Rulemaking (Past Projects)

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The Conference studied procedures and best practices for managing ex parte contacts in the informal rulemaking process.  The study examined the propriety of ex parte communications during various stages of the rulemaking process and clarified the agencies’ legal obligations to preserve public participation rights and facilitate judicial review.  It also identified the...

Recommendation 2014-3, Guidance in the Rulemaking Process, identifies best practices for agencies when providing guidance in preambles to final rules.  It suggests ways that agencies can improve the drafting and presentation of these preambles, including making it easier to identify any guidance content.  The recommendation also urges agencies to ensure that users of their websites...

Recommendation 2012-8, “Inflation Adjustment Act,” addresses agency adjustments to civil monetary penalties under the Federal Civil Penalties Inflation Adjustment Act, codified as amended at 28 U.S.C. 2461 note.

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This study focused on the many legal issues that arise in e-Rulemaking, including how agencies may use software to determine that submitted comments are identical or nearly identical, and whether agencies can (and should) destroy paper copies of comments scanned to electronic form. The resulting recommendation identifies approaches that agencies can lawfully use to reduce...

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The Conference studied the use of petitions for rulemaking, their potential to improve responsiveness to citizen concerns, and best practices for facilitating submission and guiding agency responses. 

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Recommendation 2014-5, Retrospective Review of Agency Rules, examines agencies’ procedures for reanalyzing and amending existing regulations and offers recommendations designed to promote a culture of retrospective review at agencies.  Among other things, it urges agencies to plan for retrospective review when drafting new regulations; highlights considerations...

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Recommendation 2011–2, Rulemaking Comments, recognizes innovations in the commenting process that could promote public participation and improve rulemaking outcomes. The recommendation encourages agencies (1) to provide public guidance on how to submit effective comments; (2) to leave comment periods open for sufficient periods, generally at least 60 days for significant regulatory...

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This study examined various policy and legal issues agencies face when using social media to support rulemaking activities.  It evaluated whether and when agencies should use social media to support rulemaking activities and sought to define applicable legal and policy constraints on agency action, resolve legal uncertainty to the greatest extent possible, and encourage agencies to find...