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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices Dated: January 14, 2021.
Shawne C. McGibbon, General Counsel.

AppendixRecommendations and Statement of the Administrative Conference of the United States Administrative Conference Recommendation 20201
Rules on Rulemakings Adopted December 16, 2020
Numerous agencies have promulgated rules setting forth the policies and procedures they will follow when conducting informal rulemakings under 5 U.S.C. 553.1
The rules can cover a variety of practices, including processes for initiating and seeking public input on new rules, coordinating with the Office of Management and Budget and other agencies as a rule is being formulated, and obtaining approval from agency leadership before a proposed rule is issued or finalized. Agencies refer to these rules by different names. This Recommendation calls them rules on rulemakings.
Rules on rulemakings varyin terms of the particular matters they address, their scope and comprehensiveness, and other characteristicsbut they share several common features. First, they authoritatively reflect the agencys position as to what procedures it will observe when adopting new rules. By authoritative, this Recommendation means that a rule on rulemakings sets forth the procedures that agency officials responsible for drafting and finalizing new rules will follow in at least most cases within the rule on rulemakings scope, though it may contemplate the possibility that agency leadership could authorize an alternative set of procedures.2
Second, rules on rulemakings do more than simply summarize or explain rulemaking requirements of the Administrative Procedure Act and other statutes, although they often serve an explanatory function at the same time that they set forth the procedures the agencies will follow in conducting rulemakings. Rules on rulemakings set forth additional commitments by an agency concerning how it will conduct rulemakings. And third, agencies disseminate rules on rulemakings publicly rather than only internally. They appear on agency websites and are often published not only in the Federal Register but also in the Code of Federal Regulations CFR.
Rules on rulemakings can serve at least four important objectives. First, they promote efficiency by ensuring that both agency officials and those outside the agency know where to go to find the agencys rulemaking policies. Second, they promote predictability
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1 This
Recommendation does not address rulemakings subject to the formal hearing requirements of the Administrative Procedure Act.
See 5 U.S.C. 55657.
2 Cf. Admin. Conf. of the U.S., Recommendation 20191, Agency Guidance Through Interpretive Rules, 84 FR 38927 Aug. 8, 2019; Admin. Conf.
of the U.S., Recommendation 20175, Agency Guidance Through Policy Statements, 82 FR 61734
Dec. 29, 2017.

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by informing the public that the agency will follow particular procedures, thereby allowing the public to plan their participation in the rulemaking process accordingly. Third, they promote accountability by ensuring that agency leadership has approved the policies and procedures the agency will follow. And they can also provide accountability in connection with individual rulemakings by creating an internal approval process by which agency leadership reviews proposed and final rules.
Finally, they promote transparency by affording the public access to the agencys internal procedures pertaining to its rulemaking process.
In promulgating a rule on rulemakings, an agency may wish to solicit public input to inform the rules development, even if such a rule is subject to 5 U.S.C. 553s exemption from notice-and-comment procedures as a rule of procedure, general statement of policy, or otherwise. In soliciting public input, agencies may wish to use mechanisms that facilitate more robust participation, including by underrepresented communities.3 As the Administrative Conference has acknowledged in past recommendations, public comment can both provide valuable input from the public and enhance public acceptance of an agencys rules.4
An agency may also wish to publish its rule on rulemakings in the CFR. Doing so can enhance transparency and facilitate accountability. Importantly, publishing a rule on rulemakings in the CFR does not, by itself, make the rule on rulemakings judicially enforceable.5
This Recommendation does not seek to resolve whether, when, or on what legal bases a court might enforce a rule on rulemakings against an agency.6
Recommendation 1. Agencies should consider promulgating rules on rulemakings setting forth the policies and procedures they will follow in informal rulemaking under 5 U.S.C. 553.
2. In issuing rules on rulemakings, agencies should consider including provisions addressing the following topics which 3 See, e.g., 2 U.S.C. 1534 Unfunded Mandates Reform Act; 5 U.S.C. 609 Regulatory Flexibility Act; Exec. Order No. 13,175, Consultation and Coordination with Indian Tribal Governments, 65
FR 67249 Nov. 11, 2000.
4 See Admin. Conf. of the U.S., Recommendation 921, The Procedural and Practice Rule Exemption from the APA Notice-and-Comment Rulemaking Requirements, 57 FR 30102 July 8, 1992; see also Recommendation 20191, supra note 2;
Recommendation 20175, supra note 2.
5 See, e.g., Health Ins. Assn of Am. v. Shalala, 23
F.3d 412, 423 D.C. Cir. 1994 stating that publication in the Code of Federal Regulations, or its absence is only a snippet of evidence of agency intent that the published pronouncement be given binding effect.
6 Some rules on rulemakings include a statement that they do not create any substantive or procedural rights or benefits. This Recommendation does not address whether such disclaimers should be included or what legal effect they may have on judicial review. These questions cannot be answered in isolation from the broader question of when a rule on rulemakings is judicially enforceable.

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reflect topics frequently covered in existing rules on rulemakings:
a. Procedures prior to the issuance of a notice of proposed rulemaking;
b. Procedures connected with the noticeand-comment process;
c. Procedures connected with the presidential review process, if applicable;
d. Procedures for handling post-comment period communications;
e. Internal approval procedures for issuing and finalizing rules; and f. Procedures for reassessing existing rules.
The appendix gives examples of particular subtopics agencies may wish to consider under each of these topics.
3. Agencies should make rules on rulemakings available in a prominent, easyto-find place on the portion of their websites dealing with rulemaking matters.
Additionally, agencies should consider publishing them in the Federal Register and the Code of Federal Regulations. When posting rules on rulemakings on their websites, agencies should use techniques like linked tabs, pull-down menus, indexing, tagging, and sorting tables to ensure that relevant documents are easily findable.
Agencies should also design their search engines to allow people to easily identify relevant documents.
4. In addition to issuing rules on rulemakings, agencies should consider explaining in accessible language how the rulemaking process works in order to educate the public. Such explanations might be integrated within a rule on rulemakings or might be contained in separate explanatory documents e.g., documents identifying frequently asked questions. When providing such explanations, an agency should, to the extent practicable, distinguish between procedures it intends to follow and material provided purely by way of background.
5. Agencies should consider a broad range of means of seeking public input on rules on rulemakings, even if the Administrative Procedure Act does not require it.
6. Agencies should consider the extent to which procedures required by a rule on rulemakings should be made internally waivable and, if so, by whom. For example, they might consider drafting a rule on rulemakings in a way that allows high-level agency officials to permit other officials to use alternative procedures.
Appendix Non-Exhaustive List of Topics for Agencies To Consider Including Within Their Rules on Rulemakings a Procedures Prior to the Issuance of a Notice of Proposed Rulemaking Subtopic Examples:
1 Regulatory planning; 7
2 Issuing advance notices of proposed rulemaking and obtaining feedback from members of the public using means other than the notice-and-comment process, such 7 See Admin. Conf. of the U.S., Recommendation 20151, Promoting Accuracy and Transparency in the Unified Agenda, 80 FR 36757 June 26, 2015.

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