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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices
create a variety of problems in managing the notice and comment process.
Administrative Conference Recommendation 20212
Periodic Retrospective Review
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Adopted June 17, 2021
Retrospective review is the process by which agencies assess existing regulations and decide whether they need to be revisited.
Consistent with longstanding executivebranch policy,1 the Administrative Conference has endorsed the practice of retrospective review of agency regulations 2
and has urged agencies to consider conducting retrospective review under a specific timeframe, which is often known as periodic retrospective review. 3 Agencies may conduct periodic retrospective review in different ways. One common way is for an agency to undertake review of some or all of its regulations on a pre-set schedule e.g., every ten years. Another way is for the agency to set a one-time date for reviewing a regulation and, when that review is performed, set a new date for the next review, and so on. This latter method enables the agency to adjust the frequency of a regulations periodic retrospective review in light of experience.
Periodic retrospective review may occur because a statute requires it or because an agency chooses to do it on its own initiative.
Statutes requiring periodic retrospective review may specify a time interval over which review should be conducted or leave the frequency up to the agency. The Clean Air Act, for example, requires the Environmental Protection Agency to review certain ambient air quality regulations every five years.4 On the other hand, the Transportation Recall Enhancement, Accountability, and Documentation TREAD
Act provides that the Department of Transportation must specify procedures for the periodic review and update of its rule on early warning reporting requirements for manufacturers of motor vehicles without specifying how often that review must occur.5 Even when periodic retrospective review is not mandated by statute, agencies have sometimes voluntarily implemented periodic retrospective review programs.6
1 See Exec. Order No. 12866, 58 FR 51735, 51739
51740 Sept. 30, 1993; see also Joseph E. Aldy, Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy 27 Nov. 17, 2014 report to the Admin. Conf. of the U.S. The systematic review of existing regulations across the executive branch dates back, in one form or another, to the Carter Administration..
2 See Admin. Conf. of the U.S., Recommendation 20176, Learning from Regulatory Experience, 82
FR 61738 Dec. 29, 2017; Admin. Conf. of the U.S., Recommendation 20145, Retrospective Review of Agency Rules, 79 FR 75114 Dec. 17, 2014; Admin.
Conf. of the U.S., Recommendation 953, Review of Existing Agency Regulations, 60 FR 43108 Aug. 18, 1995.
3 Recommendation 953, supra note 2.
4 42 U.S.C. 7309d1.
5 49 U.S.C. 30166m5.
6 See Lori S. Bennear & Jonathan B. Wiener, Periodic Review of Agency Regulation 3338 June
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Periodic retrospective review can enhance the quality of agencies regulations by helping agencies determine whether regulations continue to meet their statutory objectives. Such review can also help agencies evaluate regulatory performance e.g., the benefits, costs, ancillary impacts,7
and distributional impacts 8 of regulations, assess whether and how a regulation should be revised in a new rulemaking, determine the accuracy of the assessments they made before issuing their regulations including assessments regarding forecasts of benefits, costs, ancillary impacts, and distributional impacts, and identify ways to improve the accuracy of the underlying assessment methodologies.9 Agencies that have incorporated standards by reference in their regulations also canand, indeed, should arrange to be notified by the adopting standards organizations of relevant revisions to those standards and consider adopting those revisions, thus ensuring that regulations remain current.
But there can also be drawbacks associated with periodic retrospective review. Some regulations may not be strong candidates for such review because the need for the regulations is unlikely to change and the benefits associated with periodically revisiting them are likely to be small. There are also costs associated with collecting and analyzing data, and time spent reviewing existing regulations may come at the cost of other important regulatory activities. For this reason, agencies might reasonably decide to limit periodic retrospective review to certain types of regulations, such as important regulations that affect large numbers of people or that have particularly pronounced effects on specific groups.10 Periodic retrospective review can also generate uncertainty regarding whether a regulation will be retained or modified. Agencies, therefore, should tailor their periodic retrospective review plans carefully to account for these drawbacks.
Mindful of both the value of periodic retrospective review and the tradeoffs associated with it, this Recommendation offers practical suggestions to agencies about how to establish periodic retrospective review plans. It does so by, among other things, identifying the types of regulations that lend themselves well to periodic retrospective review, proposing factors for 7, 2021 report to the Admin. Conf. of the U.S.
discussing periodic retrospective review plans issued by several agencies, including the Department of Transportation, the Securities and Exchange Commission, and the Federal Emergency Management Agency.
7 An ancillary impact is an impact of the rule that is typically unrelated or secondary to the statutory purpose of the rulemaking . . . . Off. of Mgmt. & Budget, Exec. Off. of the President, Circular A4, Regulatory Analysis 26 2003.
8 A distributional impact is an impact of a regulatory action across the population and economy, divided up in various ways e.g., by income groups, race, sex, industrial sector, geography. Id. at 14.
9 Id. at 8.
10 See, e.g., Recommendation 20145, supra note 2, 5 providing a list of factors for agencies to consider when prioritizing some regulations as important.

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agencies to consider in deciding the optimal review frequency when they have such discretion, and identifying different models for staffing periodic retrospective review. In doing so, it builds upon the Conferences longstanding endorsement of public participation in all aspects of the rulemaking process,11 including retrospective review,12
by encouraging agencies to seek public input both to help identify the types of regulations that lend themselves well to periodic retrospective review and to inform that review.
This Recommendation also recognizes the important role that the Office of Management and Budget OMB plays in agencies periodic retrospective review efforts as well as the significance of the Foundations for Evidence-Based Policymaking Act the Evidence Act and associated OMB-issued guidance.13 It encourages agencies to work with OMB to help facilitate data collection relevant to reviewing regulations. It also calls attention to the Evidence Acts requirements that certain agencies create Learning Agendas, which identify questions for agencies to address regarding their regulatory missions, and Annual Evaluation Plans, which lay out specific measures agencies will take to answer those questions.14 Consistent with the Evidence Act, the Recommendation provides that agencies can incorporate periodic retrospective review in their Learning Agendas and Annual Evaluation Plans by undertaking and documenting certain activities as they carry out their review.
In issuing this Recommendation, the Conference recognizes that agencies will need to consider available resources in deciding whether a periodic retrospective review program should be implemented and, if so, what form it should take. The recommendations offered below are subject to that qualification.
Recommendation Selecting the Types of Regulations to Subject to Periodic Retrospective Review and the Frequency of Review 1. Agencies should identify any specific regulations or categories of regulations that are subject to statutory periodic retrospective review requirements.
2. For regulations not subject to statutory periodic retrospective review requirements, agencies should establish a periodic retrospective review plan. In deciding which 11 See, e.g., Admin. Conf. of the U.S., Recommendation 20187, Public Engagement in Rulemaking, 84 FR 2146 Feb. 6, 2019; Admin.
Conf. of the U.S., Recommendation 20172, Negotiated Rulemaking and Other Options for Public Engagement, 82 FR 31040 July 5, 2017.
12 See supra note 2.
13 See Bennear & Wiener, supra note 6.
14 5 U.S.C. 312ab; Off. of Mgmt. & Budget, Exec. Off. of the President, Memorandum M1923, Phase 1 Implementation of the Foundations for Evidence-Based Policymaking Act of 2018: Learning Agendas, Personnel, and Planning Guidance 2019;
Off. of Mgmt. & Budget, Exec. Off. of the President, Memorandum M2012, Phase 4 Implementation of the Foundations for Evidence-Based Policymaking Act of 2018: Program Evaluation Standards and Practices 2020.

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