Adoption of Recommendations, 31039-31042 [2017-14060]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 82, Number 127 (Wednesday, July 5, 2017)]
[Notices]
[Pages 31039-31042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14060]


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Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / 
Notices

[[Page 31039]]



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 two 
recommendations at its Sixty-seventh Plenary Session. The appended 
recommendations are titled: Adjudication Materials on Agency Web sites; 
and Negotiated Rulemaking and Other Options for Public Engagement.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2017-1, Daniel 
Sheffner; and for Recommendation 2017-2, Cheryl Blake. For both 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-seventh Plenary Session, 
held June 16, 2017, the Assembly of the Conference adopted two 
recommendations.
    Recommendation 2017-1, Adjudication Materials on Agency Web sites. 
This recommendation provides guidance regarding the online 
dissemination of administrative adjudication materials. It offers best 
practices and factors for agencies to consider as they seek to increase 
the accessibility of adjudication materials on their Web sites and 
maintain comprehensive, representative online collections of 
adjudication materials, consistent with the transparency objectives and 
privacy considerations of the Freedom of Information Act and other 
relevant laws and directives.
    Recommendation 2017-2, Negotiated Rulemaking and Other Options for 
Public Engagement. This recommendation offers best practices to 
agencies for choosing among several possible methods--among them 
negotiated rulemaking--for engaging the public in agency rulemakings. 
It also offers best practices to agencies that choose negotiated 
rulemaking on how to structure their processes to enhance the 
probability of success.
    The Appendix below sets forth the full texts of these two 
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: https://www.acus.gov/67thPlenary.

    Dated: June 29, 2017.
David M. Pritzker,
Deputy General Counsel.

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

Administrative Conference Recommendation 2017-1

Adjudication Materials on Agency Web Sites

Adopted June 16, 2017

    In contrast to federal court records, which are available for 
download from the judiciary's Public Access to Court Electronic 
Records (PACER) program (for a fee), or records produced during 
notice-and-comment rulemaking, which are publicly disseminated on 
the rulemaking Web site www.regulations.gov, there exists no single, 
comprehensive online clearinghouse for the public hosting of 
decisions and other materials generated throughout the course of 
federal administrative adjudication.\1\ Instead, to the extent a 
particular adjudication record is digitally available, it is likely 
to be found on the relevant agency's Web site.
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    \1\ The Administrative Conference currently takes no position in 
this recommendation as to whether there should be such a tool, but 
will consider whether the issue merits attention in the future. In 
the meantime, the research underlying this recommendation is limited 
to an examination of agencies' existing Web sites.
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    This recommendation is confined to records issued or filed in 
adjudicative proceedings in which a statute, executive order, or 
regulation mandates an evidentiary hearing.\2\ Specifically, this 
recommendation applies to (a) ``[a]djudication that is regulated by 
the procedural provisions of the Administrative Procedure Act (APA) 
and usually presided over by an administrative law judge'' and (b) 
``[a]djudication that consists of legally required evidentiary 
hearings that are not regulated by the APA's adjudication provisions 
in 5 U.S.C. 554 and 556-557 and that is presided over by 
adjudicators who are often called administrative judges.'' \3\
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    \2\ See Administrative Conference of the United States, 
Recommendation 2016-4, Evidentiary Hearings Not Required by the 
Administrative Procedure Act, 81 FR 94314 (Dec. 23, 2016).
    \3\ Id. (referring to these two types of proceedings as ``Type 
A'' and ``Type B'' adjudication, respectively).
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    Federal administrative adjudication affects an enormous number 
of individuals and businesses engaged in a range of regulated 
activities or dependent on any of the several government benefits 
programs. The many orders, opinions, pleadings, motions, briefs, 
petitions, and other records generated by agencies and parties 
involved in adjudication bespeak the procedural complexities and 
sophistication of many proceedings.
    Many federal laws and directives mandate or encourage the online 
disclosure of important government materials, including certain 
adjudication records. The Freedom of Information Act (FOIA) requires 
that agencies make available in an electronic format ``final 
opinions, including concurring and dissenting opinions, as well as 
orders, made in the adjudication of cases.'' \4\ The prevailing 
interpretation of this provision limits its ambit to 
``precedential'' decisions.\5\ Nonetheless, other laws and policies, 
including most recently the FOIA Improvement Act of 2016,\6\ 
encourage more expansive online disclosure of federal records.\7\
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    \4\ 5 U.S.C. 552(a)(2)(A).
    \5\ See U.S. Dep't of Justice, Office of Information Policy, 
Guide to the Freedom of Information Act, Proactive Disclosures 10 
(2009 ed.); U.S. Dep't of Justice, Attorney General's Memorandum on 
the Public Information Section of the Administrative Procedure Act, 
at 15 (Aug. 17, 1967).
    \6\ Public Law 114-185, 130 Stat. 538 (2016). The Act, for 
instance, amended the Federal Records Act, 44 U.S.C. 3101 et seq., 
by adding a requirement that agencies' records management programs 
provide ``procedures for identifying records of general interest or 
use to the public that are appropriate for public disclosure, and 
for posting such records in a publicly accessible electronic 
format.'' Id. Sec.  3102(2).
    \7\ See, e.g., Office of Mgmt. & Budget Circular A-130, Sec.  
5.e.2.a (directing agencies to publish ``public information online 
in a manner that promotes analysis and reuse for the widest possible 
range of purposes, meaning that the information is publicly 
accessible, machine-readable, appropriately described, complete, and 
timely'').

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[[Page 31040]]

    When, as is often the case, adjudicative proceedings involve the 
application of governmental power to resolve disputes involving 
private parties, the associated records are of public importance. 
Further, administrative adjudication records can serve as ready-made 
models for private parties (especially those who are self-
represented) \8\ in drafting their own materials and may provide 
insight into the relevant substantive law and procedural 
requirements. Easy availability of these materials can save staff 
time or money through a reduction in the volume of FOIA requests or 
printing costs, or an increase in the speed with which agency staff 
will be able to respond to remaining FOIA requests. In addition, 
there may also be more intangible benefits engendered by increased 
public trust and Web site user satisfaction.
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    \8\ The Conference recently adopted a recommendation that offers 
best practices for agencies to consider in assisting self-
represented parties in administrative hearings. See Administrative 
Conference of the United States, Recommendation 2016-6, Self-
Represented Parties in Administrative Hearings, 81 FR 94319 (Dec. 
23, 2016).
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    In the absence of a comprehensive, government-wide platform akin 
to PACER or www.regulations.gov, agencies generally rely on their 
individual Web sites to comply with online transparency laws and 
initiatives, disclosing the binding orders, opinions, and, in some 
cases, supporting records produced during adjudicative proceedings. 
Some agencies host relatively accessible, comprehensive libraries of 
decisions and supporting adjudication materials. Not all agency Web 
sites, however, are equally navigable or robust. Additionally, in 
providing online access to adjudication materials, agencies utilize 
navigational and organizational tools and techniques in various 
ways.
    This recommendation offers best practices and factors for 
agencies to consider as they seek to increase the accessibility of 
adjudication materials on their Web sites and maintain 
comprehensive, representative online collections of adjudication 
materials, consistent with a balancing of the transparency 
objectives and privacy considerations of FOIA and other relevant 
laws and directives.\9\ It is drafted with recognition that all 
agencies are subject to unique programming and financial 
constraints, and that the distinctiveness of agencies' respective 
adjudicative schemes limits the development of workable standardized 
practices. To the extent agencies are required to expend additional 
resources in implementing this recommendation, any upfront costs 
incurred may be accompanied by offsetting benefits.
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    \9\ For the report undergirding this recommendation, see Daniel 
J. Sheffner, Adjudication Materials on Agency Web sites (April 10, 
2017) (report to the Admin. Conf. of the U.S.), available at https://www.acus.gov/report/adjudication-materials-agency-websites-final-report-0.
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Recommendation

Affirmative Disclosure of Adjudication Materials

    1. Agencies should consider providing access on their Web sites 
to decisions and supporting materials (e.g., pleadings, motions, 
briefs) issued and filed in adjudicative proceedings in excess of 
the affirmative disclosure requirements of the Freedom of 
Information Act (FOIA). In determining which materials to disclose, 
agencies should ensure that they have implemented appropriate 
safeguards to protect relevant privacy interests implicated by the 
disclosure of adjudication materials. Agencies should also consider 
the following factors in deciding what to disclose:
    a. the interests of the public in gaining insight into the 
agency's adjudicative processes;
    b. the costs to the agency in disclosing adjudication materials 
in excess of FOIA's requirements;
    c. any offsetting benefits the agency may realize in disclosing 
these materials; and
    d. any other relevant considerations, such as agency-specific 
adjudicative practices.
    2. Agencies that adjudicate large volumes of cases that do not 
vary considerably in terms of their factual contexts or the legal 
analyses employed in their dispositions should consider disclosing 
on their Web sites a representative sampling of actual cases and 
associated adjudication materials.

Access to Adjudication Materials

    3. Agencies that choose to post all or nearly all decisions and 
supporting materials filed in adjudicative proceedings should 
endeavor to group materials from the same proceedings together, for 
example, by providing a separate docket page for each adjudication.
    4. Subject to considerations of cost, agencies should endeavor 
to ensure that Web site users are able to locate adjudication 
materials easily by:
    a. displaying links to agency adjudication sections in readily 
accessible locations on the Web site;
    b. maintaining a search engine and a site map or index, or both, 
on or locatable from the homepage;
    c. offering relevant filtering and advanced search options in 
conjunction with their main search engines that allow users to 
specify with greater detail the records or types of records for 
which they are looking, such as options to sort, narrow, or filter 
searches by record type, action or case type, date, case number, 
party, or specific words or phrases; and
    d. offering general and advanced search and filtering options 
specifically within the sections of their Web sites that disclose 
adjudication materials to sort, narrow, or filter searches in the 
ways suggested in subparagraph (c).

Administrative Conference Recommendation 2017-2

Negotiated Rulemaking and Other Options for Public Engagement

Adopted June 16, 2017

    Since the enactment of the Administrative Procedure Act (APA) in 
1946, public input has been an integral component of informal 
rulemaking. The public comment process gives agencies access to 
information that supports the development of quality rules and 
arguably enhances the democratic accountability of federal agency 
rulemaking. As early as the 1960s, however, many agencies reported 
that notice-and-comment rulemaking ``had become increasingly 
adversarial and formalized.'' \1\
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    \1\ Administrative Conference of the United States, 
Recommendation 85-5, Procedures for Negotiating Proposed 
Regulations, 50 FR 52893, 52895 (Dec. 27, 1985).
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    Starting in the late 1970s, as legal reform advocates sought to 
expand the use of alternative dispute resolution (ADR) to reduce the 
incidence of litigation in the civil courts, administrative law 
scholars began to consider whether importing ADR norms into the 
rulemaking process might promote a more constructive, collaborative 
dynamic between agencies and those persons interested in or affected 
by agency rules. Eventually, the Administrative Conference conducted 
a study and recommended an alternative procedure that came to be 
known as ``negotiated rulemaking.'' Negotiated rulemaking brings 
together an advisory committee \2\ composed of representatives of 
identifiable affected interests,\3\ agency officials, and a 
``neutral'' \4\ trained in mediation and facilitation techniques who 
would meet to try to reach consensus on a proposed rule.\5\ The 
Administrative

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Conference twice issued recommendations supporting the use of 
negotiated rulemaking in appropriate circumstances. The first, 
Recommendation 82-4, Procedures for Negotiating Proposed 
Regulations, represented an early effort to articulate the steps 
agencies should take to use the process successfully.\6\ The second, 
Recommendation 85-5, which had the same title, identified suggested 
practices based on agency experience with negotiated rulemaking in 
the preceding years.\7\
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    \2\ Negotiated rulemaking committees are advisory committees 
that must comply with the Federal Advisory Committee Act (FACA), 
unless otherwise provided by statute. 5 U.S.C. 565(a).
    \3\ The Negotiated Rulemaking Act provides that an agency, when 
determining the need for negotiated rulemaking, should among other 
factors consider whether ``there are a limited number of 
identifiable interests that will be significantly affected by the 
rule.'' Id. Sec.  563(a)(2). The Act further defines an ``interest'' 
to mean ``with respect to an issue or matter, multiple parties which 
have a similar point of view or which are likely to be affected in a 
similar manner.'' Id. Sec.  562(5).
    \4\ Here, a ``neutral'' refers to an expert with experience in 
ADR techniques who actively supports the negotiation and consensus-
building process, without taking a position on the substantive 
outcome. Both convenors and facilitators are neutrals who may 
support the process at various stages. As defined by the Negotiated 
Rulemaking Act of 1996, a convenor is ``a person who impartially 
assists an agency in determining whether establishment of a 
negotiated rulemaking committee is feasible and appropriate in a 
particular rulemaking,'' whereas a facilitator is ``a person who 
impartially aids in the discussions and negotiations among the 
members of a negotiated rulemaking committee to develop a proposed 
rule.'' Id. Sec.  562.
    \5\ In practice, negotiated rulemaking committees may work to 
reach consensus on the text of a proposed rule or may instead seek 
consensus on a term sheet or other document covering the major 
issues of the rulemaking. Although negotiated rulemaking committees 
meet to seek consensus on proposed rules, they may remain 
constituted until the promulgation of the final rule. Id. Sec.  567. 
Some agencies have used committee meetings to obtain further 
feedback during the development of the final rule.
    \6\ Administrative Conference of the United States, 
Recommendation 82-4, Procedures for Negotiating Proposed 
Regulations, 47 FR 30701 (July 15, 1982). These recommendations were 
based on Professor Philip Harter's report to the Administrative 
Conference (Philip J. Harter, Negotiating Regulations: A Cure for 
Malaise, 71 Geo. L.J. 1 (1982)). The procedural steps proposed in 
Recommendation 82-4 formed the basis of the Negotiated Rulemaking 
Act.
    \7\ Recommendation 85-5, supra note 1. The present 
recommendation is intended to supplement, rather than supersede, the 
Conference's prior recommendations on negotiated rulemaking.
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    Congress formally authorized the use of regulatory negotiation 
where it would enhance rulemaking by enacting the Negotiated 
Rulemaking Act of 1990.\8\ Congress had found that traditional 
informal rulemaking ``may discourage the affected parties from 
meeting and communicating with each other, and may cause parties 
with different interests to assume conflicting and antagonistic 
positions and to engage in expensive and time-consuming 
litigation.'' \9\ Congress found that negotiated rulemaking could 
``increase the acceptability and improve the substance of rules, 
making it less likely that the affected parties will resist 
enforcement or challenge such rules in court'' and that negotiation 
could ``shorten the amount of time needed to issue final rules.'' 
\10\
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    \8\ Negotiated Rulemaking Act of 1990, Public Law 101-648, 104 
Stat. 4969 (codified as amended by Pub. L. 104-320, 110 Stat. 3870 
(1996) at 5 U.S.C. 561-70).
    \9\ 5 U.S.C. 561.
    \10\ Id.
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    Executive Order 12,866, signed by President Clinton and retained 
by subsequent presidents, directs agencies to ``explore and, where 
appropriate, use consensual mechanisms for developing regulations, 
including negotiated rulemaking.'' \11\ In addition, Congress has 
occasionally mandated the use of negotiated rulemaking when passing 
new legislation that directs agencies to address certain 
problems.\12\ However, negotiated rulemaking was never designed to 
be used by agencies in the vast majority of agency rulemaking.\13\ 
By the early 2000s, negotiated rulemaking was being used less 
frequently than anticipated.\14\ Over the past few years, the 
process appears to have received a modest increase in attention and 
use by some agencies.
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    \11\ Exec. Order 12866, Sec.  6(a)(1), 58 FR 51735 (Oct. 4, 
1993). In addition, President Clinton directed each agency to 
identify at least one rulemaking to develop through negotiated 
rulemaking or to explain why negotiated rulemaking would not be 
feasible. See Presidential Memorandum for Exec. Dept's & Selected 
Agencies, Administrator, Office of Info. & Reg. Affairs, Negotiated 
Rulemaking (Sept. 30, 1993), available at https://govinfo.library.unt.edu/npr/library/direct/memos/2682.html.
    \12\ Cary Coglianese, Assessing Consensus: The Promise and 
Performance of Negotiated Rulemaking, 46 Duke L.J. 1255, 1256, 1268 
(1997) [hereinafter Coglianese, Assessing Consensus]. Over a dozen 
such statutes were passed before 1997, including the Student Loan 
Reform Act of 1993 (Pub. L. 103-66, 4021, 107 Stat. 341, 353) and 
the Native American Housing Assistance and Self-Determination Act of 
1996 (Pub. L. 104-330, 106(b), 110 Stat. 4016, 4029). Congress has 
continued to mandate that agencies use negotiated rulemaking under 
some programs. For a list of statutes mandating or strongly 
encouraging negotiated rulemaking, see Cary Coglianese, Is Consensus 
an Appropriate Basis for Regulatory Policy?, in Environmental 
Contracts: Comparative Approaches to Regulatory Innovation in the 
United States and Europe 93-113 (Eric Orts & Kurt Deketeaere eds., 
2001). More recent examples include the Intelligence Reform and 
Terrorism Prevention Act of 2004 (Pub. L. 108-458, 7212, 118 Stat. 
3638, 2829) and the Patient Protection and Affordable Care Act (Pub. 
L. 111-148, 5602, 124 Stat. 119, 677). For a case study of the 
congressionally mandated use of negotiated rulemaking by the U.S. 
Department of Education, see Jeffrey S. Lubbers, Enhancing the Use 
of Negotiated Rulemaking by the U.S. Department of Education (Dec. 
5, 2014), in Recalibrating Regulation of Colleges and Universities, 
Report of the Task Force on Federal Regulation of Higher Education 
90 (2015), available at https://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf.
    \13\ Coglianese, Assessing Consensus, supra note 12, at 1276.
    \14\ Documentation of the early use, decline, and recent uptick 
in the use of negotiated rulemaking can be found in Cheryl Blake & 
Reeve T. Bull, Negotiated Rulemaking (June 5, 2017), 3-12, available 
at https://www.acus.gov/sites/default/files/documents/Negotiated%20Rulemaking_Final%20Report_June%205%202017.pdf. See also 
Jeffrey S. Lubbers, Achieving Policymaking Consensus: The 
(Unfortunate) Waning of Negotiated Rulemaking, 49 S. Tex. L. Rev. 
987, 1001 (2008); Peter H. Schuck & Steven Kochevar, Reg Neg Redux: 
The Career of a Procedural Reform, 15 Theoretical Inquiries in Law 
417, 439 (2014); Reeve T. Bull, The Federal Advisory Committee Act: 
Issues and Proposed Reforms 52 & app. A (Sept. 12, 2011), available 
at https://www.acus.gov/sites/default/files/documents/COCG-Reeve-Bull-Draft-FACA-Report-9-12-11.pdf.
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    In part, the infrequent use of negotiated rulemaking may be due 
to the availability of alternative public engagement options, such 
as advance notices of proposed rulemaking, requests for input, 
technical workshops, or listening sessions, that allow agencies to 
gain many of the benefits of direct feedback early in the 
policymaking process while retaining greater procedural flexibility. 
Indeed, such alternatives can effectively elicit public input while 
avoiding the delays and procedural complexities associated with 
chartering a negotiated rulemaking committee under the Federal 
Advisory Committee Act (FACA).\15\ In addition, over the years, some 
criticisms about the effectiveness of negotiated rulemaking in 
practice have been raised. For example, agencies need to ensure that 
representatives of affected interests can be selected in a way that 
does not give unequal power to one or more members.\16\ There are 
clearly instances in which negotiated rulemaking should not be used. 
Nevertheless, where an agency concludes that its goals would best be 
served by developing a consensus-based proposed rule--or where the 
relevant policy issues, or relationships with interested persons or 
groups, are suitably complex--negotiated rulemaking may very well be 
a worthwhile procedural option to consider.
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    \15\ Agencies have cited FACA's chartering and other procedural 
requirements as a challenge to undertaking negotiated rulemaking. 
See Lubbers, supra note 14, at 1001; Blake & Bull, supra note 14, at 
28-31. Of course, agencies should be aware that even alternative 
public input forums that are not formally designated as advisory 
committees could nevertheless become subject to FACA should the 
dynamic of any meetings with members of the public trend toward 
``group advice'' rather than individual input. Blake & Bull, supra 
note 14, at 21.
    \16\ Blake & Bull, supra note 14, at 8-11.
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    To guide agencies in choosing among the various kinds of public 
engagement methods they may use to meet their goals, and to offer 
suggestions on how agencies might enhance the probability of success 
when choosing to undertake negotiated rulemaking, the Administrative 
Conference recommends the considerations and practices outlined 
below.\17\ These recommendations begin with the initial choice 
agencies confront--namely selecting from among various public 
engagement options and deciding when to use negotiated rulemaking--
before turning to recommendations for those occasions when agencies 
use negotiated rulemaking.
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    \17\ When gathering input outside of the notice-and-comment 
process, agencies should consider the best practices outlined in 
Administrative Conference of the United States, Recommendation 2014-
4, ``Ex Parte'' Communications in Informal Rulemaking, 79 FR 35988 
(June 25, 2014).
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Recommendation

Selecting the Optimal Approach to Public Engagement in Rulemaking

    1. Negotiated rulemaking is one option of several that agencies 
should consider when seeking input from interested persons on a 
contemplated rule. In addition to negotiated rulemaking, agencies 
should consider the full range of public engagement options to best 
meet their objectives. For example:
    a. Notice-and-comment rulemaking by itself is often effective to 
obtain documentary information and other input from a wide array of 
interested persons.
    b. When seeking to facilitate a two-way exchange of information 
or ideas, agencies should consider meeting with a variety of 
interested persons reflecting a balance of perspectives.
    c. In situations in which an agency is interested in input from 
various interested persons or entities but does not seek collective 
advice or a consensus position, the agency should consider gathering 
groups of interested persons to provide individual input through 
more than one public or private meeting, dialogue session, or other 
forum.
    d. Where an agency seeks collective advice, the agency should 
use an advisory

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committee, observing all applicable requirements prescribed by FACA.

Deciding When To Use Negotiated Rulemaking

    2. An agency should consider using negotiated rulemaking when it 
determines that the procedure is in the public interest, will 
advance the agency's statutory objectives, and is consistent with 
the factors outlined in the Negotiated Rulemaking Act. Specifically, 
such factors include whether:
     ``there are a limited number of identifiable interests 
that will be significantly affected by the rule;'' \18\
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    \18\ 5 U.S.C. 563(a)(2).
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     ``there is a reasonable likelihood that a committee can 
be convened with a balanced representation of persons who (a) can 
adequately represent the [identifiable and significantly affected] 
interests and (b) are willing to negotiate in good faith to reach a 
consensus on the proposed rule;'' \19\
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    \19\ Id. Sec.  563(a)(3).
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     there is adequate time to complete negotiated 
rulemaking and the agency possesses the necessary resources to 
support the process; \20\ and
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    \20\ See id. Sec. Sec.  563(a)(4)-(6) (providing that ``there is 
a reasonable likelihood that the committee will reach consensus on 
the proposed rule within a fixed period of time''; ``the negotiated 
rulemaking procedure will not unreasonably delay the notice of 
proposed rulemaking and the issuance of the final rule''; and ``the 
agency has adequate resources and is willing to commit such 
resources, including technical assistance, to the committee'').
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     ``the agency, to the maximum extent possible consistent 
with the legal obligations of the agency, will use the consensus of 
the committee with respect to the proposed rule as the basis for the 
rule proposed by the agency for notice and comment.'' \21\
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    \21\ Id. Sec.  563(a)(7).
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    3. In light of the broad range of highly specific factors that 
need to be considered when determining whether to use negotiated 
rulemaking, the choice should generally reside within the agency's 
discretion.

Structuring a Negotiated Rulemaking Committee To Maximize the 
Probability of Success

    4. As a general matter, agency officials should clearly define 
the charge of the negotiated rulemaking committee at the outset. 
This involves explicitly managing expectations and stating any 
constraints on the universe of options the committee is authorized 
to consider, including any legal prohibitions or non-negotiable 
policy positions of the agency. Agency officials should inform the 
committee members of the use to which the information they provide 
will be put and should notify them that negotiated rulemaking 
committee meetings will be made open to the public and documents 
submitted in connection therewith generally will be made available 
to the public.
    5. Agencies should appoint an official with sufficient authority 
to speak on behalf of the agency to attend all negotiated rulemaking 
committee meetings and to participate in them to the extent the 
agency deems suitable.
    6. Agencies should work with convenors or facilitators to define 
clearly the roles they should play in negotiated rulemakings.\22\ 
Generally, agencies should draw upon the convenor's expertise in 
selecting committee members, defining the issues the committee will 
address, and setting the goals for the committee's work. Similarly, 
agencies should use a facilitator to assist the negotiation 
impartially and to make that impartiality clear to the members of 
the committee.
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    \22\ Notably, while such neutrals may be hired by an agency, 
they support the overall process impartially (rather than on behalf 
of, or in favor of, the agency). For more details on the roles of 
convenors and facilitators, see Recommendation 85-5, supra note 1, 
at recommendations 5-8 and the discussion in note 4, supra. The 
roles may be filled by the same person or by two different 
individuals, who may be agency employees or external professionals.
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    7. Agencies should keep in mind the role of the Office of 
Information and Regulatory Affairs (OIRA) in the rulemaking process 
when conducting negotiated rulemaking and inform committee members 
of that role. An agency should notify its OIRA desk officer of the 
opportunity to observe the committee meetings and, upon request, 
provide him or her with briefings on the meetings. An agency should 
also discuss whether or how the committee process might be used to 
support the development of the elements needed to comply with 
relevant analytical requirements, including the rule's regulatory 
impact analysis.

Considerations Associated With FACA

    8. Congress should exempt negotiated rulemaking committees from 
FACA's chartering and reporting requirements.\23\ If Congress 
exempts negotiated rulemaking committees from FACA entirely, it 
should amend the Negotiated Rulemaking Act to require comparable 
transparency, such as by requiring that negotiated rulemaking 
committee meetings be noticed in advance and open to the public.
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    \23\ Administrative Conference of the United States, 
Recommendation 2011-7, The Federal Advisory Committee Act--Issues 
and Proposed Reforms, 77 FR 2257 (Jan. 17, 2012).
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    9. For greater flexibility within the framework of FACA, 
agencies should consider maintaining standing committees from which 
a negotiated rulemaking subcommittee or working group can be formed 
on an as-needed basis to obviate the need to charter a new committee 
each time the agency undertakes a negotiated rulemaking.\24\ 
Regardless of whether Congress exempts negotiated rulemaking from 
certain FACA requirements, agencies should strive to minimize 
unnecessary procedural burdens associated with the advisory 
committee process.
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    \24\ Both the Department of Energy and Department of 
Transportation (Federal Aviation Administration and Federal Railroad 
Administration) have standing committees that at times have been 
used to support negotiated rulemaking or other rulemaking 
activities. When seeking to negotiate a proposed rule, these 
agencies will form subcommittees or working groups (sometimes wholly 
comprising standing committee members, while other times comprising 
both standing committee and new members). For more details on the 
structure of these arrangements and their potential benefits, see 
Blake & Bull, supra note 14, at 29-30. Note, however, that some 
components in the Department of Transportation do prepare FACA 
charters for each new negotiated rulemaking committee, rather than 
using the standing committee/subcommittee model just described.

[FR Doc. 2017-14060 Filed 7-3-17; 8:45 am]
 BILLING CODE 6110-01-P