Proposed Rules. Notice; request for comments; public listening sessions

Agency: Administrative Conference of the United States (ACUS)
Action: Notice; request for comments; public listening sessions
Citation: 89 FR (No. 243) · FR Doc. 2024-29931

Summary

The Office of the Chair of ACUS is requesting public input on Federal agency processes for consulting with State, local, and Tribal governments when agencies engage in regulatory policymaking. ACUS is accepting written comments and will hold two virtual public listening sessions. Responses to this request may inform an ongoing ACUS project, Consultation with State, Local, and Tribal Governments in Regulatory Policymaking, which, if warranted, may recommend best practices for agencies to use.

Dates

Written comments must be received no later than 10 a.m. (ET) January 17, 2025. Two virtual public listening sessions will be held on Wednesday, January 8, 2025 (3 p.m.-5 p.m. ET), and Wednesday, January 15, 2025 (3 p.m.-5 p.m. ET).

Supplementary Information

The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see www.acus.gov. Consultation With State, Local, and Tribal Governments in Regulatory Policymaking Consultation requirements represent an important way through which Congress and presidents have defined, structured, and institutionalized the Federal Government's relationship with State and local governments and its unique nation-to-nation relationship with Tribal governments. The Unfunded Mandates Reform Act requires agencies to develop processes by which representatives of State, local, and tribal governments can “provide meaningful and timely input in the development of regulatory proposals containing significant Federal intergovernmental mandates.” 1 Executive Order (E.O.) 13132, Federalism, requires agencies to consult with State and local government officials when “formulating and implementing policies that have federalism implications.” 2 E.O. 13175, Consultation and Coordination with Indian Tribal Governments, similarly requires agencies to consult with Tribal government officials when “formulating and implementing policies with Tribal implications.” 3 1 2 U.S.C. 1534(a). 2 64 FR 43255 (Aug. 4, 1999). “ Policies that have federalism implications' refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” *Id.* 3 65 FR 67249 (Nov. 9, 2000). “ Policies that have tribal implications' refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” Id. The President and Office of Management and Budget have periodically issued additional directives and guidance regarding consultation with State, local, and Tribal governments. Recent directives include President Biden's Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships 4 and Memorandum on Uniform Standards for Tribal Consultation. 5 4 86 FR 7491 (Jan. 29, 2021). 5 87 FR 74479 (Nov. 30, 2022). ACUS has also emphasized the importance of effective consultation with State, local, and Tribal officials, recommending, for example, that agencies adopt best practices for consulting with State and local governments in cases of potential preemption of State law; 6 consider how State, local, and Tribal governments will be involved in the retrospective review of agency rules; 7 and codify regulations describing how they obtain feedback from State, local, and Tribal governments. 8 6 Admin. Conf. of the U.S., Recommendation 2010-1, Agency Procedures for Considering Preemption of State Law, 76 FR 81 (Jan. 3, 2011). 7 Admin. Conf. of the U.S., Recommendation 2014-5, Retrospective Review of Agency Rules, 79 FR 75114 (Dec. 17, 2014). 8 Admin. Conf. of the U.S., Recommendation 2020-1, Rules on Rulemakings, 86 FR 6613 (Jan. 22, 2021). Agencies have adopted a variety of approaches to consulting with State, local, and Tribal governments, and there is still more that can be learned from a comprehensive study of agency consultation practices. To that end, ACUS is undertaking a project to examine when and how agencies consult with State, local, and Tribal officials on regulatory policymaking. Among other topics, the project will address agency policies and procedures for consulting with State, local, and Tribal governments; agencies' approaches to identifying and engaging with appropriate State, local, and Tribal officials; methods for utilizing feedback from State, local, and Tribal governments in agency decision making; and common issues and challenges that agencies face in developing and implementing accountable processes for consultation. Specific Topics for Public Comment ACUS welcomes views, information, and data on all aspects of strategies that agencies are using or might use to consult with State, local, and/or Tribal governments when they engage in regulatory policymaking. ACUS also seeks specific feedback on the following questions related to agencies' consultation efforts: 1. What has been your experience regarding consultations with a Federal agency engaging in regulatory policymaking? For example, if you are (or were) a State, local, or Tribal government official, was any portion of the process especially easy or particularly difficult? Do you have specific suggestions for increasing the effectiveness of consultations in regulatory policymaking? 2. If you have been involved in a consultation, how often are (or were) you contacted by Federal agencies to consult on a particular regulatory policy? How often do (or did) you contact Federal agencies to request a consultation on a given regulatory policy? What was your experience with requesting a consultation? What tasks do (or did) you undertake as part of the consultation effort? At what stage in the regulatory policymaking process were you consulted by a Federal agency? In your experience, was that consultation timed too early, appropriately, or too late? 3. If you have been involved in a consultation, how did you feel your feedback during the consultation process was used by Federal agencies? Were you satisfied with how your input was used? Why or why not? Do you recall whether the Federal agency explained to you how they incorporated your feedback into the regulatory policymaking process? Do you have specific suggestions for incorporating feedback into the regulatory policymaking process? 4. In your experience, are there certain types of information that may be useful to share during consultation but which you may not want to disclose, for example confidential or culturally sensitive information? If so, do you have any specific recommendations for how Federal Government agencies can best manage this information as it considers a regulatory policy that may have federalism or Tribal implications? 5. In your experience, how easy or difficult was it to locate the appropriate agency official with responsibility for State, local, or Tribal government matters when seeking to or engaging in consultation efforts? How, if at all, did this impact consultation efforts? Do you have any specific recommendations to facilitate communication among Federal, State, local, and Tribal government officials for consultations on regulatory policymaking? 6. If you are familiar with agency policies on State, local, or Tribal government consultation, what are your thoughts on such policies? 7. In your experience, what makes a consultation successful? What makes a consultation unsuccessful? Do you have any specific recommendations on reducing barriers to effective and meaningful consultation among and between Federal, State, local, and Tribal government officials? 8. In your opinion, what role can State, local, and government officials play to facilitate consultation, and how should Federal Government agencies encourage such actions, if at all? Dated: December 12, 2024. Shawne C. McGibbon, General Counsel. [FR Doc. 2024-29931 Filed 12-17-24; 8:45 am]