Rulemaking

Committee:

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.

Committee:

Recommendation 2011-8 – Agency Innovations in e-Rulemaking addresses how Federal agency rulemaking can be improved by better use of Internet-based technologies. The recommendation proposes ways agencies can make rulemaking information, including open dockets, comment policies, and materials from completed rulemakings, more accessible electronically.

Committee:

Recommendation 2017-6 – Learning from Regulatory Experience, formerly titled Regulatory Experimentation, offers advice to agencies on learning from different regulatory approaches. It encourages agencies to collect data, conduct analysis at all stages of the rulemaking lifecycle (from pre-rule analysis to retrospective review), and solicit public input at appropriate points in the process.

Committee:

Recommendation 2011-1 – Legal Considerations in e-Rulemaking provides guidance on issues that have arisen in light of the change from paper to electronic rulemaking procedures.

Committee:

Recommendation 2012-2 – Midnight Rules addresses several issues raised by the publication of rules in the final months of a presidential administration and offers proposals for limiting the practice by incumbent administrations and enhancing the powers of incoming administrations to review midnight rules.  

Committee:

Recommendation 2017-2 – Negotiated Rulemaking and Other Options for Public Engagement offers best practices to agencies for choosing among several possible methods—among them negotiated rulemaking—for engaging the public in agency rulemakings. It also offers best practices to agencies that choose negotiated rulemaking on how to structure their processes to enhance the probability of success.

Committee:

Recommendation 2014-6 – Petitions for Rulemaking identifies agency procedures and best practices for accepting, processing, and responding to petitions for rulemaking. It seeks to ensure that the public's right to petition is a meaningful one, while still respecting the need for agencies to retain decisional autonomy.

Committee:

Recommendation 2018-7 – Public Engagement in Rulemaking offers strategies for agencies to enhance public engagement prior to and during informal rulemaking. It encourages agencies to invest resources in a way that maximizes the probability that rule-writers obtain high quality public information as early in the process as possible.

Committee:
Recommendation 2013-5 – Social Media in Rulemaking addresses the various policy and legal issues agencies face when using social media in rulemaking.  The study examined whether and when agencies should use social media to support rulemaking activities.  It also seeks to identify relevant issues, define applicable legal and policy constraints on agency action, resolve legal uncertainty to the greatest extent...
Committee:

At its 2016 Midyear Meeting, the ABA's House of Delegates approved Resolution 106B. The resolution proposes various reforms to the rulemaking provisions of the Administrative Procedure Act, many of which embrace principles endorsed in past ACUS recommendations. This project reviewed the resolution and served as an opportunity for the Conference to offer comments, where appropriate.