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ACUS updates guidance on public engagement for interim and direct‑final rules
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Summary
The assembly adopted a recommendation that urges agencies to use supplemental public engagement when considering invoking the good‑cause exemption, to prioritize timely finalization of interim final rules, and to use statutory 'major rule' triggers (CRA) in parts of the text.
The Administrative Conference adopted a set of recommendations aimed at narrowing the occasions when agencies bypass notice‑and‑comment rulemaking and at strengthening procedures when agencies invoke the APA’s good‑cause exemption.
The Committee on Rulemaking framed the issue as a tension between speed and public participation. "A lot of the committee’s work focused on interim final rules and direct final rules — when they are used and how agencies should balance expedition against meaningful public engagement," committee members said. (Mark Sculace, report consultant; Bertrall Ross, committee chair.)
Members debated definitions of "direct final" and "interim final" rules, whether agencies should give longer comment periods (60 days) for significant/major rules, and whether agencies should be required to finalize or withdraw IFRs within a defined timeframe. After extended debate the assembly adopted amendments to narrow references to executive‑order thresholds and instead cite the Congressional Review Act definition of "major rule" in certain places, add an expectation that agencies prioritize prompt finalization of rules that received many comments, and encourage use of additional public‑engagement measures when considering invocation of the good‑cause exemption.
The chair called for the manager's (non‑substantive) amendments and then handled pre‑submitted and floor amendments; many council and member proposals were agreed by voice or by show of cards. The assembled membership adopted the recommendation as amended.
What happens next: ACUS staff will publish the revised recommendation; the text aims to provide best practices and procedural guardrails for agencies considering expedited rulemaking paths.
