Rulemaking (Recommendations)

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The Administrative Conference has undertaken a study of the rulemaking process at the Occupational Safety and Health Administration. It is recognized that OSHA’s mandate to regulate any substance or hazard that poses a significant risk to workers and, to the extent feasible, make every workplace safe is daunting, and that alternative approaches to...

This Proposed Recommendation on "Ex Parte" Communications in Informal Rulemaking was approved by the Committee on Rulemaking and will be considered by the Assembly at the 60th Plenary Session on June 5-6, 2014.

Direct Final Rulemaking

Direct final rulemaking is a technique for expediting the issuance of noncontroversial rules. It involves agency publication of a rule in the Federal Register with a statement that, unless an adverse comment is received on the rule within a specified time period, the...

This redline shows proposed amendments to the Ex Parte Communications in Informal Rulemaking Recommendation for consideration at the 60th Plenary Session.

The Magnuson-Moss Warranty—Federal Trade Commission Improvement Act, P.L.  93-637, which established procedures for the Federal Trade Commission’s promulgation of trade regulation rules, also authorized the Commission to “provide compensation for reasonable attorneys fees, expert witness fees, and other costs of participating” in those proceedings. The statute (15 U.S.C. §...

Recommendation 2014-4, "'Ex Parte' Communications in Informal Rulemaking," provides guidance and best practices to agencies for managing "ex parte" communications between agency personnel and nongovernmental interested persons regarding the substance of informal rulemaking proceedings conducted under 5 U.S.C. § 553.

(a) Many federal agencies have authority to issue mandatory health or safety regulations relating to products, materials, processes, practices or services that may be the subjects of voluntary standards prepared by non-governmental organizations. Non-governmental standards, though not legally enforceable, have in fact gained wide acceptance and a high degree of observance....

Recommendation 2014-3, "Guidance in the Rulemaking Process," identifies best practices for agencies when providing guidance in preambles to final rules.  It suggests ways that agencies can improve the drafting and presentation of these preambles, including making it easier to identify any guidance content.  The recommendation also urges agencies to ensure that users of their websites can...

In Recommendation 72-5 the Conference expressed the view that, generally, agency rulemaking is preferably carried out through the simple, flexible and efficient procedures of 5 U.S.C. § 553. That statute requires publication of notice of proposed rulemaking and provision of opportunity for submission of written comments; additional procedures may be utilized by the agencies...

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