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AD)MINISTRATIVE (ONFERENEF TE UNITEDSTATES
Administrative Conference Recommendation 2017-6
Learning from Regulatory Experience
Adopted December 15, 2017
Making sound regulatory decisions demands information and analysis. Several
Administrative Conference recommendations encourage agencies to gather data when making
new rules and when reviewing existing rules.1 These recommendations reinforce analytic
demands imposed on agencies by legislation,2 executive orders,3 and judicial decisions.4
Agencies need information about the problems that new rules will address, such as the
risks involved and their causes. But agencies also need information about potential solutions to
these problems. What possible alternative rules or rule designs might help solve the problems?
How effective are these alternatives likely to be in addressing the underlying problems? Are
there constraints, barriers, or unanticipated consequences that arise in the use of these different
' See, e.g., Admin. Conf. of the U.S., Recommendation 2014-5, Retrospective Review ofAgency Rules, 79 Fed. Reg.
75,114 (Dec. 17, 2014); Admin. Conf. of the U.S., Recommendation 85-2, Agency Procedures for Performing
Regulatory Analysis of Rules, 50 Fed. Reg. 28,364 (July 12, 1985); Admin. Conf. of the U.S., Recommendation 79-
4, Public Disclosure Concerning the Use of Cost-Benefit and Similar Analyses in Regulation, 44 Fed. Reg. 38,826
(June 8, 1979).
2 See, e.g., Data Quality Act, Pub. L. No. 106-554, § 515, 114 Stat. 2763A-153 (2001).
3 See, e.g., Exec. Order No. 12,866, § 5, 58 Fed. Reg. 51,735, 51,739 (Oct. 4, 1993) ([T]o ... improve the
effectiveness of existing regulations ... each.., agency will periodically review its existing significant regulations
to determine whether any such regulations should be modified or eliminated so as to make the agency's regulatory
program more effective in achieving the regulatory objectives.); Exec. Order No. 13,563, § 6, 58 Fed. Reg. 3821,
3822 (Jan. 21, 2011) (requiring agencies to consider how best to promote retrospective analysis of rules that may
be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them
in accordance with what has been learned); Exec. Order No. 13,771, § 2, 82 Fed. Reg. 9339 (Feb. 3, 2017)
(requiring the repeal of two existing regulations for each new regulation proposed, and leaving in place prior
analytical requirements); Exec. Order No. 13,777, § 3, 82 Fed. Reg. 12,285, 12,286 (Mar. 1, 2017) (requiring the
establishment of regulatory reform task forces that shall evaluate existing regulations ... and make
recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable
law).
4 See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 52 (1983) (explaining that
the agency must show that its action was the result of reasoned decisionmaking consistent with the evidence
before the agency).](ViewImageLocal?handle=hein.usfed/lrnregex0001&div=1&collection=&method=preview&ext=.png&size=3)