ACUS rulemaking committee approves draft guidance to improve interagency communication in rulemaking

The Administrative Conference of the United States (ACUS) Committee on Rulemaking voted to forward a draft recommendation urging agencies to strengthen early inter‑agency communication in rulemaking, committee members said at a meeting to review the draft.

The recommendation, discussed line‑by‑line during the meeting, emphasizes that early feedback from other agencies with overlapping missions or affected procedures is most useful and that agencies should adopt internal practices to govern informal communications. Christopher Carrian, the report’s consultant from the George Washington University Regulatory Studies Center, said the project used a mixed‑methods approach — public‑document review, a six‑month sample of preambles from two administrations, and 21 interviews — and that a recurring finding was that “the most valuable comments they receive are the ones they receive early,” meaning before a rule is proposed publicly.

Carrian told the committee that early‑stage exchanges are frequently informal and driven by personal networks rather than written handbooks. He said his review found handbooks often lack detailed guidance on inter‑agency contacts, and that agencies rarely disclose early inter‑agency communications in preambles. “It is rare to actually find the inter‑agency communication that’s happening quite robustly in the early stage in an actual preamble,” Carrian said, citing FOIA protections and agencies’ interest in encouraging candid feedback.

Members debated several drafting issues while reviewing the text. Miriam Vincent urged including the Office of the Federal Register early in inter‑agency negotiations that may require nonstandard publication structures, warning that OFR can raise publication problems late in the process and cause last‑minute rework. The committee accepted a drafting change to move the qualifying phrase “as appropriate” to follow “informally,” so that the language reads, in effect, that officials should “communicate informally, as appropriate.”

A contested subparagraph (3.D), which used the phrase “regular unstructured meetings,” drew particular scrutiny. Several members argued the phrase was unclear or redundant; alternatives such as “regular status meetings” or “regular discussions” were proposed. After discussion, the chair proposed striking the subparagraph and the committee removed it by unanimous consent.

The committee also debated the strength of language recommending that agencies explain to other agencies why inter‑agency feedback was not incorporated. Some members characterized such explanations as a best practice that promotes collaboration; others noted constraints including timing, front‑office decisions and, in rare cases, confidentiality or classified material that may limit the ability to explain. The drafting team clarified the recommendation’s focus is chiefly on early, pre‑proposal engagement rather than the formal OIRA (Office of Information and Regulatory Affairs) review under Executive Order 12866, and the committee agreed to add or refine language and a footnote to make that distinction.

On internal governance, members discussed whether to call agency guidance “policies,” “practices,” or “guidance.” The committee retained the word “policies” consistent with ACUS drafting conventions, and added language encouraging agencies to consider whether and when deviations from such policies might be appropriate. For publication, the draft recommends agencies “should consider” making these internal policies publicly available, while allowing agencies discretion to account for legal or operational constraints.

After completing the line‑by‑line review and resolving textual issues through edits adopted by unanimous consent, Chair Jen Dicki called for a vote to recommend the draft to the ACUS plenary. Committee members with voting privileges raised their hands in favor; no opposition was recorded. The chair said the committee would forward the draft to the plenary for consideration.

The committee’s next procedural step is plenary consideration; members noted that style and placeholder citations (including a cross‑reference to a separate project on inter‑agency agreements) would be finalized by the committee on style prior to plenary review.

The meeting record shows the committee engaged substantively with the draft: it tightened drafting to reduce ambiguity, clarified the recommendation’s scope relative to formal OIRA review, and preserved agency discretion while promoting best practices to improve early, collaborative rule development.