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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examples of documents appearing in this

section.

Notices Federal Register

76269 

Vol. 78, No. 242 

Tuesday, December 17, 2013 

1The Conference has previously defined ‘‘eRulemaking’’ as ‘‘the use of digital technologies in 

the development and implementation of regulations 

before or during the informal process, i.e., noticeand-comment rulemaking under the Administrative 

Procedure Act (APA).’’ Recommendation 2011–1, 

Legal Considerations in e-Rulemaking, 76 FR 

48,789, 48,789 (Aug. 9, 2011) (internal quotation 

marks and footnote omitted). 

2 ‘‘Crowdsourcing’’ is an umbrella term that 

includes various techniques for distributed 

problem-solving or production, drawing on the 

cumulative knowledge or labor of a large number 

of people. Wikipedia, the development of the Linux 

operating system, Amazon.com’s ‘‘Mechanical 

Turk’’ platform, and public and private challenges 

that award a prize to the best solution to a 

Continued 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendations and 

Statement Regarding Administrative 

Practice and Procedure 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Administrative 

Conference of the United States adopted 

three recommendations at its FiftyNinth Plenary Session. The appended 

recommendations address the use of 

social media to support agency 

rulemaking activities, provide guidance 

to courts and agencies in connection 

with the judicial remedy of remanding 

an agency action without vacating that 

action, and offer best practices to 

facilitate cross-agency collaboration 

under the Government Performance and 

Results Act (GPRA) Modernization Act 

of 2010. The Conference also adopted 

one formal statement at the Plenary 

Session on improving the timeliness of 

regulatory review by the Office of 

Information and Regulatory Affairs. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendation 2013–5, Emily 

Bremer; for Recommendation 2013–6, 

Stephanie Tatham; for Recommendation 

2013–7, Funmi Olorunnipa; and for 

Statement # 18, Reeve Bull or Funmi 

Olorunnipa. For all four of these actions 

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 www.acus.gov. 

At its Fifty-Ninth Plenary Session, 

held December 5–6, 2013, the Assembly 

of the Conference adopted three 

recommendations and one formal 

statement. Recommendation 2013–5, 

‘‘Social Media in Rulemaking,’’ provides 

guidance to agencies on whether, how, 

and when social media might be used 

both lawfully and effectively to support 

rulemaking activities. 

Recommendation 2013–6, ‘‘Remand 

Without Vacatur,’’ examines the judicial 

remedy of remand without vacatur on 

review of agency actions and equitable 

factors that may justify its application. 

The recommendation offers guidance for 

courts that remand agency actions and 

for agencies responding to judicial 

remands. 

Recommendation 2013–7, ‘‘The GPRA 

Modernization Act of 2010: Examining 

Constraints To, and Providing Tools 

For, Cross-Agency Collaboration,’’ 

examines perceived and real constraints 

to cross-agency collaboration under the 

Government Performance and Results 

Act (GPRA) Modernization Act and 

highlights tools available to help 

agencies collaborate. It offers guidance 

to help increase transparency, improve 

information sharing, and facilitate better 

agency reporting under the Act. The 

recommendation is also aimed at 

enhancing the role of agency attorneys 

and other agency staff in facilitating 

cross-agency collaboration. 

Statement # 18, ‘‘Improving the 

Timeliness of OIRA Regulatory 

Review,’’ highlights potential 

mechanisms for improving review times 

of rules under review by the Office of 

Information and Regulatory Affairs 

(OIRA), including promoting enhanced 

coordination between OIRA and 

agencies prior to the submission of 

rules, encouraging increased 

transparency concerning the reasons for 

delayed reviews, and ensuring that 

OIRA has adequate staffing to complete 

reviews in a timely manner. 

The Appendix below sets forth the 

full texts of these three 

recommendations and the statement. 

The Conference will transmit them to 

affected agencies, relevant committees 

of Congress, and the Judicial Conference 

of the United States, as appropriate. 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 and the statement on 

research reports that are posted at: 

www.acus.gov/59th. A video of the 

Plenary Session is available at the same 

web address and a transcript of the 

Plenary Session will be posted when it 

is available. 

Dated: December 12, 2013. 

Shawne C. McGibbon, 

General Counsel. 

Appendix—Recommendations and 

Statement of the Administrative 

Conference of the United States 

Administrative Conference Recommendation 

2013–5 

Social Media in Rulemaking 

Adopted December 5, 2013 

In the last decade, the notice-and-comment 

rulemaking process has changed from a paper 

process to an electronic one. Many 

anticipated that this transition to ‘‘eRulemaking’’ 1 would precipitate a 

‘‘revolution,’’ making rulemaking not just 

more efficient, but also more broadly 

participatory, democratic, and dialogic. But 

these grand hopes have not yet been realized. 

Although notice-and-comment rulemaking is 

now conducted electronically, the process 

remains otherwise recognizable and has 

undergone no fundamental transformation. 

At the same time, the Internet has 

continued to evolve, moving from static, textbased Web sites to dynamic multi-media 

platforms that facilitate more participatory, 

dialogic activities and support large amounts 

of user-generated content. These ‘‘social 

media’’ broadly include any online tool that 

facilitates two-way communication, 

collaboration, interaction, or sharing between 

agencies and the public. Examples of social 

media tools currently in widespread use 

include Facebook, Twitter, Ideascale, blogs, 

and various crowdsourcing 2 platforms. But 


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particular problem are all examples of 

crowdsourcing. 

3One type of emerging technology includes 

structured argumentation tools. These tools may 

take the form of, for example, interactive feedback 

forms that ask direct and progressively more 

focused questions in sequence or in response to 

input, thereby generating more targeted and 

substantively useful input from users. 

4 e-Rulemaking Program Management Office, 

Improving Electronic Dockets on Regulations.gov 

and the Federal Docket Management System: Best 

Practices for Federal Agencies 8 (2010), available at 

http://exchange.regulations.gov/exchange/sites/

default/files/doc_files/20101130_eRule_Best_

Practices_Document_rev.pdf. 

5Recommendation 2011–8, Agency Innovations 

in e-Rulemaking, 77 FR 2257, 2265 (Jan. 17, 2012). 

The Conference has consistently supported full and 

effective public participation in rulemaking, as well 

as the use of new technologies to enhance such 

participation. In Recommendation 95–3, Review of 

Existing Agency Regulations, the Conference 

encouraged agencies to ‘‘provide adequate 

opportunity for public involvement in both the 

priority-setting and review processes,’’ including by 

‘‘requesting comments through electronic bulletin 

boards or other means of electronic 

communication.’’ 60 FR 43,108, 43,109 (Aug. 18, 

1995). 

6For example, agencies have enthusiastically 

embraced social media, including Facebook and 

Twitter, as an effective tool for pushing information 

out to the public, from general information about 

an agency and its mission to more specific 

notifications of services, benefits, or employment 

opportunities that are available from an agency. 

Agencies have also used social media in more 

interactive ways, such as when nearly three dozen 

agencies used Ideascale to engage the public in the 

process of developing the agencies’ Open 

Government Plans, or to collect metadata, such as 

when the Consumer Financial Protection Bureau 

used ‘‘heat maps’’ generated from click-based 

online user reviews of prototype disclosure forms 

to illustrate which sections of the forms elicited the 

strongest reactions. 

7The Conference recently addressed legal issues 

related to e-rulemaking in Recommendation 2011– 

1, Legal Considerations in e-Rulemaking, see supra 

note 1, but did not delve into the unique concerns 

that arise when agencies use social media to 

support rulemaking activities. 

8The Office of Management and Budget has 

issued helpful guidance on these issues. See 

Memorandum from Cass R. Sunstein, Adm’r, Office 

of Info. & Regulatory Affairs, to the Heads of 

Executive Departments and Independent Regulatory 

Agencies regarding 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. 

9See, e.g., Recommendation 85–5, Procedures for 

Negotiating Proposed Regulations (Dec. 13, 1985). 

technology evolves quickly, continuously, 

and unpredictably. It is a near certainty that 

the tools so familiar to us today will evolve 

or fade into obsolescence, while new tools 

emerge.3

The accessible, dynamic, and dialogic 

character of social media makes it a 

promising set of tools to fulfill the promise 

of e-Rulemaking. Thus, for example, the eRulemaking Program Management Office, 

which operates the federal government’s 

primary online rulemaking portal, 

Regulations.gov, has urged agencies to 

‘‘[e]xplore the use of the latest technologies, 

to the extent feasible and permitted by law, 

to engage the public in improving federal 

decision-making and help illustrate the 

impact of emerging Internet technologies on 

the federal regulatory process.’’ 4 The 

Conference has similarly, albeit more 

modestly, recommended that ‘‘[a]gencies 

should consider, in appropriate rulemakings, 

using social media tools to raise the visibility 

of rulemakings.’’ 5

Federal agencies have embraced social 

media to serve a variety of non-rulemaking 

purposes,6 but few have experimented with 

such tools in the rulemaking context. One 

explanation for this reluctance is uncertainty 

about how the Administrative Procedure Act 

(APA) and other requirements of 

administrative law apply to the use of social 

media, particularly during the process 

governed by the APA’s informal rulemaking 

requirements, beginning when the Notice of 

Proposed Rulemaking (NPRM) has been 

issued, through the comment period, and 

until the agency issues a final rule.7 In 

particular, agencies are uncertain whether 

public contributions to a blog or Facebook 

discussion are ‘‘comments’’ for purposes of 

the APA, thus triggering the agencies’ 

obligations to review and respond to the 

contributions and include them in the 

rulemaking record. Other concerns include 

how the Paperwork Reduction Act applies to 

agency inquiries through social media,8

whether the First Amendment might limit an 

agency from moderating a social media 

discussion, and how individual agencies’ ‘‘ex 

parte’’ communications policies might apply 

to the use of social media. 

Apart from legal concerns are doubts as to 

whether, when, and how social media will 

benefit rulemaking. These doubts arise with 

respect to two distinct issues that often 

overlap. First, can social media be used to 

generate more useful public input in 

rulemaking? Second, is increased lay 

participation in rulemaking likely to be 

valuable? Experience suggests that both the 

quality of comments and the level of 

participation in social media discussions are 

often much lower than one might hope. A 

third-party facilitator may be able to help an 

agency address these issues by encouraging 

public participation, helping participants 

understand the rulemaking process and the 

agency’s proposal, asking follow-up 

questions to produce more substantive input, 

and actively facilitating engagement among 

participants. Regardless of whether a thirdparty facilitator is used, however, creating 

the conditions necessary to foster a 

meaningful, productive dialogue among 

participants requires commitment, time, and 

thoughtful design. Since this kind of 

innovation can be costly, agencies are 

understandably reluctant to expend scarce 

resources in pursuit of uncertain benefits. 

Agencies also face a variety of practical 

questions. One such question is whether to 

require participants to identify themselves in 

agency-sponsored social media discussions. 

Another concern is that the use of ranking or 

voting tools may mislead some to believe that 

rulemaking is a plebiscite or allow some 

participants to improperly manipulate the 

discussion. 

Social media can be valuable during the 

notice-and-comment phase of rulemaking, 

but on a selected basis. For example, if an 

agency needs to reach an elusive audience or 

determine public preferences or reactions in 

order to develop an effective regulation, 

social media may enable the collection of 

information and data that are rarely reflected 

in traditional rulemaking comments. Success 

requires an agency to thoughtfully identify 

the purpose(s) of using social media, 

carefully select the appropriate social media 

tool(s), and integrate those tools into the 

traditional notice-and-comment process. In 

addition, agencies must clearly communicate 

to the public how the social media 

discussion will be used in the rulemaking. 

Although the APA allows agencies the 

flexibility to be innovative, attention should 

be given to how the APA or other legal 

requirements will apply in the circumstances 

of a particular rulemaking. 

Agencies may find, however, that it is both 

easier and more often valuable to use social 

media in connection with rulemaking 

activities, but outside the notice-andcomment process. For example, social media 

can be effective for public outreach, helping 

to increase public awareness of agency 

activities, including opportunities to 

contribute to policy setting, rule 

development, or the evaluation of existing 

regulatory regimes. The use of social media 

may also be particularly appropriate during 

the pre-rulemaking or policy-development 

phase. Here, the APA and other legal 

restrictions do not apply, and agencies are 

often seeking dispersed knowledge or 

answers to more open-ended questions that 

lend themselves to productive discussion 

through social media. For the same reasons, 

social media may be an effective way for 

agencies to seek input on retrospective 

review of existing regulations. It also may be 

helpful in connection with a negotiated 

rulemaking,9 where these tools may make it 

easier for the diverse interests to collaborate 

during and between meetings on a solution 

to the problem being addressed. 

This recommendation provides guidance to 

agencies on whether, how, and when social 

media might be used both lawfully and 

effectively to support rulemaking activities. It 

seeks to identify broad principles susceptible 

of application to any social media tool that 

is now available or may be developed in the 

future. It is intended to encourage innovation 

and facilitate the experimentation necessary 

to develop the most effective techniques for 

leveraging the strengths of social media to 

achieve the promises of e-Rulemaking. 

Recommendation 

1. Agencies should explore in the 

rulemaking process the use of social media— 

online platforms that can provide broad 

opportunities for public consultation, 

discussion, and engagement. 

Public Outreach 

2. Agencies should use social media to 

inform and educate the public about agency 

activities, their rulemaking process in 

general, and specific rulemakings. Agencies 

should take an expansive approach to 

alerting potential participants to upcoming 

rulemakings by posting to the agency Web 

site and sending notifications through 


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multiple social media channels. Social media 

may provide an effective means to reach 

interested persons who have traditionally 

been underrepresented in the rulemaking 

process (including holders of affected 

interests that are highly diffused). 

3. Agencies should recognize that raising 

awareness among missing stakeholders (those 

directly affected by the proposed rule who 

are historically unlikely to participate in the 

traditional comment process) and other 

potential new participants in the rulemaking 

process will require new outreach strategies 

beyond simply giving notice in the Federal 

Register, Regulations.gov, and the agency 

Web site. Social media may be particularly 

effective for successful outreach, and 

agencies using it for this purpose in 

connection with rulemaking should consider: 

(a) Developing one or more 

communications plans specifically tailored to 

the rule and to all types of missing 

stakeholders or other potential new 

participants the agency is trying to engage. 

These plans should be evenhanded and 

designed to encourage all types of 

stakeholders to participate. 

(b) In outreach messages, clearly 

explaining the mechanisms through which 

members of the public can participate in the 

rulemaking, what the role of public 

comments is, and how the agency will take 

comments into account. 

(c) Encouraging public response by being 

clear and specific about how the proposed 

rule would affect the targeted participants 

and what input will be most useful to the 

agency. 

(d) Asking all interested organizations to 

spread the participation message to members 

or followers. Agencies should be prepared to 

explain why individual participation can be 

beneficial, and to encourage organizations to 

solicit substantive, individualized comments 

from their members. 

(e) Using multilingual social media outlets 

where appropriate. 

4. The General Services Administration, 

the e-Rulemaking Program Management 

Office, and other federal agencies, either 

individually or (preferably) collaboratively, 

should use social media to create and 

distribute more robust educational programs 

about rulemaking. These efforts could 

include: producing videos about the 

rulemaking process and how to effectively 

participate through commenting and posting 

on an agency Web site or video-sharing Web 

site; hosting webinars in which agency 

personnel discuss how to draft useful and 

helpful comments; maintaining an online 

database of exemplary rulemaking comments; 

or conducting an online class or webinar or 

providing explanatory materials in which 

officials review a draft comment and suggest 

ways to improve it. 

5. Agencies should explore ways to 

publicize, and allow members of the public 

to receive, regular, automated updates on 

developments in, at a minimum, significant 

rulemakings. 

6. Agencies should consider using social 

media prior to the publication of an NPRM 

or proposed policy where the goal is to 

understand the current state of affairs, collect 

dispersed knowledge, or identify problems. 

To enhance the amount and value of public 

input, an agency seeking to engage the public 

for these purposes should, to the maximum 

extent possible, make clear the sort of 

information it is seeking and how the agency 

intends to use public input received in this 

way. The agency should also directly engage 

with participants by acknowledging 

submissions, asking follow-up questions, and 

providing substantive responses. 

7. Agencies should consider using social 

media in support of retrospective review of 

existing regulations, particularly to learn 

what actual experience has been under the 

relevant regulation(s). 

Using Social Media in Notice-and-Comment 

Rulemaking 

8. Although the use of social media may 

not be appropriate and productive in all 

rulemakings, agencies may use social media 

to supplement or improve the traditional 

commenting process. Before using social 

media in connection with a particular 

rulemaking, agencies should identify the 

specific goals they expect to achieve through 

the use of social media and carefully 

consider the potential costs and benefits. 

9. Agencies should use the social media 

tools that best fit their particular purposes 

and goals and should carefully consider how 

to effectively integrate those tools into the 

traditional rulemaking process. 

Effective Approaches for Using Social Media 

in Rulemaking 

10. For each rulemaking, agencies should 

consider maintaining a blog or other 

appropriate social media site dedicated to 

that rulemaking for purposes of providing 

information, updates, and clarifications 

regarding the scope and progress of the 

rulemaking. Agencies may also wish to 

explore using such a site to generate a 

dialogue. 

11. When an agency sponsors a social 

media discussion in connection with a 

notice-and-comment rulemaking, it should 

determine and prominently indicate to the 

public how the discussion will be treated 

under the APA (for administrative record 

purposes). The agency may decide, for 

example: 

(a) To include all comments submitted via 

an agency-administered social media 

discussion in the rulemaking record. 

Agencies should consider using an 

application programming interface (API) or 

other appropriate technological tool to 

efficiently transfer content from social media 

to the rulemaking record. 

(b) That no part of the social media 

discussion will be included in the 

rulemaking docket, that the agency will not 

consider the discussion in developing the 

rule, and that the agency will not respond to 

the discussion. An agency that selects this 

option should communicate the restriction 

clearly to the public through conspicuous 

disclaimers on the social media site itself, 

provide instructions on how to submit an 

official comment to the rulemaking docket, 

and provide a convenient mechanism for 

doing so. It is especially important in these 

circumstances that the agency clearly explain 

the purpose of a social media discussion the 

agency does not intend to consider in the 

rulemaking. 

12. When soliciting input through a social 

media platform, agencies should provide a 

version of the NPRM that is ‘‘friendly’’ and 

clear to lay users. This involves, for example, 

breaking preambles into smaller components 

by subject, summarizing those components in 

plain language, layering more complete 

versions of the preamble below the 

summaries, and providing hyperlinked 

definitions of key terms. In doing this, the 

agency should either: 

(a) Publish both versions of the NPRM in 

the Federal Register; or 

(b) Cross-reference the user-friendly 

version of the NPRM in the published NPRM 

and cross-reference the published NPRM in 

the user-friendly version of the NPRM. 

13. Agencies should consider, in 

appropriate rulemakings, retaining facilitator 

services to manage rulemaking discussions 

conducted through social media. Appropriate 

rulemakings may include those in which: 

(a) Targeted users are inexperienced 

commenters who may need help to prepare 

an effective comment (e.g., providing 

comments that give reasons rather than just 

reactions); or 

(b) The issues will predictably produce 

sharply divided or highly emotional 

reactions. 

14. Agencies should realize that not all 

rulemakings will be enhanced by a 

crowdsourcing approach. However, when the 

issue to be addressed is the public or user 

response itself (e.g., when the agency seeks 

to determine the best format for a consumer 

notice), direct submission to the public at 

large may lead to useful information. In 

addition, agencies should consider 

encouraging, and being receptive to, 

comments from lay stakeholders with 

‘‘situated knowledge’’ arising out of their real 

world experience. 

15. Agencies should consider 

experimenting with collaborative drafting 

platforms, both internally and, potentially, 

externally, for purposes of producing 

regulatory documents. 

16. If an agency chooses to use voting or 

ranking tools, the agency should explain to 

the public how it intends to use the input 

generated through those tools (e.g., to help it 

decide which of several potential forms is 

easiest to use). 

17. Agencies should use social media to 

notify and educate the public about the final 

agency action produced through a 

rulemaking. 

18. In appropriate circumstances, agencies 

should also use social media to provide 

compliance information. For example, an 

agency might use social media to inform and 

educate the public about paperwork 

requirements associated with a rule or the 

availability of regulatory guidance. 

19. Agencies should collaborate to identify 

best practices for addressing issues that arise 

in connection with the use of social media 

in rulemaking. 

Direct Final Rulemaking 

20. Agencies should consider using social 

media before or in connection with direct 

final rulemaking to quickly identify whether 


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1Stephanie J. Tatham, The Unusual Remedy of 

Remand Without Vacatur, Apendix A (Report to the 

Administrative Conference of the United States, 

Nov. 14, 2013) [hereinafter Tatham Report]. It has 

also been applied on review of agency action in the 

Courts of Appeals for the Federal, First, Third, 

Fifth, Eighth, Ninth, and Tenth Circuits. Id. at 26– 

28. 

2The APA provides that reviewing courts ‘‘shall 

* * * hold unlawful and set aside agency action, 

findings, and conclusions’’ found to violate one of 

its standards of review. 5 U.S.C. § 706(2). E.g., 

Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994) 

(Randolph, J., separate opinion). 

3Remand without vacatur has been described as 

fitting comfortably within a tradition of equitable 

judicial remedial discretion. Ronald M. Levin, 

‘‘Vacation’’ at Sea: Judicial Remedies and Equitable 

Discretion in Administrative Law, 53 Duke L.J. 291, 

315–44 (2003). 

4E.g., N. Air Cargo v. U.S. Postal Service, 674 

F.3d 852, 860–61 (D.C. Cir. 2012); Allied-Signal, 

Inc. v. NRC, 988 F.2d 146, 150–51 (D.C. Cir. 1993). 

5E.g., Envtl. Def. Fund v. EPA, 898 F.2d 183, 190 

(D.C. Cir. 1990) (‘‘no party to this litigation asks that 

the court vacate the EPA’s regulations, and to do so 

would at least temporarily defeat petitioner’s 

purpose, the enhanced protection of environmental 

values covered by the [statutory Prevention of 

Significant Deterioration] provisions’’). This 

reasoning appears to be the basis for a substantial 

number of cases involving the remedy and that arise 

under the Clean Air Act, which comprise a sizeable 

portion of all cases in which it is employed. See 

also Richard L. Revesz & Michael A. Livermore, 

Retaking Rationality 160–61 (2008) (describing how 

the remedy can provide pro-regulatory plaintiffs 

with the benefit of continuing a weak rule while the 

case is on remand, rather than having no rule in the 

interim in the event of a successful challenge). 

6Courts have occasionally requested 

supplemental briefing on whether to vacate agency 

rules after they have announced an intention to 

remand the agency’s decision. E.g., Am. Trucking 

Ass’ns v. EPA, 175 F.3d 1027, 1057 (D.C. Cir. 1999), 

aff’d in part, rev’d in part, Whitman v. Am. 

Trucking Ass’ns, 531 U.S. 457 (2001); Int’l Union, 

UAW v. OSHA, 938 F.2d 1310, 1325–26 (D.C. Cir. 

1991). Courts might also consider soliciting the 

views of the parties at oral argument. 

7E.g., PSEG Energy Res. & Trade, LLC v. FERC, 

665 F.3d 203 (D.C. Cir. 2011); Am. Radio Relay 

League, Inc. v. FCC, 524 F.3d 227 (DC Cir. 2008). 

8Courts have occasionally retained jurisdiction 

over cases remanded without vacatur to ensure 

responsive agency action. E.g., Nat’l Ass’n of 

Regulatory Util. Comm’rs v. DOE, 680 F.3d 819, 820 

(D.C. Cir. 2012) (directing compliance within six 

months and retaining jurisdiction ‘‘so that any 

further review would be expedited’’). Courts may 

also ask agencies to report on their progress on 

remand. E.g., Chamber of Commerce v. SEC, 443 

F.3d 890, 909 (D.C. Cir. 2006) (staying the court’s 

mandate that would vacate the remanded agency 

action until further order of the court and requiring 

the SEC to file a status report within 90 days). 

there are significant or meaningful objections 

that are not initially apparent. 

Key Legal Considerations 

21. Agencies have maximum flexibility 

under the APA to use social media before an 

NPRM is issued or after a final rule has been 

promulgated. 

22. Agencies should consider how the First 

Amendment applies to facilitating or hosting 

social media discussions, such as by making 

it clear through a posted comment policy that 

all discussions and comments on any given 

agency social media site will be moderated 

in a uniform, viewpoint-neutral manner. 

Through this posted policy, agencies may 

decide to define or restrict the topics of 

discussion, impose reasonable limitations to 

preserve decorum, decency, and prevent 

spam or, alternatively, terminate a social 

media discussion altogether. 

23. Agencies that have ‘‘ex parte’’ contact 

policies for information obtained in 

connection with rulemaking should review 

those policies to ensure they address 

communications made through social media. 

Administrative Conference Recommendation 

2013–6 

Remand Without Vacatur 

Adopted December 5, 2013 

Remand without vacatur is a judicial 

remedy that permits agency orders or rules to 

remain in effect after they are remanded by 

the reviewing court for further agency 

proceedings. Traditionally, courts have 

reversed and set aside agency actions they 

have found to be arbitrary and capricious, 

unlawful, unsupported by substantial 

evidence, or otherwise in violation of an 

applicable standard of review. Since 1970, 

however, the remedy of remanding without 

vacating the agency decision has been 

employed with increasing frequency. It has 

now been applied in more than seventy 

decisions of the Court of Appeals for the 

District of Columbia Circuit involving over 

twenty federal agencies and encompassing a 

variety of substantive areas of law including 

air pollution control, telecommunications, 

and national security.1

The Administrative Conference conducted 

a study of remand without vacatur that 

examined existing scholarship on the remedy 

as well as its application by courts in recent 

years. These recommendations and the 

supporting Report examine the legality and 

application of remand without vacatur in 

cases involving judicial review of agency 

actions. The Conference accepts the principle 

that remand without vacatur is within the 

court’s equitable remedial authority. It 

recognizes and approves of at least three 

general circumstances in which remand 

without vacatur may be appropriate. Finally, 

it offers advice to courts that are considering 

employing the remedy and to agencies 

responding to remands. 

The remedy has generated academic and 

judicial debate over its advisability and 

legality. Those who support remand without 

vacatur point to the benefits that accrue in a 

variety of situations, such as when 

application of the device enhances stability 

in the regulatory regime or in regulated 

markets, protects reliance interests, prevents 

regulatory gaps, allows the government to 

continue collecting fees or processing 

reimbursements, and ensures continued 

provision of public benefits (including the 

benefits of regulation). Remand without 

vacatur has also been said to be appropriate 

because it defers to the institutional 

competence of agencies and may reduce 

agency burdens on remand. 

Nonetheless, remand without vacatur is 

not without controversy. Some scholars argue 

that it can deprive litigants of relief from 

unlawful or inadequately reasoned agency 

decisions, reduce incentives to challenge 

improper or poorly reasoned agency 

behavior, promote judicial activism, and 

allow deviation from legislative directives. 

Critics have also suggested that it reduces 

pressure on agencies to comply with APA 

obligations and to respond to a judicial 

remand. Given the relative infrequency of 

application of the remedy, these prudential 

and theoretical concerns, while possible, do 

not appear to cause systemic problems. 

Some judges argue that remand without 

vacatur contravenes the plain language of the 

judicial review provisions of the APA.2

However, despite occasional dissents or other 

separate judicial opinions, no cases were 

identified in which a federal court of appeals 

held that remand without vacatur was 

unlawful under the APA or another statutory 

standard of review. Rather, courts generally 

accept the remedy as a lawful exercise of 

equitable remedial discretion.3

The Conference recommends that the 

remedy continue to be considered an 

authorized exercise of judicial authority on 

review of cases that arise under the 

Administrative Procedure Act, 5 U.S.C. 

§ 706(2), as well as under other statutory 

review provisions, unless they contain an 

express legislative directive to the contrary. 

In employing remand without vacatur, courts 

are essentially finding that agency errors that 

are sufficient to require remand may not 

always justify immediately setting aside the 

challenged action. Since this conclusion 

deviates from customary remedial norms, 

when courts invoke the remedy, they should 

explain their reasons for doing so. 

Equitable considerations that justify 

leaving the challenged agency action in place 

on remand may exist in a variety of 

circumstances. Longstanding judicial 

precedent in the DC Circuit supports 

application of the remedy after a finding that 

a challenged agency action, while invalid, is 

not seriously deficient or when vacatur 

would have disruptive consequences.4 Courts 

also employ the remedy when vacatur would 

not serve the interests of the prevailing party 

that was harmed by the agency’s error.5

Remand without vacatur may be appropriate 

in these circumstances as well as in others 

not considered here. 

When a reviewing court has decided to 

remand an agency’s action, it should 

consider asking the parties for their views on 

the appropriate remedy in light of this 

decision.6 In its final decision, the court 

should specify whether or not it is vacating 

the remanded agency action. Research 

indicates that ambiguous remand orders that 

do not clearly identify whether an agency’s 

action is also vacated occur with some 

regularity.7 This is particularly problematic 

where an agency rule or order regulates 

conduct of, or permits enforcement actions 

against, individuals or entities not party to 

the litigation, and who cannot seek direct 

clarification of the court’s remedial intention. 

Remand without vacatur does not by itself 

provide relief for litigants after successful 

challenges to agency rules or orders. Thus, 

responsive agency action on remand is a 

matter of particular concern in such cases.8

Moreover, difficulties in identifying 

remanded decisions and agency responses 

can hinder oversight. Accordingly, agencies 


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Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Notices 76273 

9Anecdotal evidence indicates that occasionally 

rules that have been vacated are not removed from 

the Code of Federal Regulations in a timely fashion. 

Tatham Report at 38–39, n. 244. 1 CFR § 21.6 

requires agencies to notice expired codified 

regulations in the Federal Register. See, e.g., 

Electronic On-Board Recorders for Hours-of-Service 

Compliance; Removal of Final Rule Vacated by 

Court 72 FR 28,447 (May 14, 2012). 

1Pub. L. No. 111–352, 124 Stat. 3866 (2011) 

(codified as amended in scattered sections of 5 and 

31 U.S.C.). The GPRA Modernization Act of 2010 

amends the GPRA Act of 1993, Pub. L. No. 103–62, 

107 Stat. 285 (1993). 

2See, e.g., 5 U.S.C. § 306; 31 U.S.C. §§ 1115–16, 

1120–25 (setting forth the requirements under 

GPRAMA). 

3See, e.g., Jane Fountain, IBM Center for the 

Business of Government, Implementing Cross 

Agency Collaboration: A Guide for Federal 

Managers (2013), available at http:// 

www.businessofgovernment.org/sites/default/files/ 

Continued 

should identify or post final judicial opinions 

vacating, or remanding without vacatur, 

agency rules or orders in the applicable 

online public docket, if any exists, and on 

agency Web sites, where appropriate. 

Agencies should include a short statement 

identifying the judicial opinion and whether 

it vacates all or part of the challenged rule 

or order, together with any unique identifiers 

for the affected agency rule or order (such as 

a Regulation Identifier Number). Agencies 

should additionally work with the Office of 

the Federal Register to remove vacated 

regulations from the Code of Federal 

Regulations.9

To further public awareness, the 

Conference also recommends that agencies 

provide information in the Unified Agenda of 

Federal Regulatory and Deregulatory Actions 

regarding their future plans with respect to 

rules that are remanded without vacatur. In 

any subsequent proceedings responding to 

remand without vacatur, agencies should 

identify the initial agency action together 

with any unique identifier, as well as the 

remanding judicial opinion. 

Recommendation 

Judicial Authority To Use Remand Without 

Vacatur 

1. Remand without vacatur should 

continue to be recognized as within the 

court’s equitable remedial authority on 

review of cases that arise under the 

Administrative Procedure Act (APA) and its 

judicial review provision, 5 U.S.C. § 706(2). 

2. Absent an express legislative directive to 

the contrary in any other statute providing 

the basis for judicial review of challenges to 

agency action, remand without vacatur 

should be recognized as an authorized 

remedy in cases that arise under such a 

statute. 

Recommendations to Courts 

3. On review of agency action, reviewing 

courts should specify in their judicial 

opinions or orders whether or not they are 

vacating a remanded agency action. 

4. When courts remand but do not vacate 

an agency action, they should explain the 

basis for their remedial choice. 

5. In determining whether the remedy of 

remand without vacatur is appropriate, 

courts should consider equitable factors, 

including whether: 

(a) correction is reasonably achievable in 

light of the nature of the deficiencies in the 

agency’s rule or order; 

(b) the consequences of vacatur would be 

disruptive; and 

(c) the interests of the parties who 

prevailed against the agency in the litigation 

would be served by allowing the agency 

action to remain in place. 

6. When a court has decided to remand an 

agency action, it should consider hearing 

parties’ views on whether to vacate the 

agency action and on any related remedial 

issues. 

Recommendations to Agencies 

7. Agencies should specifically identify or 

post judicial decisions vacating or remanding 

without vacatur agency rules or orders in any 

applicable public docket, and, if appropriate, 

on the agency Web site. When a court 

remands but does not vacate an agency’s rule 

or order, the agency should include a 

statement explicitly advising that the rule or 

order has not been vacated and is still in 

effect despite the remand. 

8. When a regulation has been vacated, the 

promulgating agency should work with the 

Office of the Federal Register to remove the 

vacated regulation from the Code of Federal 

Regulations. 

9. Agencies should provide information in 

the Unified Agenda of Federal Regulatory 

and Deregulatory Actions regarding their 

plans with respect to rules that are remanded 

without vacatur. 

10. In their response(s) to a judicial remand 

without vacatur of an agency action, agencies 

should identify the initial agency action as 

well as the remanding judicial opinion. 

11. In conjunction with a notice of 

proposed rulemaking in response to remand 

without vacatur, agencies should clearly state 

whether public comments and other 

materials in the docket for the remanded rule 

will or will not be incorporated into the new 

rulemaking record, if any. 

Administrative Conference Recommendation 

2013–7 

GPRA Modernization Act of 2010: 

Examining Constraints To, and Providing 

Tools For, Cross-Agency Collaboration 

Adopted December 6, 2013 

The Government Performance and Results 

Act (GPRA) Modernization Act of 2010 

(GPRAMA) became law on January 4, 2011.1

Among other things, the Act requires the 

Executive branch and federal agencies to 

develop cross-agency performance goals and 

specifies directives toward the advancement, 

use, review, and measurement of crossagency collaboration.2 Cross-agency 

collaboration is widely viewed as a powerful 

means for government reform and 

performance improvement. Under GPRAMA, 

greater coordination across agencies offers 

the potential for the federal government to 

address complex policy challenges that lie 

inherently across agency boundaries and 

jurisdictions. In sum, cross-agency 

collaboration—when used thoughtfully for 

well-selected initiatives—holds great promise 

as a means of improving government 

performance, efficiency, and accountability. 

The effective development of these 

management tools may have an important 

role to play during the environment of 

constrained funding that federal agencies 

may face in the years ahead. 

GPRAMA specifically requires the Office of 

Management and Budget (OMB) to develop 

long-term, outcome-oriented goals for a 

limited number of cross-cutting management 

improvement areas (known as Cross-Agency 

Priority (CAP) Goals), on such topics as: 

finances, human capital, information 

technology, procurement and acquisition and 

real property. CAP goals generally fall into 

two categories—mission-support goals, 

which focus on achieving consolidation of 

standard business functions and systems 

across agencies; and mission-oriented goals, 

which focus on coordinating authorities to 

pursue shared policy goals that cross-cut 

agencies. These goals are to be developed in 

coordination with agencies and in 

consultation with the Congress. Accordingly, 

agencies must proactively engage members of 

Congress and their staffs to inform them 

about cross-agency collaborative efforts and 

successfully navigate congressional concerns. 

Similarly, when reviewing and commenting 

on pending legislation, officials at OMB 

should consider identifying areas that 

necessitate or allow for cross-agency 

collaboration, communicating with Congress 

regarding those areas, and seeking statutory 

direction for such collaboration where 

appropriate. 

The law also requires an agency to describe 

how it is working with other relevant 

agencies and organizations to achieve 

individual Agency Performance Goals 

(APGs). GPRAMA also requires the 

development of a federal government-wide 

performance plan and individual agency 

performance plans; quarterly progress 

reviews of agency goals and the use of 

performance information to evaluate federal 

government and agency progress toward their 

stated priority goals; and enhanced 

transparency through the effective operation 

of Performance.gov, a single Web site about 

the federal government priority goals, 

performance plans, quarterly review results, 

and individual agency performance. 

Within OMB, the Office of Performance 

and Personnel Management (OPPM) leads the 

effort to drive mission-focused performance 

gains across the federal government. In 

addition, the Performance Improvement 

Council (PIC), located within the U.S. 

General Services Administration (GSA) and 

composed of the designated Performance 

Improvement Officers (PIOs) of Federal 

agencies and departments, as well as senior 

OMB officials, collaborates to improve the 

performance of Federal programs and 

facilitates information exchange among 

agencies. The PIC also provides support to 

agency officials by aiding the coordination of 

cross-agency collaboration under GPRAMA. 

As designated agency officials work to 

implement GPRAMA, they may face certain 

institutional constraints to effective 

collaboration and thus need tools to aid them 

in their efforts.3 Some agencies and federal 


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76274 Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Notices 

Implementing%20Cross

%20Agency%20Collaboration.pdf (setting forth 

institutional constraints to cross-agency 

collaboration and recommending additional 

guidance from OMB); see also U.S. Gov’t 

Accountability Office, GAO–13–518, Managing for 

Results: Executive Branch Should More Fully 

Implement the GPRA Modernization Act to Address 

Pressing Governance Challenges (2013), available at 

http://www.gao.gov/assets/660/655541.pdf 

(discussing some early challenges to the 

implementation of GPRAMA and making 

recommendations for improvement). 

4See, e.g., U.S. Gov’t Accountability Office, 

GAO–12–1022, Managing for Results: Key 

Considerations for Implementing Interagency 

Collaboration Mechanisms (2012), available at 

http://www.gao.gov/assets/650/648934.pdf (setting 

forth a number of constraints to cross-agency 

collaboration). 

5See Jane Fountain, The GPRA Modernization 

Act of 2010: Examining Constraints To, and 

Providing Tools For, Cross-Agency Collaboration 

(September 17, 2012) (draft report to the 

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

http://www.acus.gov/sites/default/files/documents/ 

Preliminary%20Draft%20GPRAMA%20Report_

Fountain_9_20_13.pdf . 

officials have developed strategies to address 

the legal and other institutional challenges 

posed by such collaborative efforts. For 

others, obstacles to the kinds of cross-agency 

collaboration demanded by GPRAMA have 

proven frustrating and difficult to overcome. 

While a large body of research addresses 

interagency coordination or cross-agency 

collaboration generally,4 little attention has 

been given to exploring the legal barriers and 

other constraints to implementation of 

GPRAMA—whether real or perceived—and 

providing tools that agency officials may use 

to address such constraints. 

Accordingly, the Conference 

commissioned the study underlying this 

recommendation to provide attention to the 

key challenges to cross-agency collaboration 

under GPRAMA, as well as suggesting tools 

for federal officials to implement the Act’s 

collaboration and other mandates.5 This 

study examines the use of tools by officials 

at OMB, the PIC, senior agency officials, legal 

counsel, managers and others to overcome 

and work within institutional challenges to 

cross-agency collaboration. Such tools 

include the use of interagency agreements, 

memoranda of understanding, forms, 

documents, and other information useful in 

facilitating cross-agency collaboration efforts; 

the use of shared information systems and 

the sharing of data. 

Consistent with the Administrative 

Conference’s statutory mandate of increasing 

government efficiency and enhancing 

transparency, the Conference issues this 

recommendation to suggest practices to 

facilitate cross-agency collaboration under 

GPRAMA and to encourage wider use of 

tools that may advance such collaboration 

between federal agencies. The 

Recommendation covers practices and tools 

to better facilitate cross-agency collaboration 

that must be multi-faceted, must address 

institutional challenges on a number of 

fronts, and must be directed to a number of 

actors, including OMB and the PIC, as well 

as agency legal counsel and other agency 

officials leading cross-agency collaboration 

efforts. 

One key challenge faced by agencies and 

the public is access to information regarding 

agency planning required by GPRAMA. A 

recommended practice to address this 

challenge should be aimed at increasing 

transparency on Performance.gov. Another 

challenge agency officials face when 

attempting to determine which tools to use 

for cross-agency collaboration efforts made 

pursuant to CAP goals under GPRAMA is 

distinguishing between mission-support CAP 

goals (which are designed to achieve 

consolidation of standard business functions 

and systems across agencies) and missionoriented CAP goals (which are designed to 

coordinate authorities to pursue policy goals 

that are shared by multiple agencies). A 

recommended practice to address this 

challenge should provide clarification to 

allow agency officials to distinguish between 

the two types of goals so they can determine 

which tools to use. 

Another challenge is the varied and 

incomplete agency response to the GPRAMA 

requirement that in setting APGs, agencies 

include a description of the agencies, 

programs, activities and other organizations 

that are related to a particular agency goal. 

A recommended practice to address this 

challenge should focus on encouraging 

agencies to comply with their responsibilities 

under GPRAMA in this regard. Agency 

general counsels and other agency attorneys 

play a critical role in helping to foster crossagency collaboration. Accordingly, 

recommended practices that promote the 

dissemination of information helpful to 

cross-agency collaboration efforts among 

agency attorneys are needed to address 

challenges presented by the lack of 

information sharing. Practices focused on 

encouraging agency attorneys to foster 

expertise and experience in building and 

sustaining cross-agency collaboration are also 

recommended. In addition, other agency 

officials who lead cross-agency collaboration 

efforts face a host of challenges as they try 

to move initiatives forward. A number of 

recommended best practices are offered to 

these officials to ensure that collaborative 

efforts are maximized and the goals for such 

initiatives are reached. 

Recommendation 

1. Increasing Transparency. To increase 

transparency, the Office of Management and 

Budget (OMB), working with the 

Performance Improvement Council (PIC), 

should consider making all past and current 

quarterly status update reports, including 

those that show progress on cross-agency 

priority (CAP) goals, publicly available and 

searchable on the Performance.gov Web site. 

2. Improving Agency Reporting Under 

GPRAMA. The PIC should work with other 

relevant agency officials to facilitate greater 

compliance with the GPRAMA requirement 

that agencies identify all organizations 

(including other agencies, programs, or 

activities) that contribute to the achievement 

of an agency priority goal (APG). OMB 

should continue to encourage agencies to 

properly report their involvement with other 

agencies that have made contributions to 

progress on their priority goals, including 

situations in which two agencies coordinate 

on their respective APGs or a particular APG 

is related to a CAP goal. 

3. Improving Information Sharing. To 

improve the sharing and harmonization of 

data and information systems or subsystems, 

the PIC, in consultation with other relevant 

agency officials, should identify shared 

systems and cyber infrastructure within 

agencies that may be utilized, with 

modifications, to further cross-agency 

streamlining and collaboration. When 

directed and whenever legally permissible, 

agency attorneys charged with interpreting 

statutory language related to data should 

work with agency officials to facilitate the 

sharing of information and data among 

agencies. 

4. Facilitating Better Use of Cross-Agency 

Collaboration. To help agency officials better 

utilize the tools available for cross-agency 

collaboration, OMB and the PIC should: 

(a) clarify the distinction between missionoriented goals (which are designed to 

coordinate authorities to pursue policy goals 

that are shared by multiple agencies) and 

mission-supported goals (which are designed 

to achieve consolidation of standard business 

functions and systems across agencies), so 

that agency officials can properly identify the 

relevant tools to use; and 

(b) encourage agencies to have their legal 

counsel share, when feasible, interagency 

agreements, memoranda of understanding, 

forms, documents and other information 

containing specific language that has proved 

useful in facilitating cross-agency 

collaboration efforts. 

5. Enhancing the Role of Agency Legal 

Counsel. To improve cross-agency 

collaboration, when directed and to the 

extent legally permissible: 

(a) agency attorneys should work with 

agency officials to develop interagency 

agreements, memoranda forms, and other 

documents that would facilitate the process 

of sharing data and information between 

agencies and protect personally identifiable 

information; and 

(b) agency officials who are leading crossagency collaborative initiatives should 

engage agency attorneys as early as 

practicable and work with them to determine 

the best way to coordinate authority, 

information, operations, personnel and 

resources among agencies within the 

confines of relevant legal and statutory 

requirements. 

6. Enhancing the Role of Other Agency 

Officials. Agency officials leading crossagency initiatives should undertake the 

following best practices to help facilitate 

effective cross-agency collaboration: 

(a) set and communicate clear, compelling 

direction, strategy and shared goals; 

(b) utilize a variety of collaborative 

techniques to achieve stated goals; 

(c) establish specific roles and 

responsibilities for agency staff; 

(d) develop clear decision-making 

processes, including conflict resolution 

measures; 

(e) where appropriate and permissible, 

work with relevant non-federal stakeholders 

to gain additional perspective, critique, or 

support for cross-agency collaborative efforts; 

and 


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1Exec. Order No. 12,866, 58 FR 51,735 (Oct. 4, 

1993). These basic structures were carried over from 

Executive Order 12,291, issued during the Reagan 

Administration. Exec. Order No. 12,291, 46 FR 

13,193 (Feb. 19, 1981). 

2See, e.g., Exec. Order No. 13,563, 76 FR 3821 

(Jan. 21, 2011). 

3Exec. Order No. 12,866 § 6(a)(3)(B)–(C); see also 

id. §§ 3(b) (generally defining covered ‘‘[a]genc[ies]’’ 

as federal departments and other executive branch 

establishments, but not independent regulatory 

agencies), 3(f) (defining ‘‘[s]ignificant regulatory 

action’’). 

4 Id. §§ 2(a)–(b), 6(a)(3)(B)–(C), 6(b); see also Exec. 

Order No. 13,563 § 1. 

5Sierra Club v. Costle, 657 F.2d 298, 405 (D.C. 

Cir. 1981) (‘‘The court recognizes the basic need of 

the President and his White House staff to monitor 

the consistency of agency regulations with 

Administration policy. He and his advisors surely 

must be briefed fully and frequently about rules in 

the making, and their contributions to policymaking 

considered. The executive power under our 

Constitution, after all, is not shared—it rests 

exclusively with the President.’’). 

6President Barack H. Obama, Memorandum on 

Regulatory Review, 74 FR 5977 (Jan. 30, 2009). 

7Exec. Order 12,866 § 6(b)(2). Indeed, this 

Executive Order specifically underscores the 

importance of timeliness in the regulatory review 

when stating: ‘‘An efficient regulatory planning and 

review process is vital to ensure the Federal 

Government’s regulatory system best serves the 

American people.’’ Id. § 2. 8 Id. § 6(b)(2)(C). 9See, e.g., Lisa Heinzerling, Statutory 

Interpretation in the Era of OIRA, 33 Fordham Urb. 

L.J. 1097 (2006); Alan Morrison, Commentary, OMB 

Interference with Agency Rulemaking: The Wrong 

Way to Write a Regulation, 99 Harv. L. Rev. 1059 

(1986); Sidney A. Shapiro, OMB and the 

Politicization of Risk Assessment, 37 Envtl. L. 1083 

(2007); cf. Peter L. Strauss, Overseer, or ‘‘The 

Decider’’? The President in Administrative Law, 75 

Geo. Wash. L. Rev. 696 (2007). 

10See, e.g., Elena Kagan, Presidential 

Administration, 114 Harv. L. Rev. 2245 (2001); 

Michael A. Livermore & Richard L. Revesz, 

Regulatory Review, Capture, and Agency Inaction, 

101 Geo. L.J. 1337 (2013); Cass R. Sunstein, 

Commentary, The Office of Information and 

Regulatory Affairs: Myths and Realities, 126 Harv. 

L. Rev. 1838 (2013). 11See Special Edition, OIRA Thirtieth 

Anniversary Conference, 63 Admin. L. Rev. 1 

(2011). Jim Tozzi, who served at the Office of 

Management and Budget for over 10 years and was 

instrumental in the creation of OIRA, suggests that 

executive rulemaking review began during the 

Nixon Administration. Id. at 37. 12 Institute for Policy Integrity, Public Comment 

1–2 (Oct. 28, 2013) (noting that delays can postpone 

realization of benefits associated with proposed 

rules, create uncertainty amongst regulated parties, 

and damage public perception of OIRA). For 

example, at an FDA public meeting on September 

19–20, 2013, Sandra Eskin, director of food safety 

at the Pew Charitable Trusts, noted several food 

safety rules that were required by the Food Safety 

Modernization Act in January 2011 had not been 

issued, and said the ‘‘longer it takes these rules to 

be put in place, the more people will needlessly be 

put at risk and the less confidence consumers will 

have in the safety of the food supply.’’ 

13Curtis W. Copeland, Length of Rule Reviews by 

the Office of Information and Regulatory Affairs 25 

(Nov. 1, 2013), available at http://acus.gov/sites/

default/files/documents/

Revised%20Draft%20OIRA%20Report% 

20110113% 20CIRCULATED.pdf. 

14See Off. Info. & Reg. Aff., Review Counts, 

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

eoCountsSearchInit?action=init (last visited Nov. 

14, 2013) (allowing searches of OIRA review counts 

and average review times by date range). 

15 Id. 

16 Off. Info. & Reg. Aff., Executive Order Review 

Search Results, http://www.reginfo.gov/public/do/

eoAdvancedSearch (last visited Nov. 14, 2013) 

(allowing identification of the number and length 

of OIRA reviews completed within a date range). 

The time periods cited herein are for formal review 

after a complete rulemaking package is received by 

OIRA and do not reflect any informal review that 

may have occurred prior to receipt. 

17Notwithstanding these concerns about 

increased review times in the period from 2012–13, 

the Administrative Conference reaffirms the 

importance of the interagency review process to 

ensuring that rulemaking agencies consider input 

from sister agencies and the EOP. See 

Administrative Conference of the United States, 

Continued 

(f) build shared evaluation, analytical and 

measurement tools to enable the tracking, 

monitoring, and improvement of output and 

outcomes across agencies and programs 

engaged in collaborative efforts. 

7. Improving Training for Agency Officials. 

The PIC should work with the Office of 

Personnel Management (OPM) and with 

relevant agency officials to continue to 

identify and refine training tools that build 

capacity for cross-agency collaboration 

among agency attorneys and other officials. 

Administrative Conference Statement #18 

Improving the Timeliness of OIRA 

Regulatory Review 

Adopted December 6, 2013 

For more than three decades, the Office of 

Information and Regulatory Affairs (OIRA) in 

the Office of Management and Budget has 

conducted centralized review of federal 

agencies’ draft proposed and final 

regulations. The fundamental structures and 

principles governing the regulatory review 

process are currently set forth in Executive 

Order (EO) 12,866,1 and subsequent EOs 

have reaffirmed this system of regulatory 

review.2 Among other things, Executive 

Order 12,866 requires covered agencies to 

submit all ‘‘significant regulatory actions’’ to 

OIRA for review.3 The purposes underlying 

the centralized OIRA regulatory review 

process include: ensuring consistency with 

applicable laws and presidential priorities; 

enhancing coordination of regulatory policy 

among federal agencies; examining economic 

analyses accompanying the rule; and making 

the regulatory process more efficient.4 OIRA 

regulatory review serves to monitor agency 

rulemaking activity to ensure adherence with 

administration policy 5 while also seeking to 

provide a ‘‘dispassionate and analytical 

‘second opinion’ on agency actions.’’ 6

In order to ensure that OIRA review 

proceeds in a timely manner, EO 12,866 

generally requires OIRA to ‘‘waive review or 

notify the agency in writing of the results of 

its review’’ within 90 calendar days 

following submission.7 The executive order 

also provides that the review process may be 

extended ‘‘(1) once by no more than 30 

calendar days upon the written approval of 

the Director and (2) at the request of the 

agency head.’’ 8

Executive review of agency rulemaking, 

and, more precisely, OIRA’s role in the 

review process—though not without 

controversy 9—are now firmly entrenched 

fixtures of the administrative landscape,10

and each administration since at least that of 

President Ronald Reagan has endorsed 

them.11 For such reviews to be effective, 

however, they must be timely. All 

stakeholders in the regulatory process— 

including the submitting agency, potentially 

regulated entities, other interested 

participants, and the general public—have an 

interest in seeing the OIRA review process 

operate as efficiently as possible for several 

reasons: agency regulatory or scientific 

assessments may become out of date when 

reviews are overlong; likewise, regulated 

markets or industries might experience 

uncertainty when proposed or final rules 

remain stalled in the review process; and, for 

rules related to health or safety, delay in the 

OIRA review process could well have serious 

social consequences.12 In addition, the 

timing of review process should be made as 

transparent as possible. 

Historically, OIRA has completed most of 

its reviews of agency rules well within the 

90-day review period.13 For example, from 

1994–2011, the average time for OIRA review 

was 50 days for all rules.14 Since 2011, 

however, average OIRA review times have 

trended significantly upward. In 2012, the 

average time for OIRA review for all rules 

rose to 79 days, and in the first half of 2013, 

the average review time increased even 

further to 140 days.15 It is important to note 

that, as OIRA completes review for rules that 

have been in the backlog for some time, the 

average review times will likely increase, 

which evidences an improving situation. 

Approximately four dozen reviews 

completed in 2013 have taken more than a 

year.16

However, average review times and the 

length of completed reviews are lagging 

indicators of OIRA performance, and the 

recent increases in average review times 

reflect the significant headway that OIRA has 

made during the past year in reducing the 

backlog of rules and improving review 

timeliness. The number of ongoing reviews 

lasting more than one year has been cut from 

51 reviews in mid-May 2013 to 27 reviews 

in mid-September 2013. Of the 38 reviews 

that, as of June 30, 2013, had been ongoing 

for more than a year, 14 of them were 

completed by mid-September 2013. Rules 

submitted more recently were also being 

reviewed more quickly. Only 10 percent of 

the reviews of rules submitted between 

September 2012 and February 2013 took 

more than six months to complete, compared 

to nearly 30 percent for reviews completed 

during the first six months of 2013 

(regardless of when they were submitted). 

Senior agency employees provided a 

variety of perspectives as to why they believe 

that OIRA review times increased in 2012– 

13, including one or more of the following 

reasons: (1) Concerns by some in the 

Executive Office of the President (EOP) about 

the issuance of potentially costly or 

otherwise controversial rules during an 

election year, (2) coordinative reviews by 

other agencies and offices within EOP took 

more time than in preceding years,17 and (3) 


wreier-aviles on DSK5TPTVN1PROD with NOTICES
76276 Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Notices 

Recommendation 88–9, Presidential Review of 

Rulemaking, ¶ 1, 54 FR 5207 (Feb. 2, 1989) 

(‘‘[Presidential review] can improve the 

coordination of agency actions and resolve conflicts 

among agency rules and assist in the 

implementation of national priorities.’’). 

18Administrative Conference of the United 

States, Recommendation 88–9, Presidential Review 

of Agency Rulemaking, ¶ 3, 54 FR 5207 (Feb. 2, 

1989). 

19Administrative Conference of the United 

States, Recommendation 93–4, Improving the 

Environment for Agency Rulemaking, 59 FR 4670 

(Feb. 22, 1994). 

20Administrative Conference of the United 

States, Recommendation 88–9, Presidential Review 

of Rulemaking, ¶ 5, 54 FR 5207 (Feb. 2, 1989) (‘‘An 

agency engaged in informal rulemaking should be 

free to receive guidance concerning that rulemaking 

at any time from the President, members of the 

Executive Office of the President, and other 

members of the Executive Branch, without having 

a duty to place these communications in the public 

file of the rulemaking unless otherwise required by 

law. However, official written policy guidance from 

the officer responsible for presidential review of 

rulemaking should be included in the public file of 

the rulemaking once a notice of proposed 

rulemaking or final rule to which it pertains is 

issued or when the rulemaking is terminated 

without issuance of a final rule.’’); Administrative 

Conference of the United States. Recommendation 

80–6, Intragovernmental Communications in 

Informal Rulemaking Proceedings, ¶ 2, 45 FR 

86,407 (Dec. 31, 1980) (‘‘When the rulemaking 

agency receives communications from the 

President, advisers to the President, the Executive 

Office of the President, or other administrative 

bodies which contain material factual information 

(as distinct from indications of governmental 

policy) pertaining to or affecting a proposed rule, 

the agency should promptly place copies of the 

documents, or summaries of any oral 

communications, in the public file of the 

rulemaking proceeding.’’). 

21See, e.g., Administrative Conference of the 

United States, Recommendation 93–4, Improving 

the Environment for Agency Rulemaking, 59 FR 

4670 (Feb. 1, 1994) (‘‘We continue to support 

presidential coordination of agency policymaking 

as beneficial and necessary.’’); Administrative 

Conference of the United States, Recommendation 

88–9, Presidential Review of Agency Rulemaking, 

54 FR 5207 (Feb. 2, 1989) (‘‘Presidential review 

should apply generally to federal rulemaking. Such 

review can improve the coordination of agency 

actions and resolve conflicts among agency rules 

and assist in the implementation of national 

priorities.’’); Administrative Conference of the 

United States, Recommendation 80–6, 

Intragovernmental Communications in Informal 

Rulemaking Proceedings, 45 FR 86,407 (Dec. 31, 

1980) (‘‘Because the President, as the nation’s Chief 

Executive, may be deemed accountable for what 

agencies do, efforts to achieve policy coordination 

through Presidential channels have become 

increasingly significant.’’). 

a reluctance by OIRA to use return letters. 

Both senior agency employees and other 

observers (including several former OIRA 

officials) also suggested that a decrease in 

OIRA staffing in recent years may have been 

another contributing factor. In addition, the 

executive review process has become more 

complicated for all parties involved as 

regulations have grown increasingly 

complex, interagency coordination has 

become more important, and various 

transparency and procedural requirements 

have grown more demanding. 

The Administrative Conference has long 

supported effective executive review of 

agency rulemaking, and has emphasized the 

importance of timeliness and transparency in 

this process. In Recommendation 88–9, the 

Conference stated that ‘‘[t]he process of 

presidential review of rulemaking, including 

agency participation, should be completed in 

a timely fashion by the reviewing office and, 

when so required, by the agencies, with due 

regard to applicable administrative, 

executive, judicial and statutory 

deadlines.’’ 18 Similarly, in Recommendation 

93–4, the Conference asserted that ‘‘the 

reviewing or oversight entity should avoid, to 

the extent possible, extensive delays in the 

rulemaking process.’’ 19 The Conference has 

also issued several recommendations 

advocating a transparent OIRA review 

process.20

Building upon these prior Conference 

initiatives addressing executive review, the 

Conference now offers a discrete set of 

principles for improving the timeliness of 

review and the transparency concerning the 

causes for delay. The OIRA review process 

involves many components and participants. 

Delays may not be attributable to any single 

cause but rather can arise from multiple 

factors (and complex interactions amongst 

them) involving numerous players, including 

OIRA, agencies submitting rules for review, 

and other agencies and offices in the 

interagency review process (including other 

parts of the EOP). As a result, the Conference 

wishes to highlight a number of principles 

that OIRA and agencies should consider to 

improve review times and enhance 

transparency concerning the timing of the 

review process. 

The Conference reaffirms its long-term 

support of the basic presidential regulatory 

review process 21 and seeks to ensure that it 

functions as effectively and efficiently as 

practicable. The values of transparency, 

credibility, management effectiveness, and 

the rule of law apply to the executive review 

process, even if it is not subject to judicial 

oversight. 

The following principles suggest ways that 

both OIRA and the agencies can promote 

timely and transparent OIRA review: 

1. The Office of Information and 

Regulatory Affairs (OIRA) should, whenever 

possible, adhere to the timeliness provisions 

of Executive Order (EO) 12,866. The 

Administrator of OIRA should continue to 

focus on improving OIRA review times. In so 

doing, the Administrator should consider 

preparing a publicly available document that 

identifies any specific policies that OIRA, 

regulatory agencies, and other agencies 

participating in interagency review should 

undertake in order to ensure that the 

measures of timeliness return to historical 

averages under this executive order. 

2. Agencies and OIRA should coordinate 

prior to the submission of a completed 

rulemaking package. To the extent possible, 

OIRA should use the regulatory planning 

process created by section 4 of EO 12,866 to 

identify all of the relevant entities, establish 

lines of communication among them, and 

create workplans with timelines and 

responsibilities for action. The section 4 

process should be used to identify the 

principal factual and policy issues likely to 

be raised by a proposed rulemaking and to 

convey any presidential priorities respecting 

them. OIRA should hold itself available to 

mediate such disputes among the identified 

agencies as may arise, and to assure that all 

participating agencies place a high priority 

on the resulting processes, so as not to cause 

undue delays. 

3. Though OIRA has the final authority for 

determining which rules will be classified as 

‘‘significant,’’ the agency should decide the 

point at which it will submit a draft rule to 

OIRA for review under EO 12,866. Once an 

agency has submitted a completed 

rulemaking package with approval from the 

appropriate senior agency official(s) within 

the meaning of EO 12,866, the clock for the 

review period should commence. 

4. In connection with interagency review, 

OIRA should promptly send the draft rule to 

all of the relevant entities and, to the extent 

feasible, establish a timeline by which these 

entities should submit comments. All 

participating entities should place a high 

priority on the review process so as to avoid 

undue delays. 

5. If OIRA concludes that it will be unable 

to complete the review of an agency’s draft 

rule within a reasonable period of time after 

submission, recognizing the timeframes 

established in section 6(b)(2) of EO 12,866 

and the nature of the matter—but in no event 

beyond 180 days after submission—OIRA 

should inform the public as to the reasons for 

the delay or return the rule to the submitting 

agency. 

6. OIRA’s staffing authorization should be 

increased to a level adequate to ensure that 

OIRA can conduct its regulatory reviews 

under EO 12,866 in a timely and effective 

manner. In addition, or as an alternative, staff 

from rulemaking agencies could be detailed 

to OIRA. 

[FR Doc. 2013–29949 Filed 12–16–13; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

[Docket No. APHIS–2013–0096] 

Notice of Request for Extension of 

Approval of an Information Collection; 

Importation of Ovine Meat From 

Uruguay 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Extension of approval of an 

information collection; comment 

request. 

SUMMARY: In accordance with the 

Paperwork Reduction Act of 1995, this 

notice announces the Animal and Plant 

Health Inspection Service’s intention to 

request an extension of approval of an 

information collection associated with 

the regulations for the importation of 

ovine meat from Uruguay into the 

United States. 


wreier-aviles on DSK5TPTVN1PROD with NOTICES