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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices regulations, if any, should be subject to such a review plan, agencies should consider the public benefits of periodic retrospective review, including potential gains from learning more about regulatory performance, and the costs, including the administrative burden associated with performing the review and any disruptions to reliance interests and investment-backed expectations. When agencies adopt new regulations for which plans regarding periodic retrospective review have not been established, agencies should, as part of the process of developing such regulations, decide whether those regulations should be subject to periodic retrospective review.
3. When agencies plan for periodic retrospective review, they should not limit themselves to reviewing a specific final regulation when a review of a larger regulatory program would be more constructive.
4. When agencies decide to subject regulations to periodic retrospective review, they should decide whether to subject some or all of the regulations to a pre-set schedule of review or whether, for some or all of the regulations, it is preferable to set only an initial date for review and decide, as part of that review, when to undertake the next review. In selecting the frequency of review or setting the first or any subsequent date of review, agencies should consider, among others, the following factors:
a. The pace of change of the technology, science, sector of the economy, or part of society affected by the regulation. A higher pace of change may warrant more frequent review;
b. The degree of uncertainty about the accuracy of the initial estimates of regulatory benefits, costs, ancillary impacts, and distributional impacts. Greater uncertainty may warrant more frequent review;
c. Changes in the statutory framework under which the regulation was issued. More changes may warrant more frequent review;
d. Comments, complaints, requests for waivers or exemptions, petitions for the modification or repeal of existing rules, or suggestions received from interested persons.
The level of public interest or amount of new evidence regarding changing the regulation may warrant more frequent review;
e. The difficulties arising from implementation of the regulation, as demonstrated by poor compliance rates, requests for waivers or exemptions, the amount of clarifying guidance issued, remands from the courts, or other factors.
Greater difficulties may warrant more frequent review;
f. The administrative burden in conducting periodic retrospective review. Larger burdens, such as greater staff time, involved in reviewing the regulation may warrant less frequent review; and g. Reliance interests and investmentbacked expectations connected with the regulation. Steps taken by persons in reliance on a particular regulation or with the expectation that it will remain unaltered may favor less frequent review.
5. In making the decisions outlined in Paragraphs 1 through 4, public input can help agencies identify which regulations
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should be subject to periodic retrospective review and with what frequency. Agencies should consider soliciting public input by means such as convening meetings of interested persons, engaging in targeted outreach efforts to historically underrepresented or under-resourced groups that may be affected by the agencies regulations, and posting requests for information.
6. Agencies should publicly disclose their periodic retrospective review plans, which should cover issues such as which regulations are subject to periodic retrospective review, how frequently those regulations are reviewed, what the review entails, and whether the review is conducted pursuant to a legal requirement or the agencies own initiative. Agencies should include these notifications on their websites and consider publishing them in the Federal Register, even if the law does not require it.
7. With respect to regulations subject to a pre-set schedule of periodic retrospective review, agencies should periodically reassess the regulations that should be subject to periodic retrospective review and the optimal frequency of review.

a. Assigning the same staff the same regulation, or category of regulation, each time it is reviewed. This approach allows staff to gain expertise in a particular kind of regulation, thereby potentially improving the efficiency of the review;
b. Assigning different staff the same regulation, or category of regulation, each time it is reviewed. This approach promotes objectivity by allowing differing viewpoints to enter into the analysis;
c. Engaging or cooperating with agency or non-agency subject matter experts to review regulations; and d. Pairing subject matter experts, such as engineers, economists, sociologists, and scientists, with other agency employees in conducting the review. This approach maximizes the likelihood that both substantive considerations, such as the net benefits and distributional and ancillary impacts of the regulation, and procedural considerations, such as whether the regulation conflicts with other regulations or complies with plain language requirements, will enter into the review.

Publishing Results of Periodic Retrospective Review and Soliciting Public Feedback on Regulations Subject to Review 8. Agencies should publish in a prominent, easy-to-find place on the portion of their websites dealing with rulemaking matters, a document or set of documents explaining how they conducted a given periodic retrospective review, what information they considered, and what public outreach they undertook. They should also include this document or set of documents on Regulations.gov. To the extent appropriate, agencies should organize the data in the document or set of documents in ways that allow private parties to re-create the agencies work and run additional analyses concerning existing regulations effectiveness. When feasible, agencies should also explain in plain language the significance of their data and how they used the data to shape their review.
9. Agencies should seek input from relevant parties when conducting periodic retrospective review. Possible outreach methods include convening meetings of interested persons; engaging in targeted outreach efforts, such as proactively bringing the regulation to the attention of historically underrepresented or under-resourced groups;
and posting requests for information regarding the regulation. Agencies should integrate relevant information from the public into their periodic retrospective reviews.
10. Agencies should work with the Office of Management and Budget OMB to properly invoke any flexibilities within the Paperwork Reduction Act that would enable them to gather relevant data expeditiously.

12. Consistent with the Evidence Act, agencies should incorporate periodic retrospective reviews in their Learning Agendas and Annual Evaluation Plans. In doing so, agencies should ensure that they include:
a. The precise questions they intend to answer using periodic retrospective review.
Those questions should include how frequently particular regulations should be reviewed and should otherwise be keyed to the factors set forth in Section 5 of Executive Order 12866 for periodic retrospective review of existing significant regulations;
b. The information needed to adequately review the regulations subject to the periodic retrospective reviews. Agencies should state whether they will undertake new information collection requests or use existing information to conduct the reviews;
c. The methods the agencies will use in conducting their reviews, which should comport with the federal program evaluation standards set forth by OMB;
d. The anticipated challenges the agencies anticipate encountering during the reviews, if any, such as obstacles to collecting relevant data; and e. The ways the agencies will use the results of the reviews to inform policymaking.

Ensuring Adequate Resources and Staffing 11. Agencies should decide how best to structure their staffing of periodic retrospective reviews to foster a culture of retrospective review and ongoing learning.
Below are examples of some staffing models, which may be used in tandem or separately:

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Using Evidence Act Processes
Interagency Coordination 13. Agencies that are responsible for coordinating activities among other agencies, such as the Office of Information and Regulatory Affairs, should, as feasible, regularly convene agencies to identify and share best practices on periodic retrospective review. These agencies should address questions such as how to improve timeliness and analytic quality of review and the optimal frequency of discretionary review.
14. To promote a coherent regulatory scheme, agencies should coordinate their periodic retrospective reviews with other agencies that have issued related regulations.

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