Rules for the Rule-Makers

This article was authored by ACUS Attorney Advisor Todd Rubin.

This article first appeared in the Regulatory Review's series on "Improving the Accessibility and Transparency of Administrative Programs" that focuses on the ACUS Recommendations adopted at the December 2020 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.

Many laws shape how agencies issue their regulations: statutes, such as the Administrative Procedure Act and the Regulatory Flexibility Act; executive orders, such as Executive Order 12,866; and agency rules that govern their own rulemaking procedures.

Because many statutes and executive orders about the rulemaking process are worded broadly—necessarily so, since they cover so many agencies—they leave room for agencies to design rulemaking procedures suited to their own needs.

Last fall, I served as the in-house researcher for an Administrative Conference of the United States (ACUS) project to examine the rules and other documents that agencies issue to govern their internal process for adopting notice-and-comment rules. This project culminated in an ACUS recommendation entitled, “Rules on Rulemakings.”

In the first phase of my research, I determined whether it is common for agencies to issue rules and other documents that shape their internal rulemaking procedures. As part of my research, I searched the entire electronic Code of Federal Regulations and explored agency websites. I also convened a roundtable with agencies, congressional officials from both parties, and academics.

Through this process, I learned how agencies issue internal rulemaking procedures. My research revealed the existence of 27 agency-styled rules that govern some aspect of an agency’s notice-and-comment rulemaking. My research also revealed several other documents not styled as rules but that nonetheless purport to set forth an agency’s rulemaking processes. It is not clear, however, how common these non-rule documents are.

My research also highlighted that agencies use inconsistent methods to publish and style these rules. Agencies publish internal procedures in the Code of Federal Regulations, Federal Register, on their websites or in more than one of these locations, and some procedures are not published at all. Agencies also style their procedures differently, referring to them variously as rules, explanatory material, guidance, or other labels altogether.

My research culminated in a memorandum that highlights the most common issues that agency rules on rulemakings address, including:

  • Procedures before the issuance of a notice of proposed rulemaking; 

  • Procedures connected with notice and comment;

  • Procedures connected with presidential review; 

  • Procedures for handling post-comment period communications; 

  • Internal approval procedures for issuing and finalizing rules; and 

  • Procedures for reassessing existing rules.

Rules on rulemaking also contain provisions directed at the public, such as how to and to whom to submit comments. Furthermore, these rules contain provisions directed to agency officials about minimum comment periods and internal review procedures.

One of the more salient lessons that emerged from this research is that agencies’ internal rulemaking procedures are often difficult or impossible to locate. It may require a Freedom of Information Act request or an in-depth search of an agency website to obtain a copy of these procedures. Agencies may publish some procedures in the Code of Federal Regulations, but they also supplement procedures with internal memoranda or documents that are difficult to find.

Using the findings from my research, the ACUS Committee on Regulation proposed, and ACUS adopted, several avenues for agencies to achieve greater transparency, efficiency, and accountability for their internal rulemaking procedures.

First, ACUS advises agencies to consider issuing rules on rulemakings and including certain topics within these rules—namely, the six bulleted issues I identified above. ACUS also suggests that agencies post their rules on rulemakings in an easily located portion of their website and include features to make documents identifiable, such as indexing and sorting tables. ACUS suggests that agencies publish the rules in both the Code of Federal Regulations and the Federal Register.

Second, agencies should also consider issuing explanatory materials—not necessarily styled as rules—that describe the agency’s rulemaking practices. Explanatory materials are often very helpful tools for the public to understand how the agency develops rules, especially when written in plain language.

Third, ACUS urges agencies to seek public input on rules on rulemakings, even if they are not required to do so. Indeed, ACUS has long endorsed the view that agencies should seek public input even when they are not required to do so. Public input can enrich an agency’s understanding of how to shape its rules on rulemakings, especially when such rulemaking provisions are directed to the public.

Finally, ACUS recognizes that agencies may need to approach their rulemaking process with flexibility, and it encourages agencies to consider making rules on rulemakings internally waivable to preserve that flexibility.

Although ACUS’s recommendations focus exclusively on documents that govern the process for rulemaking, the principles can apply more broadly to any number of other activities in which agencies engage, such as grantmaking, enforcement activities, hiring, adjudication, and scientific research. All of these activities, and many more, impact the public, just as rulemaking does. That makes the internal rules governing agency activities often a matter of public concern. Agencies should consider how to structure their internal processes about all of these activities to maximize transparency, efficiency, and accountability.

The ACUS project focused on an understudied but critical aspect of administrative procedure: the internal rules governing how agencies issue regulations. Agencies can promote transparency, efficiency, and accountability in rulemaking by adhering to ACUS’s recommendation as they continue to develop these rules.