1. NEIL EISNER ADMINISTRATIVE CONFERENCE OF THE U.S. RETROSPECTIVE REVIEW WORKSHOP MAY 13, 2015 Retrospective Review of Rules

2. Important Points Good agencies recognize need for RRR RRR is not easy But there are many good practices 2

3. Types of RRR Informal, almost daily; e.g.,  Accident or emission  Interpretations or exemptions  Enforcement or litigation Ad hoc or special; e.g., sunsetted rule Formal programs with schedules 3

4. Problems Conducting RRR Competing priorities; e.g.,  Presidentially mandated RRR; often over a relatively short period; may achieve impressive results in short period, but usually does not permit thorough research and analysis  Congressionally mandated regulations, often with short-term deadlines Lack of resources Failure to appreciate time and resources for thorough review 4

5. RRR Not Easy Not always just a review of each final rule; e.g.,  Some amend existing rules, perhaps many different parts of the CFR  Some final rules may be amended multiple times before being reviewed New data and detailed analyses may be needed (e.g., NHTSA: a major statistical evaluation can use 1,000 - 2,000 hours of staff time, take 1-2 years to complete, and result in 75-100 page report) 5

6. Examples of Two Approaches In late 70’s, FAA used subject matter approach to review its 73 CFR Parts, with 1 or 2 attorneys assigned as “first priority”; e.g.,  Aircraft certification regulations covered 11 CFR Parts  Almost 2,000 public suggestions received  Public hearings and other steps used to discuss suggestions  8 NPRMs, around 200 pages each, proposed about 600 changes  9 final rules, averaging about 200 pages, adopted about 500 changes  Took 8 years; very successful but only a fraction of FAA’s rules  FAA started others, but soon ran out of “first priority” attorneys PHMSA predecessor created special RRR office, but eventually moved staff to higher priorities 6

7. 7 Best Practices

8. Formal Plan Schedule all rules for review over set period Explain factors considered in identifying need for review and priorities Invite public participation in plan development Advise public about --  Other reviews and how schedule may be modified to address them  How adapt to petitions for rulemaking  Need to respond to statutory or judicial deadlines and other higher priorities  Potential budgetary limitations Coordinate with other agency RRRs 8

9. General Get senior level “buy-in” (e.g., with regular progress reviews) Consider advisory committee review of RRR plan Provide guidance on effective public participation Use web tools to ease public participation (e.g., submissions and public meetings) Identify rule development problems affecting multiple rules (e.g., poor drafting or analysis) 9

10. Consider Data Needs In final rule, consider data needed to evaluate success Plan ahead so data available when review starts Keep organized data on such things as –  Interpretation requests  Adjudication/litigation problems  Complaints  Exemptions requested/granted 10

11. Consider Different Approaches Review programs vs. parts vs. sections vs. final rules Review special problems (e.g., small entity impacts, out-dated references, paperwork burdens) “Low hanging fruit” vs. “big deals” Consolidate changes that do not need NPRM (e.g., updated statutory references) Coordinate with other agencies (e.g., merge agency paperwork requirements covering same entities) Use automatic changes (e.g., fees adjusted via CPI) 11

12. Conclusion Despite constraints, RRR is valuable Agencies need to do the best they can Many best practices to consider 12