82 FR 31039 - Adoption of Recommendations

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Federal Register Volume 82, Issue 127 (July 5, 2017)

Page Range		31039-31042
FR Document		2017-14060

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.

Federal Register, Volume 82 Issue 127 (Wednesday, July 5, 2017)

[Federal Register Volume 82, Number 127 (Wednesday, July 5, 2017)]
[Notices]
[Pages 31039-31042]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-14060]

========================================================================
Notices
Federal Register
________________________________________________________________________

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

========================================================================

Federal Register / Vol. 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.

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

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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'').

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

[[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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\1\ Administrative Conference of the United States,
Recommendation 85-5, Procedures for Negotiating Proposed
Regulations, 50 FR 52893, 52895 (Dec. 27, 1985).
---------------------------------------------------------------------------

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

[[Page 31041]]

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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 http://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 http://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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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

[[Page 31042]]

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\
---------------------------------------------------------------------------

\18\ 5 U.S.C. 563(a)(2).
---------------------------------------------------------------------------

``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\
---------------------------------------------------------------------------

\19\ Id. Sec. 563(a)(3).
---------------------------------------------------------------------------

there is adequate time to complete negotiated
rulemaking and the agency possesses the necessary resources to
support the process; \20\ and
---------------------------------------------------------------------------

\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'').
---------------------------------------------------------------------------

``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\
---------------------------------------------------------------------------

\21\ Id. Sec. 563(a)(7).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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

31039

Notices Federal Register
Vol. 82, No. 127

Wednesday, July 5, 2017

This section of the FEDERAL REGISTER accessibility of adjudication materials to the extent a particular adjudication record
contains documents other than rules or on their Web sites and maintain is digitally available, it is likely to be found
proposed rules that are applicable to the comprehensive, representative online on the relevant agency’s Web site.
public. Notices of hearings and investigations, This recommendation is confined to
collections of adjudication materials,
committee meetings, agency decisions and records issued or filed in adjudicative
consistent with the transparency proceedings in which a statute, executive
rulings, delegations of authority, filing of
objectives and privacy considerations of order, or regulation mandates an evidentiary
petitions and applications and agency
statements of organization and functions are the Freedom of Information Act and hearing.2 Specifically, this recommendation
examples of documents appearing in this other relevant laws and directives. applies to (a) ‘‘[a]djudication that is regulated
section. Recommendation 2017–2, Negotiated by the procedural provisions of the
Rulemaking and Other Options for Administrative Procedure Act (APA) and
Public Engagement. This usually presided over by an administrative
recommendation offers best practices to law judge’’ and (b) ‘‘[a]djudication that
ADMINISTRATIVE CONFERENCE OF consists of legally required evidentiary
THE UNITED STATES agencies for choosing among several hearings that are not regulated by the APA’s
possible methods—among them adjudication provisions in 5 U.S.C. 554 and
Adoption of Recommendations negotiated rulemaking—for engaging the 556–557 and that is presided over by
public in agency rulemakings. It also adjudicators who are often called
AGENCY: Administrative Conference of
offers best practices to agencies that administrative judges.’’ 3
the United States. Federal administrative adjudication affects
choose negotiated rulemaking on how to
ACTION: Notice. an enormous number of individuals and
structure their processes to enhance the
businesses engaged in a range of regulated
SUMMARY: The Administrative probability of success.
activities or dependent on any of the several
Conference of the United States adopted The Appendix below sets forth the government benefits programs. The many
two recommendations at its Sixty- full texts of these two recommendations. orders, opinions, pleadings, motions, briefs,
seventh Plenary Session. The appended The Conference will transmit them to petitions, and other records generated by
recommendations are titled: affected agencies, Congress, and the agencies and parties involved in adjudication
Adjudication Materials on Agency Web Judicial Conference of the United States. bespeak the procedural complexities and
The recommendations are not binding, sophistication of many proceedings.
sites; and Negotiated Rulemaking and Many federal laws and directives mandate
Other Options for Public Engagement. so the entities to which they are
or encourage the online disclosure of
FOR FURTHER INFORMATION CONTACT: For
addressed will make decisions on their
important government materials, including
Recommendation 2017–1, Daniel implementation. certain adjudication records. The Freedom of
Sheffner; and for Recommendation The Conference based these Information Act (FOIA) requires that agencies
2017–2, Cheryl Blake. For both of these recommendations on research reports make available in an electronic format ‘‘final
actions the address and telephone that are posted at: https:// opinions, including concurring and
number are: Administrative Conference www.acus.gov/67thPlenary. dissenting opinions, as well as orders, made
in the adjudication of cases.’’ 4 The prevailing
of the United States, Suite 706 South, Dated: June 29, 2017.
interpretation of this provision limits its
1120 20th Street NW., Washington, DC David M. Pritzker, ambit to ‘‘precedential’’ decisions.5
20036; Telephone 202–480–2080. Deputy General Counsel. Nonetheless, other laws and policies,
SUPPLEMENTARY INFORMATION: The including most recently the FOIA
APPENDIX—RECOMMENDATIONS OF Improvement Act of 2016,6 encourage more
Administrative Conference Act, 5 U.S.C. THE ADMINISTRATIVE CONFERENCE
591–596, established the Administrative expansive online disclosure of federal
OF THE UNITED STATES records.7
Conference of the United States. The
Conference studies the efficiency, Administrative Conference Recommendation
2 See Administrative Conference of the United
adequacy, and fairness of the 2017–1
States, Recommendation 2016–4, Evidentiary
administrative procedures used by Adjudication Materials on Agency Web Sites Hearings Not Required by the Administrative
Federal agencies and makes Adopted June 16, 2017
Procedure Act, 81 FR 94314 (Dec. 23, 2016).
3 Id. (referring to these two types of proceedings
recommendations to agencies, the
In contrast to federal court records, which as ‘‘Type A’’ and ‘‘Type B’’ adjudication,
President, Congress, and the Judicial are available for download from the respectively).
Conference of the United States for judiciary’s Public Access to Court Electronic 4 5 U.S.C. 552(a)(2)(A).

procedural improvements (5 U.S.C. Records (PACER) program (for a fee), or 5 See U.S. Dep’t of Justice, Office of Information

594(1)). For further information about records produced during notice-and- Policy, Guide to the Freedom of Information Act,
the Conference and its activities, see comment rulemaking, which are publicly Proactive Disclosures 10 (2009 ed.); U.S. Dep’t of
disseminated on the rulemaking Web site Justice, Attorney General’s Memorandum on the
www.acus.gov. At its Sixty-seventh Public Information Section of the Administrative
Plenary Session, held June 16, 2017, the www.regulations.gov, there exists no single,
Procedure Act, at 15 (Aug. 17, 1967).
comprehensive online clearinghouse for the
Assembly of the Conference adopted public hosting of decisions and other
6 Public Law 114–185, 130 Stat. 538 (2016). The

two recommendations. Act, for instance, amended the Federal Records Act,
materials generated throughout the course of 44 U.S.C. 3101 et seq., by adding a requirement that
Recommendation 2017–1,
sradovich on DSK3GMQ082PROD with NOTICES

federal administrative adjudication.1 Instead, agencies’ records management programs provide
Adjudication Materials on Agency Web ‘‘procedures for identifying records of general
sites. This recommendation provides 1 The Administrative Conference currently takes interest or use to the public that are appropriate for
guidance regarding the online no position in this recommendation as to whether public disclosure, and for posting such records in
dissemination of administrative there should be such a tool, but will consider a publicly accessible electronic format.’’ Id.
whether the issue merits attention in the future. In § 3102(2).
adjudication materials. It offers best the meantime, the research underlying this 7 See, e.g., Office of Mgmt. & Budget Circular A–
practices and factors for agencies to recommendation is limited to an examination of 130, § 5.e.2.a (directing agencies to publish ‘‘public
consider as they seek to increase the agencies’ existing Web sites. Continued

VerDate Sep<11>2014 17:57 Jul 03, 2017 Jkt 241001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1

Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices 31041

Conference twice issued recommendations problems.12 However, negotiated rulemaking criticisms about the effectiveness of
supporting the use of negotiated rulemaking was never designed to be used by agencies negotiated rulemaking in practice have been
in appropriate circumstances. The first, in the vast majority of agency raised. For example, agencies need to ensure
Recommendation 82–4, Procedures for rulemaking.13 By the early 2000s, negotiated that representatives of affected interests can
Negotiating Proposed Regulations, rulemaking was being used less frequently be selected in a way that does not give
represented an early effort to articulate the than anticipated.14 Over the past few years, unequal power to one or more
steps agencies should take to use the process the process appears to have received a members.16 There are clearly instances in
successfully.6 The second, Recommendation modest increase in attention and use by some which negotiated rulemaking should not be
85–5, which had the same title, identified agencies. used. Nevertheless, where an agency
suggested practices based on agency In part, the infrequent use of negotiated concludes that its goals would best be served
experience with negotiated rulemaking in the rulemaking may be due to the availability of by developing a consensus-based proposed
preceding years.7 alternative public engagement options, such rule—or where the relevant policy issues, or
Congress formally authorized the use of as advance notices of proposed rulemaking, relationships with interested persons or
regulatory negotiation where it would requests for input, technical workshops, or groups, are suitably complex—negotiated
enhance rulemaking by enacting the listening sessions, that allow agencies to gain rulemaking may very well be a worthwhile
Negotiated Rulemaking Act of 1990.8 many of the benefits of direct feedback early procedural option to consider.
Congress had found that traditional informal in the policymaking process while retaining To guide agencies in choosing among the
rulemaking ‘‘may discourage the affected greater procedural flexibility. Indeed, such various kinds of public engagement methods
parties from meeting and communicating alternatives can effectively elicit public input they may use to meet their goals, and to offer
with each other, and may cause parties with while avoiding the delays and procedural suggestions on how agencies might enhance
different interests to assume conflicting and complexities associated with chartering a the probability of success when choosing to
antagonistic positions and to engage in negotiated rulemaking committee under the undertake negotiated rulemaking, the
expensive and time-consuming litigation.’’ 9 Federal Advisory Committee Act Administrative Conference recommends the
(FACA).15 In addition, over the years, some considerations and practices outlined
Congress found that negotiated rulemaking
could ‘‘increase the acceptability and below.17 These recommendations begin with
improve the substance of rules, making it less
12 Cary Coglianese, Assessing Consensus: The
the initial choice agencies confront—namely
Promise and Performance of Negotiated selecting from among various public
likely that the affected parties will resist Rulemaking, 46 Duke L.J. 1255, 1256, 1268 (1997)
enforcement or challenge such rules in engagement options and deciding when to
[hereinafter Coglianese, Assessing Consensus]. Over use negotiated rulemaking—before turning to
court’’ and that negotiation could ‘‘shorten a dozen such statutes were passed before 1997,
the amount of time needed to issue final including the Student Loan Reform Act of 1993
recommendations for those occasions when
rules.’’ 10 (Pub. L. 103–66, 4021, 107 Stat. 341, 353) and the agencies use negotiated rulemaking.
Executive Order 12,866, signed by Native American Housing Assistance and Self- Recommendation
President Clinton and retained by subsequent Determination Act of 1996 (Pub. L. 104–330, 106(b),
110 Stat. 4016, 4029). Congress has continued to Selecting the Optimal Approach to Public
presidents, directs agencies to ‘‘explore and,
mandate that agencies use negotiated rulemaking Engagement in Rulemaking
where appropriate, use consensual under some programs. For a list of statutes
mechanisms for developing regulations, 1. Negotiated rulemaking is one option of
mandating or strongly encouraging negotiated
including negotiated rulemaking.’’ 11 In rulemaking, see Cary Coglianese, Is Consensus an several that agencies should consider when
addition, Congress has occasionally Appropriate Basis for Regulatory Policy?, in seeking input from interested persons on a
mandated the use of negotiated rulemaking Environmental Contracts: Comparative Approaches contemplated rule. In addition to negotiated
when passing new legislation that directs to Regulatory Innovation in the United States and rulemaking, agencies should consider the full
agencies to address certain Europe 93–113 (Eric Orts & Kurt Deketeaere eds., range of public engagement options to best
2001). More recent examples include the meet their objectives. For example:
Intelligence Reform and Terrorism Prevention Act a. Notice-and-comment rulemaking by
proposed rules, they may remain constituted until of 2004 (Pub. L. 108–458, 7212, 118 Stat. 3638,
the promulgation of the final rule. Id. § 567. Some itself is often effective to obtain documentary
2829) and the Patient Protection and Affordable
agencies have used committee meetings to obtain Care Act (Pub. L. 111–148, 5602, 124 Stat. 119, information and other input from a wide
further feedback during the development of the 677). For a case study of the congressionally array of interested persons.
final rule. mandated use of negotiated rulemaking by the U.S. b. When seeking to facilitate a two-way
6 Administrative Conference of the United States,
Department of Education, see Jeffrey S. Lubbers, exchange of information or ideas, agencies
Recommendation 82–4, Procedures for Negotiating Enhancing the Use of Negotiated Rulemaking by the should consider meeting with a variety of
Proposed Regulations, 47 FR 30701 (July 15, 1982). U.S. Department of Education (Dec. 5, 2014), in interested persons reflecting a balance of
These recommendations were based on Professor Recalibrating Regulation of Colleges and
Philip Harter’s report to the Administrative perspectives.
Universities, Report of the Task Force on Federal
Conference (Philip J. Harter, Negotiating c. In situations in which an agency is
Regulation of Higher Education 90 (2015), available
Regulations: A Cure for Malaise, 71 Geo. L.J. 1 at http://www.help.senate.gov/imo/media/ interested in input from various interested
(1982)). The procedural steps proposed in Regulations_Task_Force_Report_2015_FINAL.pdf. persons or entities but does not seek
Recommendation 82–4 formed the basis of the 13 Coglianese, Assessing Consensus, supra note collective advice or a consensus position, the
Negotiated Rulemaking Act. 12, at 1276. agency should consider gathering groups of
7 Recommendation 85–5, supra note 1. The
14 Documentation of the early use, decline, and interested persons to provide individual
present recommendation is intended to recent uptick in the use of negotiated rulemaking input through more than one public or
supplement, rather than supersede, the can be found in Cheryl Blake & Reeve T. Bull, private meeting, dialogue session, or other
Conference’s prior recommendations on negotiated Negotiated Rulemaking (June 5, 2017), 3–12,
rulemaking. forum.
available at https://www.acus.gov/sites/default/ d. Where an agency seeks collective advice,
8 Negotiated Rulemaking Act of 1990, Public Law
files/documents/Negotiated%20Rulemaking_
101–648, 104 Stat. 4969 (codified as amended by the agency should use an advisory
Final%20Report_June%205%202017.pdf. See also
Pub. L. 104–320, 110 Stat. 3870 (1996) at 5 U.S.C. Jeffrey S. Lubbers, Achieving Policymaking
561–70). Consensus: The (Unfortunate) Waning of Negotiated at 28–31. Of course, agencies should be aware that
9 5 U.S.C. 561. even alternative public input forums that are not
Rulemaking, 49 S. Tex. L. Rev. 987, 1001 (2008);
10 Id. Peter H. Schuck & Steven Kochevar, Reg Neg formally designated as advisory committees could
11 Exec. Order 12866, § 6(a)(1), 58 FR 51735 (Oct. Redux: The Career of a Procedural Reform, 15 nevertheless become subject to FACA should the
4, 1993). In addition, President Clinton directed Theoretical Inquiries in Law 417, 439 (2014); Reeve dynamic of any meetings with members of the
sradovich on DSK3GMQ082PROD with NOTICES

each agency to identify at least one rulemaking to T. Bull, The Federal Advisory Committee Act: public trend toward ‘‘group advice’’ rather than
develop through negotiated rulemaking or to Issues and Proposed Reforms 52 & app. A (Sept. 12, individual input. Blake & Bull, supra note 14, at 21.
2011), available at https://www.acus.gov/sites/ 16 Blake & Bull, supra note 14, at 8–11.
explain why negotiated rulemaking would not be
feasible. See Presidential Memorandum for Exec. default/files/documents/COCG-Reeve-Bull-Draft- 17 When gathering input outside of the notice-

Dept’s & Selected Agencies, Administrator, Office of FACA-Report-9-12-11.pdf. and-comment process, agencies should consider the
Info. & Reg. Affairs, Negotiated Rulemaking (Sept. 15 Agencies have cited FACA’s chartering and best practices outlined in Administrative
30, 1993), available at http:// other procedural requirements as a challenge to Conference of the United States, Recommendation
govinfo.library.unt.edu/npr/library/direct/memos/ undertaking negotiated rulemaking. See Lubbers, 2014–4, ‘‘Ex Parte’’ Communications in Informal
2682.html. supra note 14, at 1001; Blake & Bull, supra note 14, Rulemaking, 79 FR 35988 (June 25, 2014).

VerDate Sep<11>2014 17:57 Jul 03, 2017 Jkt 241001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1

31042 Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices

committee, observing all applicable should play in negotiated rulemakings.22 should strive to minimize unnecessary
requirements prescribed by FACA. Generally, agencies should draw upon the procedural burdens associated with the
Deciding When To Use Negotiated convenor’s expertise in selecting committee advisory committee process.
Rulemaking members, defining the issues the committee
[FR Doc. 2017–14060 Filed 7–3–17; 8:45 am]
will address, and setting the goals for the
2. An agency should consider using committee’s work. Similarly, agencies should BILLING CODE 6110–01–P
negotiated rulemaking when it determines use a facilitator to assist the negotiation
that the procedure is in the public interest, impartially and to make that impartiality
will advance the agency’s statutory clear to the members of the committee.
objectives, and is consistent with the factors 7. Agencies should keep in mind the role
outlined in the Negotiated Rulemaking Act. DEPARTMENT OF AGRICULTURE
of the Office of Information and Regulatory
Specifically, such factors include whether: Affairs (OIRA) in the rulemaking process
• ‘‘there are a limited number of when conducting negotiated rulemaking and Submission for OMB Review;
identifiable interests that will be significantly inform committee members of that role. An Comment Request
affected by the rule;’’ 18 agency should notify its OIRA desk officer of
• ‘‘there is a reasonable likelihood that a the opportunity to observe the committee June 29, 2017.
committee can be convened with a balanced meetings and, upon request, provide him or
representation of persons who (a) can The Department of Agriculture has
her with briefings on the meetings. An submitted the following information
adequately represent the [identifiable and agency should also discuss whether or how
significantly affected] interests and (b) are the committee process might be used to collection requirement(s) to OMB for
willing to negotiate in good faith to reach a support the development of the elements review and clearance under the
consensus on the proposed rule;’’ 19 needed to comply with relevant analytical Paperwork Reduction Act of 1995,
• there is adequate time to complete requirements, including the rule’s regulatory Public Law 104–13. Comments are
negotiated rulemaking and the agency impact analysis.
possesses the necessary resources to support
requested regarding (1) whether the
the process; 20 and Considerations Associated With FACA collection of information is necessary
• ‘‘the agency, to the maximum extent 8. Congress should exempt negotiated for the proper performance of the
possible consistent with the legal obligations rulemaking committees from FACA’s functions of the agency, including
of the agency, will use the consensus of the chartering and reporting requirements.23 If whether the information will have
committee with respect to the proposed rule Congress exempts negotiated rulemaking
practical utility; (2) the accuracy of the
as the basis for the rule proposed by the committees from FACA entirely, it should
amend the Negotiated Rulemaking Act to agency’s estimate of burden including
agency for notice and comment.’’ 21
3. In light of the broad range of highly require comparable transparency, such as by the validity of the methodology and
specific factors that need to be considered requiring that negotiated rulemaking assumptions used; (3) ways to enhance
when determining whether to use negotiated committee meetings be noticed in advance the quality, utility and clarity of the
rulemaking, the choice should generally and open to the public. information to be collected; and (4)
reside within the agency’s discretion. 9. For greater flexibility within the ways to minimize the burden of the
framework of FACA, agencies should
Structuring a Negotiated Rulemaking
consider maintaining standing committees collection of information on those who
Committee To Maximize the Probability of are to respond, including through the
from which a negotiated rulemaking
Success use of appropriate automated,
subcommittee or working group can be
4. As a general matter, agency officials formed on an as-needed basis to obviate the electronic, mechanical, or other
should clearly define the charge of the need to charter a new committee each time technological collection techniques or
negotiated rulemaking committee at the the agency undertakes a negotiated
outset. This involves explicitly managing
other forms of information technology.
rulemaking.24 Regardless of whether
expectations and stating any constraints on Congress exempts negotiated rulemaking Comments regarding this information
the universe of options the committee is from certain FACA requirements, agencies collection received by August 4, 2017
authorized to consider, including any legal will be considered. Written comments
prohibitions or non-negotiable policy 22 Notably, while such neutrals may be hired by
should be addressed to: Desk Officer for
positions of the agency. Agency officials an agency, they support the overall process
should inform the committee members of the Agriculture, Office of Information and
impartially (rather than on behalf of, or in favor of,
use to which the information they provide the agency). For more details on the roles of Regulatory Affairs, Office of
will be put and should notify them that convenors and facilitators, see Recommendation Management and Budget (OMB), New
negotiated rulemaking committee meetings 85–5, supra note 1, at recommendations 5–8 and Executive Office Building, 725 17th
will be made open to the public and the discussion in note 4, supra. The roles may be
filled by the same person or by two different Street NW., Washington, DC 20502.
documents submitted in connection Commenters are encouraged to submit
individuals, who may be agency employees or
therewith generally will be made available to
the public.
external professionals. their comments to OMB via email to:
23 Administrative Conference of the United
5. Agencies should appoint an official with OIRA_Submission@OMB.EOP.GOV or
States, Recommendation 2011–7, The Federal
sufficient authority to speak on behalf of the Advisory Committee Act—Issues and Proposed fax (202) 395–5806 and to Departmental
agency to attend all negotiated rulemaking Reforms, 77 FR 2257 (Jan. 17, 2012). Clearance Office, USDA, OCIO, Mail
committee meetings and to participate in 24 Both the Department of Energy and Department Stop 7602, Washington, DC 20250–
them to the extent the agency deems suitable. of Transportation (Federal Aviation Administration 7602. Copies of the submission(s) may
6. Agencies should work with convenors or and Federal Railroad Administration) have standing
committees that at times have been used to support be obtained by calling (202) 720–8958.
facilitators to define clearly the roles they
negotiated rulemaking or other rulemaking An agency may not conduct or
activities. When seeking to negotiate a proposed
18 5 U.S.C. 563(a)(2). rule, these agencies will form subcommittees or
sponsor a collection of information
19 Id. § 563(a)(3). working groups (sometimes wholly comprising unless the collection of information
20 See id. §§ 563(a)(4)–(6) (providing that ‘‘there is
standing committee members, while other times displays a currently valid OMB control
sradovich on DSK3GMQ082PROD with NOTICES

a reasonable likelihood that the committee will comprising both standing committee and new
reach consensus on the proposed rule within a
number and the agency informs
members). For more details on the structure of these
fixed period of time’’; ‘‘the negotiated rulemaking arrangements and their potential benefits, see Blake potential persons who are to respond to
procedure will not unreasonably delay the notice of & Bull, supra note 14, at 29–30. Note, however, that the collection of information that such
proposed rulemaking and the issuance of the final some components in the Department of persons are not required to respond to
rule’’; and ‘‘the agency has adequate resources and Transportation do prepare FACA charters for each
is willing to commit such resources, including new negotiated rulemaking committee, rather than
the collection of information unless it
technical assistance, to the committee’’). using the standing committee/subcommittee model displays a currently valid OMB control
21 Id. § 563(a)(7). just described. number.

VerDate Sep<11>2014 17:57 Jul 03, 2017 Jkt 241001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1

Document Created: 2017-07-04 02:01:07
Document Modified: 2017-07-04 02:01:07

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Contact		For Recommendation 2017-1, Daniel Sheffner; and for Recommendation 2017-2, Cheryl Blake. For both of
FR Citation		82 FR 31039