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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
as requests for information and focus groups; 8
3 Accepting, reviewing, and responding to petitions for rulemaking; 9
4 Considering options besides rulemaking;
5 Performing ex ante regulatory analyses e.g., benefit-cost analysis and regulatory flexibility analysis; 10
6 Using plain language in regulatory drafting; 11
7 Preparing for potential judicial review of rulemakings, including deciding whether to make any of the provisions of a rule severable; 12
8 Conducting negotiated rulemaking; 13
and 9 Establishing an effective date for rules.
b Procedures Connected With the Noticeand-Comment Process Subtopic Examples:
1 Materials to be published on Regulations.gov with the notice; 14
2 Minimum comment periods to be allowed; 15
3 Policies on ex parte contacts; 16
4 Handling external merits communications not filed as comments;
5 Incorporating standards by reference; 17
6 Using social media to engage the public in rulemaking; 18
7 Obtaining feedback from American Indian tribes, other historically underrepresented or under-resourced groups, and state and local governments; 19
8 Posting, analyzing, and responding to public comments, including comments that may contain confidential commercial information, protected personal information, or other kinds of sensitive submissions; 20

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8 See
Admin. Conf. of the U.S., Recommendation 20187, Public Engagement in Rulemaking, 84 FR
2146 Feb. 6, 2019.
9 See Admin. Conf. of the U.S., Recommendation 20146, Petitions for Rulemaking, 79 FR 75117
Dec. 17, 2014.
10 See Admin. Conf. of the U.S., Recommendation 20121, Regulatory Analysis Requirements, 77 FR
47801 Aug. 10, 2012.
11 See Admin. Conf. of the U.S., Recommendation 20173, Plain Language in Regulatory Drafting, 82
FR 61728 Dec. 29, 2017.
12 See Admin. Conf. of the U.S., Recommendation 20182, Severability in Agency Rulemaking, 83 FR
30685 June 29, 2018.
13 See Admin. Conf. of the U.S., Recommendation 20172, Negotiated Rulemaking and Other Options for Public Engagement, 82 FR 31040 July 5, 2017.
14 See Admin. Conf. of the U.S., Recommendation 20186, Improving Access to Regulations.govs Rulemaking Dockets, 84 FR 2143 Feb. 6, 2019.
15 See Admin. Conf. of the U.S., Recommendation 20112, Rulemaking Comments, 76 FR 48791 Aug.
9, 2011.
16 See Admin. Conf. of the U.S., Recommendation 20144, Ex Parte Communications in Informal Rulemaking, 79 FR 35993 June 25, 2014.
17 See Admin. Conf. of the U.S., Recommendation 20115, Incorporation by Reference, 77 FR 2257
Jan. 17, 2012.
18 See Admin. Conf. of the U.S., Recommendation 20135, Social Media in Rulemaking, 78 FR 76269
Dec. 17, 2013.
19 See Recommendation 20187, supra note 8.
20 See Admin. Conf. of the U.S., Recommendation 20202, Protected Materials in Public Rulemaking Dockets, 86 FR approved Dec. 16, 2020; Admin.

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9 Waiving or invoking of Administrative Procedure Act exemptions to notice and comment; 21 and 10 Using interim final rules or direct final rules.22
c Procedures Connected With the Presidential Review Process, if Applicable Subtopic Examples:
1 Interacting with the Office of Information and Regulatory Affairs, the Office of the Federal Register, the Regulatory Information Service Center, the Small Business Administrations Office of Advocacy, and other offices with government-wide rulemaking responsibilities;
2 Participating in the interagency review process; and 3 Procedures related to international regulatory cooperation.23
d Procedures for Handling Post-Comment Period Communications Subtopic Examples:
1 Provisions pertaining to reply comments 24 and 2 Handling late-filed comments.25
e Internal Approval Procedures for Issuing and Finalizing Rules Subtopic Examples:
1 Procedures for submitting rules to offices with legal, economic, and other responsibilities within the agency for review 26 and 2 Procedures for submitting rules to the relevant agency official for final approval.
f Procedures for Reassessing Existing Rules Subtopic Examples:
1 Issuing regulatory waivers and exemptions; 27
2 Engaging in retrospective review of rules; 28
3 Maintaining and preserving rulemaking records, including transparency of such records and the handling of confidential commercial information, protected personal information, or other kinds of sensitive information contained therein; 29 and Conf. of the U.S., Recommendation 20111, Legal Considerations in e-Rulemaking, 76 FR 48789 Aug.
9, 2011.
21 See Recommendation 921, supra note 4.
22 See Admin. Conf. of the U.S., Recommendation 954, Procedures for Noncontroversial and Expedited Rulemakings, 60 FR 43108 Aug. 18, 1995.
23 See Admin. Conf. of the U.S., Recommendation 20116, International Regulatory Cooperation, 77
FR 2259 Jan. 17, 2012.
24 See Recommendation 20112, supra note 15.
25 See id.
26 See Admin. Conf. of the U.S., Recommendation 20195, Agency Economists, 84 FR 71349 Dec. 27, 2019.
27 See Admin. Conf. of the U.S., Recommendation 20177, Regulatory Waivers and Exemptions, 82 FR
61742 Dec. 29, 2017.
28 See Admin. Conf. of the U.S., Recommendation 20145, Retrospective Review of Agency Rules, 79
FR 75114 Dec. 17, 2014.
29 See Admin. Conf. of the U.S., Recommendation 20134, Administrative Record in Informal Rulemaking, 78 FR 41358 July 10, 2013.

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4 Handling rules that have been vacated or remanded without vacatur.30
Administrative Conference Recommendation 20202
Protected Materials in Public Rulemaking Dockets Adopted December 16, 2020
As part of the rulemaking process, agencies create public rulemaking dockets, which consist of all rulemaking materials agencies have: 1 Proactively published online or 2
made available for public inspection in a reading room. Public rulemaking dockets include materials agencies generate themselves and comments agencies receive from the public. Their purpose is to provide the public with the information that informed agencies rulemakings.1
The Administrative Conference has issued several recommendations to help agencies balance the competing considerations of transparency and confidentiality in managing their public rulemaking dockets.2 This project builds on these recommendations.
The scope of the Recommendation is limited to personal information and confidential commercial information that agencies have decided to withhold from their public rulemaking dockets, which this Recommendation calls protected material.
The Recommendation specifies how agencies should consider handling protected material.
For purposes of this Recommendation, personal information is information about an individual including his or her education, financial transactions, medical history, criminal or employment history, or similarly sensitive information, and that contains his or her name, or the identifying number, symbol, or other identifying particular 30 See Admin. Conf. of the U.S., Recommendation 20136, Remand Without Vacatur, 78 FR 76272
Dec. 17, 2013.
1 The public rulemaking docket is distinguished from the administrative record for judicial review, which is intended to provide courts with a record for evaluating challenges to the rule, and the rulemaking record, which means all comments and materials submitted to agencies during comment periods and any other materials agencies considered during the course of the rulemaking. See Admin. Conf. of the U.S., Recommendation 20134, The Administrative Record in Informal Rulemaking, 78 FR 41358 July 10, 2013.
2 Recommendation 20111, Legal Considerations in e-Rulemaking, advises agencies to allow submitters to flag confidential information, including trade secrets, and advises agencies to devise procedures for reviewing and handling such information. Admin. Conf. of the U.S., Recommendation 20111, Legal Considerations in e-Rulemaking, 1, 76 FR 48789, 48790 Aug. 9, 2011. Recommendation 20134, supra note 1, 11, advises agencies to develop guidance on managing and segregating protected information, such as confidential commercial information and sensitive personal information, while disclosing nonprotected materials; see also Admin. Conf. of the U.S., Recommendation 897, Federal Regulation of Biotechnology, 54 FR 53494 Dec. 29, 1988; Admin.
Conf. of the U.S., Recommendation 821, Exemption b4 of the Freedom of Information Act, 47 FR 30702 July 15, 1982; Admin. Conf. of the U.S., Recommendation 806, Intragovernmental Communications in Informal Rulemaking Proceedings, 45 FR 86408 Dec. 31, 1980.

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