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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

ACUS Fall 2013 Recommendations and Statement & Some Thoughts

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

The Administrative Conference of the United States (ACUS) published its recommendations, and a statement, adopted during the December 5 – 6, 2013, plenary session in today’s Federal Register.  The recommendations provide solid guidance to agencies, and the general public, on the controversial topic of agency use of social media in rulemaking, and to the federal courts and agencies on remanding final agency rules adopted in violation of statutes without vacating those rules.  ACUS offers also some best cross-agency collaboration practices under the Government Performance and Results Act (GPRA) Modernization Act of 2010 (GPRAMA).  ACUS adopted a statement, without recommendations, on the timing of Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) rule review.  The recommendations and accompanying reports are worth reading, with a few thoughts and caveats.

Social Media in Rulemaking:  ACUS Recommendation 2013-5, Social Media in Rulemaking, points out the incomplete adaptation of social media – whether social or professional networking sites, micro-blogging, or other forms – into the informal rulemaking process under the Administrative Procedure Act (APA) and substantive statutes.  While public outreach (or public relations, or, most cynically, propaganda) purposes are clear, the use of social media online platforms to gather information and public input into the rulemaking process has been fraught with issues.  Agencies appear to be skeptical of utilizing social media websites because many questions remain unanswered and no source of answers is easily found – until now.  Critical advice includes that agencies should:

  • provide a clear statement of how the agency will use social media in rulemaking – and whether public input will be treated as public comments;
  • consider their specific goals for using social media in rulemaking, and the specific costs and benefits, in those rulemakings (which does not mean all rulemakings) that could benefit from using social media platforms; and
  • clearly indicate how any voting or ranking tools will be used to help the agency decide policy or other issues – and a significant example is how such tools will help an agency determine which of several potential forms is easiest to use.

Agencies have had real difficulty in understanding the uses and limits of social media – and, therefore, educating the public on the agency’s use and limits of social media.  The recommendations and accompanying report were approved with little debate because the recommendations and report provide clear and thoughtful advice.

Remand Without Vacatur:  When an agency promulgates a rule without following the statutory procedures under the APA or more specific authorization, a court is faced with the issue of requiring correction of the error.  In some instances, such a lack of jurisdiction or statutory authority, vacatur will be clear and required, but more complicated failures to provide an adequate explanation of a rule decision or to consider relevant data have left the courts to craft whether to strictly follow the APA’s stricture to “set aside” the rule.  The dominant precedent in Allied-Signal v. NRC is modified slightly in the core point of ACUS Recommendation 2013-6:  Remand Without Vacatur:

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.

Two critical issues will face the courts:  (1) ensuring that they do no engraft onto the APA standard results-based determinations of these factors, and (2) applying standards consistently to ensure that agencies understand that they cannot avoid or evade statutory and precedential requirements.  Litigators need to understand the issues surrounding vacatur without remand to present their client’s position clearly and effectively, and the ACUS recommendation and accompanying report provide the means for doing so.

Collaboration:  The GPRAMA is a management tool to improve agency decision-making, fostering interagency information sharing, and requiring reporting, as recognized and further fostered in ACUS Recommendation 2013-7: GPRA Modernization Act of 2010: Examining Constraints To, and Providing Tools For, Cross-Agency Collaboration.  The GPRAMA, however, is no more than an internal management tool of little use to those in the trenches of representing clients before agencies and challenging agency action – it does not, like many Executive Orders, add substantive requirements to the decision tree.  Nonetheless, understanding how agencies interact and how they can better collaborate may add value to the ultimate quality of agency actions.  The recommendations and report give government managers more guidance on implementing the GPRAMA.

As with many management tools, readers should keep in mind the difference between the management analysis of GPRAMA and the actual management needed for effective agency action – GPRAMA is a tool, not a substitute, for quality decisionmaking.  GPRAMA is like project management and titling of officials as “Chief” officers – all are devices for management and may improve the quality of management, but they are not management.  For all the “tools” provided, if agency executives and managers do not possess the knowledge and experience to make quality decisions, and cannot make quality decisions, agencies cannot be effective.  All the tools in a toolbox will not make a good carpenter.

OIRA Regulatory Review Timing:  In a statement – not a recommendation – ACUS also suggested steps to improve the timeliness of regulatory executive and interagency review by the White House, OMB and OIRA under Executive Order 12866.  The ACUS Statement #18:  Improving the Timeliness of OIRA Regulatory Review, and accompanying report, notes that OIRA took much more time to reviewing regulations during 2011 and 2012, but that it has recently become more current.

Time is an effect, not a decision in and of itself.  Many different reasons can cause executive and interagency review to take more time than the management benchmarks in the executive order.  For example, the Washington Post on December 15 confirmed what most professionals had concluded long ago: that the Obama Administration deliberately held regulations in executive review that could have harmed President Obama’s reelection campaign during 2012.  Poorly drafted legislation, shoddy and insufficient analysis, stepping on other agencies’ toes, over-anxious and intractable appointees, and bad English all contribute to expanding the time for review.  Time is only a quantitative measurement of qualitative issues, nothing more.