Rulemaking (Recommendations)

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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...

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...

Under the Administrative Procedure Act (APA), federal agencies are required to “give . . . interested person[s] the right to petition for the issuance, amendment, or repeal of a rule.”[1]  The statute generally does not establish procedures agencies must observe in connection with petitions for rulemaking.  It does, however, require...

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...

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