Rulemaking (Recommendations)

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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...

This draft recommendation on Petitions for Rulemaking will be considered by the Committee on Rulemaking at its October 23, 2014 public meeting. 

Congress has by statute occasionally required that certain agency actions be subject to Congressional approval or disapproval before they became effective. Several proposals have now been advanced which would apply this procedure to all substantive rules issued pursuant to the notice-and-comment procedures of 5 U.S.C. § 553 (which are not subject to 5 U.S.C. §§ 556 and 557...

This proposed recommendation on Petitions for Rulemaking will be considered by the Assembly at the 61st Plenary Session on December 4-5, 2014.

Agencies often explain their view of the meaning of statutes or rules by issuing interpretive rules of general applicability, and agencies indicate how they will exercise discretion by announcing statements of general policy. The Administrative Procedure Act requires that these interpretive rules and policy statements be published in the Federal Register. But the Act does...

The Conference’s Recommendation 72-5 stated that in rulemaking of general applicability involving substantive rules “Congress ordinarily should not impose mandatory procedural requirements other than those required by 5 U.S.C. § 553,” and that “Congress should never require trial-type procedures for resolving questions of policy or of broad or general fact.” Paragraph 5 of...

The primary role of the Federal Register is the publication, as required by the Federal Register Act and the Administrative Procedure Act, of legal documents that affect people generally, such as descriptions of agencies’ organization and functions, texts of substantive and procedural rules, notices of proposed rulemaking, and statements of general policy or interpretations...

This recommendation states criteria for use by the Congress in determining the appropriate forum for judicial review of federal administrative action.

The present forum for the review of most agency actions taken on formal evidentiary records is the court of appeals under specific statutory provisions. There are some exceptions. An important one...

With increasing frequency, rules of general applicability adopted by agencies informally pursuant to 5 U.S.C. § 553 are being reviewed by the courts directly, before they are applied to particular persons in adjudicative proceedings. Such review may be by courts of appeals under statutes, mostly older statutes, providing generally for judicial review of orders of specific...

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