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ACUS committee debates when and how agencies should seek public input under the good-cause exemption
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Summary
At its second meeting on a draft recommendation, the Administrative Conference of the United States committee on rulemaking discussed updating prior ACUS guidance, whether to require or encourage public engagement for rules adopted under the good-cause exemption, and how to treat temporary or event-driven rules; members did not vote and deferred several wording choices to staff and the committee on style.
The Administrative Conference of the United States’ Committee on Rulemaking met to continue work on a draft recommendation advising agencies about public engagement when they rely on the good-cause rulemaking exemption. Ben, who presented the committee’s draft, said the recommendation “updates, reaffirms kind of the central elements of prior ACUS recommendations from 1983 and 1995” and adds new guidance for rules that are ‘‘major or significant,’’ citing a 2012 GAO study as part of the rationale.
Committee members focused most of the meeting on two linked questions: when agencies should engage the public if they are relying on (or considering relying on) the good-cause exemption in 5 U.S.C. 553, and which forms of engagement are appropriate in different circumstances. Ben defined public engagement as ‘‘any activity by an agency to elicit input from the public’’ and noted that supplemental engagement could include requests for information, targeted outreach, or meetings in addition to traditional notice-and-comment procedures.
Several members urged caution about treating all good‑cause cases the same. Ron Levin argued that if it is clear a matter falls within the exemption—because it is ‘‘too trivial’’ or engagement would be ‘‘impractical or contrary to the public interest’’—there is less case for public outreach. By contrast, Ron said, ‘‘if it’s uncertain whether the exemption applies, then getting more information about whether it does or doesn’t might have more merit.’’
Members pressed staff to take a careful, evidence-based approach to temporary rules. Mark, the committee’s consultant, said his team’s work on temporary rules was ‘‘pretty limited’’ and described Coast Guard examples in which closures sometimes last less than 24 hours and sometimes have substantial lead time (for example, annual July 4 events in New York). Miriam Vincent added that the Coast Guard uses constructive notice procedures for affected port users and that lead time varies by circumstance.
A recurring drafting dispute concerned whether the draft should use the word "necessary" or a lower bar such as "useful" to describe when engagement will help an agency decide whether the exemption applies or will improve a rule. Michael suggested changing ‘‘necessary’’ to ‘‘useful’’ (or ‘‘necessary or useful’’), arguing a high bar of necessity would undercut the recommendation’s intent. The chair and other members agreed to revise the language to capture benefits as well as resource constraints and to have the committee on style reconcile phrasing.
Committee members also debated structural changes to the draft. Bill and others proposed moving the section that lists factors for deciding whether to engage (previously numbered later in the draft) to the top, so the guidance about ‘‘how’’ to engage would follow ‘‘whether’’ an agency should engage. Members discussed cross-references to later paragraphs that enumerate options—notice-and-comment, direct final rules (DFR), interim final rules (IFR), and other forms of supplemental engagement—and agreed staff should prepare side-by-side language options.
On the question of encouraging uniform government practice, Mark suggested the recommendation could propose ‘‘some uniform guidance given to agencies either through the form of a presidential executive order or maybe through OMB guidance,’’ noting past ACUS recommendations lacked consistent uptake. Several members supported offering clearer, more actionable guidance rather than aspirational statements.
No formal motion or vote was recorded. The group spent the final hour on detailed line edits and a prolonged exchange about the opening sentence of paragraph 2—whether to address agencies "when using the good-cause exemption," "when considering invoking it," or some hybrid phrasing for marginal cases. The chair asked staff to prepare competing phrasings for the next meeting.
The committee adjourned with a plan to reconvene next week at 10:00 a.m. Eastern for further drafting. Ben will circulate the slides and updated draft language for paragraph 2 and related cross-references prior to that meeting.
