ACUS rulemaking committee approves draft guidance on temporary rules and sends it to plenary

The Administrative Conference of the United States' Rulemaking Committee voted to approve and forward to the plenary a revised draft recommendation on agencies' use of temporary rules after a two-hour virtual meeting.

Committee chair Jen Dickey opened the session and asked members to focus on remaining edits to the draft, including language about how agencies should treat extensions of temporary rules. "Please note that only ACUS members ... and their designated alternates have full speaking privileges," she said while outlining procedural rules for the session. The committee then reviewed specific paragraphs of the draft, addressing concerns raised in earlier meetings and in written comments.

The committee spent substantial time on a paragraph that explains whether an extension of a temporary rule should be treated as a separate rulemaking. A written comment from senior fellow Michael Hertz urged deleting a paragraph he viewed as redundant; consultant Eyal responded that the paragraph helps agencies understand when an extension triggers section 553 requirements. Members debated whether the draft's phrasing "should" was too weak; several members favored language clarifying that, absent an exception, an extension would proceed as a separate rulemaking requiring notice and an opportunity for public comment. Bill Funk proposed wording that the committee adopted to address that concern.

Committee members also debated internal procedures for submitting temporary rules to the Office of the Federal Register (OFR). David Zarin, participating for the first time, cautioned against imposing burdensome internal-document requirements on agencies; others, including Bill Funk, said the provision calls for internal guidance to ensure agencies submit temporary rules correctly to the OFR. Eyal cited the Coast Guard's guidance as an example of internal procedures that staff found helpful.

During the preamble review, members accepted edits to clarify that the recommendations apply to rules as defined by the Administrative Procedure Act (APA) and do not automatically change whether material belongs in rule text or a preamble. Members added language encouraging agencies, when deciding whether to designate a rule as temporary, to consider the advantages and disadvantages and to build timelines so they do not have to rush extensions as expiration dates approach.

Jason Schwartz of the Institute for Policy Integrity, the meeting's public commenter, urged stronger guidance on public engagement for extensions and on reassessing costs and benefits for successive extensions. "Not everybody will read the preamble," Schwartz said, pressing the committee to put key factors into the recommendation text itself and suggesting transparency measures such as an online inventory of temporary rules and their durations. Committee members accepted many of his substantive suggestions in modified form but rejected a stand‑alone requirement for a new agency database, noting Federal Register citation practices already allow tracing extensions.

After finishing edits and resolving remaining comments, Chair Jen Dickey called for a show-of-hands vote of committee members to forward the draft to the plenary. With no votes recorded in opposition, the committee approved the recommendation; staff will make a final round of stylistic edits before the paper goes to the plenary.

The committee's vote was procedural (approval to send the draft to the plenary); members did not take up any additional substantive final actions in the meeting. Staff and committee leaders said they would circulate the final, stylistically edited version to committee members before plenary consideration.