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

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statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

47800 

Vol. 77, No. 155 

Friday, August 10, 2012 

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 

five recommendations at its Fifty-sixth 

Plenary Session. The appended 

recommendations address regulatory 

analysis requirements, midnight rules, 

immigration removal adjudication, the 

Paperwork Reduction Act, and 

improving coordination of related 

agency responsibilities. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendation 2012–1, Reeve Bull; 

for Recommendations 2012–2 and 

2012–3, Funmi Olorunnipa; for 

Recommendation 2012–4, Emily 

Bremer; and for Recommendation 2012– 

5, David Pritzker. For all five 

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-sixth Plenary Session, 

held June 14–15, 2012, the Assembly of 

the Conference adopted five 

recommendations. Recommendation 

2012–1, ‘‘Regulatory Analysis 

Requirements,’’ considers the various 

regulatory analysis requirements 

imposed upon agencies by both 

executive orders and statutes. It offers 

recommendations designed to ensure 

that agencies satisfy the existing 

requirements in the most efficient and 

transparent manner possible. It also 

provides recommendations on 

streamlining the existing analysis 

requirements. 

Recommendation 2012–2, ‘‘Midnight 

Rules,’’ addresses several issues raised 

by the publication of rules in the final 

months of a presidential administration. 

The recommendation offers a number of 

proposals for limiting the practice of 

issuing midnight rules by incumbent 

administrations and enhancing the 

powers of incoming administrations to 

review midnight rules. 

Recommendation 2012–3, 

‘‘Immigration Removal Adjudication,’’ 

addresses the problem of case backlogs 

in immigration removals. The 

recommendation suggests a number of 

ways to enhance efficiency and fairness 

in these cases. Officials from the 

Department of Homeland Security 

(DHS) and the Department of Justice’s 

Executive Office for Immigration 

Review (EOIR) had significant and 

helpful input during the committee 

process preceding the adoption of the 

recommendation by the full Assembly 

of the Conference. 

At the end of the first day of the Fiftysixth Plenary Session, during 

deliberation of Recommendation 2012– 

3, ‘‘Immigration Removal 

Adjudication,’’ the Assembly had to 

adjourn due to the lack of a quorum. 

That determination came after three 

amendments proposed by DHS to 

sections 10(b) and 21 of the 

recommendation failed. There is doubt 

whether a quorum existed at the time 

the Assembly voted on those 

amendments. Moreover, because those 

amendments failed by relatively narrow 

margins (one was a tie), they might have 

succeeded had a quorum been present. 

The following day, after a quorum had 

been reestablished, the full 

recommendation (including the two 

sections that had been adopted prior to 

the quorum call) was adopted by a voice 

vote. In light of the uncertainty 

surrounding the votes on DHS’s 

amendments, DHS and a number of 

other members have taken the 

reasonable view that those two sections 

carry less persuasive weight than they 

might otherwise. 

An ex post review of all relevant 

sources has introduced some 

uncertainty as to whether procedures 

could have been managed differently. 

Because the mission of the Conference 

is to ensure consensus-driven and fair 

procedures, the Conference has sought 

and will continue to seek the input of 

its membership on ways to revise 

quorum procedures in the future, to 

ensure that the Conference acts only 

through a full quorum of its members. 

We look forward to working with DHS 

and the Department of Justice to 

implement the other 35 parts of this 

important and historic recommendation. 

Recommendation 2012–4 addresses a 

variety of issues that have arisen since 

the Paperwork Reduction Act was last 

revised in 1995. It recommends ways to 

improve public engagement in the 

creation and review of information 

collection requests and to make the 

process more efficient for the agencies 

and the Office of Management and 

Budget. It also suggests ways to 

streamline the review and approval 

process without increasing the burden 

on the public of agency information 

collections. 

Recommendation 2012–5 addresses 

the problem of overlapping and 

fragmented procedures associated with 

assigning multiple agencies similar or 

related functions, or dividing authority 

among agencies. The recommendation 

proposes some reforms aimed at 

improving coordination of agency 

policymaking, including joint 

rulemaking, interagency agreements, 

agency consultation provisions, and 

tracking and evaluating the effectiveness 

of coordination initiatives. 

The Appendix (below) sets forth the 

full text of these five 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/56th-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. 

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Federal Register / Vol. 77, No. 155 / Friday, August 10, 2012 / Notices 47801 

1See generally Exec. Order No. 12,866, 58 FR 

51735 (Oct. 4, 1993). Independent regulatory 

agencies, as defined in the Paperwork Reduction 

Act, 44 U.S.C. 3502(5), are not subject to that 

requirement. 

2See Regulatory Flexibility Act, 5 U.S.C. 603–04 

(requiring agencies to do initial and final 

‘‘regulatory flexibility’’ analyses, describing the 

impact of the rule on ‘‘small entities’’). 

3See generally Exec. Order No. 13,132, 64 FR 

43255 (Aug. 10, 1999). 

4See generally Exec. Order No. 12,630, 53 FR 

8859 (Mar. 15, 1988). 

5See generally Public Law 105–277, § 654, 112 

Stat. 2681, 2681–528–30 (1998). 

6Curtis W. Copeland, Regulatory Analysis 

Requirements: A Review and Recommendations for 

Reform 51 (Feb. 23, 2012) (report to the 

Administrative Conference of the United States), 

available at http://www.acus.gov/wp-content/ 

uploads/downloads/2012/03/COR-CopelandReport-CIRCULATED.pdf. 

7 Id. at 50–51. 

8 Id. at 44–48. 

9 Id. at 50–51. 

10For instance, an economic analysis performed 

under EO 12,866 might also meet the requirements 

of UMRA in those instances wherein an agency is 

subject to both requirements. Id. at 55. 

11Agencies should consider the applicable 

regulatory analysis requirements throughout 

rulemaking proceedings and should not limit this 

process to the period immediately preceding the 

issuance of a notice of proposed rulemaking. In this 

light, agencies should be guided by Administrative 

Conference Recommendation 85–2, Agency 

Procedures for Performing Regulatory Analysis of 

Rules, which sets forth ‘‘specific advice on the use 

and limits of regulatory analysis and on integration 

of regulatory analysis into the agency rulemaking 

process.’’ Administrative Conference of the United 

States, Recommendation 85–2, Agency Procedures 

for Performing Regulatory Analysis of Rules, 50 FR 

28364 (July 12, 1985) (preamble). Specifically, the 

recommendation states that ‘‘[i]f regulatory analysis 

is to be used in a rulemaking, the agency 

decisionmaking process should be structured to 

involve agency regulatory analysts early in the 

evolution of the rule, before alternatives have been 

eliminated. Regulatory analysis should not be used 

to produce post hoc rationalizations for decisions 

already made, nor should it be allowed to unduly 

delay rulemaking proceedings.’’ Id. ¶ 2(a). 

12The Administrative Conference can provide 

appropriate assistance in accomplishing this 

endeavor. 

Dated: August 7, 2012. 

Paul R. Verkuil, 

Chairman. 

Appendix—Recommendations of the 

Administrative Conference of the 

United States 

Administrative Conference 

Recommendation 2012–1 

Regulatory Analysis Requirements 

Adopted June 14, 2012 

Over the past several decades, the 

United States Congress and various 

Presidents have imposed numerous 

regulatory analysis requirements on 

administrative agencies in connection 

with their rulemaking activities. Some 

of these requirements are relatively 

sweeping measures designed to ensure 

that agencies’ regulations advance 

legitimate goals, such as Executive 

Order (EO) 12,866’s requirement that 

executive agencies analyze the benefits 

and costs of proposed regulations.1

Other requirements are more specific 

mandates that agencies take into 

account certain factors when drafting 

regulations, including the proposed 

rules’ effects on small businesses,2

intergovernmental relations,3

constitutionally protected property 

rights,4 or the well-being of families.5

Some of the regulatory analysis 

requirements created by statute and 

executive orders have similar elements. 

For instance, the Regulatory Flexibility 

Act (RFA), Paperwork Reduction Act 

(PRA), Unfunded Mandates Reform Act 

(UMRA), and EO 12866 all require 

agencies to discuss the need for a 

proposed regulatory action, assess the 

costs and benefits of the proposal, and 

discuss alternative regulatory actions 

that could have been selected.6 EO 

13132 requires agencies to consider the 

impact of their regulations on State and 

local governments, and EO 13175 

similarly requires agencies to assess the 

impact of proposed rules on Native 

American tribal governments.7

Nevertheless, even relatively similar 

analytical requirements have distinct 

scopes, triggering events, and 

exceptions.8 For instance, although 

UMRA and EO 12866 cover the same 

agencies and require similar types of 

analysis, UMRA covers far fewer rules 

than the executive order. The various 

requirements also differ in the amount 

of discretion provided to agencies to 

determine whether an analysis is 

required. For example, EO 12,866’s 

analysis requirement applies in any 

rulemaking with an annual economic 

effect of $100 million or more. In 

contrast, EOs 13132 and 13175 are 

triggered when a regulation has 

‘‘substantial direct effects’’ on State or 

Native American tribal governments, 

respectively, but neither executive order 

defines the phrase, thereby allowing 

agencies to determine what constitutes 

a ‘‘substantial direct effect.’’ 9 As a 

result, agencies may adopt differing 

perspectives on events that implicate 

any given regulatory analysis 

requirement, thereby resulting in 

inconsistency throughout the 

government. Therefore, although certain 

aspects of the various analysis 

requirements could theoretically be 

consolidated,10 the numerous 

distinctions among the requirements 

complicate any effort to consolidate and 

streamline them. 

In this Recommendation, the 

Conference has sought to ensure that 

agencies fulfill the various regulatory 

analysis requirements in the most 

efficient manner possible and to 

enhance the transparency of the process 

by encouraging agencies to identify 

explicitly which of the requirements 

apply to any given rulemaking and why 

any applicable analytical requirements 

are not triggered. Also, agencies should 

be able to refer to a comprehensive list 

of cross-cutting regulatory analysis 

requirements, and they should identify 

any agency-specific or statute-specific 

requirements applicable to their rules.11

In addition, the Conference asks the 

Executive Office of the President and 

Congress to consider streamlining the 

existing regulatory analysis 

requirements. It encourages the 

Executive Office of the President and 

Congress to consider consolidating 

certain analysis requirements to the 

extent overlap exists and to promote 

uniformity in the determination of 

whether any given analysis requirement 

applies. Although the Conference seeks 

to assure that existing analytic 

requirements are applied in the most 

efficient and transparent manner 

possible, it does not address whether 

the number or nature of those 

requirements might not be reduced in 

light of their cumulative impact on 

agencies. 

Recommendation 

1. The Executive Office of the 

President should request that an 

appropriate agency prepare and post on 

its Web site a chart listing the various 

cross-cutting analytical rulemaking 

requirements (i.e., those that apply 

generally to a group of agencies rather 

than a specific agency or issue); the 

chart should provide links to the 

relevant statutes and executive orders 

establishing these requirements.12 The 

chart should be designed to serve as a 

useful resource to agencies for 

identifying analysis requirements that 

might apply; it would not constitute a 

formal ‘‘checklist’’ that agencies must 

complete or represent a judgment that 

an agency need comply only with the 

requirements enumerated in the list. 

2. To the extent certain regulatory 

analysis requirements are agencyspecific or statute-specific, affected 

agencies should prepare and post on 

their Web sites a list of all such 

additional requirements (beyond the 

cross-cutting requirements described in 

Recommendation 1), along with links to 

the underlying statutes. 

3. In order to minimize the burden 

and duplication that agencies face in 

conducting separate regulatory analyses, 

the Executive Office of the President 

and Congress should review 

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13Agencies should also be aware that certain 

analysis requirements outside of the purview of 

OIRA can be satisfied by performing similar 

analysis under a separate requirement. See, e.g., 

Unfunded Mandates Reform Act, 2 U.S.C. 1532(c) 

(‘‘Any agency may prepare any statement required 

under subsection (a) of this section in conjunction 

with or as a part of any other statement or analysis, 

provided that the statement or analysis satisfies the 

provisions of subsection (a) of this section.’’); 

Regulatory Flexibility Act, 5 U.S.C. 605(a) (‘‘Any 

Federal agency may perform the analyses required 

by sections 602, 603, and 604 of this title in 

conjunction with or as a part of any other agenda 

or analysis required by any other law if such other 

analysis satisfies the provisions of such sections.’’). 

14As explored above, agencies should not treat 

this merely as a checklist and instead should 

consider the various analysis requirements 

throughout the rulemaking process. See supra note 

11. This recommendation is merely intended to 

ensure that the agency provides the public a brief 

explanation of its determination that certain 

analysis requirements do not apply. 

15As a general matter, the various regulatory 

analysis requirements will fall into three potential 

categories: (a) the analysis requirement applies to 

the rulemaking; (b) the analysis requirement does 

not apply to the rulemaking but its inapplicability 

is not immediately clear without additional 

explanation; and (c) the analysis requirement 

clearly does not apply to the rulemaking. An agency 

could use a chart similar to the exemplar provided 

for analysis requirements that fall into the second 

category. It would actually perform the analysis 

requirements falling into the first category, and it 

would not need to explain the inapplicability of 

requirements falling into the third category. An 

agency could choose to provide an explanation for 

the inapplicability of requirements in the third 

category. For instance, with respect to the analysis 

requirement created by the Assessment of Federal 

Regulation and Policies on Families (Pub. L. 105– 

277, sec. 654), an agency might add an entry to the 

chart stating ‘‘Proposed rule will not affect family 

well-being.’’ 

1One study shows that, as measured by Federal 

Register pages, rulemaking activity increases by an 

average of 17 percent in the three months following 

a presidential election. See Antony Davies & 

Veronique de Rugy, Midnight Regulations: An 

Update (Mercatus Ctr. at George Mason Univ., 

Working Paper, 2008), available at http:// 

mercatus.org/uploadedFiles/Mercatus/Publications/ 

WP0806_RSP_Midnight%20Regulations.pdf 

(studying the number of pages published in the 

Federal Register over specific time periods in 

various presidential administrations). 

2See 5 U.S.C. 553. 

3The U.S. House of Representatives’ 

Subcommittee on Commercial and Administrative 

Law has previously suggested midnight rules as a 

topic suitable for Conference study. See H. 

Subcomm. on Commercial & Admin. Law, 109th 

Cong., Interim Report on Administrative Law, 

Process and Procedure for the 21st Century 150 

(Comm. Print 2007). (listing among ‘‘Areas for 

Additional Research’’ the following question: 

‘‘Should a new President be authorized to stay the 

effectiveness of ‘midnight rules’ that are 

promulgated shortly before a new administration 

takes office? If so, should there be limits on the 

amount of time rules can be delayed’’). 

4See Jack M. Beermann, Midnight Rules: A 

Reform Agenda (Feb. 8, 2012) (report to the 

Administrative Conference of the U.S.), available at 

http://www.acus.gov/wp-content/uploads/ 

downloads/2012/02/Midnight-Rules-Draft-Report-2- 

8-12.pdf. 

5See, e.g., Beermann, Midnight Rules, supra note 

4, at 28 n. 74, 54 n. 137 (citing examples of cases 

where an incumbent administration may have 

timed a midnight rule to avoid accountability). 

requirements on an ongoing basis to 

determine if any of them should be 

consolidated or eliminated. 

4. The Office of Information and 

Regulatory Affairs (OIRA) should notify 

agencies that an analytical requirement 

for which it plays a central coordinating 

role might be satisfied by another 

applicable analytical requirement, and 

that the agencies may not need to 

prepare a separate analysis to satisfy the 

former requirement in such instances.13

5. In developing any future guidance 

on regulatory analysis requirements, 

OIRA should consider the cumulative 

impact of those requirements and, to the 

extent possible, integrate the 

requirements into existing formats for 

analysis. 

6. In the preamble to each significant 

proposed or final rule, agencies should 

briefly indicate which of the crosscutting and agency-specific or statutespecific regulatory analysis 

requirements arguably apply to the 

particular rulemaking under 

consideration, and why any specific 

requirement is not triggered.14 In so 

doing, the agency may utilize the lists 

of regulatory analysis requirements 

described in the first and second 

recommendations. An example for a 

hypothetical regulation that might be 

construed to have potential effects on 

the economy, states, and the 

environment but that ultimately does 

not trigger any of the associated 

regulatory analysis requirements is 

provided in the form of a chart 15: 

Executive Order 12,866 .............. OIRA has determined that the proposed rule will not have an ‘‘annual effect on the economy of $100 million 

or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities,’’ 

and does not trigger the additional information requirements of § 6(a)(3)(C) of EO 12,866. 

Executive Order 12,898 .............. Data available to the agency indicate that the proposed rule does not have disproportionately high and adverse health or environmental effects on minority or low-income populations. 

UMRA .......................................... Proposed rule will not ‘‘result in aggregate expenditure by State, local, and tribal governments, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation)’’ and therefore does 

not trigger UMRA requirements. 

Administrative Conference 

Recommendation 2012–2 

Midnight Rules 

Adopted June 14, 2012 

There has been a documented 

increase in the volume of regulatory 

activity during the last months of 

presidential terms.1 This includes an 

increase in the number of legislative 

rules (normally issued under the 

Administrative Procedure Act’s (APA) 

notice and comment procedures) 2 and 

non-legislative rules (such as 

interpretive rules, policy statements, 

and guidance documents) as compared 

to other periods. This spurt in late-term 

regulatory activity has been criticized by 

politicians, academics, and the media 

during the last several presidential 

transitions. However, the perception of 

midnight rulemaking as an unseemly 

practice is worse than the reality. 

The Conference has found that a 

dispassionate look at midnight rules 3

issued by past administrations of both 

political parties reveals that most were 

under active consideration long before 

the November election and many were 

relatively routine matters not 

implicating new policy initiatives by 

incumbent administrations.4 The 

Conference’s study found that while 

there are isolated cases of midnight 

rules that may have been timed to avoid 

accountability 5 the majority of the rules 

appear to be the result of finishing tasks 

that were initiated before the 

Presidential transition period or the 

result of deadlines outside the agency’s 

control (such as year-end statutory or 

court-ordered deadlines). Accordingly, 

it appears that the increase in 

rulemaking at the end of an 

administration likely results primarily 

from external delays, the ordinary 

tendency to work to deadline, or simply 

a natural desire to complete projects 

before departing. Nonetheless, the 

timing of such rulemaking efforts can 

put a new administration in the 

awkward position of having to 

expeditiously review a substantial 

number of rules and other actions to 

assess the quality and consistency with 

its policies. 

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6Executive Order 12866 defines a rule as 

‘‘significant’’ when it is likely to have ‘‘an annual 

effect on the economy of $100 million or more or 

adversely affect in a material way the economy, a 

sector of the economy, productivity, competition, 

jobs, the environment, public health or safety, or 

state, local, or tribal governments or communities; 

create a serious inconsistency or otherwise interfere 

with an action taken or planned by another agency; 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan programs or 

the rights and obligations of recipients thereof; or 

raise novel legal or policy issues arising out of legal 

mandates, the President’s priorities, or the 

principles set forth in the Executive Order.’’ Exec. 

Order No. 12866, 58 FR 51735 (Oct. 4, 1993). 

7The Conference takes no position on whether— 

absent legislation such as paragraph eight 

suggests—the law authorizes administrations to 

delay the effective dates of rules not yet effective 

without notice and comment, but recognizes that 

prior administrations have done so. 

In addition, critics have suggested 

that administrations have used the 

midnight period for strategic purposes. 

First, administrations are said to have 

reserved particularly controversial 

rulemakings for the final months of an 

incumbent President’s term in order to 

minimize political accountability and 

maximize influence beyond the 

incumbent administration’s term. Such 

strategic timing is said to weaken the 

check that the political process 

otherwise provides on regulatory 

activity. Second, there is some concern 

about the quality of rules that may have 

been rushed through the rulemaking 

process. Third, some fear that midnight 

rulemaking forces incoming 

administrations to expend substantial 

time, energy, and political capital to 

reexamine the rules and address 

perceived problems with them. 

Although similar concerns have been 

raised with respect to non-legislative 

rules issued during the midnight period, 

such rules are not the focus of this 

Recommendation because they can be 

modified or amended without notice 

and comment procedures. 

Given these criticisms, there have 

been many proposals to reform 

midnight rulemaking, some directed at 

limiting the ability of incumbent 

administrations to engage in it, some 

directed at enhancing the ability of 

incoming administrations to revise or 

rescind the resulting rules, and others 

directed at encouraging incumbent and 

incoming administrations to collaborate 

and share information during the 

rulemaking process. 

The Conference believes that although 

it may be desirable to defer significant 

and especially controversial late-term 

rulemakings until after the transition of 

a presidential administration, shutting 

the rulemaking process down during 

this period would be impractical given 

that numerous agency programs require 

constant regulatory activity, often with 

statutory deadlines. Thus, the 

Conference believes that reforms 

directed at curtailing midnight rules 

should be aimed as precisely as possible 

at the activities that raise the greatest 

causes for concern. Reforms should 

target the problems of perceived 

political illegitimacy that arise from 

rules that that are initiated late in the 

incumbent administration’s term or that 

appear to be rushed through the 

regulatory process. 

Accordingly, this Recommendation 

proposes reforms aimed at addressing 

problematic midnight rulemaking 

practices by incumbent administrations 

and enhancing the ability of incoming 

administrations to review midnight 

rules. This Recommendation defines 

‘‘midnight rules’’ as those promulgated 

by an outgoing administration after the 

Presidential election. It is directed at 

addressing midnight rulemaking of 

‘‘significant’’ legislative rules,6 although 

the considerations that underlie it may 

apply to other agency regulatory 

activities that affect the public. 

Recommendation 

1. Incumbent administrations should 

manage each step of the rulemaking 

process throughout their terms in a way 

that avoids an actual or perceived rush 

of the final stages of the process. 

2. Incumbent administrations should 

encourage agencies to put significant 

rulemaking proposals out for public 

comment well before the date of the 

upcoming presidential election and to 

complete rulemakings before the 

election whenever possible. 

3. When incumbent administrations 

issue a significant ‘‘midnight’’ rule— 

meaning one issued by an outgoing 

administration after the Presidential 

election—they should explain the 

timing of the rule in the preamble of the 

final rule (and, if feasible, in the 

preamble of the proposed rule). The 

outgoing administration should also 

consider selecting an effective date that 

falls 90 days or more into the new 

administration so as to ensure that the 

new administration has an opportunity 

to review the final action and, if desired, 

withdraw it after notice and comment, 

before the effective date. 

4. Incumbent administrations should 

refrain from issuing midnight rules that 

address internal government operations, 

such as consultation requirements and 

funding restrictions, unless there is a 

pressing need to act before the 

transition. While incumbent 

administrations can suggest such 

changes to the incoming administration, 

it is more appropriate to leave the final 

decision to those who would operate 

under the new requirements or 

restrictions. 

5. Incumbent administrations should 

continue the practice of sharing 

appropriate information about pending 

rulemaking actions and new regulatory 

initiatives with incoming 

administrations. 

Recommendations to Incoming 

Presidential Administrations 

6. Where an incoming administration 

undertakes to review a midnight rule 

that has already been published, and the 

effective date of the rule is not 

imminent, the administration should, 

before taking any action to alter the rule 

or its effective date, allow a notice-andcomment period of at least 30 days. The 

comment period should invite the 

public to express views on the legal and 

policy issues raised by the rule as well 

as whether the rule should be amended, 

rescinded, delayed pending further 

review by the agency, or allowed to go 

into effect. The administration should 

then take account of the public 

comments in determining whether to 

amend, rescind, delay the rule, or allow 

the rule to go into effect. If possible, the 

administration should initiate, if not 

complete, any such process prior to the 

effective date of the rule. 

7. When the imminence of the 

effective date of a midnight rule 

precludes full adherence to the process 

described in paragraph six, the 

incoming administration should 

consider delaying the effective date of 

the rule, for up to 60 days to facilitate 

its review, if such an action is permitted 

by law.7 Before deciding whether to 

delay the effective date, however, the 

administration should, where feasible, 

allow at least a short comment period 

regarding the desirability of delaying the 

effective date. If the administration 

cannot provide a comment period before 

delaying the effective date of the rule, it 

should instead offer the public a 

subsequent opportunity to comment on 

when, if ever, the rule should take effect 

and whether the rule itself should be 

amended or rescinded. 

Recommendation to Congress 

8. In order to facilitate incoming 

administrations’ review of midnight 

rules that would not otherwise qualify 

for one of the APA exceptions to notice 

and comment, Congress should consider 

expressly authorizing agencies to delay 

for up to 60 days, without notice and 

comment, the effective dates of such 

rules that have not yet gone into effect 

but would take effect within the first 60 

days of a new administration. 

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1 Immigration Court Backlog Tool, Transactional 

Records Access Clearinghouse, Syracuse Univ. 

(Mar. 28, 2012), http://trac.syr.edu/phptools/ 

immigration/court_backlog/ (providing 

comprehensive, independent, and nonpartisan 

information about U.S. federal immigration 

enforcement). 

2Am. Bar Ass’n Comm’n on Immigration, 

Reforming the Immigration System, Proposals to 

Promote Independence, Fairness, Efficiency, and 

Professionalism in the Adjudication of Removal 

Cases 1–49 (2010) available at http:// 

www.americanbar.org/content/dam/aba/migrated/ 

Immigration/PublicDocuments/ 

aba_complete_full_report.authcheckdam.pdf. 

2Id. 

4 See Lenni B. Benson & Russell R. Wheeler, 

Enhancing Quality and Timeliness in Immigration 

Removal Adjudication (June 7, 2012) (report to the 

Administrative Conference of the U.S.), available at 

http://www.acus.gov/wp-content/uploads/

downloads/2012/06/Enhancing-Quality-and-Timeli

ness-in-Immigration-Removal-Adjudication-FinalJune-72012.pdf. 

Recommendation to the Office of the 

Federal Register 

9. The Office of the Federal Register 

should maintain its current practice 

(whether during the midnight period or 

not) of allowing withdrawal of rules 

before filing for public inspection and 

not allowing rules to be withdrawn once 

they have been filed for public 

inspection or published, absent 

exceptional circumstances. 

Administrative Conference 

Recommendation 2012–3 

Immigration Removal Adjudication 

Adopted June 15, 2012. 

The U.S. immigration removal 

adjudication agencies and processes 

have been the objects of critiques by the 

popular press, organizations of various 

types, legal scholars, advocates, U.S. 

courts of appeals judges, immigration 

judges, Board of Immigration Appeals 

members and the Government 

Accountability Office. Critics have 

noted how the current immigration 

adjudication system fails to meet 

national expectations of fairness and 

effectiveness. One of the biggest 

challenges identified in the adjudication 

of immigration removal cases is the 

backlog of pending proceedings and the 

limited resources to deal with the 

caseload. A March 2012 study by the 

Transactional Records Access 

Clearinghouse at Syracuse University 

reports that the number of cases 

pending before immigration courts 

within the U.S. Department of Justice’s 

Executive Office for Immigration 

Review (EOIR) recently reached an alltime high of more than 300,000 cases 

and that the average time these cases 

have been pending is 519 days.1 A 

February 2010 study by the American 

Bar Association’s Commission on 

Immigration reports that the number of 

cases is ‘‘overwhelming’’ the resources 

that have been dedicated to resolving 

them.2 Another challenge identified is 

the lack of adequate representation in 

removal proceedings, which can have a 

host of negative repercussions, 

including delays, questionable fairness, 

increased cost of adjudicating cases, and 

risk of abuse and exploitation. More 

than half of respondents in immigration 

removal proceedings and 84 percent of 

detained respondents are not 

represented.3

The numerous studies examining 

immigration removal adjudication have 

focused on the two agencies principally 

involved: The U.S. Department of 

Homeland Security (DHS), specifically 

two of its component agencies: the 

United States Citizenship and 

Immigration Services (USCIS) and 

Immigration and Customs Enforcement 

(ICE), and EOIR. Prior studies about 

EOIR have noted the limited resources 

available to the agency and called for 

more resources to hire more 

immigration judges and support staff 

and thus ease the backlog of cases, 

criticized immigration judge hiring 

standards and procedures, and 

recommended enhanced orientation, 

continuing education, and performance 

monitoring. 

Consultants for the Administrative 

Conference of the United States 

conducted a comprehensive and 

detailed study of potential 

improvements in immigration removal 

adjudication.4 Following the study and 

consistent with the Conference’s 

statutory mandate of improving the 

regulatory and adjudicatory process, the 

Conference issues this Recommendation 

directed at reducing the caseload 

backlog, increasing and improving 

representation, and making the 

immigration adjudication system more 

modern, functional, effective, 

transparent and fair. This 

Recommendation urges a substantial 

number of improvements in 

immigration removal adjudication 

procedures, but does not address 

substantive immigration reform. A 

pervading theme of this 

Recommendation is enhancing the 

immigration courts’ ability to dispose of 

cases fairly and efficiently. Many of the 

reforms are aimed at structuring the prehearing process to allow more time for 

immigration judges to give complex 

cases adequate consideration. This 

Recommendation is directed at EOIR 

and DHS agencies, USCIS and ICE. A 

few parts of this Recommendation 

would also impact the practices of 

United States Customs and Border 

Protection (CBP), another component of 

DHS. 

Recommendation 

Part I. Immigration Court Management 

and Tools for Case Management 

A. Recommendations to EOIR Regarding 

Immigration Court Resources, 

Monitoring Court Performance and 

Assessing Court Workload 

1. To encourage the enhancement of 

resources for immigration courts, 

working within and through the U.S. 

Department of Justice (DOJ), the DOJ’s 

Executive Office for Immigration 

Review (EOIR) should: 

(a) Continue to seek appropriations 

beyond current services levels but also 

plan for changes that will not require 

new resources; 

(b) Make the case to Congress that 

funding legal representation for 

respondents (i.e., non-citizens in 

removal proceedings), especially those 

in detention, will produce efficiencies 

and net cost savings; and 

(c) Continue to give high priority for 

any available funds for EOIR’s Legal 

Orientation Program and other 

initiatives of EOIR’s Office of Legal 

Access Programs, which recruit nonprofit organizations to provide basic 

legal briefings to detained respondents 

and seek to attract pro bono legal 

providers to represent these individuals. 

2. To monitor immigration court 

performance, EOIR should: 

(a) Continue its assessment of the 

adaptability of performance measures 

used in other court systems; 

(b) Continue to include rank-and-file 

immigration judges and U.S. 

Department of Homeland Security 

(DHS) agencies in the assessment of 

immigration courts’ performance; 

(c) Continue to incorporate 

meaningful public participation in its 

assessment; and 

(d) Publicize the results of its 

assessment. 

3. To refine its information about 

immigration court workload, EOIR 

should: 

(a) Explore case weighting methods 

used in other high volume court systems 

to determine the methods’ utility in 

assessing the relative need for 

additional immigration judges and 

allowing more accurate monitoring and 

analysis of immigration court workload; 

(b) Expand its data collection field, 

upon introduction of electronic filing or 

other modification of the data collection 

system, to provide a record of the 

sources for each Notice to Appear form 

(NTA) filed in immigration courts; 

(c) Continue its evaluation of 

adjournment code data, as an aid to 

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5 In the immigration adjudication context, 

biometric data are collected from respondents and 

used to perform a background check on respondents 

for security reasons. 

6See Improving Efficiency and Ensuring Justice in 

the Immigration Court System: Hearing Before the 

S. Comm. on the Judiciary,l112th Cong. (2011) 

(statement of NAIJ), available at http://dl.

dropbox.com/u/27924754/NAIJ%20Written%20

Statement%20for%20Senate%20Judiciary%20

Cmte%205–18–11%20FINAL.pdf (citing the 

National Defense Authorization Act for FY 2010, 

Public Law 111–84 where Congress facilitated parttime reemployment of Federal employees retired 

under CSRS and FERS on a limited basis, with 

receipt of both annuity and salary). 

7Some examples of the types of data that may be 

published include: year of law school graduation, 

graduate education, languages spoken, past 

employment with DHS, past employment 

representing respondents in immigration cases, 

military experience, gender and race/ethnicity 

composition. 

8The Conference takes no position on whether 

EOIR should identify judges upon whom it has 

imposed formal disciplinary action or on the statute 

barring such action. 

9See Quality Judges Initiative, Inst. for the 

Advancement of the Am. Legal Sys., U. Denv. 

http://www.du.edu/legalinstitute/jpe.html (last 

visited June 20, 2012) (providing Judicial 

Performance Evaluation resources); Am. Bar Ass’n, 

Black Letter Guidelines for the Evaluation of 

Judicial Performance (2005), available at http://

www.abanet.org/jd/lawyersconf/pdf/jpec_final.pdf 

(providing JPE resources). 

10See Exec. Office for Immigration Review, U.S. 

Dep’t of Justice, Record of Master Calendar Pre-Trial 

Appearance and Order (2009), available at http:// 

www.justice.gov/eoir/vll/benchbook/index.html. 

11The term ‘‘unit prosecution,’’ also sometimes 

known as ‘‘vertical prosecution,’’ is used in this 

Recommendation to refer to a practice used in some 

Continued 

system-wide analysis of immigration 

court case management practices, and 

devise codes that reflect the multiplicity 

of reasons for an adjournment; 

(d) Evaluate the agency’s coding 

scheme to consider allowing judges or 

court administrators to identify what the 

agency regulations call ‘‘pre-hearing 

conferences,’’ sometimes known as 

‘‘status conferences;’’ and 

(e) Authorize, as appropriate, a 

separate docket in individual 

immigration courts for cases awaiting 

biometric data results with special 

coding for these cases to allow EOIR to 

measure the degree to which these types 

of security checks are solely responsible 

for case delays.5

B. Recommendations to EOIR Regarding 

Immigration Court Management 

Structure and Court Workforce 

4. EOIR should consider assembling a 

working group of immigration judges 

and others familiar with court 

management structures to assist in its 

ongoing evaluation of alternatives to the 

current Assistant Chief Immigration 

Judge structure used by the agency. 

5. To increase the immigration court 

workforce, EOIR should: 

(a) Consider the use of temporary 

immigration judges where permitted by 

its regulations. If temporary immigration 

judges are used, EOIR should use 

transparent procedures to select such 

judges and usual procedures for 

monitoring judges’ performance; 

(b) Consider the National Association 

of Immigration Law Judges’ (NAIJ) 

proposal for instituting senior status 

(through part-time reemployment or 

independent contract work) for retired 

immigration judges 6; and 

(c) Consider using appropriate 

government employees as temporary 

immigration court law clerks. 

6. To promote transparency about 

hiring practices within the agency and 

consistent with any statutory 

restrictions to protect privacy, EOIR 

should periodically publish summary 

and comparative data on immigration 

judges, Board of Immigration Appeals 

members, and support staff as well as 

summary information on judges’ prior 

employment.7

7. EOIR should expand its Web page 

entitled ‘‘Immigration Judge Conduct 

and Professionalism’’ that discusses 

disciplinary action to include an 

explanation of why the agency is barred 

by statute from identifying judges upon 

whom it has imposed formal 

disciplinary action.8

8. EOIR should consider incorporating 

elements of the American Bar 

Association’s and the Institute for the 

Advancement of the American Legal 

System’s Judicial Performance 

Evaluation models into its performance 

evaluation process, including the use of 

a separate body to conduct agency-wide 

reviews.9

C. Recommendations to EOIR Regarding 

Enhancing the Use of Status 

Conferences, Administrative Closures 

and Stipulated Removals 

9. To enhance the utility of status 

conferences, EOIR should: 

(a) Assemble a working group to 

examine immigration judges’ 

perceptions of the utility, costs and 

benefits of such conferences; 

(b) Consider a pilot project to evaluate 

the effectiveness and feasibility of 

mandatory pre-hearing conferences to 

be convened in specified categories of 

cases; 

(c) Evaluate situations in which the 

judge should order the trial attorney to 

produce essential records from the 

respondent’s file; 

(d) Evaluate the use of EOIR’s Form5510 and consider creating a new form 

(similar to scheduling orders used in 

other litigation contexts); and 

(e) Recommend procedures for 

stipulations by represented parties. 

10. To clarify the proper use of 

techniques for docket control in 

immigration removal adjudication cases, 

EOIR should: 

(a) Amend the Office of the Chief 

Immigration Judge’s (OCIJ) Practice 

Manual to specifically define ‘‘Motions 

for Administrative Closure’’; and 

(b) Amend appropriate regulations so 

that once a respondent has formally 

admitted or responded to the charges 

and allegations in an NTA, the 

government’s ability to amend the 

charges and allegations may be 

considered by the immigration judge in 

the exercise of his or her discretion. 

11. EOIR should expand its review of 

stipulated removals by considering a 

pilot project to systematically test the 

utility of stipulated removal orders 

(provided that respondents have been 

counseled by independent attorneys) as 

a mechanism to (a) reduce detention 

time, (b) allow judges to focus on 

contested cases, and (c) assess whether 

and when the use of stipulated removals 

might diminish due process protections. 

12. In jurisdictions where DHS 

routinely seeks stipulated removal 

orders and asks for a waiver of the 

respondent’s appearance, EOIR should 

consider designing a random selection 

procedure where personal appearance is 

not waived and the respondent is 

brought to the immigration court to 

ensure that the waivers were knowing 

and voluntary. If undertaking such a 

project, EOIR should encourage one or 

more advocacy organizations to prepare 

a video recording (with subtitles or 

dubbing in a number of languages) that 

explains the respondent’s removal 

proceedings, general eligibility for relief, 

and the possibility of requesting a 

stipulated order of removal should the 

respondent wish to waive both the 

hearing and any application for relief 

including the privilege of voluntary 

departure. 

D. Recommendation to EOIR and DHS 

Regarding the BIA 

13. EOIR should finalize its 2008 

proposed regulations to allow greater 

flexibility in establishing three-member 

panels for the Board of Immigration 

Appeals (BIA). 

Part II. Immigration Removal 

Adjudication Cases and Asylum Cases 

A. Recommendations to EOIR Regarding 

Prosecution Arrangements and the 

Responsibilities of Trial Counsel 

14. EOIR should not oppose unit 

prosecution, which DHS’s Immigration 

and Customs Enforcement (ICE) Chief 

Counsel has devised for prosecution in 

some immigration courts.11

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immigration courts, whereby the ICE Chief Counsel 

organizes ICE trial attorneys into teams and then 

assigns the teams to cover the dockets of specific 

judges. 

12 Immigration and Nationality Act of 1952 (INA), 

sec. 240(b)(1), 8 U.S.C. 1229a(b)(1) (2006). 

13The purpose of this recommendation, coupled 

with Recommendation ¶ 3b, is to allow EOIR to 

better refine its information about immigration 

court workload by expanding its data collection 

field to include a record of the sources for each 

NTA form filed in immigration court. 

14 ‘‘Oral advisal’’ is a term used by immigration 

courts to mean warnings given by an immigration 

judge about the procedural and substantive 

consequences for various actions. 

15. EOIR should consider providing 

immigration judges with additional 

guidance directed at ensuring that trial 

counsel are prepared and responsible 

for necessary actions that the parties 

must complete between hearings. 

Specifically, EOIR should consider: 

(a) Amending the OCIJ’s Practice 

Manual to explicitly include best 

practices for the activities of trial 

counsel in immigration removal 

proceedings; 

(b) Instructing judges to document, in 

the record, the responsibilities, 

commitments, actions and omissions of 

trial counsel in the same case; and 

(c) Clarifying the authority for judges 

to make conditional decisions on 

applications for relief where trial 

counsel has not provided necessary 

information. 

B. Recommendations to EOIR Regarding 

Representation 

16. To increase the availability of 

competent representation for 

respondents, EOIR should: 

(a) Undertake a more intensive 

assessment of the paraprofessional 

programs that provide legal 

representation and the accreditation 

process for such programs; 

(b) Continue its assessment of the 

accuracy and usefulness of the pro bono 

representation lists provided at 

immigration courts and on the agency’s 

Web site; and 

(c) Develop a national pro bono 

training curriculum, tailored to 

detention and non-detention settings: 

(i) The training curriculum should be 

developed in consultation with groups 

that are encouraging pro bono 

representation. 

(ii) The training curriculum should be 

offered systematically and in 

partnership with educational, CLE and/ 

or non-profit providers. 

17. To enhance the guidance available 

to legal practitioners and pro se 

respondents, EOIR should: 

(a) Work with a pro bono organization 

to develop materials that explain the 

legal terms and concepts within the 

OCIJ Practice Manual; 

(b) Share supplemental instructions 

developed by individual immigration 

courts or judges to aid the parties in 

preparing submissions to the 

immigration court; and 

(c) Evaluate the cost and utility of 

developing access to electronicallyavailable information in immigration 

court waiting rooms or similar spaces so 

that the respondents can access the 

court Web site and find instructional 

materials. 

18. To enhance the number and value 

of know-your-rights (KYR) presentations 

given to detained respondents, EOIR 

should: 

(a) Ensure that KYR presentations are 

made sufficiently in advance of the 

initial master calendar hearings to allow 

adequate time for detained individuals 

to consider and evaluate the 

presentation information (to the extent 

consistent with DHS requirements for 

KYR providers); 

(b) Consider giving LOP providers 

electronic access to the court dockets in 

the same manner as it is currently 

provided to DHS attorneys representing 

the government in cases (with 

appropriate safeguards for 

confidentiality and national security 

interests); and 

(c) Encourage local EOIR officials to 

obtain from detention officers aggregate 

data about new detainees (such as, 

where possible, lists of new detainees, 

their country of origin, and language 

requirements) at the earliest feasible 

stage for both the immigration courts 

and LOP providers. 

19. EOIR should study and develop 

the circumstances where the use of 

limited appearances, (the process by 

which counsel represent a respondent 

in one or more phases of the litigation 

but not necessarily for its entirety), is 

appropriate and in accordance with 

existing law. After further study, EOIR 

should consider taking appropriate 

action such as: 

(a) Modifying appropriate and 

underlying regulations as necessary; 

(b) Issuing an Operating Policies and 

Procedures Memorandum (OPPM) entry 

to explain to immigration judges the 

circumstances in which they may wish 

to permit limited appearances and the 

necessary warnings and conditions they 

should establish; and 

(c) Amending the OCIJ Practice 

Manual to reflect this modified policy. 

20. EOIR should consider whether pro 

se law clerk offices would save costs, 

enhance fairness, and improve 

efficiency. 

21. To encourage improvement in the 

performance of attorneys who appear in 

the immigration court, EOIR should: 

(a) Continue its efforts to implement 

the statutory grant of immigration judge 

contempt authority;12

(b) Evaluate appropriate procedures to 

allow immigration judges to address 

trial counsel’s lack of preparation, lack 

of substantive or procedural knowledge, 

or other conduct that impedes the 

court’s operation; and 

(c) Explore options for developing 

educational and training resources such 

as seeking pro bono partnerships with 

reputable educational or CLE providers 

and/or seeking regulatory authority to 

impose monetary sanctions to subsidize 

the cost of developing such materials. 

C. Recommendations to DHS Regarding 

Notice To Appear Forms 

22. DHS should consider revising the 

NTA form or instruct its completing 

officers to clearly indicate officer’s 

agency affiliation, being specific about 

the entity preparing the NTA, in order 

to enhance the immigration court’s 

ability to better estimate future 

workload.13

23. DHS should conduct a pilot study 

evaluating the feasibility of requiring (in 

appropriate cases) the approval of an 

ICE attorney prior to the issuance of any 

NTA. The pilot study should be 

conducted in offices with sufficient 

attorney resources and after full study of 

the efficiencies and operational changes 

associated with this requirement, DHS 

should consider requiring attorney 

approval in all removal proceedings. 

D. Recommendations to EOIR Regarding 

the Asylum Process 

24. To facilitate the processing of 

defensive asylum applications, EOIR 

should consider having the OCIJ issue 

an OPPM entry, which: 

(a) Explains that appropriate 

procedures for a respondent’s initial 

filing of an asylum application with the 

immigration court do not require the 

participation of the judge and oral 

advisals made on the record at the time 

of the initial filing;14

(b) Authorizes court personnel to 

schedule a telephonic status conference 

with the judge and ICE attorney in any 

situation where the respondent or his/ 

her representative expresses a lack of 

understanding about the asylum filing 

and advisals; 

(c) Notes that the immigration judge 

may renew, at the merits hearing, the 

advisal of the danger of filing a frivolous 

application and allow an opportunity 

for the respondent to withdraw the 

application; and 

(d) Makes clear that the filing with 

immigration court personnel qualifies as 

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15See Benson & Wheeler, Immigration Removal 

Adjudication, supra note 4, at 54–55 (describing in 

detail how these revised regulations would work 

under this recommendation). 

a filing with the court, satisfies the 

statutory one-year filing deadline in 

appropriate cases and for the purposes 

of commencing the 180-day work 

authorization waiting period. 

25. EOIR should consider seeking 

enhanced facilitation of defensive 

asylum applications by amending its 

current procedure of having judges 

‘‘adjourn’’ asylum cases involving 

unaccompanied juveniles while the case 

is adjudicated within the DHS Asylum 

Office and instead have the judge 

administratively close the case. If the 

Office subsequently cannot grant the 

asylum or other relief to the juvenile, 

the Office can refer the case to ICE 

counsel to initiate a motion to recalendar the removal proceeding before 

the judge. 

26. EOIR should give priority to the 

use of adjournment codes for the 

purpose of managing immigration 

judges’ dockets and stop using these 

codes to track the number of days an 

asylum application is pending. 

E. Recommendation to DHS Regarding 

the Asylum Process 

27. DHS should consider revising its 

regulations and procedures to allow 

asylum and withholding applicants to 

presumptively qualify for work 

authorization provided that at least 150 

days have passed since the filing of an 

asylum application.15

F. Recommendations Regarding Further 

Study of BIA Jurisdiction, Immigration 

Adjudication, and/or the Asylum 

Process 

28. With the active participation of 

DHS and EOIR and with input from all 

other relevant stakeholders, a 

comprehensive study of the feasibility 

and resource implications of the 

following issues related to proposed 

changes to the asylum process should be 

conducted: 

(a) Whether DHS should direct some 

appeals currently in the BIA’s 

jurisdiction to more appropriate forums 

and subject to the availability of 

resources by: 

(i) Seeking statutory and regulatory 

change to allow all appeals of denied I– 

130 petitions to be submitted to the 

United States Citizenship and 

Immigration Services’ Administrative 

Appeals Office (AAO); 

(ii) Amending regulations to send all 

appeals from United States Customs and 

Border Protection (CBP) airline fines 

and penalties to AAO; or alternatively 

consider eliminating any form of 

administrative appeal and have airlines 

and other carriers seek review in federal 

courts; and 

(iii) Creating a special unit for 

adjudication within the AAO to ensure 

quality and timely adjudication of 

family-based petitions, which should: 

(1) Formally segregate the unit from 

its other visa petition adjudications; 

(2) Issue precedent decisions with 

greater regularity and increase the unit’s 

visibility; and 

(3) Publicize clear processing time 

frames so that potential appellants can 

anticipate the length of time the agency 

will need to complete adjudication. 

(b) Whether EOIR should seek 

enhanced facilitation of defensive 

asylum applications by amending its 

regulations to provide that where the 

respondent seeks asylum or withholding 

of removal as a defense to removal, the 

judge should administratively close the 

case to allow the respondent to file the 

asylum application and/or a 

withholding of removal application in 

the DHS Asylum Office; and if the 

Office does not subsequently grant the 

application for asylum or withholding, 

or if the respondent does not comply 

with the Office procedures, that office 

would refer the case to ICE counsel to 

prepare a motion to re-calendar the case 

before the immigration court. 

(c) Whether the United States 

Citizenship and Immigration Services 

(USCIS) should expedite the asylum 

process by: 

(i) Amending its regulations to 

provide an asylum officer with authority 

to approve qualified asylum 

applications in the expedited removal 

context; 

(ii) Allocating additional resources to 

complete the asylum adjudication in the 

expedited removal context; as there may 

be significant net cost savings for other 

components of DHS and for EOIR; 

(iii) Amending its regulations to 

clarify that an individual, who meets 

the credible fear standard, could be 

allowed to complete an asylum 

application with an asylum officer 

instead of at an immigration court; and 

(iv) Allowing an asylum officer to 

grant an applicant parole into the U.S. 

where the officer believes the individual 

has a well-founded fear of persecution 

or fear of torture and permit the officer 

to recommend that DHS allow the 

individual to be released from detention 

on parole pending completion of the 

asylum process. 

(d) Whether USCIS should clarify that 

an asylum officer may prepare an NTA 

and refer a case to immigration court 

where an officer determines that a noncitizen meets the credible fear standard 

but the officer believes that the case 

cannot be adequately resolved based on 

the initial interview and the asylum 

application prepared in conjunction 

with that interview, or in cases where 

an officer believes there are statutory 

bars to full asylum eligibility. 

(e) Whether DHS should facilitate the 

DHS Asylum Office’s adjudication of 

certain closely related claims by: 

(i) Amending its regulations to 

authorize the Office to adjudicate 

eligibility for withholding of or 

restriction on removal providing also 

that if the Office grants such relief, there 

would be no automatic referral to the 

immigration court; 

(ii) Amending its regulations to 

authorize the Office to grant 

‘‘supervisory release,’’ identity 

documents, and work authorization to 

individuals who meet the legal 

standards for withholding or restriction 

on removal; 

(iii) Developing a procedure in cases 

where withholding or supervisory 

release are offered requiring the Office 

to issue a Notice of Decision explaining 

the impediments to asylum, informing 

an applicant of his or her right to seek 

de novo review of the asylum eligibility 

before the immigration court, and 

explaining the significant differences 

between asylum and withholding 

protections; and 

(iv) Developing a procedure to allow 

such applicants to request immigration 

court review, whereupon the Asylum 

Office would initiate a referral to the 

immigration court. 

G. Recommendations to EOIR and DHS 

Regarding the Use of VTC and Other 

Technology 

29. EOIR and DHS should provide 

and maintain the best video 

teleconferencing (VTC) equipment 

available within resources and the two 

agencies should coordinate, where 

feasible, to ensure that they have and 

utilize the appropriate amount of 

bandwidth necessary to properly 

conduct hearings by VTC. 

30. EOIR should consider more 

systematic assessments of immigration 

removal hearings conducted by VTC in 

order to provide more insights on how 

to make its use more effective and to 

ensure fairness. Assessments should be 

periodically published and include: 

(a) Consultation with the DHS 

Asylum Office regarding its use of VTC 

equipment and review of its best 

practices for possible adoption and 

integration into EOIR procedures; 

(b) Random selection of hearings 

conducted by VTC for full observation 

by Assistant Chief Immigration Judges 

and/or other highly trained personnel; 

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1See 44 U.S.C. 3506(c)(2). 

2See id. sec. 3507(b). 

3See Office of Mgmt. & Budget, Exec. Office of 

the President, OMB Circular A–130, Management of 

Federal Information Resources §§ 6(i), (j), (o) (1996). 

4See Memorandum from Cass R. Sunstein, 

Admin., Office of Info. & Regulatory Affairs, to the 

Heads of Executive Departments and Agencies, and 

Independent Regulatory Agencies, Social Media, 

Web-Based Interactive Technologies, and the 

Paperwork Reduction Act (Apr. 7, 2010), available 

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

omb/assets/inforeg/ 

SocialMediaGuidance_04072010.pdf. 

(c) Formal evaluation of immigration 

removal hearings conducted by VTC; 

(d) Gathering information, comments 

and suggestions from parties and other 

various stakeholders about the use of 

VTC in immigration removal hearings; 

and 

(e) A realistic assessment of the net 

monetary savings attributable to EOIR’s 

use of VTC equipment for immigration 

removal hearings. 

31. EOIR should: 

(a) Encourage its judges, in writing 

and by best practices training, to (a) be 

alert to the possible privacy 

implications of off-screen third parties 

who may be able to see or hear 

proceedings conducted by VTC, and (b) 

take appropriate corrective action where 

procedural, statutory or regulatory rights 

may otherwise be compromised; and 

(b) Consider amending the OCIJ 

Practice Manual’s § 4.9 (‘‘Public 

Access’’) to remind respondents and 

their representatives that they may alert 

the judge if they believe unauthorized 

third parties are able to see or hear the 

proceedings. 

32. EOIR should direct judges to 

inform parties in hearings conducted by 

VTC who request in-person hearings of 

the possible consequences if the judge 

grants such a request, including, but not 

limited to, delays caused by the need to 

re-calendar the hearing to such time and 

place that can accommodate an inperson hearing. 

33. To facilitate more effective 

representation in removal proceedings 

where VTC equipment is used, EOIR 

should: 

(a) Provide more guidance to 

respondents and their counsel about 

how to prepare for and conduct 

proceedings using VTC in the OCIJ 

Practice Manual and other aids it may 

prepare for attorneys, and for pro se 

respondents; 

(b) Encourage judges to permit 

counsel and respondents to use the 

courts’ VTC technology, when available, 

to prepare for the hearing; and 

(c) Encourage judges to use the VTC 

technology to allow witnesses to appear 

from remote locations when appropriate 

and when VTC equipment is available. 

34. To improve the availability of 

legal consultation for detained 

respondents and help reduce 

continuances granted to allow attorney 

preparation, DHS should consider: 

(a) Providing VTC equipment where 

feasible in all detention facilities used 

by DHS, allowing for private 

consultation and preparation visits 

between detained respondents and 

private attorneys and/or pro bono 

organizations; 

(b) Requiring such access in all leased 

or privately controlled detention 

facilities where feasible; 

(c) In those facilities where VTC 

equipment is not available, designating 

duty officers whom attorneys and 

accredited representatives can contact to 

schedule collect calls from the detained 

respondent where feasible; and 

(d) Facilitating the ability of 

respondents to have private 

consultations with attorneys and 

accredited representatives. 

35. To improve the availability of 

legal reference materials for detained 

respondents: 

(a) DHS should make available video 

versions of the KYR presentations on 

demand in detention facility law 

libraries; and where feasible, to be 

played on a regular basis in appropriate 

areas within detention facilities; and 

(b) EOIR should assist in or promote 

the transcription of the text of relevant 

videos into additional languages or 

provide audio translations in the major 

languages of the detained populations. 

36. EOIR should encourage judges to 

permit pro bono attorneys to use 

immigration courts’ video facilities 

when available to transmit KYR 

presentations into detention centers and 

subject to DHS policies on KYR 

presentations. 

37. EOIR should move to full 

electronic docketing as soon as possible. 

(a) Prior to full electronic docketing, 

EOIR should explore interim steps to 

provide limited electronic access to 

registered private attorneys, accredited 

representatives, and ICE trial attorneys; 

and 

(b) EOIR should consider the interim 

use of document cameras in video 

proceedings prior to the agency’s full 

implementation of electronic docketing 

and electric case files. 

Administrative Conference 

Recommendation 2012–4 

Paperwork Reduction Act 

Adopted June 15, 2012 

The Paperwork Reduction Act (PRA), 

enacted in 1980 and revised upon its 

reauthorization in 1986 and 1995, 

created the Office of Information and 

Regulatory Affairs (OIRA) within the 

Office of Management and Budget 

(OMB) to oversee information policy 

within the executive branch. The Act 

requires, among other things, that 

agencies secure OMB approval before 

collecting information from the public. 

Since 1995, this has meant that agencies 

must put a proposed information 

collection request out for public 

comment for 60 days before finalizing it 

and submitting it for OIRA’s approval.1

An additional 30-day comment period is 

opened while OMB reviews the 

request.2 One of the statute’s goals is to 

reduce the burden on the public of 

agency information requests. The 

burden of such requests on small 

businesses was of particular concern to 

Congress in drafting and revising the 

Act. OMB review also ensures that 

agencies employ solid methodologies in 

designing information collections, 

particularly those seeking to gather 

statistical data. Another, broader goal of 

the PRA was to encourage agencies to 

implement a life-cycle approach to 

information management. This means 

that, from the initial stage in which 

information is collected from the public, 

agencies must give thought to how the 

information will be used, disseminated, 

stored, and disposed of throughout the 

entire process.3

Experience has shown that, in 

practice, parts of the PRA have not 

operated as its drafters intended. For 

example, the 60-day comment period 

was originally intended to facilitate an 

interactive dialogue between an agency 

and the public, enabling the agency to 

better craft its information collection 

plan. In practice, however, agencies 

tend to view information collection 

plans as final before this first comment 

period begins, and members of the 

public infrequently submit comments. 

These realities undermine the promise 

of the comment periods as a means for 

facilitating a meaningful dialogue 

between agencies and the public. 

A related problem is that the PRA was 

last amended in 1995, and has not been 

updated to account for evolved 

technologies. Although OMB has 

provided some helpful guidance 

regarding the application of the PRA to 

social media,4 there is concern that 

provisions of the law adopted during 

the era of the hard-copy information 

collection paradigm may inadvertently 

create disincentives to agencies’ use of 

modern technologies capable of 

facilitating faster, easier, and more 

effective communication with the 

public. Finally, over time, the PRA’s 

regulation of information collections has 

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5See Memorandum from Cass R. Sunstein, 

Admin., Office of Info. & Regulatory Affairs, to the 

Heads of Executive Departments and Agencies, and 

Independent Regulatory Agencies, Paperwork 

Reduction Act—Generic Clearances (May 28, 2010), 

available at http://www.whitehouse.gov/sites/ 

default/files/omb/assets/inforeg/PRA_Gen_ICRs_5– 

28–2010.pdf. 6See 44 U.S.C. 3506(c)(2). 

7See Administrative Conference of the United 

States, Recommendation 2011–8, Agency 

Innovations in E-Rulemaking, 77 FR 2257, 2264 

(Jan. 17, 2012). 

8See Memorandum from Cass R. Sunstein, 

Admin., Office of Info. & Regulatory Affairs, to the 

President’s Management Council, Increasing 

Openness in the Rulemaking Process—Improving 

Electronic Dockets at 2 (May 28, 2010), available at 

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

assets/inforeg/edocket_final_5-28-2010.pdf (‘‘OMB 

expects agencies to post public comments and 

public submissions to the electronic docket on 

Regulations.gov in a timely manner, regardless of 

whether they were received via postal mail, email, 

facsimile, or web form documents submitted 

directly via Regulations.gov.’’). 

9OMB has authority under the PRA to delegate 

authority to approve information collections if it 

‘‘finds that a senior official of an agency * * * is 

sufficiently independent of program responsibility 

to evaluate fairly whether proposed collections of 

information should be approved and has sufficient 

resources to carry out this responsibility 

effectively.’’ 44 U.S.C. 3507(i)(1). Such a delegation 

is not an exemption, but rather is a shifting of 

responsibility from OMB to the agency for 

reviewing proposed information collections. 

Currently, OMB has long-standing delegations to 

Continued 

come to be viewed as its primary 

component and has overshadowed the 

law’s broader information management 

goals. 

Some current and former agency 

officials have expressed concern that the 

PRA may be unduly restrictive, 

imposing delays and costs on the 

agencies that are disproportionate to the 

benefits to the public. This is not a new 

concern, and it appears that much of the 

delay occurs within agencies and is not 

a product of OMB review. Indeed, OMB 

has recently taken steps to make the 

process easier for agencies, including by 

offering a process for approving generic 

clearances.5 Nonetheless, there seem to 

be occasions in which the PRA impedes 

agencies from undertaking information 

collections that would not be 

burdensome to the public and would 

provide information necessary to craft 

better, less burdensome policies. For 

example, some agency officials have 

complained that the PRA prevents them 

from using focus groups or related 

methods to collect the information 

necessary to complete a full, nuanced 

regulatory analysis. Also, if an agency’s 

approach shifts as a regulatory action 

moves forward, so too may its 

information collection needs. In such 

cases, agencies must initiate the entire 

PRA process again, even if they have 

already spent significant time and 

resources securing approval for an 

earlier, slightly different information 

collection request. 

Agencies that rarely undertake 

information collections also may find 

the process challenging because they are 

unfamiliar with the PRA and find it 

difficult to obtain reliable guidance or 

sufficient assistance to navigate the 

process smoothly. 

This recommendation is intended to 

address these concerns. It seeks to serve 

the congressional purpose of allowing 

OMB and the agencies to better focus on 

those collections that impose the 

greatest burden on the public and those 

that can benefit most from OMB review. 

It focuses on the areas where modest 

reforms can make substantial 

improvements, seeking to maintain the 

benefits of the current OMB review 

process while reducing the costs. 

Recommendation 

Improving Public Engagement 

1. Agencies and OMB should take 

measures to revitalize the information 

collection request process, including the 

60-day comment period and the 30-day 

comment period,6 to better serve the 

statutory goal of facilitating an 

interactive dialogue between the public 

and agencies sponsoring information 

collections and to enable agencies to 

design better information collection 

requests before submitting them to OMB 

for approval. 

(a) Agencies should avoid viewing an 

information collection request as final 

prior to the 60-day comment period. 

Instead, agencies should use public 

engagement as a way of improving their 

preliminary information collection 

plans. The preliminary information 

collection plan should provide 

sufficient detail, including drafts of any 

collection instruments (e.g., the survey 

or form), for the public to comment 

meaningfully. 

(b) For new collections or collections 

with significant changes, agencies 

should make affirmative efforts to 

engage the public in efforts to design 

information collection requests and 

consider using alternative means to 

engage the public (in addition to a 

formal Federal Register notice), such as 

identifying and reaching out to 

interested parties. 

(c) OMB, in consultation with the 

Office of the Federal Register, should 

develop best practices for Federal 

Register notices, including the use of 

plain language, to improve public 

understanding of requests and the 

information collections they cover. Such 

best practices should include guidance 

on 60-day notices, 30-day notices, and 

the PRA components of notices of 

proposed and final rulemakings. It 

should also include guidance on how to 

clearly and consistently identify various 

types of PRA notices in the ‘‘action’’ 

line of Federal Register notices. 

(d) Agencies should post information 

collection requests on a centralized Web 

site to create a one-stop location for the 

public to view such requests and 

comments received. The eRulemaking 

Program Management Office (PMO) 

should consider creating a dedicated 

page on Regulations.gov to facilitate 

implementation of this 

recommendation. 

(e) Agencies should, as soon as 

feasible, post to Regulations.gov or the 

centralized Web site identified in 

paragraph 1(c) above any comments 

received during the 60-day and 30-day 

comment periods and provide links 

thereto on their own Web sites.7 OMB 

should also, as soon as feasible, post 

upon receipt on its Web site or on 

Reginfo.gov any comments received 

during the 30-day comment period.8

(f) Congress and OMB should look at 

ways to streamline the public 

participation requirements when 

agencies seek renewal of approval from 

OMB for collections with no significant 

change in the collection or the 

circumstances surrounding it so long as 

the issuing agency demonstrates that the 

information collection has been used. 

Using Available Resources To Make the 

Process Easier 

2. Each agency Chief Information 

Officer (CIO) should take a greater role 

in assisting and training agency staff to 

increase awareness of the PRA within 

each agency and better customize 

training to each agency’s unique 

organizational challenges. The CIO 

Council, in consultation with OMB, 

should develop and disseminate 

training best practices. 

3. Agencies should use all available 

processes for OMB approval for 

information gathering via voluntary 

collections (e.g., focus groups), 

including OMB’s available generic 

clearances and fast track procedures. 

OMB is encouraged to continue using its 

generic clearance authority for this and 

other purposes, as appropriate and 

permitted by law. 

4. OMB should evaluate existing 

delegations of information collection 

request review authority to determine 

how they are working and what is 

required to make them work well.9 OMB 

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the Federal Reserve Board and the Managing 

Director of the Federal Communications 

Commission. 5 CFR pt. 1320 App. A. (2010). 

10See 44 U.S.C. 3507(i). 

11The PRA currently permits OMB to approve 

information collections for up to three years. See 44 

U.S.C. 3507(g). 

12See Office of Mgmt. & Budget, Exec. Office of 

the President, OMB Circular A–130, Management of 

Federal Information Resources §§ 6(i), (j) (1996). 

13The PRA requires that agencies, ‘‘in accordance 

with guidance by the Director, develop and 

maintain a strategic information resources 

management plan that shall describe how 

information resources management activities help 

accomplish agency missions.’’ 44 U.S.C. 3506(b)(2). 

See also Office of Mgmt. & Budget, Exec. Office of 

the President, OMB Circular A–130, Management of 

Federal Information Resources § 8(b) (1996) 

(providing such guidance). 

14As the Comptroller General of the United States 

has noted, ‘‘[v]irtually all of the results that the 

federal government strives to achieve require the 

concerted and coordinated efforts of two or more 

agencies.’’ U.S. Gen. Accounting Office, GAO/T– 

GGD–00–95, Managing for Results: Using GPRA to 

Help Congressional Decisionmaking and Strengthen 

Oversight 19 (2000), available at http://www.gao.

gov/assets/110/108330.pdf (statement of David M. 

Walker, Comptroller General of the United States, 

before the Subcomm. on Rules & Org. of the H. 

Comm. on Rules). GAO is now required by statute 

to identify federal programs, agencies, offices, and 

initiatives, either within departments or 

government-wide, which have duplicative goals or 

activities, and to report annually (Pub. L. No. 111– 

139, sec. 21, 124 Stat. 29 (2010), 31 U.S.C. 712 

Note). See U.S. Gov’t Accountability Office, GAO– 

11–318SP, Opportunities to Reduce Potential 

Duplication in Government Programs, Save Tax 

Dollars, and Enhance Revenue (2011), available at 

http://www.gao.gov/new.items/d11318sp.pdf. 

15 Jody Freeman & Jim Rossi, Improving 

Coordination of Related Agency Responsibilities 

(May 30, 2012) (report to the Administrative 

Conference of the U.S.). See also Jody Freeman & 

Jim Rossi, Agency Coordination in Shared 

Regulatory Space, 125 Harv. L. Rev. 1131 (2012). 

16The underlying study and this 

recommendation focus on federal government 

agencies only, and do not address the coordination 

problems presented more generally by federalism 

due to dispersed responsibilities between federal 

and state governments. 

should use the information drawn from 

this evaluation to consider whether 

time-limited delegations would be 

useful for other agencies. Such timelimited delegations could be set at a 

particular total or per respondent 

burden-hour threshold and be limited to 

those collections that do not raise novel 

legal, policy, or methodological issues. 

OMB should evaluate the results of such 

delegations, including compliance with 

the statutory factors,10 and, if the 

delegations have worked well, OMB 

should consider extending them and 

determining if other similar delegations 

would be appropriate. Delegations 

should include a requirement to consult 

with OMB on burden estimates (for 

delegations based on burden) and 

provide a clear opportunity for OMB 

and the public to request OMB review. 

Regular evaluations of agency review 

processes should then follow. 

Reforms To Improve Efficient Use of 

Resources 

5. Congress should consider 

amending the PRA to permit OMB to 

define a subset of collections that could 

be approved for up to five years in order 

to enable OMB to shift its focus to those 

information collections that require the 

most scrutiny consistent with the 

condition set forth in 1(f).11

6. Because much of the information 

reported in the Information Collection 

Budget is now available to the public 

online, currently through Reginfo.gov, 

Congress should change the annual 

reporting requirement for OMB to 

require only a discussion of 

developments and trends in government 

management and collection of 

information. 

7. OIRA should, in collaboration with 

individual agencies, provide guidance 

to agencies on communicating 

effectively with the public regarding 

estimated burdens, including the 

burdens of alternative methods of 

collection, with the goal of 

standardizing the estimation of 

respondent burden. 

8. The CIO Council, in consultation 

with OMB, should develop guidance to 

help agencies better use available 

technologies to improve and streamline 

the collection of information from the 

public. 

Information Resource Management 

9. To the extent feasible, OMB should 

emphasize the integration of the lifecycle management of information 12 into 

the existing information collection 

process. Agencies, with OMB’s support, 

should redo their Strategic Information 

Resources Management plans 13 to make 

clear how they are complying with the 

PRA and implementing a life-cycle 

approach. 

Administrative Conference 

Recommendation 2012–5 

Improving Coordination of Related 

Agency Responsibilities 

Adopted June 15, 2012 

Many areas of government agency 

activities are characterized by 

fragmented and overlapping delegations 

of power to administrative agencies. 

Congress often assigns more than one 

agency the same or similar functions or 

divides responsibilities among multiple 

agencies, giving each responsibility for 

part of a larger whole. Instances of 

overlap and fragmentation are common. 

They can be found throughout the 

administrative state, in virtually every 

sphere of social and economic 

regulation, in contexts ranging from 

border security to food safety to 

financial regulation.14 The following 

recommendation suggests some reforms 

aimed at improving coordination of 

agency policymaking, including joint 

rulemaking, interagency agreements, 

and agency consultation provisions. 

The study underlying this 

recommendation 15 provides a 

comprehensive picture of overlapping 

and fragmented delegations, and makes 

some practical suggestions for 

addressing the coordination problems 

they create.16 Because characterizing 

such delegations as redundant might 

suggest literal duplication, the study 

adopts the more nuanced concept of 

‘‘shared regulatory space.’’ This term 

includes not only literally duplicative or 

overlapping responsibilities, but also 

instances where cumulative statutory 

delegations create a situation in which 

agencies share closely related 

responsibilities for different aspects of a 

larger regulatory, programmatic, or 

management enterprise. 

Such delegations may produce 

redundancy, inefficiency, and gaps, but 

they also create underappreciated 

coordination challenges. A key 

advantage to such delegations may be 

the potential to harness the expertise 

and competencies of specialized 

agencies. But that potential can be 

wasted if the agencies work at crosspurposes or fail to capitalize on one 

another’s unique strengths and 

perspectives. By improving efficiency, 

effectiveness, and accountability, 

coordination can help to overcome 

potential dysfunctions created by shared 

regulatory space. Greater coordination 

can reduce costs for both the 

government and regulated entities not 

only by avoiding literal duplication of 

functions but also by increasing 

opportunities for agencies exercising 

related responsibilities to manage and 

reconcile differences in approach. 

Coordination that takes the form of 

interagency consultation can improve 

the overall quality of decisionmaking by 

introducing multiple perspectives and 

specialized knowledge, and structuring 

opportunities for agencies mutually to 

test their information and ideas. 

Coordination instruments can also 

equip and incentivize agencies to 

monitor each other constructively, 

which should help both the President 

and Congress to better manage agency 

policy choices and compliance with 

statutes. It is plausible too, that greater 

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17See Jody Freeman, The Obama 

Administration’s National Auto Policy: Lessons 

from the ‘‘Car Deal,’’ 35 Harv. Envtl. L. Rev. 343 

(2011). 

18See Press Release, Advisory Council on 

Historic Preservation, Nine Federal Agencies Enter 

into a Memorandum of Understanding Regarding 

Transmission Siting on Federal Lands (Oct. 28, 

2009), available at http://www.achp.gov/docs/

pressrelease10282009.pdf. 

19Exec. Order No. 13,605, Supporting Safe and 

Responsible Development of Unconventional 

Domestic Natural Gas Resources, 77 FR 23107 (Apr. 

17, 2012). 

20See also OIRA’s March 20, 2012 memorandum 

to agencies on cumulative regulations, which seeks 

to promote harmonization and streamline agency 

regulations in an effort to reduce the cost of agency 

rules. Memorandum from Cass R. Sunstein, Admin., 

Office of Info. & Regulatory Affairs, to the Heads of 

Executive Departments and Agencies, Cumulative 

Effects of Regulations (Mar. 20, 2012), available at 

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

assets/inforeg/cumulative-effects-guidance.pdf. 

21Public Law 111–352, 124 Stat. 3866 (2011). 

GPRMA amends the Government Performance and 

Results Act of 1993 (GPRA), Public Law 103–62, 

107 Stat. 285 (1993). 

22The Conference recognizes the special concerns 

about presidential authority with respect to 

independent regulatory agencies. However, various 

presidential actions have sought to extend 

administration policies to the independent 

agencies. For example, sec. 4 of Executive Order 

12,866 ‘‘Regulatory Planning and Review,’’ includes 

independent regulatory agencies in its requirements 

for the semiannual Unified Regulatory Agenda and 

the annual Regulatory Plan, ‘‘to the extent 

permitted by law.’’ Similarly, Executive Order 

13,579, ‘‘Regulation and Independent Regulatory 

Agencies,’’ and the further guidance contained in 

the OIRA Administrator’s Memorandum for the 

Heads of Independent Regulatory Agencies, M–11– 

28, ask independent regulatory agencies to comply 

with directives to Executive Branch agencies with 

respect to public participation, regulatory analyses, 

and retrospective review of existing regulations. 

Memorandum from Cass R. Sunstein, Admin., 

Office of Info. & Regulatory Affairs, to the Heads of 

Independent Regulatory Agencies, Executive Order 

13579, ‘‘Regulation and Independent Regulatory 

Agencies’’ (July 22, 2011), available at http://www.

whitehouse.gov/sites/default/files/omb/ 

memoranda/2011/m11-28.pdf. 

coordination will make it harder for 

interest groups to capture the 

administrative process or to play 

agencies against each other. 

Much coordination occurs against the 

backdrop of day-to-day, informal 

interactions among agency staffs, 

including casual conversations, 

meetings, and working groups. 

However, systematic efforts to 

institutionalize coordination (as 

opposed to relying exclusively on the ad 

hoc coordination that occurs as a matter 

of course among agencies) will tend to 

be more stable, visible, and durable than 

relying only on informal networks for 

promoting interagency interactions. 

This recommendation does not purport 

to address all agency interactions, but 

focuses on the processes and 

instruments agencies use to memorialize 

agency interactions and agreements. In 

such instances, this recommendation 

endorses documented coordination 

policies to help formalize ad hoc 

approaches and provide useful 

guidelines for agency staff. Coordination 

policies can be top-down, through the 

President’s leadership, as well as 

bottom-up, beginning with agencies 

themselves. 

Presidential leadership can be helpful 

in addressing the challenges posed by 

fragmented and overlapping 

delegations, especially in instances 

where there is conflict among agencies, 

inability of agency staffs to coordinate, 

or a reluctance of agency officials to 

work together. Components of the 

Executive Office of the President (EOP) 

with relevant policy expertise may be 

well positioned to promote coordination 

in their respective domains, and efforts 

in this regard could be bolstered. The 

EOP can play a crucial role in fostering 

coordination by establishing priorities, 

convening the relevant agencies, and 

managing a process that is conducive to 

producing agreement. For example, the 

White House Office of Energy and 

Climate Change Policy has been 

credited with facilitating the joint 

rulemaking effort of EPA and the 

Department of Transportation, which 

produced new fuel efficiency and 

greenhouse gas standards,17 and the 

EOP played a central role in convening 

and coordinating the nine-agency 

memorandum of understanding on 

siting of transmission lines on federal 

lands.18 The President recently 

established an interagency task force to 

coordinate federal regulation of natural 

gas production.19 There are many other 

examples from prior administrations, 

involving policy initiatives large and 

small. 

The President could seek to promote 

coordination through a comprehensive 

management strategy that puts 

coordination at its core, which might be 

done via a new executive order tasking 

one or more EOP offices with an 

oversight role. Promoting consistency in 

agency rulemaking is already explicitly 

within the mandate of the Office of 

Information and Regulatory Affairs 

under Executive Order 12,866 and was 

reiterated by President Obama in 

Executive Order 13,563.20 While this is 

compatible with the larger goal of 

promoting greater interagency 

coordination where agencies exercise 

overlapping and closely related 

responsibilities, still more could be 

done. For example, the Office of 

Management and Budget (OMB) could 

consider ways to achieve coordination 

as part of its implementation of the 

Government Performance and Results 

Modernization Act (GPRMA),21 and 

propose cross-cutting budget allocations 

(sometimes referred to as ‘‘portfolio 

budgeting’’) to help incentivize the 

agencies to work together on a variety of 

projects, some of which might involve 

rulemakings. The White House might 

explore ways to strengthen existing 

interagency task forces or encourage 

similar interagency efforts where their 

potential benefits have been 

overlooked.22 Beyond OMB, other 

councils and offices within the EOP 

may also play important roles 

facilitating coordination. 

However, centralized supervision is 

not the only means of improving agency 

coordination. Congress could prescribe 

specific reforms via statute. Yet even 

absent direction from the President or 

Congress, agencies could voluntarily 

adopt certain targeted reforms. This 

recommendation suggests some initial 

and relatively modest measures that 

agencies could adopt to help conduct, 

track and evaluate existing coordination 

initiatives, subject, of course, to budget 

constraints. These include development 

of agency policies on coordination, 

sharing of best practices, adopting 

protocols for joint rulemaking and 

memoranda of understanding, ex post 

evaluation of at least a subset of 

coordination processes, tracking of 

outcomes and costs, and making 

coordination tools more transparent. 

These measures are not intended to 

impose substantial additional burdens 

on agencies, but to the extent they do, 

the recommendation urges OMB to 

recognize the need to devote sufficient 

resources to allow agencies to 

participate effectively in interagency 

processes. 

Nor, of course, does this 

recommendation seek to preclude other 

measures that might promote 

interagency collaboration, consultation 

and coordination, either at the federal 

level, or between federal and state and 

local agencies. It is not meant to 

displace or preclude any additional 

effort, whether under the GPRA 

amendments or otherwise, to develop 

national strategies. In addition, in many 

instances, informal agency consultation 

and negotiation work effectively to 

resolve inconsistencies and conflict. 

This recommendation is meant to 

augment rather than displace such 

efforts. 

Recommendation 

1. Developing Agency Coordination 

Policies 

(a) Federal agencies should identify 

any areas of shared, overlapping or 

closely related jurisdiction or operation 

that might require, or benefit from, 

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23A recent GAO report on the implementation of 

the Dodd-Frank Act faulted the financial regulatory 

agencies for not pursuing coordination more 

systematically and noted that the majority of 

agencies reviewed had not developed internal 

policies on coordination. See U.S. Gov’t 

Accountability Office, GAO–12–151, Dodd-Frank 

Act Regulations: Implementation Could Benefit 

From Better Analysis and Coordination 25 (2011) 

(noting that seven of nine regulators reviewed ‘‘did 

not have written policies and procedures to 

facilitate coordination on rulemaking’’). 

24 31 U.S.C. 1115(b)(5)(D) of GPRA, as amended 

by sec. 3 of GPRMA, supra note 8, requires each 

agency to have an annual performance plan 

providing a description of how its performance 

goals are to be achieved, including how the agency 

is working with other agencies to achieve those 

goals. 

25See Exec. Order No. 13,609, Promoting 

International Regulatory Cooperation, 77 FR 26413 

(May 4, 2012), for an approach that combines a 

government-wide policy with individual agency 

responsibilities, coordinated by the Regulatory 

Working Group. See infra note 14. 

26See generally Curtis W. Copeland, Regulatory 

Analysis Requirements, A Review and 

Recommendations for Reform (2012) (report to the 

Administrative Conference of the U.S.), available at 

http://www.acus.gov/wp-content/uploads/

downloads/2012/04/COR-Final-Reg-AnalysisReport-for-5-3-12-Mtg.pdf; and Administrative 

Conference Recommendation 2012–1, Regulatory 

Analysis Requirements. 

27Exec. Order No. 12866, sec. 4(d) (announcing 

the establishment of a Regulatory Working Group as 

‘‘a forum to assist agencies in identifying and 

analyzing important regulatory issues’’). 

28 In several of the examples reviewed in the 

Freeman/Rossi report, supra note 2, the agencies 

were negotiating new MOUs to replace outdated 

ones (often negotiated by previous 

administrations)—a clear sign that ineffective 

MOUs can be left to languish for too long. 

interagency coordination.23 Federal 

agencies that share overlapping or 

closely related responsibilities should 

adopt policies or procedures, as 

appropriate, to document ongoing 

coordination efforts, and to facilitate 

additional coordination with other 

agencies.24

(b) Concurrently, the Executive Office 

of the President (EOP) should work with 

the agencies to develop a policy to 

promote coordination where agencies 

share overlapping or closely related 

responsibilities. The policy, while 

maintaining the need for flexibility,25

should require agencies to address, 

among other things, how they will: 

(i) Resolve disagreements over 

jurisdiction; 

(ii) Share or divide informationproduction responsibilities; 

(iii) Solicit and address potentially 

conflicting views on executing shared 

responsibilities; 

(iv) Minimize duplication of effort; 

(v) Identify and resolve differences 

over the application of analytic 

requirements imposed by statute or 

executive order; 26 and 

(vi) Formalize agreements allocating 

respective responsibilities or develop 

standards or policies jointly, where 

appropriate. 

In addition, the policy should 

establish a mechanism by which 

agencies can share best practices and 

evaluate their coordination initiatives ex 

post, and assist them in doing so 

effectively and efficiently. 

(c) The EOP should effectively utilize 

the Regulatory Working Group, 

established by Executive Order 12,866, 

or establish or utilize other comparable 

bodies to assist agencies in identifying 

opportunities for coordination.27

2. Improving Joint Rulemaking 

The coordination policies and 

procedures adopted by the EOP and the 

agencies should include best practices 

for joint rulemaking and recommend 

when agencies should consider using it 

even when not statutorily required to do 

so. Best practices might include 

establishing joint technical teams for 

developing the rule and requiring early 

consultation, where appropriate, (a) 

with the Office of Information and 

Regulatory Affairs (OIRA) regarding 

joint production of cost-benefit analyses 

and other analyses required by statute or 

executive order, and (b) among agency 

legal staff and lawyers at the 

Department of Justice who may need 

ultimately to defend the rule in 

litigation. 

3. Improving Interagency Agreements 

(a) The coordination policies and 

procedures adopted by the EOP and the 

agencies should include best practices 

for agency agreements such as 

memoranda of understanding (MOUs). 

Such best practices might include 

specification of progress metrics that 

will enable agencies to assess the 

effectiveness of their agreement and 

sunset provisions that would require 

signatory agencies to review MOUs 

regularly to determine whether they 

continue to be of value.28

(b) Agencies should make available to 

the public, in an accessible manner, 

interagency agreements that have broad 

policy implications or that may affect 

the rights and interests of the general 

public unless the agency finds good 

cause not to do so. 

4. Supporting and Funding Interagency 

Consultation 

(a) The EOP should encourage 

agencies to conduct interagency 

consultations early in a decisionmaking 

process, before initial positions are 

locked in, and to conduct such 

consultations in a continuing and 

integrated, rather than periodic and 

reactive, way. To this end, when 

appropriate, the EOP should encourage 

coordinating agencies to establish an 

interagency team to produce and 

analyze data together over the course of 

the decisionmaking process, and ensure 

such teams have adequate funding and 

support. 

(b) The Office of Management and 

Budget and agencies involved in 

coordinated interagency activities 

should take into account, in the 

budgetary process, the need for 

sufficient resources to participate 

effectively in interagency processes, and 

the need to provide specifically for such 

cross-cutting activities. Further, an 

action agency, on which a duty to 

consult with other agencies falls, should 

contribute a share of its resources, as 

appropriate, to the extent it possesses 

the discretion to do so, to support joint 

technical and analytic teams, even if 

those resources will be consumed in 

part by other agencies. 

5. Tracking Total Resources 

To better evaluate the effectiveness of 

coordination initiatives, an appropriate 

office or offices of the federal 

government should assess the costs and 

benefits, both quantitative and 

qualitative, of interagency consultations, 

MOUs, joint rules, and other similar 

instruments. Such offices might include 

the Government Accountability Office 

or the Congressional Research Service, 

perhaps with the assistance of the 

Administrative Conference of the 

United States. To minimize the burden 

on the agencies of such evaluation, at 

the outset, this effort might be limited 

to high-priority, high-visibility 

interagency coordination efforts, such as 

important joint rulemakings, or 

equivalent initiatives. 

[FR Doc. 2012–19690 Filed 8–9–12; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

Yakutat Resource Advisory Committee 

AGENCY: Forest Service, USDA. 

ACTION: Notice of meeting. 

SUMMARY: The Yakutat Resource 

Advisory Committee will meet in 

Yakutat, Alaska. The committee is 

authorized under the Secure Rural 

Schools and Community SelfDetermination Act (Pub. L. 112–141) 

(the Act) and operates in compliance 

with the Federal Advisory Committee 

Act. The purpose of the committee is to 

improve collaborative relationships and 

to provide advice and recommendations 

to the Forest Service concerning projects 

and funding consistent with the title II 

mstockstill on DSK4VPTVN1PROD with NOTICES