At the May 15 workshop, OMB announced that it will continue to accept comments on its Request for Information until June 1, 2012.  If you are interested in federal standards policy, please submit your comments via Regulations.gov.  The docket number is OMB-2012-0003.  OMB is seeking information on a variety of issues related to Circular A-119, including agency participation in private standard development processes, incorporation by reference, and conformity assessment.

The Office of the Federal Register (OFR) is also continuing to accept comments on a petition requesting revisions to OFR’s incorporation by reference regulations.  Comments on the OFR petition are also due by June 1, 2012.  To submit comments, visit www.regulations.gov and search for “NARA 12-0002.” You can also submit comments by visiting the Federal Register’s website  and clicking on the green button that says “Submit a Formal Comment.” Either way, your comments will appear on www.regulations.gov. Previous coverage of this ongoing proceeding is available here and here.

In related news, the video is now available for the Implementation Summit on Incorporation by Reference and International Regulatory Cooperation.  The Conference co-sponsored this successful event with the Chamber of Commerce on May 1, 2012.  In addition to two interesting panel discussions, the event included remarks from Cass R. Sunstein, the Administrator of the Office of Information and Regulatory Affairs.  In his remarks, the Administrator announced the issuance of Executive Order 13609, “Promoting International Regulatory Cooperation,” which is based in part on Conference Recommendation 2011-6, International Regulatory Cooperation.

Contact:  Megan Kindelan
202-480-2080

mkindelan@acus.gov

Washington, D.C., May 9, 2012 – President Barack Obama recently issued Executive Order 13609, titled Promoting International Regulatory Cooperation, based in part on a recommendation issued by the Administrative Conference of the United States (ACUS), Conference Recommendation 2011-6, which aims to enhance cooperation between United States agencies and foreign authorities.

Office of Information and Regulatory Affairs Administrator Cass Sunstein (left) and Conference Chairman Paul R. Verkuil.

Office of Information and Regulatory Affairs Administrator Cass Sunstein announced the issuance of the order at an Implementation Summit on International Regulatory Cooperation organized by ACUS and the U.S. Chamber of Commerce’s Center for Global Regulatory Cooperation.

“In an increasingly networked world, the importance of international issues cannot be overestimated,” said Paul R. Verkuil, Conference Chairman. “This executive order is a testament to the work of ACUS in bringing together public and private sector leaders to foster ideas on improving government processes and providing recommendations that make sense.”

ACUS previously issued a recommendation in 1991, Conference Recommendation 91-1, which dealt with cooperation between United States agencies and their foreign counterparts. Recommendation 2011-6 both reaffirms important aspects of Recommendation 91-1 and explores modifications to reflect developments of the last 20 years. Recommendation 2011-6 strongly advocates streamlining regulations to improve international cooperation and avoid unnecessary impediments to economic growth and job creation.

The Administrative Conference of the United States is an independent federal agency dedicated to improving the administrative process through consensus-driven applied research and providing nonpartisan expert advice and recommendations for improvement of federal agency procedures. Its membership is composed of innovative federal officials and experts with diverse views and backgrounds from both the private sector and academia. With the exception of the Chairman, all Conference Members are unpaid.
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“Our regulatory system must protect public health, welfare, safety, and our environmentwhile promoting economic growth, innovation, competitiveness, and job creation.”  – Executive Order 13563, January 18, 2011 (emphasis added).

EO 15653 put into words what many regulators and businesses had long known: regulatory decisions do not occur in a vacuum – all relevant evidence must be considered to maximize benefits through the most innovative and least burdensome approach.  Both domestic and international factors must be considered, and U.S. regulatory agencies often need to work with their foreign counterparts in order to effectively meet their statutory mandates when promulgating regulations and conducting enforcement.  The Administrative Conference of the United States (the Conference) recognized the need for increased and improved international regulatory cooperation and adopted Recommendation 2011-6: International Regulatory Cooperation (the Recommendation).

The Recommendation recognizes that international regulatory cooperation can take many forms.  Success can follow many different paths, and it pays for agencies to think outside of the box; items #3 and #4 of the Recommendation provide a few suggested ideas on methods of regulatory cooperation.  However, those lists are by no means intended to be exhaustive, and the U.S. Chamber and the Conference invite you to join us as we co-host an Implementation Summit on Tuesday May 1, 2:30 pm – 5:00 pm at the U.S. Chamber, to explore the best methods for putting the Recommendation into practice.

Many regulators are already leveraging international regulatory cooperation to maximize benefits.  For example, the United States Department of Agriculture actively seeks to reach equivalence agreements for organic certifications, having reached agreements with Canada in 2009 and the EU in February 2012.  The equivalence agreements alleviate confusion for consumers and save resources for regulators, while maximizing growth by creating an environment of predictability and increased access for U.S. business.

EO 13579 states “[i]ndependent regulatory agencies, no less than executive agencies, should promote” the principles of EO 13563.  Even in independent agencies whose primary mission is safety or consumer protection, international regulatory cooperation efforts can also serve to promote growth and job creation.

The staff at the Consumer Product Safety Commission (CPSC) fosters close informal working relationships with counterparts in Canada, Mexico, Australia, Japan, and Korea, and also has relationships with European counterparts that are especially strong, with multiple phone calls and emails every week.  These relationships help improve the efficiency of the CPSC and create familiarity and confidence in their counterparts, which often results in alignment of regulatory results that avoids and removes non-tariff barriers to trade.

The Federal Trade Commission (FTC) has conducted technical assistance with India and China in connection with the design and implementation of competition laws and policies and also helped Eastern European countries write their competition laws and establish competition agencies.  These efforts often lead to regimes that are familiar to U.S. business and can work to lower transactions costs.

The United States also participates in several bilateral formalized international regulatory cooperation arrangements that exemplify the spirit of the Recommendation and are aimed to reduce administrative burdens, align regulations, and create new opportunities for business.  The U.S.-Canada Regulatory Cooperation Council encompasses 29 sectors, each with a specific workplan and concrete objectives for a two-year timeframe.  The U.S. – Mexico High Level Regulatory Cooperation Council (HLRCC) focuses on six areas: food, transportation, nanotechnology, e-health, oil and gas, and conformity assessment.[1]

Please join us at the U.S. Chamber (1615 H Street NW, Washington, DC 20062) on Tuesday May 1, 2:30 pm – 5:00 pm as the Chamber and the Conference co-host the Implementation Summit, which will be an excellent opportunity for public and private sector participants to provide feedback on implementation of the Recommendation and to continue to foster a long-term public-private partnership that continues to increase and improve international regulatory cooperation.  Please RSVP to:

Adam C. Schlosser
Senior Manager, Center for Regulatory Cooperation
U.S. Chamber of Commerce
aschlosser@uschamber.com; 202.463.5580

For more information about the Implementation summit please visithttp://www.acus.gov/events/ibr-irc-implementation-summit/.

Post by: Adam Schlosser[1], U.S. Chamber of Commerce

Increasingly, the barriers between the United States and the rest of the world are only artificial.  Before even leaving for work in the morning, the average American navigates across the world many times.  He or she might wake up safely in his or her bed (designed in Sweden), turn off the alarm clock (made in South Korea), get dressed (with clothes made in Vietnam and shoes made in Italy), make coffee (produced in Colombia with a coffee maker manufactured in Canada), eat breakfast (with eggs from a local U.S. farm and fruit grown in Chile), boot up his or her laptop (manufactured in Japan with parts made in South Korea, China, and the U.S.), and finally get in his or her car (built in the U.S. with parts made in Germany).  Ensuring these typical morning activities are completed without a hitch are many regulatory decisions and actions by U.S. regulators and their foreign counterparts.

We exist in an interconnected international marketplace, and actions of U.S. regulators increasingly affect – and in turn are impacted by – the actions of their international counterparts.   International regulatory cooperation activities are fundamental to fulfilling administrative agencies’ regulatory objective related to health, safety, the environment, etc.  Furthermore, regulators engaged in international regulatory cooperation are increasingly in a position to aid in boosting U.S. trade and competitiveness.  These two benefits are not inconsistent with one another and can often be achieved simultaneously.

Engaging in international regulatory cooperation makes the job of regulators easier by efficiently allocating resources through cooperation with like-minded foreign counterparts.  These actions can also lead to enhanced consumer protections as competing regulatory frameworks become more aligned, assuring higher levels of protection.  Cost-savings can be achieved without diminished regulatory returns.  Regulatory cooperation is about a smarter, more efficient regulatory process.  It is time to stop focusing on regulatory divergences and start coming together around a convergence of objectives.

Additionally, the Obama Administration has consistently indicated that international regulatory cooperation is beneficial because it helps U.S. agencies more efficiently accomplish their statutory missions domestically and also because it aids U.S. competitiveness, promoting trade and exports, and creating jobs (See page 6 of OMB’s 2011 Report to Congress on the Costs and Benefits of Federal Regulations).  For instance, one recommendation of the 2011 Jobs Council Report touted regulatory cooperation and the removal of international regulatory divergences as a means towards job creation and growth.

Many U.S. agencies have already undertaken ambitious international regulatory cooperation efforts.  For example, the U.S.-Canada Regulatory Cooperation Council features 29 specific work plans, each led by both a U.S. and a Canadian regulator, covering sectors including food and agriculture, personal care and pharmaceuticals, transportation, nanotech, and the environment.  However, more work can be done to raise the profile of other cooperation activities and to assure that regulators receive adequate recognition for the work they are doing.  This increased attention provides the dual benefit of raising awareness of these activities to interested stakeholders and allowing regulators to seek ideas on how to maximize opportunities.

Twenty years ago, the Administrative Conference issued Recommendation 1991-1, which concerned federal agency cooperation with foreign government regulators.  This recommendation was prescient in recognizing the needs for U.S. regulators to engage with their foreign counterparts in order to satisfy their statutory mandates in a globalized economy.  In December 2011, the Conference, recognizing the increasingly intertwined nature of today’s global marketplace and the many different methods of maximizing the benefits of international regulatory cooperation, adopted Recommendation 2011-6: International Regulatory Cooperation.

However, adoption of the new International Regulatory Cooperation Recommendation is merely a first step.  In order to realize all of the potential benefits, we must move from recommendation to implementation.  In this spirit, the U.S. Chamber of Commerce and the Conference are pleased to co-host an Implementation Summit on May 1, 2012.[2]  The Implementation Summit will serve as a first step towards a long-term sustained plan of implementation and provide a forum to discuss a number of concerns.

Some of the ideas we hope to explore at the Summit and beyond include:

• What are the best practices of agencies currently engaged in international regulatory cooperation?
• How can those best practices be transmitted to other agencies?
• What methods work best?
• With which foreign counterparts should agencies engaged?
• What are the most productive methods for stakeholders to be actively involved?
• What are some sectors especially ripe for international regulatory cooperation that aren’t currently being exploited?

In anticipation of the Implementation Summit, this will be the first of a series of posts examining different aspects of the International Regulatory Cooperation Recommendation and highlighting key successes and exciting opportunities.  I welcome any feedback or suggestions for future topics.

Adam C. Schlosser
Senior Manager, Center for Regulatory Cooperation
U.S. Chamber of Commerce
aschlosser@uschamber.com; 202.463.5580

For more information about the Implementation summit please visit http://www.acus.gov/events/ibr-irc-implementation-summit/.

To submit comments, visit www.regulations.gov and search for “NARA 12-0002.” You can also submit comments by visiting the Federal Register’s website  and clicking on the green button that says “Submit a Formal Comment.” Either way, your comments will appear on www.regulations.gov.

Further information on Recommendation 2011-5, the Conference’s recently adopted recommendation addressing the complex issues raised by the practice of incorporation by reference can be found on the Incorporation by Reference project page.

The article describes the Conference’s work, citing currrent empirical studies and how its work directly relates to academic and governmental communities.

Read the full article that explains why ACUS matters ().

The petition was submitted on February 13, 2012 by Columbia Law Professor Peter L. Strauss, a Senior Fellow of the Administrative Conference, and signed by 19 other law professors, practitioners, and interested experts. It urges the Federal Register to amend “1 CFR part 51, ‘Incorporation by Reference’ to reflect the changed circumstances brought about by the information age.” The referenced regulations were last amended in 1982, before the electronic revolution and the movement for greater transparency in government. See 47 Fed. Reg. 34108 (Aug. 6, 1982).

This effort comes on the heels of the Administrative Conference’s adoption of Recommendation 2011-5: Incorporation by Reference (). It seeks to further the transparency goals of the recommendation through different means, arguing that the Federal Register should take greater “responsibility for shaping and administering the criterion of reasonable availability,” and should do so beginning at the proposed rule stage. The submission included proposed regulatory text intended to improve public access to incorporated materials. The Federal Register has published the petition and posted the proposed regulatory text in the FDMS Docket. It is requesting comment on several specific issues raised in the petition.

The comment period is currently scheduled to close on March 28, 2012. To submit comments, visit www.regulations.gov and search for “NARA 12-0002.” You can also submit comments by visiting the Federal Register’s website  and clicking on the green button that says “Submit a Formal Comment.” Either way, your comments will appear on www.regulations.gov.

Further information on Recommendation 2011-5 and the complex issues raised by the practice of incorporation by reference can be found on the Incorporation by Reference project page.

Details:

• Monday, March 19, 2012 from 2:30p.m. to 4:30p.m. (Please arrive by 2p.m. due to DOJ Security measures)
• Department of Justice (7th Floor Conference Room 7411), 950 Pennsylvania Avenue, NW, Washington, DC 20530

This event is designed for Federal Officials, including:

• Agency Leaders and Program Directors
• General Counsels
• Agency Dispute Resolution Specialists
• Chief Adjudicatory Officers (ALJs, Contract Appeals Boards, etc.)

Speakers include Attorney General Eric H. Holder, Jr., ACUS Chairman Paul R. Verkuil, and other federal officials. Visit the ADR Symposium webpage, or download the ADR Symposium flyer (), for additional information.

Please direct questions to David Pritzker, ACUS Deputy General Counsel, at dpritzker@acus.gov.

Interested candidates should apply on the USAJobs Website.

At the meeting, Chairman Verkuil and Mr. Bull gave an overview of the structure of the Administrative Conference and described some of its recent work. In particular, they focused on the Conference’s work on the Federal Advisory Committee Act (FACA). They described the research that Mr. Bull conducted in preparing a research report on FACA and gave an overview of Administrative Conference Recommendation 2011-7, which offers various proposals for clarifying the scope of FACA, alleviating the procedural burden it imposes, and disseminating best practices designed to promote transparency in the work of advisory committees.

HHS hosts more advisory committees than any other federal agency, and the presentation served both to describe the Conference’s work and to open a dialogue between HHS and the Conference concerning the reforms and best practices proposed in Recommendation 2011-7. Learn more about our HHS hosts, the event and FACA best practices on the ACUS events page.