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.

Notices Federal Register

41352 

Vol. 78, No. 132 

Wednesday, July 10, 2013 

1The Social Security Act created two programs— 

Social Security Disability Insurance and 

Supplemental Security Income—to provide 

monetary benefits to persons with disabilities who 

satisfy these programs’ respective requirements. See 

42 U.S.C. 401(b), 1381 (2011). 

2These recommendations include: 

Recommendation 91–3, The Social Security 

Representative Payee Program, 56 FR 33847 (July 

24, 1991); Recommendation 90–4, Social Security 

Disability Program Appeals Process: Supplementary 

Recommendation, 55 FR 34213 (Aug. 22, 1990); 

Recommendation 89–10, Improved Use of Medical 

Personnel in Social Security Disability, 55 FR 1665 

(Jan. 18, 1990 (as amended)); Recommendation 87– 

7, A New Role for the Social Security Appeals 

Council, 52 FR 49143 (Dec. 30, 1987) [hereinafter 

ACUS Recommendation 87–7]; and 

Recommendation 78–2, Procedures for Determining 

Social Security Disability Claims, 43 FR 27508 (June 

26, 1978). 

3See, e.g., Recommendation 2011–4, Agency Use 

of Video Hearings: Best Practices and Possibilities 

for Expansion, 76 FR 48789 (Aug. 9, 2011); 

Recommendation 89–8, Agency Practices and 

Procedures for the Indexing and Public Availability 

of Adjudicatory Decisions, 54 FR 53495 (Dec. 29, 

1989); Recommendation 86–7, Case Management as 

a Tool for Improving Agency Adjudication, 51 FR 

46989 (Dec. 30, 1986); Recommendation 73–3, 

Quality Assurance Systems in the Adjudication of 

Claims of Entitlement to Benefits or Compensation, 

38 FR 16840 (June 27, 1973). 

4Soc. Sec. Admin., Annual Performance Plan for 

FY 2013 and Revised Performance Plan for FY 

2012, at 11 (2012). 

5Soc. Sec. Advisory Bd., Aspects of Disability 

Decision Making: Data and Materials 6 tbls. 1a & 1b 

(Feb. 2012) [hereinafter SSAB 2012 Report]. 

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 

four recommendations at its Fifty-eighth 

Plenary Session. The appended 

recommendations address ways to 

improve the adjudication of Social 

Security disability benefits, best 

practices for use of benefit-cost analysis 

in rulemaking by independent 

regulatory agencies, transparency in 

agencies’ scientific decisionmaking, and 

best practices for agencies with respect 

to the administrative record in informal 

rulemaking. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendation 2013–1, Amber 

Williams; for Recommendations 2013–2 

and 2013–3, Reeve Bull; for 

Recommendation 2013–4, Stephanie 

Tatham. For all four recommendations 

the address and phone number are: 

Administrative Conference of the 

United States, Suite 706 South, 1120 

20th Street NW., Washington, DC 20036; 

Telephone 202–480–2080. 

SUPPLEMENTARY INFORMATION: The 

Administrative Conference Act, 5 U.S.C. 

591–596, established the Administrative 

Conference of the United States. The 

Conference studies the efficiency, 

adequacy, and fairness of the 

administrative procedures used by 

Federal agencies and makes 

recommendations for improvements to 

agencies, the President, Congress, and 

the Judicial Conference of the United 

States (5 U.S.C. 594(1)). For further 

information about the Conference and 

its activities, see http://www.acus.gov. 

At its Fifty-eighth Plenary Session, 

held June 13–14, 2013, the Assembly of 

the Conference adopted four 

recommendations. Recommendation 

2013–1, ‘‘Improving Consistency in 

Social Security Disability 

Adjudications,’’ identifies ways to 

improve the adjudication of Social 

Security disability benefits claims 

before administrative law judges and the 

Appeals Council, suggests changes to 

the evaluation of opinion evidence from 

medical professionals, and encourages 

the agency to enhance data capture and 

reporting. 

Recommendation 2013–2, ‘‘BenefitCost Analysis at Independent 

Regulatory Agencies,’’ highlights a 

series of best practices directed at 

independent regulatory agencies in the 

preparation of benefit-cost analyses that 

accompany proposed and final rules. 

Recommendation 2013–3, ‘‘Science in 

the Administrative Process,’’ promotes 

transparency in agencies’ scientific 

decision-making, including: articulation 

of questions to be informed by science 

information; attribution for agency 

personnel who contributed to scientific 

analyses; public access to underlying 

data and literature; and conflict of 

interest disclosures for privately funded 

research used by the agencies in 

licensing, rulemaking, or other 

administrative processes. 

Recommendation 2013–4, ‘‘The 

Administrative Record in Informal 

Rulemaking,’’ offers best practices for 

agencies in the compilation, 

preservation, and certification of records 

in informal rulemaking, and supports 

the judicial presumption of regularity 

for agency administrative records except 

in certain limited circumstances. 

The Appendix (below) sets forth the 

full texts of these four 

recommendations. The Conference will 

transmit them to affected agencies and 

to appropriate committees of the United 

States Congress. The recommendations 

are not binding, so the relevant 

agencies, the Congress, and the courts 

will make decisions on their 

implementation. 

The Conference based these 

recommendations on research reports 

that it has posted at: http:// 

www.acus.gov/meetings-and-events/ 

plenary-meeting/58th-plenary-session/. 

A video of the Plenary Session is 

available at the same web address, and 

a transcript of the Plenary Session will 

be posted once it is available. 

Dated: July 3, 2013. 

Paul R. Verkuil, 

Chairman. 

APPENDIX—RECOMMENDATIONS OF 

THE ADMINISTRATIVE CONFERENCE 

OF THE UNITED STATES 

Administrative Conference Recommendation 

2013–1 

Improving Consistency in Social Security 

Disability Adjudications 

Adopted June 13, 2013 

The Administrative Conference of the 

United States (Conference) has undertaken 

many studies over the years relating to the 

Social Security disability benefits system.1 It 

has issued a number of recommendations 

specifically directed at improving the Social 

Security Administration’s (SSA’s) initial 

application and appeals processes,2 as well 

as other recommendations more generally 

designed to improve agency adjudicatory 

procedures.3 The Conference last issued a 

recommendation on the Social Security 

disability benefits system over twenty years 

ago. The system has grown substantially 

since that time. Approximately 3.3 million 

disability claims are now filed annually,4

which represents a 57% increase since 1990.5

In a program of this size, adjudicating 

disability benefits claims in a fair, consistent, 


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Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 41353 

6The administrative process for adjudication of 

Social Security disability claims is nonadversarial 

in nature. See, e.g., 20 CFR 404.900(b), 416.1400(b) 

(2012) (describing agency’s administrative review 

process as ‘‘informal’’ and ‘‘nonadversary’’); 

Mathews v. Eldridge, 424 U.S. 319, 339 (1976) 

(‘‘The hearing is nonadversary and the SSA is not 

represented by counsel.’’); Richardson v. Perales, 

402 U.S. 389, 403 (1971) (‘‘We bear in mind that 

[SSA] operates essentially, and is intended so to do, 

as an adjudicator and not as an advocate or 

adversary.’’). 

7SSAB 2012 Report, supra note 5, at 13. 

8Harold Krent & Scott Morris, Statistical 

Appendix: Analysis of Administrative Law Judge 

Disposition and Favorable Rates in Fiscal Years 

2009 to 2011 13, 14 tbl. A–8 (2013) [hereinafter 

Statistical Appendix]. 

9Harold Krent & Scott Morris, Achieving Greater 

Consistency in Social Security Disability: An 

Empirical Study and Suggested Reforms 8 (2013) 

(noting a 50% allowance rate in FY 2012). 

10See 20 CFR 422.205 (2012) (prescribing 

Appeals Council review procedures); see also 

Charles H. Koch, Jr. & David A. Koplow, The Fourth 

Bite at the Apple: A Study of the Operation and 

Utility of the Soc. Sec. Admin.’s Appeals Council, 

17 Fla. St. U. L. Rev. 199, 253–54 (1990). 

11The Conference believes that its 1987 

conclusion, that a ‘‘principal mandate’’ of the 

Appeals Council is ‘‘to recommend and, where 

appropriate, develop and implement adjudicatory 

principles and decisional standards for the 

disability determination process’’ remains valid 

today. See ACUS Recommendation 87–7, supra 

note 2. 

12Soc. Sec. Admin., Office of Appellate 

Operations, Executive Director’s Broadcast, at 1 

(Oct. 19, 2012) [hereinafter Exec. Dir. Broadcast]. Of 

these 166,000 requests for review, the Appeals 

Council dismissed or denied 78.3% of the requests, 

remanded 18.6% of the cases back to ALJs, and 

issued decisions (i.e., fully favorable, partially 

favorable, or unfavorable) in 2.6% of the cases. Id. 

at 2. 

13As the name connotes, random sampling 

involves selection of hearing level cases for Appeals 

Council review from a national pool without regard 

for case characteristics or correctness, other than 

broad categories designed to assure randomness 

(e.g., allowances within a given date range). By 

contrast, selective sampling is specifically designed 

to identify cases for review that ‘‘exhibit 

problematic issues or fact patterns that increase the 

likelihood of error.’’ 20 CFR 404.969(b)(1), 

416.1469(b)(1) (2012) (detailing the Appeals 

Council’s ‘‘own motion’’ review authority and 

procedures); see also Soc. Sec. Admin., 

Identification and Referral of Cases Under Appeals 

Council’s Own Motion Review Authority, 63 FR 

36560 (July 7, 1998). These procedures are 

established pursuant to the Social Security Act’s 

broad grant of authority to the Commissioner to 

establish hearing procedures and, on his or her own 

motion, hold hearings or conduct other proceedings 

as necessary for the proper administration of the 

program. See, e.g., 42 U.S.C. 405(b)(1), 1383(c)(1)(A) 

(2011). 

14This recommendation suggests that, to enhance 

decisional accuracy and consistency, SSA expand 

the Appeals Council’s use of ‘‘own motion’’ review 

of unappealed ALJ decisions through selective 

sampling based on announced, neutral, and 

objective criteria that identify problematic issues, 

fact patterns, or case characteristics. Under this 

recommendation, focused review might be 

warranted, for example, based on: the subject matter 

of a claim, the manner in which a hearing was held, 

or statistical analyses showing a high likelihood of 

error or significantly anomalous outcomes. 

15Exec. Dir. Broadcast, supra note 12, at 3. The 

Appeals Council agreed with the decisions of ALJs 

82.5% of the time, and either remanded or issued 

corrective decisions approximately 16% of the time. 

At the end of the FY 2012, there were 741 ‘‘own 

motion’’ review cases still pending final action. Id. 

16On average, for FY 2009–FY 2011, ALJs issued 

538.9 dispositions per year. See Statistical 

Appendix, supra note 8, at 6, 8 tbl. A–2. 

17 In recent years, while the distribution of yearly 

allowance disposition rates has been approximately 

normal (i.e., a mean of 56%), the distribution covers 

a wide range of allowance rates, with 95% of the 

rates falling between 26% and 85%. See id. at 13, 

14 fig. A–8 (analyzing allowance rates for FY 2009– 

FY 2011). The lowest allowance rate was 4% and 

the highest allowance rate was 98%. See id. 

18See id. at 54 tbl. A–24. Policy compliance 

among ALJs has improved in recent years. See 

Michael J. Astrue, former Comm’r, Soc. Sec. 

Admin., Address at the Social Security Advisory 

Board Forum: Straight Talk about ‘‘Disability 

Reform.’’ (Mar. 8, 2013), available at http://www.

ssab.gov/Portals/0/2013Forum/Presentations/

Astrue%20Speech%203-8-13.pdf. 

19See 20 CFR 404.1527(c), 416.927(c) (2012). 

and timely manner is a monumental 

challenge. 

Those cases flow through a nationwide, 

multi-step process, by which SSA determines 

whether a claimant is disabled and eligible 

for benefits. State agencies make initial 

disability determinations using federal 

guidelines. Claimants may file (and pursue) 

their own claims or they may choose to enlist 

the assistance of a representative, who may 

or may not be a lawyer.6 If benefits are 

denied, claimants may request 

reconsideration (in most states). If benefits 

are denied after reconsideration, claimants 

may request a hearing before an 

Administrative Law Judge (ALJ). ALJs 

adjudicate nearly 800,000 cases a year.7 In 

FY 2011, about 56% of disability benefits 

claims were allowed at the ALJ hearing 

stage,8 though more recent figures show a 

decline in this rate.9 ALJ hearings, which 

may be in-person or by video 

teleconferencing, are conducted using a de 

novo standard of review, and generally 

follow the Administrative Procedure Act’s 

adjudication procedures. Although ALJs 

preside at the hearings, decisionwriters 

typically write decisions for ALJs based on 

instructions from them. Usually, 

decisionwriters are not assigned to specific 

ALJs, but serve instead as part of a ‘‘pool’’ in 

each hearing office from which writing 

assignments for decisions are made. 

Appeals Council review is the final step in 

the administrative process. The Appeals 

Council is comprised of about 125 appellate 

adjudicators who typically take action— 

without oral argument—individually or in 

two-member panels.10 The Appeals Council 

has discretionary authority to grant, deny, or 

dismiss a claimant’s request for review, as 

well as remand the case back to an ALJ or 

issue a decision.11 In FY 2012, the Appeals 

Council processed over 166,000 requests for 

review, a 30.7% increase from FY 2011.12 In 

addition to processing requests for review, 

the Appeals Council has authority to review 

all types of unappealed decisions (i.e., 

allowances or benefit denials) on its ‘‘own 

motion’’ through use of random or selective 

sampling techniques.13 Currently, the 

Appeals Council’s ‘‘own motion’’ review 

docket draws from a national random sample 

of ALJ allowance decisions as a quality 

assurance mechanism; the Appeals Council 

has not yet reviewed unappealed ALJ denial 

decisions, and has declined to use its 

selective sampling authority to identify and 

review unappealed cases with a high 

likelihood of error in recent years.14 In FY 

2012, the Appeals Council completed 

random review of 7,074 ALJ allowance 

decisions.15 The Appeals Council publishes 

its decisions only rarely, in the form of 

Appeals Council Interpretations (ACIs), and 

its decisions sometimes serve as the basis for 

Social Security Rulings. Claimants who 

disagree with the final administrative 

decision may seek initial judicial review in 

federal district court. 

Adjudicators and other agency employees 

at both the ALJ hearing level and Appeals 

Council level use electronic case 

management systems to help manage their 

workflow and to provide case-related 

management information. The current system 

in use at the hearing level is the Case 

Processing Management System (CPMS), 

while the Appeals Council level uses the 

Appeals Council Review Processing System 

(ARPS). Not only do adjudicators and other 

staff use CPMS and ARPS in their day-to-day 

work, but the agency also uses data from 

these systems to identify and address trends 

and anomalies existing at the various levels 

of agency adjudication. While SSA has 

endeavored to build effective data reporting 

systems, limitations still exist that relate to 

data capture and linking the various systems. 

Not only does SSA process an 

extraordinary number of claims through a 

national, multi-tiered system, but, in doing 

so, the agency tries to ensure that 

decisionmaking is consistent and accurate at 

all levels of adjudication, and that legally 

sufficient decisions are issued that can 

withstand review by federal courts. 

Consistency and accuracy, however, have 

suffered under the strain of administering 

such a sprawling program. To be sure, an ALJ 

faces an enormous task in adjudicating 

hundreds of cases annually.16 Nonetheless, 

divergent allowance rates among ALJs 

suggest that claims are being resolved in an 

inconsistent, if not inaccurate, manner.17 The 

Appeals Council similarly struggles to fulfill 

its error-correction and quality-review roles. 

That these steps may have room for 

improvement is evidenced by the 45% rate 

at which cases are remanded back to the 

agency from federal courts in recent years.18

Bringing greater consistency and accuracy to 

the disability claims adjudication process 

will enhance the fairness and integrity of the 

program. 

One area of particular concern—due to its 

apparent contribution to a high remand 

rate—is SSA’s treating source rule, which 

generally affords ‘‘controlling weight’’ to the 

opinions of a claimant’s treating physician, 

psychologist, or other acceptable medical 

source.19 In the early 1990s, SSA sought to 

bring greater clarity and uniformity to the 

assessment of medical evidence by 

establishing regulatory standards for such 

evaluations. In practice, however, this 

evidentiary rule has not delivered on its 

promise of improving consistency. In recent 

years, erroneous application of the treating 

source rule has been cited as the basis for 


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41354 Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 

20See Office of the Chairman, Administrative 

Conference of the United States, SSA Disability 

Benefits Programs: Assessing the Efficacy of the 

Treating Physician Rule, Appendix B, at A–4, A– 

8 (2013). 

21See id. at 25–33. 

22See id. at 23–24, 33–35. 

remand by the Appeals Council at a 10% 

frequency rate, and the frequency rate with 

which it is cited by federal courts is even 

higher at 35%.20 Dramatic changes in the 

American health care system over the past 

twenty years also call into question the 

ongoing efficacy of the special deference 

afforded to the opinions of treating sources. 

Individuals typically visit multiple medical 

professionals in a variety of settings for their 

health care needs and less frequently develop 

a sustained relationship with one 

physician.21 Moreover, difficulty in 

determining who among a wide range of 

medical professionals should be considered a 

treating source has bedeviled ALJs and 

reviewing courts, contributing to high 

remand rates.22

This recommendation finds its genesis in 

SSA’s request that the Conference study the 

role of the Appeals Council in reviewing 

cases to reduce any observed variances 

among adjudicative decisions at the hearing 

level, as well as the efficacy of SSA’s treating 

source rule. These studies also revealed other 

areas that appear ripe for recommendation. 

While SSA has enacted various initiatives to 

increase consistency and has issued rulings 

to clarify its regulations, the size and 

complexity of the system leave more work to 

be done. The following recommendations 

reaffirm certain portions of past 

recommendations that remain valid and 

relevant and also identify new approaches to 

ensure consistency, accuracy, and fairness 

across this massive decision system. 

Recommendation 

ALJ Hearing Stage 

1. Improving Adjudication Effectiveness 

and Consistency. In order to promote greater 

decisional consistency and streamline the 

adjudication process at the ALJ hearing stage, 

SSA should: 

(a) Require claimant representatives (while 

also permitting claimants without 

representation) to submit pre-hearing briefs 

in a standardized format that, among other 

things, summarizes the medical evidence and 

justification for the claimant’s eligibility for 

benefits; 

(b) expand the use of video hearings in a 

manner consistent with sound technological 

practices, because such hearings promote 

efficiency and do not lead to a significant 

difference in allowance rates from in-person 

hearings. SSA should continue to advise 

claimants that opting for video hearings often 

results in faster scheduling of hearings (as 

compared to in-person hearings) and more 

convenient hearing locations; and 

(c) assign decisionwriters and case 

technicians to specific ALJs in a hearing 

office (with Hearing Office Directors 

continuing to supervise such support staff), 

while maintaining flexibility to meet 

operational needs. 

Appeals Council 

2. Balancing Error-Correction and Systemic 

Review Functions. SSA should continue to 

promote the consistent application of policy 

to the adjudication of disability benefits 

claims across a nationwide program. SSA 

should ensure that the Appeals Council 

strikes an appropriate balance between its 

error-correction function when exercising 

discretionary review of individual claimants’ 

requests for review, and its mandate to 

improve organizational effectiveness, 

decisional consistency, and communication 

of agency policy through use of ‘‘own 

motion’’ review (as to both allowances and 

unappealed denials) and other types of 

systemic quality assurance measures. 

3. Enhancing Communication. SSA should 

make clear that an essential function of the 

Appeals Council is both to focus on 

consistent application of Social Security 

regulations and policies on a systemic basis, 

and to disseminate advice and guidance to 

SSA policymakers, ALJs, and other lowerlevel decisionmakers. The Appeals Council 

should advise and assist policymakers and 

decisionmakers by: 

(a) Issuing Appeals Council Interpretations 

(ACIs), with greater frequency, in order to: 

Address policy gaps; promote greater 

consistency and uniformity throughout the 

adjudicatory process; and establish 

precedents upon which claimants and their 

representatives may rely. Such ACIs should 

be circulated within the agency and made 

publicly available through posting on SSA’s 

Web site or other similar means of public 

dissemination; 

(b) publishing selected ALJ or Appeals 

Council decisions to serve as model 

decisions (e.g., they are well-reasoned and 

clear), or to provide needed policy 

clarifications. Consistent with statutory 

obligations to maintain the privacy of 

sensitive information, such publications 

should not include personally identifiable 

information; 

(c) continuing, to the greatest extent 

feasible, to send cases that have been 

remanded from the Appeals Council or 

federal courts back to the same ALJs who 

initially adjudicated such claims for 

additional proceedings as required. If an ALJ 

who initially decided a claim will not be 

presiding over a case post-remand, SSA 

should nonetheless ensure that he or she still 

receives notification of the remand decision. 

Decisionwriters who were involved in 

drafting a remanded decision should also 

receive notification of remand decisions; and 

(d) developing a program for ALJs to serve 

extended voluntary details on the Appeals 

Council in order to introduce a measure of 

peer review, enrich ALJ understanding of the 

appeals process, and benefit the Appeals 

Council by introducing the perspectives and 

insights of ALJs. In support of that effort, 

SSA should seek a waiver from the Office of 

Personnel Management (OPM) of its 

durational (120-day) limit on details, which, 

if granted, would enable detailed ALJs to gain 

a deeper knowledge of the Appeals Council 

than is possible under a shorter detail period. 

OPM should give favorable consideration to 

such a request. 

4. Expanding Focused ‘‘Own Motion’’ 

Review. In order to focus attention on the 

unappealed decisions that most warrant 

review, thereby enhancing both accuracy and 

consistency, SSA should expand the Appeals 

Council’s use of its ‘‘own motion’’ review by 

using selective review in a manner consistent 

with ALJ decisional independence. The 

Appeals Council should use announced, 

neutral, and objective criteria, including 

statistical assessments, to identify 

problematic issues or fact patterns that 

increase the likelihood of error and, thereby, 

warrant focused review. In addition, SSA 

should review unappealed decisions that 

raise issues whose resolution likely would 

provide guidance to ALJs and adjudicators. 

In expanding its ‘‘own motion’’ review, SSA 

must ensure that (i) selection-of-review 

criteria are developed in a neutral fashion 

without targeting particular ALJs or other 

decisionmakers, and that (ii) inclusion of 

cases in such review does not serve as the 

basis for evaluation or discipline. Thus, if 

necessary, SSA should revise its regulations 

through notice-and-comment rulemaking to 

clarify and expand the Appeals Council’s use 

of selective sampling to identify for review 

decisions that: 

(a) Raise issues for which resolution by the 

Appeals Council would provide policy 

clarifications to agency adjudicators or the 

public; 

(b) appear, based on statistical or 

predictive analysis of case characteristics, to 

have a likelihood of error or lack of policy 

compliance; or 

(c) otherwise raise challenging issues of 

fact or law, or have case characteristics, that 

increase the likelihood of error. 

Use of Opinion Evidence From Medical 

Professionals (Treating Source Rule) 

5. Evaluating Medical Source Opinions. 

SSA should revise its regulations through 

notice-and-comment rulemaking to eliminate 

the controlling weight aspect of the treating 

source rule in favor of a more flexible 

approach based on specific regulatory factors. 

SSA should give ALJs greater discretion and 

flexibility when determining the appropriate 

weight to afford opinions from treating 

sources (which may or may not be 

determinative), consistent with the factors 

enumerated in the current regulatory scheme 

for evaluation of opinions of acceptable 

medical sources who are not deemed 

‘‘treating’’ sources. Such factors should 

include: (i) Length of the treatment 

relationship and frequency of examination; 

(ii) nature and extent of the treatment 

relationship; (iii) supportability of the 

medical source’s opinion; (iv) consistency of 

the medical source’s opinion; (v) 

specialization of the medical source; and (vi) 

any other factors that may support or 

contradict a medical source’s opinion. In all 

cases, ALJs should articulate the bases for the 

weight given to opinions from medical 

sources. 

6. Recognizing the Value of Other Medical 

Sources. SSA’s existing regulatory scheme, 

which assigns second-tier evidentiary value 

to the opinions of nurse practitioners (NPs), 

physician assistants (PAs), and licensed 

clinical social workers (LCSWs) because they 

are not considered ‘‘acceptable medical 

sources,’’ should be reconsidered to reflect 


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1See Office of Management and Budget, Circular 

A–4 (Sept. 17, 2003), available at http:// 

www.whitehouse.gov/omb/circulars_a004_a-4/ 

[hereinafter ‘‘OMB Circular A–4’’]. Much of the 

literature on regulatory analysis, including prior 

recommendations of the Administrative 

Conference, uses the term ‘‘cost-benefit analysis’’ in 

lieu of, or in addition to, ‘‘benefit-cost analysis.’’ 

Circular A–4 uses the term ‘‘benefit-cost analysis,’’ 

and this recommendation will therefore utilize the 

same terminology. 

2Critics of benefit-cost analysis contend that it 

ignores values that cannot be easily quantified, that 

benefits can often be difficult to monetize, that it 

tends to overestimate costs, and that it undervalues 

future benefits through the application of 

discounting methodologies. See, e.g., Frank 

Ackerman & Lisa Heinzerling, Pricing the Priceless: 

Cost-Benefit Analysis of Environmental Protection, 

150 U. Pa. L. Rev. 1553, 1557–60, 1580–81 (2001). 

3See Administrative Conference of the United 

States, Recommendation 79–4, Public Disclosure 

Concerning the Use of Cost-Benefit and Similar 

Analyses in Regulation, 44 FR 38826 (July 3, 1979) 

(‘‘Wise decisionmaking presupposes that the 

potential benefits and costs of the actions under 

consideration will be identified, will be quantified 

if feasible, and will be appraised in relation to each 

other.’’); Cass R. Sunstein, The Office of Information 

& Regulatory Affairs: Myths and Realities, 126 Harv. 

L. Rev. 1838, 1846 (2013) (‘‘Cost-benefit analysis 

can be exceedingly important, and in the Obama 

Administration, several steps were taken to 

strengthen it, contributing to a situation in which 

the net benefits of economically significant rules 

were extraordinarily high.’’); cf. Richard L. Revesz 

& Michael A. Livermore, Retaking Rationality: How 

Cost-Benefit Analysis Can Better Protect the 

Environment and Our Health 10 (2008) (‘‘Although 

cost-benefit analysis, as currently practiced, is . . . 

biased against regulation, those biases are not 

inherent to the methodology. If those biases were 

identified and eliminated, cost-benefit analysis 

would become a powerful tool for neutral policy 

analysis.’’). 

4As a general matter, ‘‘independent regulatory 

agencies’’ are those whose heads possess ‘‘for 

cause’’ removal protection and that enjoy some 

degree of independence from the executive branch. 

David E. Lewis & Jennifer L. Selin, ACUS 

Sourcebook of United States Executive Agencies 49 

(1st ed., 2d Printing Mar. 2013). Under Executive 

Order 12,866, 58 FR 51735 (Oct. 4, 1993), the term 

‘‘agency’’ excludes independent regulatory 

agencies. Id. § 3(b). However, independent 

regulatory agencies are covered by the planning 

requirements in section 4 of the executive order. 

5 ‘‘Major’’ and ‘‘economically significant’’ rules 

include (but are not limited to) rules likely to result 

in annual costs, benefits, or transfer payments of 

$100 million or more. See Congressional Review 

Act, 5 U.S.C. 804(2); Exec. Order No. 12,866, supra 

note 4, § 3(f)(1). Transfer payments are monetary 

payments from one group to another that do not 

affect total resources available to society. See OMB 

Circular A–4, supra note 1. The most common form 

is the transfer of federal funds to the recipients of 

those funds (e.g., grants, food stamps, Medicare or 

Medicaid funds, and crop payments). In 2010, more 

than one-third of all major rules were so categorized 

because of the amount of transfer payments. See 

U.S. Cong. Research Service, REINS Act: Number 

and Types of ‘‘Major Rules’’ in Recent Years, 

R41651, Feb. 21, 2011, by Curtis W. Copeland and 

Maeve Carey. 

6Exec. Order No. 12,291, 46 FR 13193 (Feb. 17, 

1981) (revoked by § 11 of EO 12,866). 

7Exec. Order No. 12,866, supra note 4, § 1(b)(6). 

8 Id. § 6(a)(3); see also Exec. Order No. 13,563, 76 

FR 3821 (Jan. 21, 2011) (President Obama) (stating 

that the benefits of proposed and final rules must 

‘‘justify’’ the costs); Administrative Conference of 

the United States, Recommendation 88–9, 

Presidential Review of Agency Rulemaking, 54 FR 

5207 (Feb. 2, 1989) (suggesting guidelines for the 

enhanced openness of executive regulatory review 

and recommending the reconsideration of existing 

rules looking toward the repeal of unnecessary 

regulations). 

9See, e.g., Exec. Order No. 13,579, 76 FR 41,587 

(July 14, 2011) (stating that independent regulatory 

agencies ‘‘should promote’’ the goal, articulated in 

EO 13,563, of producing a ‘‘regulatory system that 

protects public health, welfare, safety, and our 

environment while promoting economic growth, 

innovation, competitiveness, and job creation’’ and 

‘‘should comply’’ with the provisions in EO 13,563 

Continued 

the realities of the current health care system. 

For many Social Security disability 

claimants, these medical professionals are 

the de facto ‘‘treating source’’ of medical care 

for physical and mental illnesses. SSA 

should: 

(a) Revise its regulations through noticeand-comment rulemaking to add NPs, PAs, 

and LCSWs as ‘‘acceptable medical sources,’’ 

consistent with their respective state lawbased licensure and scopes of practice; or 

(b) issue a new Social Security ruling or 

other interpretive policy statement that 

makes clear, for agency adjudicators, federal 

courts, and the public, the value of, as well 

as the weight to be afforded, the opinions of 

these three types of medical professionals. 

Statistical Quality Assurance Measures 

7. Enhancing Data Reporting Systems. SSA 

should enhance its current data reporting 

systems in order to develop a more robust 

statistical quality assurance program. To 

enhance its current data reporting systems, 

such as the Case Processing Management 

System (CPMS) and the Appeals Council 

Review Processing System (ARPS), or any 

respective follow-on systems, SSA should 

determine how to associate types of cases 

and issues, regions, hearing offices, 

adjudicators, procedural elements and 

benchmarks, and decisional outcomes 

together. The goal of such systems should not 

only be objective evaluation of the agency’s 

case processing operation, but also the 

effective utilization of data to inform policy 

formation and operational consistency. 

8. Capturing Additional Data. SSA should 

specifically address the limitations of CPMS, 

ARPS, and any respective follow-on systems 

by ensuring that these data reporting systems 

capture (as appropriate): 

(a) Information related to any prior 

hearings; 

(b) whether a decision involved a hearing 

or on-the-record decision; 

(c) whether new evidence was submitted 

by a claimant after his or her hearing to the 

ALJ or to the Appeals Council; and 

(d) data or other tracking mechanisms 

enabling ARPS and CPMS data to be related 

to a single claim through all case processing 

stages, including hearings, Appeals Council 

review, and remand by the Appeals Council 

or federal courts. 

9. Encouraging Employee Feedback. SSA 

should encourage feedback from SSA 

employees to identify other types of caserelated data that should be captured and to 

suggest ways to facilitate the linking of SSA’s 

multiple data reporting systems in order to 

improve overall data quality and quality 

assurance capabilities. 

Administrative Conference Recommendation 

2013–2 

Benefit-Cost Analysis at Independent 

Regulatory Agencies 

Adopted June 13, 2013 

Benefit-cost analysis (also known as costbenefit analysis) is one of the primary tools 

used in regulatory analysis to anticipate and 

evaluate the likely consequences of rules.1

Although some regulatory benefits and costs 

are difficult to quantify or monetize, those 

preparing such analyses generally attempt to 

estimate the overall benefits that a proposed 

or final rule would create as well as the 

aggregate costs that it would impose on 

society, and then determine whether the 

former justify the latter. Some observers have 

disputed its utility in rulemaking,2 but 

benefit-cost analysis (and other forms of 

regulatory analysis) can help ensure that 

decisionmakers fully contemplate the risks 

and rewards of any proposed regulatory 

strategy.3 Benefit-cost analysis can also 

improve transparency, helping to ensure that 

the public and Congress understand why 

regulatory decisions are made. 

For more than 30 years, Cabinet 

departments and other executive agencies 

like the Environmental Protection Agency 

(but not independent regulatory agencies 4

such as the Federal Trade Commission (FTC)) 

have been required by executive orders to 

conduct benefit-cost or other types of 

regulatory analyses for their ‘‘major’’ or 

‘‘economically significant’’ rules.5 In 1981, 

President Ronald Reagan issued Executive 

Order (EO) 12,291,6 which instructed 

covered executive agencies to prepare 

regulatory impact analyses of their draft 

proposed and final major rules (including a 

description of benefits and costs), and to 

submit all of their draft rules to the Office of 

Information and Regulatory Affairs (OIRA) 

within the Office of Management and Budget 

(OMB) before publication in the Federal 

Register. Subsequent administrations have 

reaffirmed the importance of benefit-cost 

analysis and OIRA review. Currently, EO 

12,866, issued by President William Jefferson 

Clinton in 1993, requires Cabinet 

departments and other covered executive 

agencies to ‘‘assess both the costs and 

benefits of the intended regulation and, 

recognizing that some costs and benefits are 

difficult to quantify, propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs.’’ 7 It also 

requires them to assess the costs and benefits 

of ‘‘significant’’ draft proposed and final 

rules submitted to OIRA for review, and to 

conduct more thorough analysis of 

economically significant draft proposed and 

final rules.8

As noted previously, independent 

regulatory agencies traditionally have not 

been subject to the formal benefit-cost 

analysis requirements imposed by executive 

order, although several recent Presidents 

have encouraged those agencies to 

voluntarily apply the principles contained in 

the relevant executive orders.9 Virtually all 


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41356 Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 

regarding public participation, integration and 

innovation, flexible approaches, and science ‘‘[t]o 

the extent permitted by law’’). 10 5 U.S.C. 601–12. 11 44 U.S.C. 3501–21. 12 15 U.S.C. 2058(f). 13CFTC is required to ‘‘consider the costs and 

benefits’’ of the agency’s action before issuing 

certain rules and orders. 7 U.S.C. 19(a). The SEC is 

required, when it is engaged in rulemaking under 

certain statutory provisions, to ‘‘consider, in 

addition to the protection of investors, whether the 

action will promote efficiency, competition, and 

capital formation.’’ 15 U.S.C. 77b(b). Interpretation 

of these provisions has been a matter of debate. 

14See Curtis W. Copeland, Economic Analysis 

and Independent Regulatory Agencies 60–107 (Mar. 

29, 2013), available at http://acus.gov/sites/default/ 

files/documents/Copeland%20CBA%20Report%20

3-29-13.pdf. 15Cf. Administrative Conference of the United 

States, Recommendation 2012–4, Paperwork 

Reduction Act, ¶ 3, 77 FR 47800, 47808 (Aug. 10, 

2012) (recommending that agencies ‘‘use all 

available processes for OMB approval for 

information gathering’’). 16See, e.g., Copeland, supra note 14, at 99 

(describing the Federal Communications 

Commission’s increased usage of benefit-cost 

analysis in light of EO 13,579). 

17Between January 2007 and December 2012, 

federal agencies published 19,246 final rules, of 

which 485 were considered ‘‘major’’ rules. See 

Copeland, supra note 14, at Table 1. Expanding the 

rules on which regulatory analysis is required from 

‘‘economically significant’’ or ‘‘major’’ rules to rules 

considered ‘‘significant’’ under EO 12,866 would 

likely quintuple the number of analyses required. 

See http://www.reginfo.gov/public/do/ 

eoCountsSearch for data on this issue. 

independent regulatory agencies are subject 

to certain crosscutting statutes that may 

require some type of regulatory analysis, 

such as the Regulatory Flexibility Act 10 and 

the Paperwork Reduction Act.11 In addition, 

some independent regulatory agencies’ 

organic acts or other statutes require them to 

conduct benefit-cost analyses or to consider 

certain economic effects of their regulations, 

although the requirements vary significantly 

from agency to agency. For instance, some 

agencies (e.g., the Consumer Product Safety 

Commission) are required by statute to 

prepare a formal regulatory analysis 

statement that describes expected costs and 

benefits prior to issuing certain rules.12 Other 

agencies (e.g., the Commodity Futures 

Trading Commission (CFTC) and the 

Securities and Exchange Commission (SEC)) 

are required by statute to ‘‘consider’’ costs 

and benefits or other factors associated with 

some of their rules.13 Still other agencies 

(e.g., the Federal Communications 

Commission and the Nuclear Regulatory 

Commission) are not subject to any formal 

regulatory analysis requirements for most of 

their rules. 

The Administrative Conference believes 

that it is in the interest of the independent 

regulatory agencies, the executive branch, 

Congress, the courts, and the public that 

independent regulatory agencies’ current 

practices relating to benefit-cost analysis be 

documented. In this light, the report 

supporting the recommendation examined 

efforts by independent regulatory agencies to 

analyze regulatory benefits and costs in 

recent major rules.14 It also examined 

whether the agencies factor benefits and costs 

into their decisionmaking. The report 

indicated that, in many instances, 

independent regulatory agencies quantify at 

least some of the costs (and, to a lesser 

extent, the benefits) created by the major 

rules they adopt and, in other instances, such 

agencies usually provide at least qualitative 

descriptions of the associated benefits and 

costs. The report also discusses several 

factors that the agencies said affected their 

ability to quantify and monetize regulatory 

costs and benefits. For example, several 

agencies mentioned the Paperwork 

Reduction Act approval process as inhibiting 

their ability to gather the data needed to 

prepare regulatory analyses in a timely 

fashion.15

This recommendation encourages agencies 

to voluntarily adopt certain practices that 

some independent regulatory agencies (and 

other agencies) have developed when 

conducting regulatory analyses for major 

rules. The Conference recognizes that 

increasing he attention paid to the economic 

impact of proposed and final rules might 

well require substantial use of limited agency 

resources. This might require independent 

agencies to make significant tradeoffs among 

competing priorities and may delay the 

rulemaking process. Nevertheless, some 

independent regulatory agencies are already 

subject to benefit-cost and other types of 

regulatory analysis requirements, and others 

have voluntarily conducted such analyses, 

and the Conference therefore wishes to 

highlight innovative practices undertaken by 

these agencies.16

The recommendation, first, identifies 

various policies and practices used in several 

of the independent regulatory agencies and 

offers a series of proposals to encourage their 

use in other agencies. For example, it 

recommends that each independent 

regulatory agency develop written guidance 

on the preparation of benefit-cost and other 

types of regulatory analyses. Such guidance 

should be designed to help ensure that any 

regulatory analysis the agency undertakes is 

soundly developed, transparent, consistently 

conducted, and contributes to agency 

compliance with applicable statutes and 

other rulemaking requirements. Second, the 

recommendation highlights a series of 

analytical practices that OMB Circular A–4 

recommends to Cabinet departments and 

other executive agencies for their major rules, 

and the recommendation encourages 

independent regulatory agencies to consider 

whether those practices may be useful in the 

development of their major rules. For 

example, it recommends that agencies’ 

analyses be as transparent and reproducible 

as practicable, subject to the limitations of 

law and applicable policies (including 

preventing the disclosure of proprietary 

information or trade secrets, or other 

confidential information). The 

recommendation does not seek to establish a 

one-size-fits-all approach to regulatory 

analysis, and recognizes that each agency 

must tailor the analyses it conducts to accord 

with relevant statutory requirements, its own 

regulatory priorities, and the potential impact 

of the analysis on regulatory decisionmaking 

to ensure proper use of limited agency 

resources. Finally, the recommendation 

proposes that, to the extent Congress decides 

to impose or endorse new regulatory analysis 

requirements on independent regulatory 

agencies, Congress should consider giving 

those agencies the discretion to scale the 

analyses to the significance of the rules, and 

should consider the agency resources needed 

to satisfy such requirements.17

Recommendation 

Encouraging the Diffusion of Certain Policies 

and Practices 

1. Each independent regulatory agency 

should develop and keep up to date written 

guidance regarding the preparation of 

benefit-cost and other types of regulatory 

analyses. That guidance should be tailored to 

the agency’s particular statutory and 

regulatory environment. To accomplish this 

goal, independent regulatory agencies may 

choose whether or not to adopt or adapt the 

regulatory analysis practices described in 

OMB Circular A–4 or any successor 

government-wide guidance. 

2. If an independent regulatory agency 

prepares a regulatory analysis for a proposed 

or final rule, the analysis should be 

developed as early in the rulemaking process 

as reasonably practical. Once prepared, the 

analysis may need to be updated as the 

agency becomes aware of new information 

that may affect the rulemaking, or if changes 

are made to the substance of the rule. 

3. If an independent regulatory agency 

determines that additional analytical 

expertise or experience may be helpful to 

prepare a regulatory analysis (e.g., 

determining how certain costs or benefits 

could be quantified or monetized), it should, 

to the extent appropriate, consult with other 

governmental entities with expertise in this 

area. 

4. Consistent with applicable laws and the 

procedures and flexibilities permitted in the 

Paperwork Reduction Act, independent 

regulatory agencies and OIRA should 

facilitate the timely collection of information 

necessary to develop the agencies’ regulatory 

analyses. 

Recommended Practices for Major Rules 

5. Independent regulatory agencies should 

consider the appropriateness of the analytical 

guidance provided in OMB Circular A–4 

when developing regulatory analyses for 

major rules. They should consider 

structuring their analyses of those rules in 

terms of three general principles: (a) Identify 

the need for the regulation; (b) examine 

plausible alternative regulatory approaches; 

and (c) estimate, to the extent possible, the 

benefits and costs of the proposed rule and 

the primary alternatives. 

6. Consistent with applicable laws and 

agency resources, independent regulatory 

agencies should consider including in their 

regulatory analyses assessments of the impact 

of not only those actions that are within the 

agency’s statutory discretion but also of those 

actions that are statutorily mandated. 

Agencies should consider showing the effects 

of both types of actions in order to improve 

regulatory transparency. 

7. Subject to the limitations of law and 

applicable policies, independent regulatory 

agencies’ regulatory analyses should be as 


TKELLEY on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 41357 

1The scope of this recommendation is limited to 

the ‘‘natural sciences’’ (e.g., chemistry, physics, 

medical science, geology, etc.), mathematics, 

statistics, computer science, and other allied fields. 

It is based upon a report that deals with agency 

research and decisionmaking related to the natural 

sciences. Wendy Wagner, Science in Regulation: A 

Study of Agency Decisionmaking Approaches (Feb. 

18, 2013), available at http://www.acus.gov/sites/

default/files/documents/Science%20in%20

Regulation_Final%20Report_2_18_13_0.pdf. 

2See e.g. Nat’l Research Council, Review of the 

Environmental Protection Agency’s Draft IRIS 

Assessment of Formaldehyde (2011); Comm. on 

Risk Assessment of Hazardous Air Pollutants, Nat’l 

Research Council, Science and Judgment in Risk 

Assessment (1994); Nat’l Research Council, Risk 

Assessment in the Federal Government: Managing 

the Process (1983); Bipartisan Policy Ctr., 

Improving the Use of Science in Regulatory Policy 

16, 41–42 (2009) [hereinafter ‘‘BPC Report’’]; see 

also Ctr. for Effective Gov’t, Advancing the Public 

Interest through Regulatory Reform: 

Recommendations for President-Elect Obama and 

the 111th Congress 26, 34, 47 (2008). 

3Memorandum from the Admin. of Barack H. 

Obama for the Heads of Executive Departments and 

Agencies on Scientific Integrity, Daily Comp. Pres. 

Docs., 2009 DCPD No. 00137 (Mar. 9, 2009) 

[hereinafter ‘‘Obama Scientific Integrity Memo’’], 

available at http://www.gpo.gov/fdsys/pkg/DCPD200900137/pdf/DCPD-200900137.pdf. 

4 Id. 

5Memorandum from John P. Holdren, Director of 

the Office of Science and Technology Policy, to the 

Heads of Executive Departments and Agencies on 

Scientific Integrity (Dec. 17, 2010), available at 

http://www.whitehouse. gov/sites/default/files/ 

microsites/ostp/scientific-integrity-memo12172010.pdf. To effectuate this and a number of 

other responsibilities, agencies were asked to report 

back to OSTP on the actions taken to develop and 

implement their scientific integrity policies by 

April 2011. 

6BPC Report, supra note 2, at 3. 

7Wagner, supra note 1. 

8 In so doing, agencies should endeavor to explain 

the relationship between scientific research and the 

policy decisions the research is intended to inform. 

Nat’l Research Council, Comm. on the Institutional 

Means for Assessment of Risks to Public Health, 

Risk Assessment in the Federal Government: 

Managing the Process 7 (1983). 

9See Administrative Conference of the United 

States, Recommendation 2011–1, Legal 

Considerations in E-Rulemaking, ¶ 4, 76 FR 48789, 

48789 (Aug. 9, 2011); see also Exec. Order. No. 

13,642, Making Open and Machine Readable the 

New Default for Government Information, 78 FR 

28111 (May 14, 2013); Memorandum from John P. 

Holdren, Director of the Office of Science and 

Technology Policy, to the Heads of Executive 

Departments and Agencies on Increasing Access to 

the Results of Federally Funded Research (Feb. 22, 

2013) (calling for agency plans to permit public 

access to research papers funded in whole or in part 

with federal monies). As a general matter, the 

agency should make publicly available any 

scientific literature it considered, including 

literature it reviewed but upon which it ultimately 

did not rely. For purposes of the recommendation, 

literature that an agency ‘‘considered’’ includes not 

only any study an agency official relied upon but 

also any study an agency official reviewed but 

ultimately determined not to rely upon (because it 

was deemed to be outside the scope of the scientific 

study at hand, was not considered sufficiently 

reliable, or was otherwise rejected by the agency 

official). Cf. Administrative Conference of the 

United States, Recommendation 2013–4, The 

Administrative Record in Informal Rulemaking, l 

FR lll (providing a similar definition of 

‘‘consider’’ in the context of the administrative 

record in informal rulemaking). If an agency official 

merely had access to a study but did not 

specifically analyze it to determine its relevance, 

that study has not been ‘‘considered’’ within the 

meaning of the recommendation for purposes of 

making such literature publicly available. 

10 In response to President Obama’s call for 

agencies to develop ‘‘appropriate rules and 

procedures to ensure the integrity of the scientific 

process,’’ Obama Scientific Integrity Memo, supra 

note 3, a number of agencies have promulgated 

integrity policies to promote open debate among 

agency scientists. See, e.g., Envtl. Prot. Agency, 

Scientific Integrity Policy (Feb. 2012), available at 

http://epa.gov/osa/pdfs/epa_scientific_integrity

_policy_20120115.pdf; Food and Drug Admin., 

Scientific Integrity at FDA, FDA Staff Manual 

Guides, Volume IV—Agency Program Directives 2 

(2012), available at http://www.fda.gov/ 

ScienceResearch/AboutScienceResearchatFDA/ 

ucm306446.htm; Nat’l Oceanic and Atmospheric 

Admin., Scientific Integrity (Dec. 7, 2011), available 

at http://www.corporateservices.noaa.gov/ames/ 

administrative_orders/chapter_202/202-735-D.pdf; 

Nuclear Regulatory Comm’n, Collaborative Work 

Environment Program, http://www.nrc.gov/aboutnrc/values.html#open (last updated May 4, 2012); 

see also Francesca T. Grifo, Federal Agency 

Scientific Integrity Policies: A Comparative 

Analysis (Mar. 2013), http://www.ucsusa.org/assets/ 

documents/scientific_integrity/SI-policiescomparative-analysis.pdf. 

transparent and reproducible as practicable. 

In particular, agencies should consider 

disclosing how the analyses were conducted, 

posting the analyses on their Web sites and 

other appropriate online fora, and 

summarizing the methods and results in the 

preambles of the notice of proposed 

rulemaking and the final rule. 

8. Independent regulatory agencies should 

consider including in the preambles of the 

notice of proposed rulemaking and the final 

rule a summary statement or table concisely 

showing the agencies’ overall estimates of the 

expected total benefits, costs, and transfer 

payments of regulatory actions and the 

primary alternatives, including any benefits 

or costs that could not be quantified or 

monetized. 

Recommendations to Congress 

9. If Congress decides to establish or 

endorse new requirements that independent 

regulatory agencies prepare benefit-cost 

analyses of their proposed or final rules, it 

should recognize that agencies need (a) the 

flexibility to scale the analyses to the 

significance of the rules and (b) the resources 

to satisfy such requirements. 

Administrative Conference Recommendation 

2013–3 

Science in the Administrative Process 

Adopted June 14, 2013 

Over the last three decades, several 

authorities made recommendations for 

improving transparency in the use of 

science 1 in the administrative process.2

Partially in response to these 

recommendations, the executive branch and 

Congress have made a number of reforms to 

the scientific process undergirding agency 

decisionmaking. In 2009, President Obama 

issued a memorandum directing that, ‘‘[t]o 

the extent permitted by law, there should be 

transparency in the preparation, 

identification, and use of scientific and 

technological information in 

policymaking.’’ 3 ‘‘Each agency should [also] 

have appropriate rules and procedures to 

ensure the integrity of the scientific process 

within the agency.’’ 4 The Office of Science 

and Technology Policy (OSTP) elaborated 

upon this memorandum in 2010, instructing 

agencies to ‘‘communicate scientific and 

technological findings by including a clear 

explication of underlying assumptions; 

accurate contextualization of uncertainties; 

and a description of the probabilities 

associated with both optimistic and 

pessimistic projections.’’ 5

At base, these initiatives demand 

heightened transparency of agencies’ use of 

science as a central means of ensuring the 

basic accountability of agency regulation. If 

an agency identifies the role that scientific 

information plays in its ultimate decision 

and explains how it ensured that its scientific 

analysis was rigorous, then the public has a 

basis against which it can evaluate both the 

scientific and policy judgments underlying 

the agency’s decision. This transparency 

allows those outside the agency to assess 

whether the agency’s policy decision 

comports with the authorizing law and the 

scientific record. A transparent 

decisionmaking process also advances other 

institutional and scientific goals, such as 

identifying promising areas for future 

research and serving as a bulwark against 

misuse of science for political ends.6

Despite these important initiatives, a study 

commissioned by the Administrative 

Conference 7 (and public meetings that 

considered questions it raised) revealed that 

agency decisionmaking processes would 

benefit from further improvements. Drawing 

on this learning, the recommendation offers 

several proposals for enhancing the 

transparency of agencies’ use of science. At 

the same time, the Conference recognizes that 

agencies’ abilities to implement this 

recommendation may be affected by resource 

limitations. 

First, the recommendation highlights a 

number of innovative practices undertaken 

by different federal agencies to enhance the 

transparency of their scientific 

decisionmaking processes. As a general 

matter, agencies should articulate the specific 

questions to be informed by scientific 

information, specify study designs for new 

research, and establish criteria for weighing 

existing studies.8 Agencies should identify 

scientific reports or data upon which they 

relied and material literature that they 

considered, but upon which they did not 

rely, to the extent practicable and permitted 

by law.9 Agencies should establish 

checkpoints (i.e., times for closing off 

consideration of additional research or 

debate prior to making a final regulatory 

decision) and policies for reopening that 

consideration. Agencies should also consider 

extending attribution to individual staff who 

participate in the preparation of scientific 

reports and taking other steps to promote 

robust debate among agency scientists.10 In 

addition, agencies should share best practices 

with other agencies and should recommend 

the removal of any legal impediments to 


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11See Wagner, supra note 1, at 135–38 

(identifying a number of external legal impediments 

to promoting transparency, including short 

statutory deadlines, limits on dissemination of 

scientific studies, resource limitations, and caps on 

the number of discretionary advisory committees 

agencies can constitute). 

12Legal restrictions that may limit agencies’ 

ability to provide such disclosures include, among 

other things, protections for personal privacy, trade 

secrets, and confidential business information. 1 5 U.S.C. 706. 

promoting transparency in decisions in 

which science is an important element.11

Second, the recommendation offers a series 

of proposals to bring greater congruity to the 

treatment of publicly and privately funded 

scientific research. Specifically, it encourages 

the disclosure of data underlying scientific 

research, including both privately funded 

and federally funded research, that an agency 

is considering (to the extent practicable and 

permitted by law).12 Similarly, it 

recommends extending conflict of interest 

disclosure norms to private parties who 

submit studies used by an agency. 

Recommendation 

Suggested Agency Practices Regarding the 

Use of Science in the Administrative Process 

1. Explaining Agency Scientific 

Decisionmaking. Agencies should explain in 

proposed and final decision documents how 

they ensured rigorous review of the scientific 

information underlying each scienceintensive regulatory project. This includes a 

statement of how each agency evaluated the 

scientific information used in its analysis; 

how the agency made that information 

available to reviewers and the public; how 

the analysis was reviewed by experts and 

interested parties; and how the agency 

ensured that the final decision was supported 

by the scientific record. 

2. Assuring Transparent Assessments. At 

an early stage in their decisionmaking 

processes, agencies should identify the 

specific policy questions that may be 

informed by science; describe the design of 

the assessments needed to characterize risks 

and inform policy decisions; and describe the 

criteria to be used in reviewing and weighing 

existing studies. When completed, 

assessments should: Identify other 

appropriate analytical choices and explain 

why they were not chosen; provide a 

synthesis of the available evidence and 

relevant literature guided by the assessment 

design or criteria; identify significant 

assumptions and choices of analytical 

techniques; provide a statement of remaining 

uncertainties; and discuss how different 

plausible choices might change the results of 

the assessment. Where possible, agencies 

should also explain the relationship between 

their scientific findings and the final policy 

choice. Agencies should strive to 

communicate this information in a manner 

that is clear to the general public. 

3. Disclosing Underlying Studies and Data. 

To the extent practicable and permitted by 

law and applicable policies, each agency 

should identify and make publicly available 

(on the agency Web site or some other widely 

available forum) references to the scientific 

literature, underlying data, models, and 

research results that it considered. In so 

doing, the agency should list all information 

upon which it relied in reaching its 

conclusions, as well as any information 

material to the scientific analysis that it 

considered but upon which it ultimately did 

not rely. Consistent with the limitations in 

the Information Quality Act (IQA) guidelines 

issued by the Office of Management and 

Budget and its own IQA guidelines, each 

agency should ensure that members of the 

public have access to the information 

necessary to reproduce or assess the agency’s 

technical or scientific conclusions. 

4. Checkpoints and Explanations. Agencies 

should consider establishing explicit 

checkpoints for regulatory projects, defining 

both the conditions under which they intend 

to close their consideration of research or 

debate in order to reach a decision and when 

they might reopen that consideration, 

particularly in cases when they are not 

bound by judicially enforceable deadlines. In 

any case, agencies should explain their 

decisions to initiate, stop, or reopen 

consideration of research or debate. Such 

explanations should reference significant 

relevant ongoing research or other relevant 

factors. 

5. Identifying Future Projects. For scienceintensive projects, agencies should identify 

specific types of future research that may be 

needed to reduce significant uncertainties in 

order to advance understanding of the issues. 

6. Attribution for Agency Personnel. 

Agency personnel play an important role in 

producing their respective agencies’ 

scientific analyses. Agencies should consider 

providing their personnel with some form of 

consensual attribution for reports or analyses 

to which they contribute in a significant way. 

If appropriate, such attributions should be 

made for personnel who contributed in a 

significant way to a technical or scientific 

report, including not only scientists but also 

economists, lawyers, and other contributors. 

Reviewers and other contributors could be 

identified by name and general contribution. 

7. Encouraging Debate. Agencies should 

encourage vigorous debate among agency 

scientists and should explore ways of 

incorporating the diversity of that debate in 

any resulting work product. Agency 

employees should be encouraged to publish 

their scientific work in the peer reviewed 

literature, provided that they follow 

applicable agency procedures and that 

confidential governmental deliberations are 

not compromised. Dissenting staff members 

should be protected from reprisals. 

8. Sharing of Agency Best Practices. 

Agencies should identify and publicize the 

innovations they have developed for 

transparently incorporating science into their 

regulatory decisions. OSTP, an interagency 

group headed by OSTP, or another body 

should consider occasionally convening 

agency representatives to discuss and share 

best practices. 

9. Addressing Legal Obstacles to 

Transparent Decisionmaking. Agencies 

should identify legal obstacles that may 

impede otherwise appropriate public access 

to the scientific information underlying 

agency analyses or that may prevent the 

agencies’ development of scientifically robust 

decisionmaking processes. Agencies should 

recommend appropriate actions to eliminate 

such impediments, including revisions in 

existing law, to the Executive Office of the 

President. 

Agency Disclosures To Enhance the 

Transparency of Research 

10. Data Disclosure. To the extent 

practicable and in compliance with 

applicable legal restrictions, privileges, 

protections, and authorities, agencies should 

seek to provide disclosure of data underlying 

scientific research, including both privately 

and federally funded research being 

considered by the agencies. Where 

practicable, such information should be 

disclosed in machine-readable format. Where 

such data are not subject to legal or other 

protections, and the data’s owners 

nonetheless will not provide such access, 

agencies should note that fact and explain 

why they used the results if they chose to do 

so. Agencies should review their confidential 

business information policies to ensure that 

they include appropriate mechanisms to 

prevent over-claiming. 

11. Conflict of Interest Disclosure. Agencies 

should require conflict of interest disclosures 

on all scientific research submitted to inform 

an agency’s licensing, regulatory, or other 

decisionmaking processes. This disclosure 

should be similar to the conflict of interest 

disclosure required by some scientific 

journals, such as that used by the 

International Committee of Medical Journal 

Editors. The regulatory conflict of interest 

disclosure should also, where permitted by 

law, identify whether the experimenter or 

author had the legal right without approval 

of the sponsor of the research to: design the 

research; collect the data; interpret the data; 

and author, publish or otherwise disseminate 

the resulting report or full dataset. To the 

extent that a party other than the principal 

investigator (e.g., the study sponsor or 

funder) had control over the design or 

publication of the study, agencies should 

disclose this fact and specify the nature of 

the control such an entity exercised. 

Administrative Conference Recommendation 

2013–4 

The Administrative Record in Informal 

Rulemaking 

Adopted June 14, 2013 

The administrative record in informal 

rulemaking plays an essential role in 

informing the public of potential agency 

action and in improving the public’s ability 

to understand and participate in agency 

decisionmaking. As well, the administrative 

record can be essential to judicial review of 

agency decisionmaking under the 

Administrative Procedure Act (APA), which 

directs courts to ‘‘review the whole record or 

those parts of it cited by a party’’ to 

determine whether challenged agency action 

is lawful.1 This statutory language was 

originally understood as referring to formal 

proceedings. However, the Supreme Court 

has long interpreted this APA provision as 

also encompassing the ‘‘administrative 

record’’ in informal agency proceedings, 


TKELLEY on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 41359 

2Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens 

to Preserve Overton Park v. Volpe, 401 U.S. 402, 

419 (1971). 

3Leland E. Beck, Agency Practices and Judicial 

Review of Administrative Records in Informal 

Rulemaking (May 14, 2013) (report to the 

Administrative Conference of the United States) 

[hereinafter Beck Report]. 

4 5 U.S.C. 553(b)–(d). It may also have application 

to ‘‘hybrid’’ rulemaking statutes that require 

additional procedures beyond those in § 553 but 

less than those in formal rulemaking under 5 U.S.C. 

556–57. 

5Administrative Conference of the United States, 

Recommendation 74–4, Preenforcement Judicial 

Review of Rules of General Applicability, 39 FR 

23,044 (June 26, 1974), based on consultant’s report 

published as Paul R. Verkuil, Judicial Review of 

Informal Rulemaking, 60 Va. L. Rev. 185 (1974). 

6Administrative Conference of the United States, 

Recommendation 93–4, Improving the Environment 

for Agency Rulemaking, 59 FR 4670 (Feb. 1, 1994), 

correction published, 59 FR 8507 (Feb. 22, 1994). 

7Administrative Conference of the United States, 

Recommendation 2011–2, Rulemaking Comments, 

76 FR 48,791 (Aug. 9, 2011); Administrative 

Conference of the United States, Recommendation 

2011–1, Legal Considerations in e-Rulemaking, 76 

FR 48,789 (Aug. 9, 2011); Administrative 

Conference of the United States, Recommendation 

90–5, Federal Agency Electronic Records 

Management and Archives, 55 FR 53270 (Dec. 28, 

1990); Administrative Conference of the United 

States, Recommendation 88–10, Federal Agency 

Use of Computers in Acquiring and Releasing 

Information, 54 FR 5209 (Feb. 2, 1989). 

8Recommendation 2011–1, supra note 7. 

9Beck Report, supra note 3, at Section III. 

10The Office of Management and Budget and the 

National Archives have directed federal agencies to 

manage all permanent electronic records in an 

electronic format to the fullest extent possible by 

December 31, 2019, and to develop plans to do so 

by December 31, 2013. Memorandum from Jeffrey 

D. Zients, Acting Director, Office of Management 

and Budget, and David S. Ferriero, Archivist of the 

United States, National Archives and Records 

Administration, to the Heads of Executive 

Departments and Agencies and Independent 

Agencies concerning ‘‘Managing Government 

Records Directive’’ M–12–18 (Aug. 24, 2012). 

11The Conference first recommended inclusion of 

materials ‘‘considered’’ by the agency in the 

administrative record for judicial review in 

Recommendation 74–4, supra note 5. Courts have 

also relied on the concept of consideration in 

defining the administrative record. Pac. Shores 

Subdiv., Cal. Water Dist. v. U.S. Army Corps of 

Engineers, 448 F. Supp. 2d 1, 4 (D.D.C. 2006) 

(citations omitted); see also Nat’l Ass’n of Chain 

Drug Stores v. U.S. Dep’t of Health & Human Servs., 

631 F. Supp. 2d 23, 26 (D.D.C. 2009) (citing 

Recommendation 74–4 in defining the 

administrative record); cf. Sierra Club v. Costle, 657 

F.2d 298, 394 n. 469 (D.C. Cir. 1981) (discussing 

Recommendation 74–4 as an approach to defining 

the administrative record). 

12The present recommendation is not limited to 

disclosures that the APA, as construed in widely 

followed case law, may require. See Ass’n of Data 

Processing Serv. Orgs. v. Bd. of Governors, 745 F.2d 

677, 684 (D.C. Cir. 1984) (‘‘[A]t least the most 

critical factual material that is used to support the 

agency’s position on review must have been made 

public in the proceeding. . . .’’). However, this 

case law gives agencies an additional reason to 

provide public disclosure of factual material in 

some circumstances. 

whether reviewable by statute or as final 

agency actions under 5 U.S.C. 704.2 This 

application to informal proceedings has 

given rise to uncertainty and experimentation 

as agencies and courts have worked to 

implement the administrative record 

concept—at times inconsistently. As a result, 

confusion has arisen about the compilation 

and uses of agency rulemaking records 

maintained internally, public rulemaking 

dockets, and administrative records for 

judicial review. The differences among these 

three types of records can be seen from their 

descriptions below. 

The Administrative Conference therefore 

commissioned a study of federal agencies’ 

current practices in the development of 

rulemaking records, public rulemaking 

dockets, and administrative records for 

judicial review.3 This recommendation and 

the supporting report address these concepts 

in the context of informal agency rulemaking 

adopted pursuant to the notice-and-comment 

procedures prescribed in 5 U.S.C. 553.4 The 

recommendation does not address the record 

for agency decisions made in other contexts, 

such as in adjudication, formal rulemaking, 

or guidance documents. 

This recommendation builds upon earlier 

Administrative Conference work in the areas 

of rulemaking, recordkeeping, and 

technological developments in managing 

records. Administrative Conference 

Recommendation 74–4, Preenforcement 

Judicial Review of Rules of General 

Applicability, identified the administrative 

materials that should be available to a court 

that was evaluating, on preenforcement 

review, the factual basis for agency rules of 

general applicability.5 That recommendation 

was receptive to judicial development of the 

concept of a ‘‘record’’ on review of informal 

agency rulemakings. In Recommendation 93– 

4, Improving the Environment for Agency 

Rulemaking, the Administrative Conference 

advised agencies to establish and manage 

rulemaking files ‘‘so that maximum 

disclosure to the public is achieved during 

the comment period and so that a usable and 

reliable file is available for purposes of 

judicial review.’’ 6 A number of 

Administrative Conference recommendations 

also have examined the use of technology in 

acquiring, releasing, and managing agency 

records.7 Most recently, the Conference 

examined legal considerations associated 

with the use of digital technologies in the 

development and implementation of informal 

rulemakings.8

This recommendation synthesizes and 

updates the Conference’s prior 

recommendations in these areas. It is 

grounded in empirical research, supported by 

a survey questionnaire on present agency 

recordkeeping practices, as well as by a 

review of existing agency guidance.9 The 

Conference has identified and recommends 

best practices for all rulemaking agencies in 

the areas of record compilation, preservation, 

and certification. The recommendation also 

advises agencies to develop guidance to aid 

agency personnel as they compile rulemaking 

and administrative records and public 

rulemaking dockets and to increase public 

understanding of agency recordkeeping. 

Agencies engage in informal rulemaking 

with differing frequencies, resources, and 

technological capabilities. Many agencies are 

in a period of transition, as they move from 

paper to electronic recordkeeping.10

Attention to the design of information 

technology resources that is mindful of the 

principles and best practices set forth below 

can aid agencies in recordkeeping, as well as 

facilitate greater public understanding of 

agency decisionmaking and more effective 

judicial review. For the purposes of this 

recommendation, the rulemaking record, 

public rulemaking docket, and the 

administrative record for judicial review are 

defined as follows: 

‘‘Rulemaking record’’ means the full record 

of materials before the agency in an informal 

rulemaking. The Conference contemplates 

that, in addition to materials required by law 

to be included in the rulemaking record, as 

well as all comments and materials 

submitted to the agency during comment 

periods, any material that the agency 

considered should be included as part of that 

record. 

‘‘Considered’’ entails review by an 

individual with substantive responsibilities 

in connection with the rulemaking.11 To say 

that material was considered also entails 

some minimum degree of attention to the 

contents of a document. Thus, the 

rulemaking record need not encompass every 

document that rulemaking personnel 

encountered while rummaging through a file 

drawer, but it generally should include a 

document that an individual with 

substantive responsibilities reviewed in order 

to evaluate its possible significance for the 

rulemaking, unless the review disclosed that 

the document was not germane to the subject 

matter of the rulemaking. A document should 

not be excluded from the rulemaking record 

on the basis that the reviewer disagreed with 

the factual or other analysis in the document, 

or because the agency did not or will not rely 

on it. Although the concept resists precise 

definition, the term considered as used in 

this recommendation should be interpreted 

so as to fulfill its purpose of generating a 

body of materials by which the rule can be 

evaluated and to which the agency and 

others may refer in the future. 

‘‘Public rulemaking docket’’ means the 

public version of the rulemaking record 

managed by the agency, regardless of 

location, such as online at Regulations.gov or 

an agency Web site or available for physical 

review in a docket room. The public 

rulemaking docket includes all information 

that the agency has made available for public 

viewing. The Conference also urges agencies 

to manage their public rulemaking dockets to 

achieve maximum disclosure to the public. 

However, the Conference recognizes that 

prudential concerns may limit agencies from 

displaying some information, such as certain 

copyrighted or indecent materials, online. It 

is a best practice for agencies to describe and 

note online those materials that are not 

displayed but are available for physical 

inspection. Another agency best practice is to 

include in the public rulemaking docket 

materials generated and considered by the 

agency after the close of the comment period 

but prior to issuance of the final rule.12

‘‘Administrative record for judicial review’’ 

means the materials tendered by the agency 

and certified to a court as the record on 


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41360 Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 

13Beck Report, supra note 3, at Section IV.A. 

14 Id. 

15 5 U.S.C. 706 (‘‘. . . the court shall review the 

whole record or those parts of it cited by a 

party. . . .’’). 

16The variety of agency practices is described at 

length in the Beck Report, supra note 3, at Section 

IV.A. 

17Absent a showing of bad faith or improper 

behavior, the agency practice of excluding predecisional materials from the administrative record 

on judicial review enjoys substantial judicial 

support. See In re Subpoena Duces Tecum Served 

on Office of Comptroller of Currency, 156 F.3d 1279 

(D.C. Cir. 1998); San Luis Obispo Mothers for Peace 

v. Nuclear Regulatory Comm’n, 789 F.2d 26, 44–45 

(D.C. Cir. 1986) (en banc). 

18See Citizens for Alternatives to Radioactive 

Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091, 

1097 (10th Cir. 1985) (‘‘. . . designation of the 

Administrative Record, like any established 

administrative procedure, is entitled to a 

presumption of administrative regularity.’’) (citation 

omitted); Amfac Resorts, LLC v. U.S. Dep’t of 

Interior, 143 F.Supp. 2d 7, 12 (D.D.C. 2001); see also 

United States v. Chem. Found., Inc., 272 U.S. 1, 14– 

15 (1926) (‘‘The presumption of regularity supports 

the official acts of public officers and, in the 

absence of clear evidence to the contrary, courts 

presume that they have properly discharged their 

official duties.’’). 

19Citizens to Preserve Overton Park v. Volpe, 401 

U.S. 402, 420 (1971). 

20See, e.g., Cape Cod Hospital v. Sebelius, 630 

F.3d 203, 211–12 (D.C. Cir. 2011); Ad Hoc Metals 

Coalition v. Whitman, 227 F. Supp. 2d 134, 139– 

40 (D.D.C. 2002). 

21Recommendation 74–4, supra note 5. 

22Administrative Conference of the United 

States, Recommendation 75–3, The Choice of 

Forum for Judicial Review of Administrative Action 

¶ 5(a), 40 FR 27926 (July 2, 1975). 

review of the agency’s regulatory action. The 

administrative record provided to the court 

will include an affidavit, made by a certifying 

official, attesting to the contents and 

accuracy of the record being certified.13 It 

should also include an index itemizing the 

contents.14 Parties often rely on this index in 

designating portions of the administrative 

record for judicial review, such as for 

inclusion in a joint appendix that will be 

presented to the court. The designated 

portions of the administrative record then 

typically serve as the basis for the court’s 

review, as provided in the Administrative 

Procedure Act and as appropriate under the 

rules of the reviewing court.15

Some materials in an agency’s rulemaking 

record may be protected from public 

disclosure by law or withheld from the 

public on the basis of agency privilege. For 

example, protected materials might include 

classified information, confidential 

supervisory or business information, or trade 

secrets. Other materials might be withheld on 

the basis of privilege, including attorneyclient privilege, the attorney work product 

privilege, and the pre-decisional deliberative 

process privilege. Agency practices regarding 

the identification or inclusion of protected or 

privileged materials in administrative records 

and their accompanying indices vary.16 Some 

agencies do not include or identify 

deliberative or privileged materials in 

administrative records for judicial review.17

Other agencies identify non-disclosed 

materials specifically in a privilege log 

provided with the index of the administrative 

record for judicial review. Agencies have also 

noted redactions of protected materials in the 

administrative record for judicial review and 

moved the court to permit filing of protected 

materials, or a summary thereof, under seal. 

Many agencies do not have a policy on 

inclusion of protected or privileged materials 

in an administrative record for judicial 

review and manage such materials on a caseby-case basis. Case-by-case consideration 

may occasionally be necessary, such as when 

privileged materials are referenced as the 

basis of the agency’s decision. Nonetheless, 

the Conference recommends that agencies 

develop a written policy for treatment of 

protected or privileged materials, including 

indexing, in public rulemaking dockets and 

in certification of the administrative record 

for judicial review, and that agencies make 

this policy publicly available. 

Compilation and preparation of the 

administrative record for judicial review is 

properly within the province of the agency 

and this process should be accorded a 

presumption of regularity by the reviewing 

court.18 Completion or supplementation of 

the administrative record for judicial review 

may be appropriate where a strong showing 

has been made to overcome the presumption 

of regularity in compilation. For example, 

courts have permitted limited discovery on 

the basis of a ‘‘strong showing of bad faith 

or improper behavior’’ on the part of the 

agency decisionmaker.19 Courts may also 

inquire into allegations that the agency 

omitted information from the administrative 

record for judicial review that should have 

been included.20

Completion or supplementation of the 

administrative record for judicial review may 

also be appropriate in other circumstances 

not addressed in this recommendation. In a 

previous recommendation, the Conference 

has recognized that the reviewing court 

should not invariably be confined to the 

record on review in evaluating the factual 

basis of a generally applicable rule on 

preenforcement review.21 The Conference 

has also acknowledged that, on direct review 

by courts of appeals, the record on review 

‘‘can usually be supplemented, if necessary, 

by means other than an evidentiary trial in 

a district court.’’ 22

Recommendation 

Record Contents 

1. The Rulemaking Record. In the absence 

of a specific statutory requirement to the 

contrary, the agency rulemaking record in an 

informal rulemaking proceeding should 

include: 

(a) Notices pertaining to the rulemaking; 

(b) comments and other materials 

submitted to the agency related to the 

rulemaking; 

(c) transcripts or recordings, if any, of oral 

presentations made in the course of a 

rulemaking; 

(d) reports or recommendations of any 

relevant advisory committees; 

(e) other materials required by statute, 

executive order, or agency rule to be 

considered or to be made public in 

connection with the rulemaking; and 

(f) any other materials considered by the 

agency during the course of the rulemaking. 

2. The Public Rulemaking Docket. 

Agencies should manage their public 

rulemaking dockets to achieve maximum 

public disclosure. Insofar as feasible, the 

public rulemaking docket should include all 

materials in the rulemaking record, subject to 

legal limitations on disclosure, any claims of 

privilege, or any exclusions allowed by law 

that the agency chooses to invoke. In 

addition, it may be prudent not to include 

some sensitive information online and to 

note instead that this material is available for 

physical review in a reading room. 

3. The Administrative Record for Judicial 

Review. The administrative record provided 

to the court on judicial review of informal 

rulemaking should contain all of the 

materials in the rulemaking record as set 

forth in paragraph 1, except that agencies 

need not include materials protected from 

disclosure by law nor materials that the 

agency has determined are subject to 

withholding based on appropriate legal 

standards, including privilege. 

Rulemaking Recordkeeping 

4. Agencies should begin compiling 

rulemaking records no later than the date on 

which an agency publishes the notice of 

proposed rulemaking. Agencies should 

include materials considered in preparation 

of the notice of proposed rulemaking. For 

example, agencies should include materials 

received in response to an advance notice of 

proposed rulemaking or a notice of inquiry, 

if there is one, and considered in 

development of the proposed rule. The 

agency should continue compiling the 

rulemaking record as long as the rule is 

pending before the agency. 

5. Agencies should designate one or more 

custodians for rulemaking recordkeeping, 

either on a rulemaking-by-rulemaking basis 

or generally. Agencies should inform agency 

personnel of the custodian(s) and direct them 

to deposit rulemaking record materials with 

the custodian(s), excepting if necessary 

confidential information to which access is 

restricted. The custodian(s) should document 

the record compilation process. 

Public Rulemaking Dockets 

6. To the extent practicable, agencies 

should index public rulemaking dockets for 

informal rulemaking, at an appropriate level 

of detail. 

Record Preservation 

7. The National Archives and Records 

Administration (NARA) should amend its 

agency guidance to address the official status 

and legal value of records relating to informal 

rulemaking, particularly administrative 

records for judicial review. 

8. Agencies using electronic records 

management systems to manage rulemaking 

records, such as the Federal Document 

Management System or agency specific 

systems, should work with NARA to ensure 

the adequacy of such systems for 

recordkeeping purposes and the transfer to 

the National Archives of permanent records. 

Agencies should review their records 

schedules in light of developments in 

electronic records management. 


TKELLEY on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 132 / Wednesday, July 10, 2013 / Notices 41361 

Certification of Administrative Records for 

Judicial Review 

9. Agencies should develop procedures for 

designating appropriate individuals, who 

may or may not be record custodians, to 

certify administrative records to the court in 

case of judicial review of agency action. 

Agency certifications should include an 

index of contents of the administrative record 

for judicial review. 

Agency Record Policies and Guidance 

10. Agencies should develop a general 

policy regarding treatment of protected or 

privileged materials, including indexing, in 

public rulemaking dockets and in 

certification of the administrative record for 

judicial review. Agencies should make this 

policy available to the public and should 

provide it to the Department of Justice, if the 

Department represents the agency in 

litigation. 

11. Agencies that engage in informal 

rulemaking should issue guidance to aid 

personnel in implementing the above best 

practices. Agencies should make their 

guidance on informal rulemaking and 

administrative recordkeeping available to the 

public and should provide it to the 

Department of Justice, if the Department 

represents the agency in litigation. The level 

of detail and contents of such guidance will 

vary based on factors such as: The size of 

typical agency rulemaking records; 

institutional experience, or the lack thereof, 

with record compilation and informal 

rulemaking litigation; the need for 

consistency across agency components in the 

development and maintenance of rulemaking 

records; and agency resources. However, 

agencies should ensure that guidance 

addresses at least the following: 

(a) Essential components of the rulemaking 

record, public rulemaking docket, and the 

administrative record for judicial review; 

(b) appropriate exclusions from the 

rulemaking record, including guidance on 

whether and when to exclude materials such 

as personal notes or draft documents; 

(c) timing of compilation and indexing 

practices; 

(d) management and segregation of 

privileged materials, e.g., attorney work 

product or pre-decisional deliberative 

materials; 

(e) management and segregation of 

sensitive or protected materials, e.g., 

copyrighted, classified, protected personal, or 

confidential supervisory or business 

information; 

(f) policies and procedures, if any, for the 

protection of sensitive information submitted 

by the public during the process of 

rulemaking or otherwise contained in the 

rulemaking record; 

(g) preservation of rulemaking and 

administrative records and public 

rulemaking dockets; 

(h) certification of the administrative 

record for judicial review, including the 

process for identifying the appropriate 

certifying official; and 

(i) relevant capabilities and limitations of 

recordkeeping tools and technologies. 

Judicial Review 

12. A reviewing court should afford the 

administrative record for judicial review a 

presumption of regularity. 

13. In appropriate circumstances, a 

reviewing court should permit or require 

supplementation or completion of the record 

on review. Supplementation or completion 

may be appropriate when the presumption of 

regularity has been rebutted, such as in cases 

where there is a strong showing that an 

agency has acted improperly or in bad faith 

or there are credible allegations that the 

administrative record for judicial review is 

incomplete. 

[FR Doc. 2013–16541 Filed 7–9–13; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

[Docket No. APHIS–2013–0054] 

Notice of Request for Extension of 

Approval of an Information Collection; 

Interstate Movement of Fruit From 

Hawaii 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Extension of approval of an 

information collection; comment 

request. 

SUMMARY: In accordance with the 

Paperwork Reduction Act of 1995, this 

notice announces the Animal and Plant 

Health Inspection Service’s intention to 

request an extension of approval of an 

information collection associated with 

the regulations for the interstate 

movement of fruit from Hawaii. 

DATES: We will consider all comments 

that we receive on or before September 

9, 2013. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/ 

#!documentDetail;D=APHIS-2013-0054- 

0001. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2013–0054, Regulatory Analysis 

and Development, PPD, APHIS, Station 

3A–03.8, 4700 River Road, Unit 118, 

Riverdale, MD 20737–1238. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at http:// 

www.regulations.gov/ 

#!docketDetail;D=APHIS-2013-0054 or 

in our reading room, which is located in 

room 1141 of the USDA South Building, 

14th Street and Independence Avenue 

SW., Washington, DC. Normal reading 

room hours are 8 a.m. to 4:30 p.m., 

Monday through Friday, except 

holidays. To be sure someone is there to 

help you, please call (202) 799–7039 

before coming. 

FOR FURTHER INFORMATION CONTACT: For 

information on the regulations for the 

interstate movement of fruit from 

Hawaii, contact Mr. David Lamb, 

Regulatory Coordination Specialist, 

RPM, PPQ, APHIS, 4700 River Road, 

Unit 133, Riverdale, MD 20737; (301) 

851–2103. For copies of more detailed 

information on the information 

collection, contact Mrs. Celeste Sickles, 

APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

SUPPLEMENTARY INFORMATION: 

Title: Interstate Movement of Fruit 

From Hawaii. 

OMB Number: 0579–0331. 

Type of Request: Extension of 

approval of an information collection. 

Abstract: The Plant Protection Act (7 

U.S.C. 7701 et seq.) authorizes the 

Secretary of Agriculture to restrict the 

importation, entry, or interstate 

movement of plants, plant products, and 

other articles to prevent the 

introduction of plant pests into the 

United States or their dissemination 

within the United States. The 

regulations in 7 CFR part 318, State of 

Hawaii and Territories Quarantine 

Notices, prohibit or restrict the 

interstate movement of fruits, 

vegetables, and other products from 

Hawaii, Puerto Rico, the U.S. Virgin 

Islands, and Guam to the continental 

United States to prevent the spread of 

plant pests or noxious weeds. 

In accordance with the regulations in 

§ 318.13–26, breadfruit, jackfruit, fresh 

pods of cowpea and its relatives, dragon 

fruit, mangosteen, moringa pods, and 

melon must meet certain conditions for 

interstate movement from Hawaii into 

the continental United States. These 

conditions involve information 

collection activities, including 

certificates and limited permits. 

We are asking the Office of 

Management and Budget (OMB) to 

approve our use of these information 

collection activities for an additional 3 

years. 

The purpose of this notice is to solicit 

comments from the public (as well as 

affected agencies) concerning our 

information collection. These comments 

will help us: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

Agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of our 

estimate of the burden of the collection 

of information, including the validity of 

the methodology and assumptions used; 


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