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...

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 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.

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. §...

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

(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....

Informal communications between agency personnel and individual members of the public have traditionally been an important and valuable aspect of informal rulemaking proceedings conducted under section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553.  Borrowing terminology from the judicial context, these communications are often referred to as “ex parte” contacts....

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...

Over the past two decades, the use of guidance—nonbinding statements of interpretation, policy, and advice about implementation—by administrative agencies has prompted significant interest from Congress, executive branch officials, agency officials, and commentators. Most of this attention has been directed to “guidance documents,” freestanding, nonbinding statements of policy and...

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