights any considerations common to agency retrospective 
analyses generally.

Promoting Outside Input

    13. Regulated parties, non-governmental organizations, 
academics, and other outside entities or individuals may possess 
valuable information concerning both the impact of individual 
regulations and the cumulative impact of a body of regulations 
issued by multiple agencies to which individual agencies might not 
otherwise have access. Agencies should leverage outside expertise 
both in reassessing existing regulations and devising retrospective 
review plans for new regulations. In so doing, agencies should be 
mindful of the potential applicability of the Paperwork Reduction 
Act, and agencies and OMB should utilize flexibilities within the 
Act and OMB's implementing regulations (e.g., a streamlined comment 
period for collections associated with proposed rules) where 
permissible and appropriate. Agencies should also consider using 
social media, as appropriate, to learn about actual experience under 
the relevant regulation(s).
    14. Agencies should disclose relevant data concerning their 
retrospective analyses of existing regulations on 
``regulations.gov,'' their Open Government Web pages, and/or other 
publicly available Web sites. In so doing, to the extent 
appropriate, agencies should organize the data in ways that allow 
private parties to recreate the agency's work and to run additional 
analyses concerning existing rules' effectiveness. Agencies should 
encourage private parties to submit information and analyses and 
should integrate relevant information into their retrospective 
reviews.

Ensuring Adequate Resources

    15. Agencies and OMB should consider agencies' retrospective 
review needs and activities when developing and evaluating agency 
budget requests. To the extent that agencies require additional 
resources to conduct appropriately searching retrospective reviews, 
Congress should fund agencies as necessary.

Administrative Conference Recommendation 2014-6

Petitions for Rulemaking

Adopted December 5, 2014

    Under the Administrative Procedure Act (APA), federal agencies 
are required to ``give . . . interested person[s] the right to 
petition for the issuance, amendment, or repeal of a rule.'' \1\ The 
statute generally does not establish procedures agencies must 
observe in connection with petitions for rulemaking. It does, 
however, require agencies to respond to petitions for rulemaking 
``within a reasonable time,'' \2\ and to give petitioners ``prompt 
notice'' when a petition is denied in whole or in part, along with 
``a brief statement of the grounds for denial.'' \3\ Beyond the 
APA's general right to petition, Congress has occasionally granted 
more specific rights to petition under individual statutes, such as 
the Clean Air Act.\4\ Although agency denials of petitions for 
rulemaking are subject to judicial review, the ``courts have 
properly limited their scope of review in this context.'' \5\
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    \1\ 5 U.S.C. 553(e). This provision ensures that the people's 
right to petition the government, which is protected by the First 
Amendment, see U.S. Const. amend. I, is also an important part of 
the rulemaking process. Although certain matters are exempt from the 
requirements of 5 U.S.C. 553, see U.S.C. 553(a), the Administrative 
Conference has previously taken the position that public 
participation in agency rulemaking on these matters, including 
through petitions for rulemaking, may be beneficial. See 
Administrative Conference of the United States, Recommendation 86-6, 
Petitions for Rulemaking, 51 FR 46988 n.2 (Dec. 30, 1986).
    \2\ 5 U.S.C. 555(b).
    \3\ 5 U.S.C. 555(e). The APA exempts agencies from the 
requirement of providing a ``brief statement of the grounds for 
denial'' when it is ``affirming a prior denial or when the denial is 
self-explanatory.'' Id.
    \4\ See, e.g., 42 U.S.C. 7671a(c)(3), 7671e(b), 7671j(e). 
Statutory petition provisions such as these may impose additional 
procedural requirements beyond those contained in the APA or 
identify substantive requirements that must be met before the agency 
can act.
    \5\ Administrative Conference of the United States, 
Recommendation 95-3, Review of Existing Agency Regulations, 60 FR 
43,109 (Aug. 18, 1995). In general, courts do not require agencies 
to respond to every individual issue raised in a petition (let alone 
every issue raised in comments on petitions), so long as the 
administrative record demonstrates a reasoned response on the whole. 
Cf. Nader v. FAA, 440 F.2d 292, 294 (D.C. Cir. 1971); WildEarth 
Guardians v. Salazar, 741 F. Supp. 2d 89, 104 n.21 (D.D.C. 2012). In 
Connecticut v. Daley, a district court raised the ``question whether 
the [agency] must respond in detail to each and every comment 
received, or if [it] is only required to respond to what was raised 
in the actual petition for rule making.'' 53 F. Supp. 2d 147, 170 
(D. Conn. 1999). Although the court did not resolve that question, 
it noted that 5 U.S.C. 555(e) requires agencies to briefly explain 
only why a ``petition'' was denied, impliedly not extending the 
required response to comments on petitions (citing WWHT, Inc. v. 
FCC, 656 F.2d 807, 813 (D.C. Cir. 1981) (emphasis added by D. 
Conn.)).
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    The Administrative Conference has previously recommended basic 
procedures to help agencies meet the APA's minimum requirements and 
respond promptly to petitions for rulemaking.\6\ An Administrative 
Conference study of agency procedures and practices with respect to 
petitions for rulemaking has revealed, however, that further 
improvement is warranted.\7\ Nearly thirty years after the 
Administrative Conference first examined this issue, few agencies 
have in place official procedures for accepting, processing, and 
responding to petitions for rulemaking.\8\ How petitions are 
received and treated varies across--and even within--agencies. In 
some cases, agency personnel do not even know what their agency's 
procedures are for handling petitions. Although the petitioning 
process can be a tool for enhancing public engagement in rulemaking, 
in practice most

[[Page 75118]]

petitions for rulemaking are filed by sophisticated stakeholders and 
not by other interested members of the public. Some petitioners 
report that it can be difficult to learn the status of a previously 
filed petition, agency communication throughout the process can be 
poor, response times can be slow, and agency explanations for 
denials can be minimal and predominantly non-substantive.\9\
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    \6\ See Administrative Conference of the United States, 
Recommendation 86-6, Petitions for Rulemaking, 51 FR 46988 (Dec. 30, 
1986); see also Administrative Conference of the United States, 
Recommendation 95-3, ] VI(B) (``Agencies should establish deadlines 
for their responses to petitions; if necessary, the President by 
executive order or Congress should mandate that petitions be acted 
upon within a specified time.'').
    \7\ See Jason A. Schwartz & Richard L. Revesz, Petitions for 
Rulemaking, Final Report to the Administrative Conference of the 
United States (Nov. 5, 2014), available at https://www.acus.gov/report/petitions-rulemaking-final-report.
    \8\ See id. at 46; see also William V. Luneburg, Petitions for 
Rulemaking: Federal Agency Practice and Recommendations for 
Improvement, 1986 ACUS 493, 510 (1986) (observing that, with respect 
to agency procedures governing petitions for rulemaking, ``[s]ome 
have none; others largely mirror, without elaborating much on, 
statutory procedures; and still others have adopted rather detailed 
requirements . . . going considerably beyond the procedures 
expressly mandated by statute'').
    \9\ See Schwartz & Revesz, supra note 7, at 40-64.
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    Although the right to petition can be important and valuable, 
making the process work well requires a difficult balancing of 
competing interests. On the one hand, the APA grants to the public 
the right to petition for rulemaking and requires agencies to 
provide a decision on the merits within a reasonable period of time. 
To be sure, agencies often receive suggestions for new regulations 
and feedback regarding needed changes to existing regulations via 
informal channels, such as through meetings with regulated parties 
and stakeholders or interactions during inspections or other 
enforcement activities. Petitions provide another important avenue 
for such input--one that in theory is more broadly accessible to 
interested persons who do not regularly interact with agency 
personnel. Nonetheless, petitions for rulemaking may adversely 
affect an agency's ability to control its agenda and make 
considered, holistic judgments about regulatory priorities, 
particularly in the face of limited resources. And thoughtfully 
evaluating petitions and defending denials on judicial review may 
consume already scarce agency resources.
    Greater transparency, improved communication between agencies 
and petitioners, and more prompt and explanatory petition responses 
may help to balance these competing interests.\10\ Agencies should 
educate the public about how petitions fit with the other (often 
more informal) mechanisms through which agencies receive feedback 
from regulated and other interested persons on regulatory priorities 
and related issues. Petitioners and agency personnel alike would 
also benefit from greater clarity as to how petitions can be filed, 
what information should be included to make a petition more useful 
and easier for the agency to evaluate,\11\ whether or when public 
comment will be invited, and how long it may take to resolve a 
petition. Better internal coordination may reduce the possibility 
that a petition will be forgotten or will not reach the appropriate 
agency office for decision. Encouraging communication between 
prospective or current petitioners and the agency can provide an 
efficient way to improve the quality of petitions and the overall 
experience for all participants in the process. Readily available 
information on the status of pending petitions and more prompt 
disposition of petitions may improve understanding between the 
agency and the public and reduce the likelihood of litigation.
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    \10\ See generally id.
    \11\ This could be similar to the information some agencies 
provide on their Web sites to help the public understand the 
characteristics of an effective rulemaking comment.
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    This recommendation seeks to ensure that the public's right to 
petition is a meaningful one, while still respecting the need for 
agencies to retain decisional autonomy. Building upon the 
Administrative Conference's previous work, it provides more guidance 
to agencies, identifying best practices that may make the 
petitioning process more useful for agencies, petitioners, and other 
members of the public. Moreover, electronic rulemaking dockets and 
agency Web sites provide new opportunities for agencies to achieve 
these goals in a cost-effective manner.\12\ This recommendation 
should help agencies reevaluate and revise their existing policies 
and procedures to make the petitioning process work better for all.
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    \12\ See, e.g., Administrative Conference of the United States, 
Recommendation 2011-8, Agency Innovations in E-Rulemaking, 77 FR 
2257, 2264-65 (Jan. 17, 2012).
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Recommendation

Agency Policy on Petitions for Rulemaking

    1. Each agency that has rulemaking authority should have 
procedures, embodied in a written and publicly available policy 
statement or procedural rule, explaining how the agency receives, 
processes, and responds to petitions for rulemaking filed under the 
Administrative Procedure Act.
    (a) If an agency also has more specific regulations that govern 
petitions filed under other statutes or that apply to specific sub-
agencies, the agency's procedures should cross-reference those 
regulations.
    (b) If an agency rarely receives petitions for rulemaking, its 
procedures may simply designate an agency contact who can provide 
guidance to prospective petitioners.
    (c) The procedures should explain how petitions relate to the 
various other options available to members of the public for 
informally engaging with agency personnel on the need to issue, 
amend, or repeal rules.
    2. The procedures should indicate how the agency will coordinate 
the consideration of petitions with other processes and activities 
used to determine agency priorities, such as the Unified Agenda and 
retrospective review of existing rules.
    3. The procedures should explain what type of data, 
argumentation, and other information make a petition more useful and 
easier for the agency to evaluate. The procedures should also 
identify any information that is statutorily required for the agency 
to act on a petition.

Receiving and Processing Petitions

    4. Agencies should accept the electronic submission of 
petitions, via email or through Regulations.gov (such as by 
maintaining an open docket for the submission of petitions for 
rulemaking) or their existing online docketing system.
    5. Agencies should designate a particular person or office to 
receive and distribute all petitions for rulemaking to ensure that 
each petition for rulemaking is expeditiously directed to the 
appropriate agency personnel for consideration and disposition. This 
designation may be especially important for agencies that have 
multiple regions or offices.

Communicating With Petitioners

    6. Agencies should encourage and facilitate communication 
between agency personnel and petitioners, both prior to submission 
and while petitions are pending disposition. For example, agencies 
should consider asking petitioners to clarify requests or submit 
additional information that will make the petition easier to 
evaluate. Agencies should consider also alerting petitioners to 
recent developments that may warrant a petition's modification or 
withdrawal.
    7. Agencies should provide a way for petitioners and other 
interested persons to learn the status of previously filed 
petitions. Agencies should:
    (a) Use online dockets to allow the public to monitor the status 
of petitions; and
    (b) Designate a single point of contact authorized to provide 
information about the status of petitions.

Soliciting Public Comment on Petitions

    8. Agencies should consider inviting public comment on petitions 
for rulemaking by either:
    (a) Soliciting public comment on all petitions for rulemaking; 
or
    (b) Deciding, on a case-by-case basis, whether to solicit public 
comment on petitions for rulemaking. Inviting public comment may be 
particularly appropriate when:
    (i) A petition addresses a question of policy or of general 
interest; or
    (ii) Evaluating a petition's merits may require the agency to 
consider information the agency does not have, or the agency 
believes that the information provided by the petitioner may be in 
dispute or is incomplete.
    9. If an agency anticipates that it will consider but not 
respond to all comments on a petition for rulemaking, it should say 
so in its request for comments.

Responding to Petitions for Rulemaking

    10. Agencies should docket each decision with the petition to 
which it responds.
    11. If an agency denies a petition, where feasible and 
appropriate, it should provide a reasoned explanation beyond a brief 
statement of the grounds for denial. Agencies should not reflexively 
cite only resource constraints or competing priorities.
    12. Agencies must respond to petitions within a reasonable time. 
To that end, each agency should:
    (a) Adopt in its procedures an expectation that it will respond 
to all petitions for rulemaking within a stated period (e.g., within 
6, 12, or 18 months of submission); and/or
    (b) Establish and make publicly available an individual target 
timeline for responding to that petition.
    13. If an agency is unable to respond to a petition by the 
target timeline it has established, it should provide the petitioner 
and the public with a brief explanation for the delay, along with a 
reasonable new target timeline. The explanation may include a 
request for new or additional information if the agency believes it 
would benefit from that or the facts or circumstances relevant to 
the petition may have changed while the petition was pending.

[[Page 75119]]

Providing Information on Petitions for Rulemaking

    14. Agencies should maintain a summary log or report listing all 
petitions, the date each was received, and the date of disposition 
or target timeline for disposition (where necessary, this should 
include the brief explanation for any delay in disposition and the 
reasonable new target timeline). The log or report should be 
described in the agency's procedures (see paragraph 1) and made 
publicly available on the agency's Web site. It should be updated at 
least semi-annually. Agencies should create and maintain the summary 
log or report beginning on the date of this recommendation and 
should also include or otherwise publicly provide, to the extent 
feasible, historic information about petitions for rulemaking that 
have been resolved.
    15. The Office of Information and Regulatory Affairs should 
request that agencies include in their annual regulatory plan 
information on petitions for rulemaking that have been resolved 
during that year or are still pending.

Using Electronic Tools To Improve the Petitioning Process

    16. Agencies should use available online platforms, including 
their Web sites and Regulations.gov, to implement this 
recommendation as effectively and efficiently as possible, including 
by informing the public about the petitioning process, facilitating 
the submission of petitions, inviting public comment, providing 
status updates, improving the accessibility of agency decisions on 
petitions, and annually providing information on petitions for 
rulemaking that have been resolved or are still pending.

Administrative Conference Recommendation 2014-7

Best Practices for Using Video Teleconferencing for Hearings

Adopted December 5, 2014

    Agencies conduct thousands of adjudicative hearings every day, 
but the format of the hearing, whether face-to-face or by video, has 
not been analyzed in any systematic way. Some agencies have provided 
hearings by video teleconferencing technology (VTC) for decades and 
have robust VTC programs. These programs strive consistently to 
provide the best hearing experience, even as technology changes. 
Other agencies have been reluctant to depart from traditional 
formats. Some are skeptical that hearings may be conducted as 
effectively via VTC as they are in person. Others are uncertain 
about how to implement VTC hearings. But all could benefit from an 
impartial look at the available technologies for conducting 
adjudications.
    The varied agency experiences and concerns reflect the tension 
between long-established values and technological innovations. 
Adjudicative hearings must be conducted in a manner consistent with 
due process and the core values of fairness, efficiency, and 
participant satisfaction reflected in cases like Goldberg v. Kelly 
\1\ and Mathews v. Eldridge.\2\ At the same time, agencies that have 
explored the use of technological alternatives have achieved 
benefits in the effective use of decisionmaking resources and 
reduction in travel expenses.\3\ Upholding core values and making 
the best use of technology--both in hearings and related proceedings 
such as initial appearances, pre-hearing conferences, and meetings--
is the challenge this recommendation seeks to meet.\4\
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    \1\ 397 U.S. 254 (1970).
    \2\ 424 U.S. 319 (1976); see also infra note 9.
    \3\ In fact, agencies have been directed to increase efficiency 
through their use of technology. See Exec. Order No. 13,589, 76 FR 
70861 (Nov. 15, 2011) (directing agencies to ``devise strategic 
alternatives to Government travel, including . . . technological 
alternatives, such as . . . video conferencing'' and to ``assess 
current device inventories and usage, and establish controls, to 
ensure that they are not paying for unused or underutilized 
information technology (IT) equipment, installed software, or 
services'').
    \4\ While this recommendation refers primarily to adjudication, 
it may apply to other proceedings as well.
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    In 2011, the Administrative Conference adopted Recommendation 
2011-4, Agency Use of Video Hearings: Best Practices and 
Possibilities for Expansion.\5\ Recommendation 2011-4 had two main 
purposes. First, it identified factors for agencies--especially 
agencies with high volume caseloads--to consider as they determined 
whether to conduct VTC hearings.\6\ Second, it offered several best 
practices agencies should employ when using VTC hearings.\7\ The 
recommendation concluded by encouraging agencies that have decided 
to conduct VTC hearings to ``[c]onsult the staff of the 
Administrative Conference of the United States . . . for best 
practices, guidance, advice, and the possibilities for shared 
resources and collaboration.'' \8\
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    \5\ See 76 FR 48795 (Aug. 9, 2011), available at https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.
    \6\ Such factors include whether (1) the agency's statute 
permits use of VTC; (2) the agency's proceedings are conducive to 
VTC; (3) VTC may be used without affecting case outcomes; (4) the 
agency's budget allows adequate investment in VTC; (5) the use of 
VTC would result in cost savings; (6) the use of VTC would result in 
a reduction in wait time; (7) the participants (e.g., judges, 
parties, representatives, witnesses) would find VTC beneficial; (8) 
the agencies' facilities and administration would be able to support 
VTC hearings; and (9) the use of VTC would not adversely affect 
either representation or communication. See id.
    \7\ Best practices include (1) offering VTC on a voluntary 
basis; (2) ensuring that the use of VTC is outcome-neutral and meets 
the needs of users; (3) soliciting feedback from participants; (4) 
implementing VTC via a pilot program and evaluating that program 
before establishing it more broadly; and (5) providing structured 
training and ensuring available IT support staff. Id.
    \8\ Id.
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    This recommendation builds on Recommendation 2011-4 by providing 
practical guidance regarding how best to conduct VTC hearings. The 
Administrative Conference is committed to the principles of 
fairness, efficiency, and participant satisfaction in the conduct of 
hearings. When VTC is used, it should be used in a manner that 
promotes these principles, which form the cornerstones of 
adjudicative legitimacy.\9\ The Conference recognizes that VTC is 
not suitable for every kind of hearing, but believes greater 
familiarity with existing agency practices and awareness of the 
improvements in technology will encourage broader use of such 
technology.\10\ This recommendation aims to ensure that, when 
agencies choose to offer VTC hearings, they are able to provide a 
participant experience that meets or even exceeds the in-person 
hearing experience.\11\
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    \9\ See EF Int'l Language Schools, Inc., 2014 N.L.R.B. 708 
(2014) (admin. law judge recommended decision) (finding ``that the 
safeguards utilized at hearing [to take witness testimony by VTC] 
amply ensured that due process was not denied to'' the party).
    \10\ For greater detail about how to implement VTC hearings, see 
Center for Legal and Court Technology, Best Practices for Using 
Video for Hearings and Related Proceedings (Nov. 6, 2014), available 
at https://www.acus.gov/report/best-practices-using-video-teleconferencing-final-report.
    \11\ This recommendation does not take a position on when 
parties should be entitled to, or may request, an in-person hearing.
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Recommendation

Foundational Factors

    1. Agencies should consider the various physical and logistical 
characteristics of their hearings, including the layout of the 
hearing room(s) and the number and location(s) of hearing 
participants (i.e., judge, parties, representatives, and witnesses) 
and other attendees, in order to determine the kind of video 
teleconferencing (VTC) system to use. These general principles 
should guide agencies' consideration:
    (a) Video screens should be large enough to ensure adequate 
viewing of all participants;
    (b) Camera images should replicate the in-person hearing 
experience, including participants' ability to make eye contact with 
other participants and see the entire hearing room(s). If 
interpreters are involved, they should be able to see and hear the 
participants clearly;
    (c) Microphones should be provided for each participant who will 
be speaking during the hearing;
    (d) The speaker system should be sufficient to allow all 
participants to hear the person speaking. If a participant has a 
hearing impairment, a system that complies with the Americans with 
Disabilities Act and other applicable laws should be used to connect 
to the VTC system;
    (e) The record should be adequately captured, either by ensuring 
that the audio system connects with a recording system, or by 
ensuring that the court reporter can clearly see and hear the 
proceeding;
    (f) Sufficient bandwidth should be provided so that the video 
image and sound are clear and uninterrupted; and
    (g) Each piece of equipment should be installed, mounted, and 
secured so that it is protected and does not create a hazardous 
environment for participants or staff.
    2. Agencies should ensure that the hearing room conditions allow 
participants to see, be

[[Page 75120]]

seen by, and hear other participants, and to see written documents 
and screens, as well as, or better than, if all of the participants 
were together in person. These general principles should guide 
agencies' consideration in creating the best hearing room 
conditions:
    (a) Lighting should be placed in a way to create well-dispersed, 
horizontal, ambient light throughout all rooms used in the 
proceeding;
    (b) Noise transference should be kept to a minimum by:
    (i) Locating hearing rooms in the inner area of the office and 
away from any noise or vibration-producing elements (e.g., elevator 
shafts, mechanical rooms, plumbing, and high-traffic corridors); and
    (ii) Installing solid doors with door sweeps, walls that run 
from floor to ceiling, and sound absorption panels on the walls.
    (c) Room d[eacute]cor, including colors and finishes of walls 
and furniture, should allow for the camera(s) to easily capture the 
image(s).
    3. Agencies should retain technical staff to support VTC 
operators and maintain equipment.

Training

    4. Agencies should provide training for agency staff, especially 
judges, who will operate the VTC equipment during the hearing. 
Agencies should also provide a reference chart or ``cheat sheet'' to 
keep with each VTC system that provides basic system operation 
directions that operators can easily reference, as well as a phone 
number (or other rapid contact information) for reaching technical 
staff.
    5. Agencies should provide advanced training for technical 
support staff to ensure they are equipped to maintain the VTC 
equipment and provide support to operators, including during a 
proceeding if a problem arises.

Financial Considerations

    6. The capabilities and costs of VTC systems vary widely. Before 
purchasing or updating their VTC systems, agencies should first 
consider their hearing needs (e.g., the needs of hearings conducted 
by judges at their desks with a single party will be different than 
the needs of hearings conducted in full-sized federal courtrooms 
with multiple participants and attendees present at several 
locations) both now and in the future (e.g., the bandwidth needed 
today may be different than the bandwidth needed tomorrow).
    7. Once agencies have identified their hearing needs, they 
should consider the costs and benefits of implementing, maintaining, 
and updating their VTC systems to suit those needs.
    (a) Costs to be considered include those associated with 
purchasing, installing, and maintaining the VTC system; creating and 
maintaining the conditions necessary to allow participants to see 
and hear each other clearly; and providing training to staff.
    (b) Benefits to be considered include better access to justice 
by increased accessibility to hearings, more efficient use of time 
for judges and staff, reduced travel costs and delays, and backlog 
reductions.

Procedural Practices

    8. Judges should consider how to establish and maintain control 
of the hearing room, such as by wearing robes as a symbol of 
authority, appearing on the screen before the other participants 
enter the room(s), requiring parties and representatives to use hand 
signals to indicate that they would like to speak, and reminding 
representatives that they are officers of the court.
    9. Agencies should install VTC equipment so that judges can 
control the camera at the other location(s), if possible.
    10. Agency staff should ensure that the hearing will run as 
smoothly as possible by removing any obstacles blocking lines-of-
sight between the camera and participants and testing the audio on a 
regular basis.

Fairness and Satisfaction

    11. Agencies should periodically assess their VTC hearings 
program to ensure that the use of VTC produces outcomes that are 
comparable to those achieved during in-person hearings.
    12. Agencies should maintain open lines of communication with 
representatives in order to receive feedback about the use of VTC. 
Post-hearing surveys or other appropriate methods should be used to 
collect information about the experience and satisfaction of 
participants.

Collaboration Among Agencies

    13. Agencies should consider sharing VTC facilities and 
expertise with each other in order to reduce costs and increase 
efficiency, while maintaining a fair and satisfying hearing 
experience.
    14. Agencies that conduct hearings should work with the General 
Services Administration (GSA) in procuring and planning facilities 
that will best accommodate the needs of VTC hearings.

Development of a Video Teleconferencing Hearings Handbook

    15. The Office of the Chairman of the Administrative Conference 
of the United States should create a handbook on the use of VTC in 
hearings and related proceedings that will be updated from time to 
time as technology changes. The handbook should reflect consultation 
with GSA and other agencies with VTC hearings expertise. It should 
be made publicly accessible online to agencies, and include specific 
guidance regarding equipment, conditions, training that meets 
industry standards, and methods for collecting feedback from 
participants.

[FR Doc. 2014-29546 Filed 12-17-14; 8:45 am]
BILLING CODE 6110-01-P