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

2257 

Vol. 77, No. 10 

Tuesday, January 17, 2012 

1See 5 U.S.C. 552(a)(1); 1 CFR 51.1–51.11. 

2See National Technology Transfer and 

Advancement Act of 1995, Public Law 104–113 

(1996); Office of Mgmt. & Budget, Exec. Office of the 

President, OMB Circular A–119, Federal 

Participation in the Development and Use of 

Voluntary Consensus Standards and in Conformity 

Assessment Activities (1998); see also 

Administrative Conference of the United States, 

Recommendation 78–4, Federal Agency Interaction 

with Private Standard-Setting Organizations in 

Continued 

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-fifth 

Plenary Session. The appended 

recommendations address incorporation 

by reference, international regulatory 

cooperation, the Federal Advisory 

Committee Act, and agency innovations 

in e-rulemaking. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendations 2011–5 and 2011–8, 

Emily Schleicher Bremer, Attorney 

Advisor, and for Recommendations 

2011–6 and 2011–7, Reeve T. Bull, 

Attorney Advisor. For all four 

recommendations the address and 

phone number is: 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-fifth Plenary Session, held 

December 8–9, 2011, the Assembly of 

the Conference adopted four 

recommendations. Recommendation 

2011–5, ‘‘Incorporation by Reference,’’ 

addresses legal and policy issues related 

to agencies’ incorporation by reference 

in the Code of Federal Regulations of 

standards or other materials that have 

been published elsewhere. Agencies 

have promulgated thousands of 

regulations that incorporate by reference 

standards published elsewhere. The 

practice raises common issues that 

individual agencies deal with 

differently. The recommendation 

consolidates the dispersed knowledge of 

affected agencies, identifies best 

practices, and recommends ways to 

improve the process. 

Recommendation 2011–6, 

‘‘International Regulatory Cooperation,’’ 

addresses how U.S. regulators can 

interact with foreign authorities to 

accomplish their domestic regulatory 

missions and eliminate unnecessary 

non-tariff barriers to trade. The project 

updates Administrative Conference 

Recommendation 91–1, ‘‘Federal 

Agency Cooperation with Foreign 

Government Regulators.’’ The 

recommendation includes proposals for 

enhanced cooperation and information 

gathering, more efficient deployment of 

limited resources, and better 

information exchanges. 

Recommendation 2011–7, ‘‘The 

Federal Advisory Committee Act— 

Issues and Proposed Reforms,’’ 

addresses the issue of whether the 

Federal Advisory Committee Act 

(‘‘FACA’’) is functioning effectively and 

efficiently almost 40 years after its 

enactment. The recommendation offers 

three sets of proposed revisions to the 

existing FACA regime to make the law 

more relevant in light of agency 

experience with FACA and 21st century 

technologies. Specifically, the 

recommendation includes proposals 

designed to clarify the scope of FACA 

and its implementing regulations, 

alleviate certain procedural burdens 

associated with the existing regime, and 

promote ‘‘best practices’’ aimed at 

enhancing the transparency and 

objectivity of the advisory committee 

process. 

Recommendation 2011–8, ‘‘Agency 

Innovations in E-Rulemaking,’’ 

addresses how Federal agency 

rulemaking can be improved by better 

use of Internet-based technologies. The 

recommendation proposes ways 

agencies can make rulemaking 

information, including open dockets, 

comment policies, and materials from 

completed rulemakings, more accessible 

electronically. The recommendation 

also addresses the issue of improving erulemaking participation by those who 

have historically faced barriers to 

access, including non-English speakers, 

users of low-bandwidth Internet 

connections, and individuals with 

disabilities. 

The Appendix (below) sets forth the 

full text 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/events/55th-plenarysession/. 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: January 10, 2012. 

Paul R. Verkuil, 

Chairman. 

APPENDIX—RECOMMENDATIONS OF 

THE ADMINISTRATIVE CONFERENCE 

OF THE UNITED STATES 

Administrative Conference Recommendation 

2011–5 

Incorporation by Reference 

Adopted December 8, 2011 

Incorporation by reference allows agencies 

to comply with the requirement of publishing 

rules in the Federal Register to be codified 

in the Code of Federal Regulations (CFR) by 

referring to material published elsewhere.1

The practice is first and foremost intended 

to—and in fact does—substantially reduce 

the size of the CFR. But it also furthers 

important, substantive regulatory policies, 

enabling agencies to draw on the expertise 

and resources of private sector standard 

developers to serve the public interest. 

Incorporation by reference allows agencies to 

give effect to a strong federal policy, 

embodied in the National Technology 

Transfer and Advancement Act of 1995 and 

OMB Circular A–119, in favor of agency use 

of voluntary consensus standards.2 This 


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Health and Safety Regulation, 44 FR 1,357 (Jan. 5, 

1979) (recommending agencies use voluntary 

consensus standards in health and safety 

regulation). Circular A–119 defines voluntary 

consensus standards as those created by private or 

international organizations whose processes 

provide attributes of openness, balance, due 

process, an appeal, and decision making by general 

agreement (but not necessarily unanimity). See also 

American National Standards Institute, ‘‘ANSI 

Essential Requirements: Due process requirements 

for American National Standards’’ (2010). 

3See, e.g., Veeck v. S. Bldg. Code Cong. Int’l, Inc., 

293 F.3d 791 (5th Cir. 2002) (en banc). This case 

held that where local law had incorporated a 

privately developed building code, a private party’s 

posting of the resulting local law did not violate 

copyright, because the law was in the public 

domain. Id. at 793, 802. However, the court 

distinguished cases concerning the incorporation by 

reference of materials ‘‘created by private groups for 

reasons other than incorporation into law,’’ id. at 

805, leaving some uncertainty as to the rule 

applicable to many voluntary consensus standards. 

4See, e.g., Office of Legal Counsel, Dep’t of 

Justice, Whether and under what Circumstances 

Government Reproduction of Copyrighted Materials 

Is a Noninfringing ‘‘Fair Use’’ under Section 107 of 

the Copyright Act of 1976 (1999). This opinion 

noted that there is no per se rule under which 

government reproduction of copyrighted materials 

for governmental use invariably qualifies as fair use, 

but also noted that such reproduction would in 

many contexts constitute a noninfringing fair use. 

The opinion focused on government reproduction 

for internal government use and did not consider 

government republication of copyrighted materials. 

5See Subcommittee on Standards, Nat’l Sci. & 

Tech. Council, Exec. Office of the President, Federal 

Engagement in Standards Activities to Address 

National Priorities: Background and Proposed 

Recommendations 11 (Oct. 10, 2011). 

6See 1 CFR 51.1(f); see also Office of Mgmt. & 

Budget, Exec. Office of the President, OMB Circular 

A–119, Federal Participation in the Development 

and Use of Voluntary Consensus Standards and in 

Conformity Assessment Activities ¶ 6(j) (1998). 

7See Subcommittee on Standards, Nat’l Sci. & 

Tech. Council, Exec. Office of the President, Federal 

Engagement in Standards Activities to Address 

National Priorities: Background and Proposed 

Recommendations (Oct. 10, 2011). 

federal policy benefits the public, private 

industry, and standard developers. 

The Conference has conducted a study of 

agency experience with the practice of 

incorporation by reference, including the use 

of voluntary consensus standards. The study 

focused on three issues agencies frequently 

confront when incorporating by reference: (1) 

Ensuring materials incorporated by reference 

are reasonably available to regulated and 

other interested parties; (2) updating 

regulations that incorporate by reference; and 

(3) navigating procedural requirements and 

resolving drafting difficulties when 

incorporating by reference. Agencies have 

used a variety of approaches to address these 

issues within the constraints of federal law 

and regulatory policy. This recommendation 

identifies and encourages those approaches 

that have proven most successful. 

Availability of Incorporated Materials. 

Ensuring that regulated and other interested 

parties have reasonable access to 

incorporated materials is perhaps the greatest 

challenge agencies face when incorporating 

by reference. When the relevant material is 

copyrighted—as is often the case with 

voluntary consensus standards—access 

issues are particularly problematic. There is 

some ambiguity in current law regarding the 

continuing scope of copyright protection for 

materials incorporated into regulations,3 as 

well as the question of what uses of such 

materials might constitute ‘‘fair use’’ under 

section 107 of the Copyright Act.4 Efforts to 

increase transparency of incorporated 

materials may conflict with copyright law 

and with federal policies recognizing the 

significant value of the public-private 

partnership in standards. 

This recommendation does not attempt to 

resolve the questions of copyright law 

applicable to materials incorporated by 

reference into federal regulations. Rather, the 

recommendation encourages agencies to take 

steps to promote the availability of 

incorporated materials within the framework 

of existing law. This effort is consistent with 

the National Science and Technology 

Council’s acknowledgment that ‘‘the text of 

standards and associated documents should 

be available to all interested parties on a 

reasonable basis, which may include 

monetary compensation where 

appropriate.’’ 5 The Conference’s research 

reveals that some agencies have successfully 

worked with copyright owners to further the 

goals of both transparency and public-private 

collaboration. Some agencies have, for 

example, secured permission to make a readonly copy of incorporated material available 

in the agency’s public, electronic docket 

during the pendency of the rulemaking 

proceeding relating to the material. In other 

cases, the copyright owner has made the 

material publicly available in read-only form 

on its own Web site. This recommendation 

encourages agencies to take these or other 

steps to promote availability of incorporated 

materials, such as encouraging copyright 

owners to make incorporated materials 

available in libraries. 

Updating Regulations. Updating 

regulations that incorporate by reference is 

another challenge. Agencies are legally 

required to identify the specific version of 

material incorporated by reference and are 

prohibited from incorporating material 

dynamically.6 When an updated version of 

the incorporated material becomes available, 

the regulation must be updated if the agency 

wants the regulation to incorporate the new 

version. This can require the agency to 

engage in notice-and-comment rulemaking, 

which entails a significant investment of 

agency resources. For agencies that are 

statutorily required to provide rulemaking 

procedures beyond those required by Section 

553 of the Administrative Procedure Act 

(APA), updating may prove to be an immense 

challenge. Nonetheless, agencies have 

successfully used a variety of techniques to 

reduce the time and cost constraints of 

updating rules. Some agencies have used 

enforcement discretion or ‘‘equivalency 

determinations’’ to avoid penalizing parties 

that comply with an updated version of an 

incorporated standard that the agency finds 

to be equivalent to or superior to the version 

still incorporated in the agency’s regulations. 

Other agencies have reduced the burden of 

updating by tracking forthcoming revisions 

through participation in standarddevelopment activities.7 Still others have 

used direct final rulemaking to reduce the 

costs of updating an incorporating regulation. 

The recommendation encourages these timeand cost-saving techniques. This 

recommendation also proposes a statutory 

solution that would streamline the 

administrative process by which agencies can 

revise their regulations to account for 

updates to the incorporated material. 

Complying with Procedural Requirements. 

Finally, successfully incorporating by 

reference requires agencies to comply with 

detailed procedures and to draft regulations 

carefully. The Office of the Federal Register 

(OFR) is statutorily charged with approving 

all incorporations by reference, and has 

issued regulations and guidance establishing 

policies and procedures for doing so. 

Procedural errors can delay the publication 

of rules that incorporate by reference. Poor 

drafting may create confusion among 

regulated parties or produce a rule that does 

not fulfill the agency’s regulatory purpose. 

The Conference’s research revealed that 

agencies reporting few or no problems in 

complying with OFR’s incorporation by 

reference procedures followed identifiable 

best practices that other agencies should 

consider adopting. 

Recommendation 

Ensuring Incorporated Materials Are 

Reasonably Available 

1. Agencies considering incorporating 

material by reference should ensure that the 

material will be reasonably available both to 

regulated and other interested parties. 

2. If an agency incorporates by reference 

material that is not copyrighted or subject to 

other legal protection, the agency should 

make that material available electronically in 

a location where regulated and other 

interested parties will be able to find it 

easily. 

3. When an agency is considering 

incorporating copyrighted material by 

reference, the agency should work with the 

copyright owner to ensure the material will 

be reasonably available to regulated and 

other interested parties both during 

rulemaking and following promulgation. 

(a) Agencies should request owners of 

copyright in incorporated material to consent 

to its free publication, and, if such consent 

is given, make the material available as in 

paragraph (2), above. 

(b) If copyright owners do not consent to 

free publication of incorporated materials, 

agencies should work with them and, 

through the use of technological solutions, 

low-cost publication, or other appropriate 

means, promote the availability of the 

materials while respecting the copyright 

owner’s interest in protecting its intellectual 

property. 

(c) If more than one standard is available 

to meet the agency’s need, it should consider 

the availability of the standards as one factor 

in determining which standard to use. 

4. In deciding whether to incorporate a 

particular copyrighted material by reference, 

and in working with a copyright owner to 

ensure the material is reasonably available, 

an agency should consider: 

(a) The stage of the regulatory proceedings, 

because access may be necessary during 


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8 ‘‘Access information’’ informs the public of 

where it can inspect or obtain a copy of the 

incorporated material. See 1 CFR 51.9(b)(4); Nat’l 

Archives & Records Admin., Federal Register 

Document Drafting Handbook § 6.4 (Jan. 2011). 

9See Administrative Conference of the United 

States, Recommendation 78–4, Federal Agency 

Interaction with Private Standard-Setting 

Organizations in Health and Safety Regulation, 44 

FR 1,357 (Jan. 5, 1979). 

10See Administrative Conference of the United 

States, Recommendation 95–4, Procedures for 

Noncontroversial and Expedited Rulemaking, 60 FR 

43,108, 43,112 (June 15, 1995). 

rulemaking to make public participation in 

the rulemaking process effective; 

(b) The need for access to achieve agency 

policy or to subject the effectiveness of 

agency programs to public scrutiny; 

(c) The cost to regulated and other 

interested parties to obtain a copy of the 

material, including the cumulative cost to 

obtain incorporated material that itself 

incorporates further materials; and 

(d) The types of parties that need access to 

the incorporated material, and their ability to 

bear the costs of accessing such materials. 

5. When considering incorporating by 

reference highly technical material, agencies 

should include in the notice of proposed 

rulemaking an explanation of the material 

and how its incorporation by reference will 

further the agency’s regulatory purpose. 

Updating Incorporations by Reference 

6. Agencies should periodically review 

regulations and make technical amendments 

(i.e., nonsubstantive amendments that do not 

require notice and comment) as necessary to 

ensure that complete and accurate access 

information 8 is included in all regulations 

that incorporate by reference. Agencies 

should ensure that they are notified of all 

changes to access information. 

7. Agencies that regularly incorporate 

private standards should adopt internal 

procedures to ensure good communication of 

emerging revisions to those within the 

agency charged with making policy decisions 

and writing rules. Agencies should consider 

participating in standard-setting activities in 

order to maintain awareness of emerging 

revisions.9

8. Agencies should not address difficulties 

with updating by confining incorporations by 

reference to non-binding guidance 

documents. If an agency intends to make 

compliance with extrinsic material 

mandatory, it should incorporate that 

material by reference in a legislative rule. 

9. In the interests of fairness and 

transparency, agencies should publish 

regulations or guidance establishing the 

policies and principles governing 

equivalency determinations or guiding this 

use of enforcement discretion in situations 

where they have been unable to update 

incorporations by reference in regulations. 

10. For rulemakings subject to Section 553 

of the APA, agencies should use direct final 

rulemaking for noncontroversial updates to 

incorporations by reference.10

11. Congress should consider authorizing 

agencies to use streamlined procedures to 

update incorporations by reference. An 

appropriate statutory solution would: 

(a) Provide for interested parties to file a 

petition for rulemaking that would notify the 

agency of a revised standard, identify the 

changes from the incorporated version of the 

standard, explain why updating would be 

consistent with the agency’s regulatory 

purpose, and provide information on the 

costs and benefits of incorporating the 

revised standard; 

(b) Vest the agency with authority to 

determine whether to act on the petition; and 

(c) Authorize agencies to grant the petition 

by issuing a final rule, without regard to 

otherwise applicable rulemaking 

requirements, provided that the agency first: 

(1) Publishes a notice of the petition in the 

Federal Register, indicates in that notice 

what regulations the requested update would 

affect, and provides for public comment on 

the petition; and 

(2) Finds that updating regulations as 

requested in the petition is beneficial and 

consistent with the regulatory purpose of the 

relevant regulation. 

Navigating Procedural Requirements 

12. Each agency that incorporates by 

reference should task its Office of the Federal 

Register (OFR) liaison or another employee 

with being a point of contact with OFR and 

maintaining a close working relationship 

between the two agencies. Such agencies 

should take advantage of OFR’s training 

opportunities and follow the procedures of 

its Document Drafting Handbook (DDH). 

13. When considering a regulation that 

would incorporate by reference, agencies 

should ensure legal counsel or other experts 

in OFR regulations, DDH, and policy are 

involved early in the rulemaking process to 

reduce the potential for delays in publishing 

rules. Agencies considering incorporating by 

reference should reach out to OFR staff early 

in the rulemaking process. 

14. OFR should continue and expand upon 

its efforts to make the process easier through 

an electronic submission and review process 

for incorporation by reference requests. 

Improving Drafting Techniques 

15. Agencies should ensure that 

incorporations by reference support, rather 

than detract from, the usefulness and 

readability of the Code of Federal 

Regulations. Incorporated material may 

provide detail, but a regulation should, by 

itself, make the basic concept of the rule 

understandable without the need for the 

reader to refer to the incorporated material. 

16. Agencies should review the language 

used in material they are considering 

incorporating by reference to determine 

whether it is mandatory or merely advisory 

or voluntary. Agencies promulgating 

mandatory regulations should take care to 

specify in the regulation which portions of 

the material will be considered mandatory 

after incorporation. 

17. When an agency incorporates a 

document that references a second (or 

greater) tier document, the agency should 

acknowledge and explain the substantive 

legal effect of the secondarily referenced 

document(s). OFR should consider amending 

the DDH to call attention to the potential 

issue of secondary references. If an agency 

wants to make a second tier document 

mandatory, it should ensure that such 

material is reasonably available both to the 

regulated community and other interested 

parties. 

18. Agencies should be alert to the 

possibility that some part of their regulations 

may inadvertently conflict with a 

requirement incorporated by reference. When 

drafting regulations, agencies should avoid or 

resolve any such conflicts. 

Administrative Conference Recommendation 

2011–6 

International Regulatory Cooperation 

Adopted December 8, 2011 

In June 1991, the Administrative 

Conference issued Recommendation 91–1, 

‘‘Federal Agency Cooperation with Foreign 

Government Regulators,’’ finding that ‘‘[i]f 

American administrative agencies could ever 

afford to engage in regulatory activities 

without regard to the policies and practices 

of administrative agencies abroad, the 

character and pace of world developments 

suggest that that era has come to a close,’’ 

and recommending practices such as 

information exchanges and establishment of 

common regulatory agendas to facilitate 

regulatory cooperation. While many of the 

issues identified in that recommendation 

remain relevant today, the pace of 

globalization in the past two decades has 

created new challenges and dynamics since 

then. Not only have institutions promoting 

international cooperation become more 

robust, with relevant developments including 

the founding of the World Trade 

Organization and increasing integration 

amongst the member states of the European 

Union, but the volume of trade in goods, 

services, and information across borders has 

increased dramatically. 

Given these developments, the 

Administrative Conference commissioned a 

research project to review international 

regulatory cooperation at United States 

government agencies today, assess how the 

1991 recommendation has been implemented 

(or not), identify new challenges that have 

emerged in the past 20 years, and advise how 

the 1991 recommendation might be updated 

to guide agencies in improving international 

coordination today to benefit regulatory goals 

and competitiveness. This research shows 

that, since the 1991 recommendation was 

adopted, the international coordination 

efforts of agencies have greatly expanded. Yet 

the need for international coordination has 

also greatly expanded due to increased trade 

in goods, services, and information. 

Incompatible regulatory requirements in 

different countries persist. Sometimes these 

regulations are different for non-substantive 

reasons—regulators share common goals and 

methods of regulation, but for historical or 

other reasons, regulations remain 

inconsistent. Sometimes regulations differ 

because regulators in different countries do 

not agree on important substantive issues, 

such as how to weigh scientific evidence or 

balance competing priorities. When 

differences are substantive, they can 

sometimes be ascribed to countries’ asserting 

national goals such as protecting health, 


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1Throughout this recommendation, the term 

‘‘foreign authorities’’ includes a range of foreign and 

international counterparts, including but not 

limited to foreign government agencies, regional 

and international bodies, and, where appropriate, 

standard-setting organizations. 

safety, or the environment at the levels that 

they consider appropriate. Other substantive 

differences, however, may disrupt trade or 

otherwise operate as de facto protectionist 

measures. Moreover, even when standards 

are aligned, different national requirements 

for conformity assessment, such as testing, 

certification, inspection, or accreditation, 

frequently impose their own costs and 

delays. 

The Administrative Conference finds that 

improved international regulatory 

cooperation is desirable because it can help 

United States agencies accomplish their 

statutory regulatory missions domestically. 

Indeed, in some areas like regulating the 

safety of food and drugs, a large proportion 

of which are imported to the United States, 

an agency’s awareness of and participation in 

foreign regulatory processes can help to 

ensure the safety of products reaching United 

States markets. International regulatory 

cooperation can also remove non-tariff 

barriers to trade and exports, promoting 

global commerce and United States 

competitiveness. Moreover, these benefits of 

international regulatory cooperation are not 

incompatible and can be pursued in unison. 

Because of the global nature of the 

economy, the domestic regulatory mission of 

many agencies is affected by what happens 

overseas. For example, imports of food and 

pharmaceutical products to the United States 

have greatly increased over the past 20 years, 

so that the Food and Drug Administration’s 

(FDA) mission of ensuring food, drug, and 

device safety in the United States is 

necessarily intertwined with how these 

products are regulated in their countries of 

origin. The Consumer Product Safety 

Commission faces a similar challenge. 

Pollutants do not respect political 

boundaries, so the Environmental Protection 

Agency’s success in achieving its mission in 

the United States can be affected by 

environmental regulations in other countries. 

Financial institutions in the United States 

participate in the global banking system and 

are exposed to risks in economies all over the 

world, which requires financial regulators to 

coordinate globally. And trade in data crosses 

national boundaries, requiring the Federal 

Trade Commission to cooperate with other 

global regulators in policing Internet fraud. 

In addition to the impact on regulatory 

goals such as health, safety, environmental 

and consumer protection in the United 

States, inconsistent regulatory regimes can 

act as barriers to trade. For example, different 

food labeling requirements between the 

United States and Europe require producers 

who distribute food in both markets to 

produce the same goods in different 

packaging, depending on the market, which 

hinders economies of scale and adds cost and 

delay. Another example is that the United 

States and Europe have different approaches 

to regulating the length of tractor-trailers. 

Though the American design has better fuel 

economy, American manufacturers cannot 

export trucks that comply with United States 

requirements into European markets without 

significant redesign, thereby creating an 

unnecessary barrier to trade. 

Many agencies successfully engage in 

international cooperation through a variety of 

different methods, such as coordination in 

regulatory promulgation, mutual recognition 

of inspection and certification regimes, and 

coordination and information sharing in 

enforcement. Some agencies have long 

coordinated effectively, both with respect to 

domestic and international issues, even when 

not mandated to do so. Notably, there is 

evidence that better international cooperation 

can help agencies more proficiently 

accomplish their regulatory missions with 

fewer resources by dividing work, where 

appropriate, with foreign counterparts and 

mutually recognizing each others’ inspection 

regimes and laboratory or test results. The 

FDA believes there is great potential for cost 

savings and improved health and safety in 

mutual reliance on the data from clinical 

trials and manufacturing quality inspection 

regimes in other countries. For example, the 

FDA recently concluded a pilot project with 

European and Australian regulators to 

inspect manufacturing plants in China and 

other countries that manufacture active 

pharmaceutical ingredients. The agencies 

compared their lists of plants subject to 

inspection and the resources that each 

country had available, and where two or 

more agencies were scheduled to visit the 

same plant, the agencies agreed on one 

agency to inspect that plant or to do a joint 

inspection, and reallocated resources so that 

they could cover more plants. Building on 

the success of that pilot, the FDA is now 

pursuing a similar project with European 

regulators for site inspections of clinical 

trials. These cooperative approaches, which 

show potential for cost savings without 

diminishing regulatory effectiveness, might 

be expanded to other agency settings for 

further cost-saving effects. 

However, global regulatory cooperation can 

be difficult to accomplish. Some agencies 

claim that they lack statutory authority to 

account for international effects when 

making regulatory decisions. Several agency 

officials, as well as high-level leaders, 

indicated that international regulatory 

cooperation was a low priority for certain 

agency leaders, as it is an issue with little 

visibility when accomplished successfully. 

Some agencies indicated that legal 

restrictions on information sharing can 

hinder international cooperation. Finally, 

coordination among some agencies within 

the United States government is a challenge, 

and agencies focused on trade and 

competitiveness, such as the Office of the 

United States Trade Representative (USTR), 

are not always aware of the activities of 

federal regulators. 

Twenty years after the adoption of ACUS 

Recommendation 91–1, agencies increasingly 

recognize that international regulatory 

cooperation is an important component of 

their regulatory missions in today’s globally 

integrated economy. While progress has been 

made, the scope of the problem leaves more 

work to be done to eliminate systemic 

barriers to coordination. The following 

recommendation restates the parts of the 

1991 recommendation that remain valid and 

relevant and also addresses new 

considerations, to include promotion of best 

practices in transparency, mutual reliance, 

information sharing, and coordination within 

the United States. Accordingly, the 

recommendation supersedes 

Recommendation 91–1. 

Recommendation 

1. Agencies should inform themselves of 

the existence of foreign authorities 1 whose 

activities may relate to their missions. 

Agencies should consider strategies for 

regulatory cooperation with relevant foreign 

authorities when appropriate to further the 

agencies’ missions or to promote trade and 

competitiveness when doing so does not 

detract from their missions. 

2. Agencies should review their legal 

authorization to cooperate with foreign 

authorities under their authorizing statutes, 

bearing in mind obligations under the World 

Trade Organization Agreement on Technical 

Barriers to Trade and other relevant treaties 

adopted by the United States as well as 

Office of Management and Budget (OMB) 

guidance. Where legal authorities do not 

sufficiently permit appropriate international 

cooperation in regulation and enforcement 

that would benefit agencies’ missions or 

promote trade and competitiveness without 

detracting from their missions, agencies 

should recommend corrective legislation to 

OMB and Congress. Absent conflict with 

their legal authority or missions, agencies 

should give appropriate consideration to the 

international implications of regulatory 

activities. 

3. When agencies conclude that they have 

legal authority and the interest in 

cooperation from foreign authorities, and that 

cooperation would further agencies’ missions 

or promote trade and competitiveness 

without detracting from their missions, they 

should consider various modes of 

cooperation with those authorities, including 

but not limited to: 

(a) Establishment of common regulatory 

agendas; 

(b) Exchange of information about present 

and proposed foreign regulation; 

(c) Concerted efforts to reduce differences 

between the agency’s rules and those adopted 

by foreign government regulators where those 

differences are not justified; 

(d) Holding periodic bilateral or 

multilateral meetings (either in person or by 

teleconference or video conference) to assess 

the effectiveness of past cooperative efforts 

and to chart future ones; and 

(e) Mutual recognition of tests, inspections, 

clinical trials, and certifications of foreign 

agencies. 

4. To deploy limited resources more 

effectively, agencies should, where 

appropriate and practicable, identify foreign 

authorities that maintain high quality and 

effective standards and practices and identify 

areas in which the tests, inspections, or 

certifications by agencies and such foreign 

agencies overlap. Where appropriate and 

practicable, agencies should: 

(a) Consider dividing responsibility for 

necessary tests, inspections, and 


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2Agencies should fully comply with 22 CFR 

181.4, requiring, among other things, agencies to 

consult with OIRA before entering into 

international agreements that require significant 

regulatory action, and 19 U.S.C. 2541, giving USTR 

responsibility for establishing mutual arrangements 

for standards-related activities. 

1See, e.g., Federal Advisory Committee Act 

Amendments of 1997, Public Law 105–153, 111 

Stat. 2689 (1997) (exempting meetings of the 

National Academy of Sciences and National 

Academy of Public Administration from FACA); 

Unfunded Mandates Reform Act, Public Law 104– 

4, 109 Stat. 48 (1995) (exempting certain 

interactions between federal agencies and state, 

local, and tribal officials from the requirements of 

FACA). 

2 41 CFR 102–3.50. There are currently 271 

committees established by agencies and 198 

committees authorized by statute for a total of 469 

discretionary committees. See FACA Database, 

http://www.fido.gov/facadatabase/rptgovttotals.asp 

(last visited October 5, 2011). 

3 41 CFR 102–3.50. There are currently 556 

committees required by statute and 48 committees 

created by the President for a total of 604 nondiscretionary committees. See FACA Database, 

http://www.fido.gov/facadatabase/rptgovttotals.asp 

(last visited October 5, 2011). 

4 5 U.S.C. App. 2 § 10; House Comm. on Gov’t 

Operations, The Role & Effectiveness of Fed. 

Advisory Comms., H.R. Rep. No. 91–1731, at 17– 

21 (1970) (hereinafter ‘‘1970 House Report’’). 

5 5 U.S.C. App. 2 §§ 9(b)(2), (c); 1970 House 

Report at 19. 

6 5 U.S.C. App. 2 §§ 7(b), 9(c), 14(a); 1970 House 

Report at 4, 12, 15–16. 

7 5 U.S.C. App. 2 § 3(2). Nonetheless, FACA 

specifically exempts certain meetings that 

otherwise satisfy these requirements. See supra note 

1. 

certifications and mutually recognizing their 

results; 

(b) Create joint technical or working groups 

to conduct joint research and development 

and to identify common solutions to 

regulatory problems (for example, through 

parallel notices of proposed rulemaking); 

(c) Establish joint administrative teams to 

draft common procedures and enforcement 

and dispute resolution policies; and/or 

(d) Document and publish cost savings and 

regulatory benefits from such mutual 

arrangements. 

5. To assess whether foreign authorities 

maintain high quality and effective standards 

and practices, agencies should develop and 

maintain relationships with foreign 

counterparts by providing training and 

technical assistance to foreign authorities and 

developing employee exchange programs, as 

resources permit. Agencies should also, as 

resources permit, review whether foreign or 

international practices would be appropriate 

for adoption in the United States. 

6. Agencies should engage in exchanges of 

information with foreign authorities to 

promote better, evidence-based decisionmaking. Types of information exchanges can 

range from formal agreements to share data 

to informal dialogues among agency staff. To 

the extent practicable, information exchange 

should be mutually beneficial and reciprocal. 

Prior to exchanging information, agencies 

must reach arrangements with foreign 

counterparts that will protect confidential 

information, trade secrets, or other sensitive 

information. 

7. When engaging in regulatory dialogues 

with foreign authorities, agencies should seek 

input and participation from interested 

parties as appropriate, through either formal 

means such as Federal Register notices and 

requests for comments or informal means 

such as outreach to regulated industries, 

consumers, and other stakeholders. Agencies 

should, where consistent with their statutory 

authority, missions, and the public interest, 

consider petitions by private and public 

interest groups for proposed rulemakings that 

contemplate the reduction of differences 

between agency rules and the rules adopted 

by foreign authorities, where those 

differences are not justified. While 

international consultations of the sort 

described in this recommendation do not 

usually depart from an agency’s standard 

practices in compliance with applicable 

procedural statutes, an agency engaged in 

such consultations should describe those 

consultations in its notices of proposed 

rulemaking, rulemaking records, and 

statements of basis and purpose under the 

Administrative Procedure Act. Where the 

objective of aligning American and foreign 

agency rules has had a significant influence 

on the shape of the rule, that fact also should 

be clearly acknowledged. 

8. Agencies should promote to foreign 

authorities the principles that undergird the 

United States administrative and regulatory 

process, including, as appropriate: 

(a) Transparency, openness and public 

participation, 

(b) Evidence-based and risk-informed 

regulation, 

(c) Cost-benefit analysis, 

(d) Consensus-based standard setting, 

(e) Accountability under the law, 

(f) Clearly defined roles and lines of 

authority, 

(g) Fair and responsive dispute resolution 

procedures, and 

(h) Impartiality. 

An agency engaging in international 

regulatory cooperation should also be alert to 

the possibility that foreign regulatory bodies 

may have different regulatory objectives, 

particularly where a government-owned or 

controlled enterprise is involved. 

9. When engaging with foreign authorities, 

agencies should, as appropriate, share 

information and consult with other 

government agencies having interests that 

may be affected by the engagement, including 

but not limited to OMB’s Office of 

Information and Regulatory Affairs (OIRA); 

the Office of the United States Trade 

Representative (USTR); and the Departments 

of Commerce, State, and Defense.2

10. The Executive Office of the President 

should consider creating a high-level 

interagency working group of agency heads 

and other senior officials to provide 

government-wide leadership on, and to 

evaluate and promote, international 

regulatory cooperation. 

Administrative Conference Recommendation 

2011–7 

The Federal Advisory Committee Act— 

Issues and Proposed Reforms 

Adopted December 9, 2011 

The Federal Advisory Committee Act 

(FACA), 5 U.S.C. App. 2, governs the process 

whereby the President or an administrative 

agency obtains advice from groups that 

include one or more non-federal employees. 

It places various limits on the formation of 

such groups and requires that group meetings 

be open to public attendance and permit at 

least a limited degree of public participation. 

Though Congress has occasionally amended 

FACA,1 the original framework of the 1972 

Act has essentially remained intact to the 

present day. Nevertheless, FACA has faced 

criticism, with some contending that the Act 

imposes excessive procedural burdens and 

others arguing that it does not require 

agencies to do enough to promote openness 

and transparency. This recommendation 

offers proposals to Congress, the General 

Services Administration (GSA), and agencies 

that use advisory committees, to alleviate 

certain procedural burdens associated with 

the existing regime, clarify the scope of the 

Act, and enhance the transparency and 

objectivity of the advisory committee 

process. 

Overview of FACA 

Congress, the President, and administrative 

agencies each can create advisory 

committees. Advisory committees are 

classified as either ‘‘discretionary’’ or ‘‘nondiscretionary.’’ ‘‘Discretionary’’ advisory 

committees include those that an agency 

forms of its own initiative or in response to 

a statute authorizing the creation of a 

committee.2 ‘‘Non-discretionary’’ advisory 

committees include those formed by the 

President and those that Congress, by statute, 

specifically directs the President or an 

agency to establish.3

FACA furthers three major goals. First, the 

Act promotes transparency and public 

participation in the advisory committee 

process, providing for open meetings and 

permitting interested members of the public 

to submit written and/or oral comments to 

advisory committees.4 Second, the Act seeks 

to ensure objective advice and limit the 

influence of special interests on advisory 

committees by requiring that the membership 

of an advisory committee ‘‘be fairly balanced 

in terms of the points of view represented 

and the functions to be performed by the 

advisory committee.’’ 5 Third, the Act seeks 

to preserve federal resources by requiring 

justifications for any new committees and 

periodic review of existing committees to 

ensure that they continue to serve a useful 

purpose.6

In order to trigger FACA, an assemblage of 

individuals must include at least one nonfederal employee as well as meet the 

following requirements: (a) Work as a group, 

(b) be ‘‘established’’ by statute or 

‘‘established or utilized’’ by the President or 

an administrative agency, and (c) provide 

‘‘advice or recommendations’’ to the 

President or a federal agency.7 The courts 

have held that certain types of interactions 

do not meet this threshold for triggering 

FACA. Specifically, courts have held that (a) 

assemblages of persons providing advice to 

the government individually are not 


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8Ass’n of Am. Physicians & Surgeons v. Clinton, 

997 F.2d 898, 913 (D.C. Cir. 1993). 

9Byrd v. United States Envtl. Prot. Agency, 174 

F.3d 239, 246–47 (D.C. Cir. 1999); Food Chem. 

News v. Young, 900 F.2d 328, 333 (D.C. Cir. 1990). 

10Nat’l Anti-Hunger Coal. v. Exec. Comm. of the 

President’s Private Sector Survey of Cost Control, 

711 F.2d 1071, 1075–76 (D.C. Cir. 1983); 41 CFR 

102–3.35. 

11 In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 

2005). 

12 5 U.S.C. App. 2 § 3(2). 

13 Id. §§ 7(c), 9(c); 41 CFR 102–3.60–75. 

14 5 U.S.C. App. 2 §§ 5(b)(2), (c); 41 CFR 102– 

3.30(c), 102–3.60(b)(3). 

15 5 U.S.C. App. 2 §§ 5(b)(3), (c); 18 U.S.C. 202(a); 

41 CFR 102–3.105(h); U.S. Office of Government 

Ethics, Memorandum from J. Jackson Walter, 

Director of the Office of Government Ethics, to 

Heads of Departments & Agencies of the Executive 

Branch regarding Members of Federal Advisory 

Committees & the Conflict-of-Interest Statutes 3–5 

(July 9, 1982). 

16Under certain circumstances, a committee may 

close an entire meeting or parts thereof. 5 U.S.C. 

App. 2 § 10(d); 41 CFR 102–3.155. In recent years, 

the majority of committee meetings have been 

either partially or fully closed from public 

attendance. See FACA Database: FY 2010 

Government Totals, http://fido.gov/facadatabase/ 

rptgovttotals.asp (last visited September 21, 2011) 

(noting that, thus far in 2011, 71% of committee 

meetings have been completely closed, 4% partially 

closed, and 25% fully open). 

17 5 U.S.C. App. 2 § 10; 41 CFR 102–3.140, 102.3– 

150. 

18 5 U.S.C. App. 2 § 10(b); 41 CFR 102–3.170. 

19 5 U.S.C. App. 2 § 14; 41 CFR 102–3.60. In 

addition to the re-chartering process, the 

Administrator of GSA conducts an annual review 

of existing committees designed to ensure that such 

committees continue to serve useful purposes and 

to recommend eliminating any committees that do 

not, 5 U.S.C. App. 2 § 7(b); 41 CFR 102–3.100(b)(1), 

and the head of each agency is responsible for 

eliminating any advisory committee that no longer 

justifies the expenditure of resources required to 

perpetuate it, 41 CFR 102–3.30(b), 102–3.105(e). 

20Exec. Order No. 12,838, 58 FR 8207 (Feb. 10, 

1993). 

21Office of Management & Budget, Circular A– 

135: Management of Federal Advisory Committees, 

59 FR 53856, 53857 (Oct. 26, 1994). 

22 David M. Pritzker & Deborah S. Dalton, 

Negotiated Rulemaking Sourcebook 1 

(Administrative Conference of the U.S. 1995). 

23Public Law 101–648, 104 Stat. 4969 (1990) 

(codified at 5 U.S.C. 561 et seq.). 

24 5 U.S.C. 565(a)(1). 

25 Id. § 563. 

26 Id. §§ 563(a)(2)–(3), 564(a)(3)–(4), 565(a)(1). 

27H.R. 3124, 112th Cong. § 3(b) (2011). 

28The Conference’s empirical research indicated 

that the principal sources of delay in the committee 

formation process are within agencies themselves 

rather than resulting from delays associated with 

GSA’s review of proposed committee charters. 

Nevertheless, informed observers were concerned 

that there exists a widespread perception among 

agencies that GSA’s review of proposed charters 

constitutes a de facto approval process rather than 

a consultation requirement, thereby causing some 

agencies to invest excessive time in drafting 

committee charters prior to submission to GSA for 

review. 

‘‘groups’’ subject to FACA,8 (b) groups 

formed by private contractors that are not 

subject to direct management or control by an 

administrative agency are not ‘‘utilized’’ by 

the agency so as to trigger FACA,9 (c) 

subcommittees that report to a parent 

committee are not subject to FACA’s open 

meeting requirements since the 

subcommittee does not itself provide ‘‘advice 

or recommendations’’ to the agency,10 and 

(d) groups in which the non-government 

members lack a formal vote or veto over the 

‘‘advice or recommendations’’ the committee 

ultimately provides do not implicate 

FACA.11

All advisory committees subject to FACA 

must comply with a number of procedural 

requirements.12 Prior to the committee’s 

commencing its work, an agency creating a 

discretionary committee must consult with 

the General Services Administration (GSA) 

regarding the need for the proposed 

committee, and all committees must have a 

charter setting forth the committee’s 

mission.13 The members selected to serve on 

the proposed committee must reflect an 

appropriate balance of the points of view and 

fields of expertise relevant to the committee’s 

work.14 FACA only requires that committees 

achieve balance on factors specifically 

relevant to the committee’s work, but a 

number of agencies have adopted policies of 

achieving balance on additional factors. 

Committee members selected to provide 

individual expert advice are appointed as 

‘‘Special Government Employees’’ (SGEs) 

and must comply with ethics requirements 

similar to those applicable to regular 

government employees, whereas members 

chosen to represent a particular interest 

group with a stake in the committee’s work 

are appointed as ‘‘representatives’’ and are 

not subject to ethics requirements.15 Once a 

committee is formed, the agency must 

announce any committee meetings in 

advance in the Federal Register, permit 

interested members of the public to attend 

such meetings,16 and receive comments from 

individuals interested in the committee’s 

work.17 The public, upon request, must be 

given access to all documents presented to or 

prepared for or by the advisory committee.18

Finally, agencies must re-charter each 

existing committee every two years and, as 

part of that process, show that the committee 

has continued relevance and that the costs of 

its continued existence do not outweigh the 

benefits it provides.19

Agencies are also subject to Executive 

Order 12,838, issued by President Clinton in 

1993, which required agencies to reduce the 

number of their discretionary advisory 

committees by one-third.20 The Office of 

Management & Budget then issued Circular 

A–135, which capped the number of agency 

discretionary committees at the reduced 

levels permitted by the Executive Order.21

Administrative agencies collectively can 

maintain a total of 534 discretionary advisory 

committees without exceeding the cap. 

In certain instances, agencies may wish to 

form advisory committees consisting of 

representatives from different stakeholder 

communities to negotiate the text of a 

proposed rule.22 Congress has specifically 

authorized this process, known as 

‘‘negotiated rulemaking,’’ in the Negotiated 

Rulemaking Act of 1990.23 In most instances, 

negotiated rulemaking committees are subject 

to FACA,24 except as modified by the 

Negotiated Rulemaking Act or another 

statute. The Negotiated Rulemaking Act 

provides some of the same protections as 

FACA, requiring that the agency make certain 

findings regarding the need for a negotiated 

rulemaking committee 25 and that negotiated 

rulemaking committees be balanced to 

include representatives from all relevant 

stakeholder communities.26 However, 

requirements pertaining to notices and 

openness of meetings stem from FACA rather 

than from the Negotiated Rulemaking Act. 

Research Methodology 

Both governmental agencies and private 

groups have criticized the existing FACA 

regime. Many agencies contend that it is 

overly cumbersome and limits their ability to 

obtain outside advice. Numerous private 

groups have argued that the statute does not 

adequately promote transparency or preserve 

a role for the public to participate in the work 

of committees. Congress has also recently 

proposed various reforms to FACA that 

would, as a general matter, extend the scope 

of the Act and require agencies to undertake 

various steps to increase transparency in 

their use of advisory committees.27 In light of 

the recent interest expressed in reforming 

FACA, study of the Act is timely. In order to 

identify the problems driving these concerns 

and formulate potential solutions, the 

Conference undertook an extensive study, 

seeking input from individuals and groups 

within and outside of the federal 

government. The data-gathering effort 

included: (a) Two separate surveys, with one 

focusing on agency Committee Management 

Officers (CMOs), who are responsible for 

compliance with FACA, and the other 

focusing on ‘‘clients’’ of advisory committees 

such as agency program officers and general 

counsel’s offices; (b) a workshop with 

approximately 50 participants, including 

numerous agency representatives with 

extensive experience in the use of advisory 

committees and members of nongovernmental organizations that promote 

government transparency; and (c) dozens of 

interviews of FACA experts (not limited to 

CMOs) both within and outside of the federal 

government. 

Research Results 

The data gathered suggest that FACA and/ 

or its implementation by administrative 

agencies has given rise to at least three types 

of problems: (1) Procedural burdens that 

inhibit the effective use of advisory 

committees without substantially furthering 

the policies of the Act; (2) confusion about 

the scope of the statute that may discourage 

agencies from using committees or induce 

them to engage in ‘‘work-arounds’’ to avoid 

triggering its requirements; and (3) agency 

practices that either undermine or fail to 

fully promote the transparency and 

objectivity of the advisory committee 

process. 

The recommendations below propose 

reforms to address these problems. The first 

group of recommendations seeks to alleviate 

barriers and perceived barriers 28 to the 

government’s use of advisory committees by 

proposing a simplified process by which 


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29Though the 469 discretionary advisory 

committees in existence are currently well short of 

the 534 discretionary committees authorized, the 

cap can nevertheless create procedural burdens for 

agencies and inhibit their ability to obtain needed 

outside advice. Since GSA allots each agency a 

specific number of potential discretionary advisory 

committees, an agency that intends to exceed its 

individual ceiling must request that GSA adjust that 

ceiling. Agency officials interviewed as part of the 

research also indicated that individuals outside of 

the CMO’s office were sometimes unsure of whether 

the agency was likely to exceed its discretionary 

committee ceiling and were therefore reluctant to 

request additional committees. 

30H.R. 3124, 112th Cong. § 3(b) (2011). 

31Concerns have also been expressed that 

exemption from FACA of meetings of committees 

formed by private contractors at agencies’ behest, 

and committees wherein all voting members are 

federal employees, creates the potential for 

circumvention of the Act. See Reeve T. Bull, The 

Federal Advisory Committee Act: Issues & Proposed 

Reforms 17–18, 20–21, 40–42 (September 12, 2011). 

The Conference believes that additional research 

concerning the extent to which agencies utilize 

such exemptions and the extent to which their use 

thereof defeats the policies the Act was intended to 

serve would be beneficial in determining whether 

such exemptions should be either eliminated 

entirely or scaled back so as to apply only in a 

specific set of circumstances. 

32 GSA would continue to offer advice on 

committee formation and operation to agencies that 

seek such advice, and its regulations might 

authorize agencies to obtain advice on committee 

formation and operation from the Committee 

Management Secretariat. 

33 5 U.S.C. App. 2 § 9(c); 41 CFR 102–3.70. 

agencies create advisory committees and 

select their members and by recommending 

the removal of the arbitrary cap on the 

number of advisory committees.29

The second set of recommendations seeks 

to clarify the Act’s scope in light of cases 

interpreting the Act and in anticipation of 

congressional amendments recently under 

consideration that might inhibit agencies’ use 

of advisory committees or lead to use of 

alternative procedures to avoid triggering the 

Act. One such amendment would require 

subcommittees to comply with all provisions 

of FACA other than chartering, including the 

open meeting requirements.30 The 

Conference recommends that if Congress 

eliminates the subcommittee exemption, then 

it should codify what is currently a 

regulatory exemption allowing agencies to 

conduct preparatory work in closed 

meetings, without a requirement of advance 

public notice.31 The Conference also 

recommends that GSA clarify the Act’s 

applicability to ‘‘virtual meetings’’ conducted 

via web forum to ensure that agencies are not 

chilled from using this technique and that 

Congress clarify the applicability of FACA 

principles to negotiated rulemaking 

committees. 

The third set of recommendations proposes 

that both Congress and agencies adopt certain 

procedures that would enhance the 

transparency and objectivity of the advisory 

committee process without imposing onerous 

procedural or financial burdens on the 

agencies. These include ‘‘best practices’’ 

related to committee formation and operation 

(such as posting committee documents 

online, webcasting committee meetings, and 

soliciting input on potential committee 

members) and recommendations related to 

the classification of committee members for 

purposes of applying ethics standards. 

Recommendation 

Alleviating Procedural Burdens That Inhibit 

the Effective Use of Advisory Committees 

1. Congress should amend the Federal 

Advisory Committee Act (‘‘FACA’’) and the 

General Services Administration (‘‘GSA’’) 

should amend its FACA implementing 

regulations to eliminate any requirement that 

agencies consult with the Administrator of 

GSA prior to forming or renewing an 

advisory committee or implementing a major 

change to the charter of an existing 

committee. Specifically, Congress should 

delete the phrase ‘‘after consultation with the 

Administrator’’ from section 9(a)(2) of FACA, 

and GSA should eliminate or suitably revise 

41 CFR 102–3.60, 102–3.85(a), which 

currently require such consultation with 

GSA’s Committee Management Secretariat.32

Agencies should still be required to prepare 

and file committee charters and should be 

permitted (but not required) to consult with 

GSA to obtain advice regarding preparation 

of the charter or other aspects of committee 

formation. Agencies should also still be 

required to file charters as under current 

law,33 including filing with GSA for 

informational purposes and for inclusion in 

the FACA database. GSA should continue to 

post all committee charters online. 

2. Agencies should identify and prioritize 

those factors for achieving balance among 

committee members that are directly relevant 

to the subject matter and purpose of the 

committee’s work. The committee charter 

should include a description of the 

committee’s mission and the most relevant 

balance factors. 

3. Whenever Congress creates an advisory 

committee through legislation, it should 

indicate its intent as to the mission, 

estimated duration, budget, and preferred 

membership balance for the committee. 

Whenever such committees are exempted 

from the biennial review process, Congress 

should provide guidance concerning the 

intended duration of each such committee or, 

alternatively, a clear explanation of the 

committee’s mission and a provision that the 

committee should terminate upon 

completion of that mission. 

4. The President and the Office of 

Management and Budget should eliminate 

the cap on the number of discretionary 

advisory committees established by 

Executive Order 12,838 and Circular A–135. 

Clarifying the Scope of FACA 

5. Congress should not eliminate the 

exemption for subcommittees that report to 

parent committees currently stated in 41 CFR 

102–3.35 unless it codifies an exemption 

providing that members of committees or 

subcommittees may meet to conduct 

‘‘preparatory work’’ without complying with 

the notice and open meeting requirements of 

the Act. The statutory definition of 

‘‘preparatory work’’ should be similar to that 

currently provided in FACA’s implementing 

regulations at 41 CFR 102–3.160(a). Congress 

and/or GSA should also consider including 

a clearer list of activities that constitute 

‘‘preparatory work’’ than that currently 

contained in the implementing regulations, 

including activities such as (i) drafting 

documents for consideration at a committee 

meeting, (ii) conducting research or 

preliminary analysis on topics for discussion 

at a committee meeting, (iii) engaging in predecisional deliberations, (iv) choosing 

meeting topics, and (v) considering future 

projects for the committee to undertake. 

6. GSA should amend section 102–3.140(e) 

of the FACA implementing regulations to 

clarify that, in addition to holding 

teleconferenced or webconferenced meetings, 

agencies also may host virtual meetings that 

can occur electronically in writing over the 

course of days, weeks or months on a 

moderated, publicly accessible web forum. 

Agencies with advisory committees should 

be aware that they have the option of holding 

committee meetings via such online forums. 

To the extent they conduct meetings by web 

forum, agencies should monitor the process 

and determine whether it is an efficient and 

transparent means of hosting meetings. 

7. Congress should amend the Negotiated 

Rulemaking Act (5 U.S.C. 561 et seq.) to 

provide that committees engaged in 

negotiated rulemaking are exempt from 

FACA but that such committees should be 

required to announce full committee 

meetings in advance and open them to public 

attendance. The amendments should codify 

existing procedures that allow caucuses or 

other sub-groups of committee members to 

meet privately, provided that such caucuses 

or sub-groups make no final decisions on 

behalf of the full committee. In the event that 

Congress does eliminate the FACA 

exemption applicable to subcommittees of 

advisory committees, 41 CFR 102–3.35, but 

does not exempt negotiated rulemaking 

committees from FACA, it should create a 

carve-out allowing negotiated rulemaking 

caucuses or other sub-groups to continue to 

hold meetings privately so long as they do 

not make final decisions on behalf of the full 

committee. 

Enhancing Transparency and Objectivity 

8. Congress and agencies should adopt the 

following procedures with respect to the 

ethics requirements applicable to advisory 

committee members: 

(a) In creating statutory advisory 

committees, Congress should specify the 

intended classification of committee 

members for purposes of applying federal 

ethics laws. Congress should explicitly 

classify as ‘‘representatives,’’ not subject to 

ethics standards, those members who are 

selected to represent the perspective or 

interests of a particular group with a stake in 

the work of the advisory committee. It should 

explicitly classify as ‘‘special government 

employees’’ (SGEs), subject to specified 

federal ethics laws and rules, members who 

are chosen to provide individual, 

independent, expert advice. 

(b) Congress and individual agencies 

should prevent misuse of the 

‘‘representative’’ designation by limiting it to 


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2264 Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Notices 

34 In 2004, the Government Accountability Office 

issued a report suggesting that a number of agencies 

had improperly classified individuals possessing 

expertise in a particular field of study as 

representatives on the theory that they 

‘‘represented’’ that discipline. U.S. Gov’t 

Accountability Office, GAO–04–328, Additional 

Guidance Could Help Agencies Better Ensure 

Independence & Balance 5 (2004). Since that time, 

the Office of Government Ethics has issued a 

number of memoranda to Designated Agency Ethics 

Officials clarifying the distinction between SGEs 

and representatives and advising agencies to 

appoint persons selected to provide independent, 

expert advice as SGEs. See generally U.S. Office of 

Government Ethics, Memorandum from Marilyn L. 

Glynn, General Counsel, to Designated Agency 

Ethics Officials Regarding Federal Advisory 

Committee Appointments (Aug. 18, 2005); U.S. 

Office of Government Ethics, Memorandum to 

Designated Agency Ethics Officials (July 19, 2004). 

The Office of Government Ethics also enhanced its 

examination of agencies’ classification of committee 

members when conducting an ethics program 

review. United States Office of Government Ethics, 

Ethics Program Review Guidelines 40–45 (Oct. 

2004). 

35The Office of Government Ethics has issued 

guidance describing the type of information that a 

waiver should contain. U.S. Office of Government 

Ethics, Memorandum from Robert I. Cusick, 

Director, to Designated Agency Ethics Officials 

Regarding Waivers under 18 U.S.C. 208 (Feb. 23, 

2007). 

36 GSA has negotiated government-specific terms 

of service for a number of technology products and 

maintains these terms for agency use on the web at 

‘‘apps.gov’’; the site includes several free 

webcasting programs that agencies should consider 

using for providing webcasts of committee 

meetings. 

1Administrative Conference of the United States, 

Recommendation 2011–1, Legal Considerations in 

e-Rulemaking 1 (quoting Cary Coglianese, ERulemaking: Information Technology and the 

Regulatory Process 2 (2004) (working paper), http:// 

lsr.nellco.org/upenn_wps/108). 

2Exec. Order No. 13166, 65 FR 50121, 50121 

(Aug. 11, 2000). 

3OMB Deputy Director for Management Clay 

Johnson, Memorandum on Policies for Federal 

Agency Public Web sites (Dec. 17, 2004), available 

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

omb/memoranda/-fy2005/m05-04.pdf. 

individuals selected to represent some entity 

or group with a stake in the committee’s 

work and should not apply that designation 

to persons who, by virtue of their expertise, 

might be said to ‘‘represent’’ a field of study 

or discipline but do not represent the views 

of a particular interest group. Such members 

are more appropriately classified as SGEs.34

(c) Agencies that grant conflict of interest 

waivers under 18 U.S.C. 208(b) should post 

such waivers on their Web sites without 

awaiting a public request for releasing 

them.35 Agencies should make appropriate 

provisions for redacting from such waivers 

information that they may keep confidential 

pursuant to 18 U.S.C. 208(d)(1). 

9. Agencies should post on a committee 

Web site documents ‘‘which were made 

available to or prepared for or by each 

advisory committee’’ (i.e., documents that 

must be made publicly available on request 

under section 10(b) of FACA) and that reflect 

the substantive work of the committee. 

Agencies should attempt to post documents 

relevant to upcoming meetings (e.g., draft 

reports, recommendations, or meeting 

agendas) as early as possible in advance of 

the meeting to which they relate and other 

materials that document the events of past 

meetings (e.g., minutes or transcripts) as 

quickly after the meeting as possible. 

10. Agencies should provide live webcasts 

of open committee meetings and/or post 

recordings following such meetings unless 

the costs are prohibitive. When selecting a 

webcasting technology, agencies should 

assess the likely level of public interest in 

their committees’ work, the cost of different 

technologies (as well as the cost savings such 

technologies can create), and their available 

resources.36

11. Upon creating a new advisory 

committee, agencies should announce the 

committee’s mission in the Federal Register 

and/or on the agencies’ Web site and invite 

nominations for potential committee 

members, from the public, from expert 

communities with experience in the subject 

matter of the committee’s assignment, and/or 

from groups especially likely to be affected 

by the committee’s work. 

Administrative Conference Recommendation 

2011–8 

Agency Innovations in E–Rulemaking 

Adopted December 9, 2011 

The rulemaking function of federal 

regulatory agencies is typically accomplished 

today through ‘‘e-rulemaking’’: that is, 

through ‘‘ ‘the use of digital technologies in 

the development and implementation of 

regulations,’ before or during the informal 

rulemaking process, i.e., notice-and-comment 

rulemaking under the Administrative 

Procedure Act (APA).’’ 1 The Web site 

www.regulations.gov centralizes much erulemaking activity throughout the executive 

branch. This recommendation concerns 

individual agencies’ uses of their own Web 

sites to promote e-rulemaking and other 

agency initiatives and activities. 

The proliferation of competing demands 

for communication makes rulemaking only 

one of the many priorities under 

consideration when agency officials make 

decisions about the design and functionality 

of their Web sites. As a result, there is a risk 

agencies will make Web site design decisions 

without giving due consideration to 

enhancing public participation in rulemaking 

through the use of electronic media. Indeed, 

an emerging approach to government Web 

site design focuses on giving prominence to 

‘‘top tasks’’ sought by members of the public. 

However, an exclusive focus on current Web 

site use or demand may push information 

about rulemaking, and online opportunities 

for public commenting on rulemaking, far 

into the background—simply because the 

volume of Web site traffic generated by 

online government services performed by 

many agencies dwarfs the traffic related to 

rulemaking. Rulemaking may never be a ‘‘top 

task’’ in terms of the numbers of Web users, 

but in a democracy, few tasks compare in 

significance with the ability of government 

agencies to create binding law backed up 

with the threat of civil, and even criminal, 

penalties. 

The Conference studied the Web sites and 

e-rulemaking initiatives of 90 agencies, each 

of which had reported completing an average 

of two or more rulemakings during each sixmonth period covered by the semiannual 

Unified Regulatory Agenda in 2009–2010. 

The study reveals that individual agencies 

have used Web sites in innovative ways to 

promote e-rulemaking. For example, agencies 

have developed portions of their own Web 

sites to support rulemaking efforts. Some 

agencies have specialized Web pages that 

allow users to submit and view comments on 

all of the agency’s open rulemakings, or to 

view information on the status of their 

priority rulemakings. Links from some 

agency home pages make rulemaking 

information easy to locate. Other agencies 

have innovated by using social media to get 

the public involved in the rulemaking 

process from the earliest stages. These social 

media tools include blogs, Facebook, Twitter, 

IdeaScale, and other online discussion 

platforms. 

Agency innovations can improve the 

availability of information and engage the 

public in rulemaking activities, often at no 

great cost to the government. A cost-effective 

technique to improve the availability of 

rulemaking information on individual agency 

Web sites leverages available centralized data 

sources. An example of this approach is 

found on the Web sites of many members of 

Congress, who provide a link on their home 

page to a page listing all the legislation the 

member sponsors. The list is not drawn from 

the Member’s own database, but rather 

extracts information from a THOMAS 

database of all legislation currently pending 

in Congress. Regulations.gov makes a similar 

tool available to agencies, thus enabling them 

to provide easy access to complete and upto-date rulemaking information without the 

necessity of maintaining the underlying 

database. 

Agency innovations can also further wellestablished policies in favor of broadening 

access by groups that have historically faced 

barriers to participating effectively in 

rulemaking. In 2000, President Clinton 

issued Executive Order 13166 in an effort ‘‘to 

improve access to * * * programs and 

activities for persons who, as a result of 

national origin, are limited in their English 

proficiency.’’ 2 The Office of Management 

and Budget’s policy on agency Web sites 

reminds agencies that they are ‘‘required to 

provide appropriate access for people with 

limited English proficiency.’’ 3 Similarly, 

until high-speed Internet access is pervasive 

across all strata of society, any agency that 

makes full public access and participation a 

priority should explore low bandwidth 

options, while also remembering that some 

members of the public do not have Internet 

access at all. In addition, continued vigilance 

is needed to ensure that agency Web sites 

and other electronic media will be as 

accessible to individuals with disabilities as 

they are to other users. This accessibility may 

grow even more challenging in the wake of 

new techniques for organizing a large volume 

of information on a Web site. 

Individual agency Web sites can also be 

used to address discrete deficiencies in the 

availability of critical rulemaking 

information. One such problem is that many 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Notices 2265 

4See generally Administrative Conference of the 

United States, Recommendation 2011–2, 

Rulemaking Comments (recommending that 

agencies establish and publish certain policies 

governing rulemaking comments). 

5Throughout this recommendation, the term 

‘‘rulemaking’’ includes, but is not limited to, the 

following proceedings, providing an agency is 

seeking or intends to seek public comment on them: 

planned rulemakings that have appeared in the 

Unified Agenda, rules at the advanced notice of 

proposed rulemaking stage, and proposed 

nonlegislative rules. The recommendation also 

extends to guidance documents on which an agency 

is seeking or intends to seek public comment. 

agencies’ policies relating to comments 4

cannot be found easily by the public. Even 

on Web pages dedicated to the submission of 

comments, a comment policy is not always 

visible to the user. A second difficulty arises 

with old rulemaking materials, which need to 

be preserved for archival, historical, and legal 

reasons, but are often difficult for users to 

find and search. A third issue is that agency 

Web sites are uniformly easy to locate, but do 

not always include features to ensure that 

essential information, particularly about 

rulemaking, is broadly accessible to the 

public. 

The Conference believes that, as a general 

matter, agencies should continue to improve 

their Web sites to facilitate public 

accessibility and engagement so as to achieve 

the promise of e-rulemaking. This 

recommendation is intended to broadly 

encourage agencies to develop and use 

innovative, cost-effective ways to use 

individual Web sites to solve some of the 

discrete problems identified above and 

generally engage the public in rulemaking. 

Recommendation 

Increasing the Visibility of Rulemakings 

1. Agencies should design and manage 

their presence on the Web (including the 

Web as accessed by mobile devices) with 

rulemaking participation in mind.5

2. Each agency should provide access to a 

one-stop location, which should be easily 

reachable from its home page, for all of its 

pending rulemakings, highlighting those that 

are currently open for comment. This may 

take the form of providing pinpoint links to 

specific information about the agency’s 

rulemakings available on Web sites such as 

Regulations.gov, RegInfo.gov, Federal 

Register 2.0, and so forth, which would allow 

the agency to efficiently enable the public to 

retrieve all available information the federal 

government has about its ongoing 

rulemakings. 

3. Agencies should consider, in 

appropriate rulemakings, using social media 

tools to raise the visibility of rulemakings. 

When an agency sponsors a social media 

discussion of a rulemaking, it should provide 

clear notice as to whether and how it will use 

the discussion in the rulemaking proceeding. 

Making Comment Policies Easy To Locate 

4. Agencies should display or link to their 

comment policies in prominent or multiple 

locations on their Web sites. 

Improving Access to Agency Web Sites 

5. Agencies should continue to improve 

the accessibility of their Web sites to 

members of the public. 

6. Agencies should take steps to improve 

access for persons who have faced barriers to 

effectively participating in rulemaking in the 

past, including non-English speakers, users 

of low-bandwidth Internet connections, and 

individuals with disabilities. 

Ensuring Access to Materials From 

Completed Rulemakings 

7. Agencies should develop systematic 

protocols to enable the online storage and 

retrieval of materials from completed 

rulemakings. Such protocols should, to the 

extent feasible, ensure that Web site visitors 

using out-of-date URLs are automatically 

redirected to the current location of the 

material sought. 

Periodically Evaluating Agency Use of the 

Internet in Rulemaking 

8. Agencies should periodically evaluate 

their use of the Internet in rulemaking and 

should continue to innovate and experiment 

with new and cost-effective ways to engage 

the public in rulemaking via the Internet. 

[FR Doc. 2012–621 Filed 1–13–12; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Grain Inspection, Packers and 

Stockyards Administration 

Request for Extension and Revision of 

a Currently Approved Information 

Collection 

AGENCY: Grain Inspection, Packers and 

Stockyards Administration, USDA. 

ACTION: Notice and request for 

comments. 

SUMMARY: In accordance with the 

Paperwork Reduction Act of 1995 

(PRA), this notice announces the Grain 

Inspection, Packers and Stockyards 

Administration’s (GIPSA) intention to 

request that the Office of Management 

and Budget (OMB) approve a 3-year 

extension of and revision to a currently 

approved information collection of a 

voluntary customer survey concerning 

the delivery of official inspection, 

grading, and weighing services 

authorized under the United States 

Grain Standards Act and the 

Agricultural Marketing Act of 1946. 

This voluntary survey gives customers 

that are primarily in the grain, oilseed, 

rice, lentil, dry pea, edible bean, and 

related agricultural commodity markets 

an opportunity to provide feedback on 

the quality of services they receive and 

provides GIPSA with information on 

new services that customers wish to 

receive. Customer feedback assists 

GIPSA’s Federal Grain Inspection 

Service (FGIS) with enhancing the value 

of services and service delivery 

provided by the official inspection, 

grading, and weighing system. 

DATES: Written comments must be 

submitted on or before March 19, 2012. 

ADDRESSES: We invite you to submit 

comments on this notice. You may 

submit comments by any of the 

following methods: 

• Internet: Go to http://

www.regulations.gov and follow the 

online instructions for submitting 

comments. 

• Mail, hand deliver, or courier: Tess 

Butler, GIPSA, USDA, 1400 

Independence Avenue SW., Room 

2530–S, Washington, DC 20250–3604. 

• Fax: (202) 690–2173. 

Instructions: All comments should be 

identified as ‘‘FGIS customer service 

survey’’ and should reference the date 

and page number of this issue of the 

Federal Register. Information collection 

package and other documents relating to 

this action will be available for public 

inspection in the above office during 

regular business hours. All comments 

will be available for public inspection in 

the above office during regular business 

hours (7 CFR 1.27(b)). Please call 

GIPSA’s Management and Budget 

Services Staff at (202) 720–7486 to 

arrange to inspect documents. 

FOR FURTHER INFORMATION CONTACT: 

Idelisse Rodriguez, Program Analyst, 

Office of the Deputy Administrator, 

email address: Idelisse.Rodriguez@

usda.gov, telephone (202) 720–5688. 

SUPPLEMENTARY INFORMATION: Congress 

enacted the United States Grain 

Standards Act (USGSA) (7 U.S.C. 71– 

87k) and the Agricultural Marketing Act 

(AMA) (7 U.S.C. 1621–1627) to facilitate 

the marketing of grain, oilseeds, pulses, 

rice, and related commodities. These 

statutes provide for the establishment of 

standards and terms which accurately 

and consistently measure the quality of 

grain and related products, provide for 

uniform official inspection and 

weighing, provide regulatory and 

service responsibilities, and furnish the 

framework for commodity quality 

improvement incentives to both 

domestic and foreign buyers. The 

GIPSA’s Federal Grain Inspection 

Service (FGIS) establishes policies, 

guidelines, and regulations to carry out 

the objectives of the USGSA and the 

AMA. Regulations appear at 7 CFR 800, 

801, and 802 for the USGSA and 7 CFR 

868 for the AMA. 

The USGSA, with few exceptions, 

requires official inspection of export 

grain sold by grade. Official services are 

provided, upon request, for grain in 

domestic commerce. The AMA 


srobinson on DSK4SPTVN1PROD with NOTICES