Revised and Final Version
November 25, 2020

MEMORANDUM1
To:

Members of the Committee on Regulation

From:

Todd Rubin, Attorney Advisor

Subject:

Rules on Rulemakings

Executive Summary
The project under the Committee’s consideration addresses whether and when agencies
should adopt rules setting forth the agencies’ procedures for informal rulemaking. These
procedures can include internal approval requirements for proposed rules, minimum comment
periods, requirements for ex ante and ex post review, and protocols for submitting sensitive
information, among other subjects. The project does not seek to dictate the precise types of
rulemaking procedures agencies should adopt, but it does explore the potential costs and benefits
of a single rule or set of rules setting forth an agency’s informal rulemaking practices.
This memorandum frames the key issues for the Committee and, in its appendices,
identifies existing agency rules on rulemakings and reproduces several of them in full. It does not
endorse any particular agency’s rule.
The first section, Explanations of Key Terms, defines common terms used throughout this
memorandum.
The second section, Rules on Rulemakings Across Agencies, describes my methodology
for uncovering and analyzing rules on rulemakings. It also highlights the most common issues
associated with rules on rulemakings.
The third section, Legal Considerations, highlights the three most common legal issues
implicated by agency rules on rulemakings: notice-and-comment requirements, an agency’s

1
I am grateful to everyone with whom I worked in preparing this memorandum, including the academic experts and
government officials who participated in our March 2020 roundtable, and the following regulatory experts: Reeve
Bull, Michael Livermore, Paul Noe, Sid Shapiro, Peter Strauss, Mark Thomson, Miriam Vincent, and Matt Wiener. I
am especially grateful to Keith Holman, who assisted with the research underlying this memorandum.

1120 20th Street, NW Suite 706 South . Washington, DC 20036 . 202.480.2080 (Main) . 202.386.7190 (Fax) . www.acus.gov

Committee on Regulation
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Page 2
obligation to adhere to a course of action to which it has committed, and publication
requirements.
The fourth section, Policy Considerations, discusses the key benefits of an agency’s
adopting a rule on rulemakings, namely: enhancing accountability, transparency, and efficiency.
The fifth section, Considerations for the Committee, highlights considerations for the
Committee as it discusses a possible recommendation.
Finally, Appendix A offers excerpted examples of rules on rulemakings from a variety of
agencies. Appendix B offers full-length rules on rulemakings from the U.S. Department of
Transportation (DOT), the Federal Emergency Management Agency (FEMA), and the U.S.
Department of Housing and Urban Development (HUD). Appendix C offers a snapshot of
DOT’s Regulations web page, which contains its rule on rulemakings as well as documents that
explain its regulatory process.
I.

Explanations of Key Terms
The following key terms are used here.

Rule: This memorandum uses the definition under the Administrative Procedure Act
(APA), as codified at 5 U.S.C. § 551(4). The APA defines a “rule” as “an agency statement of
general or particular applicability and future effect designed to implement, interpret, or prescribe
law or policy or describing the organization, procedure, or practice requirements of an agency.”
In addition to legislative rules (defined below), this definition of a “rule” includes both
interpretive2 rules and general statements of policy, which are often referred to collectively as
“guidance documents.” As noted below, some courts and commentators may use the term
“guidance document” more expansively to include not only policy statements and interpretive
rules but also other agency documents that do not meet the APA definition of “rule.”
Legislative rule: Though the APA does not use the term “legislative rule,” this
memorandum uses it to mean, consistent with prevailing usage, a rule that has the “force of law”3
or can “occasion legal consequences”4 for those outside the agency, whether the rule is
substantive or procedural.5 (The term has often been used in the past to refer only to substantive
rules subject to 5 U.S.C. § 553’s notice-and-comment requirements.) Legislative rules are a
subset of “rules” under the APA. Whether a legislative rule must go through notice and comment
is a separate question addressed below.

2

In accordance with standard parlance, this memorandum uses the term “interpretive” in place of the APA’s word
“interpretative.”
3
Am. Mining Cong. v. Mine Safety and Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993).
4
Ctr. for Auto Safety v. NHTSA, 452 F.3d 798, 806 (D.C. Cir. 2006); see also Gillian E. Metzger & Kevin M.
Stack, Internal Administrative Law, 115 MICH. L. REV. 1239 (2017).
5
See, e.g., Admin. Conf. of the U.S., Recommendation 2019-6, Independent Research by Agency Adjudicators in
the Internet Age, 84 Fed. Reg. 71,350, 71,351 (Dec. 27, 2019).

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Rule on rulemakings: This is a rule setting forth policies governing how agencies conduct
rulemakings. Some take the form of legislative rules. Some take the form of non-legislative rules
(e.g., general statements of policy). Non-legislative rules on rulemakings can bind agency staff
but cannot bind those outside the agency.6 Of the twenty-seven rules on rulemakings that were
uncovered, five state that the rule does not create any substantive or procedural rights or
benefits.7 These disclaimers suggest that the agencies intend such rules to be binding only
internally, if at all. This memorandum does not address whether courts would deem some or all
of the twenty-seven rules to be legislative rules.8
This memorandum also refers to a broad universe of materials that agencies publish
regarding their rulemaking processes that may not be APA rules at all. These include documents
that agencies publish to provide general background on the rulemaking process in order to
educate the public. An example would be explanatory or background materials about the
agency’s rulemaking processes. Some commentators refer to these types of documents as
“guidance documents,”9 but how they are characterized and whether they are APA rules are
immaterial to this memorandum.
II.

Rules on Rulemakings Across Agencies

To determine how common rules on rulemakings are, I scanned every title of the
electronic Code of Federal Regulations (eCFR), thereby covering every agency that has a rule on
rulemakings within the CFR. I looked for subsection titles indicating a rule that sets forth
rulemaking procedures, such as “Rulemaking Requirements” or “Administrative Requirements.”
Because the eCFR is well indexed, I could easily identify the subsections that contain rules on
rulemakings. I did not examine any Federal Register entries for agencies that were not published
in the CFR; nor did I examine agency websites for rules on rulemakings, other than DOT’s, as
will be discussed below. Because the Federal Register and agency websites are not
systematically indexed, such a search would have been burdensome to conduct in a
comprehensive manner.
Through my search of the eCFR, I identified twenty-seven documents that appear to
qualify as rules on rulemakings. My analysis of their content revealed that they are
heterogeneous. For example, they often combine “external-facing” provisions, which purport to
bind the public, with “internal-facing” provisions, which purport to bind only the agency. They
also often combine substantive and procedural provisions, as will be described in greater detail
below.
6

See, e.g., Admin. Conf. of the U.S., Recommendation 2019-1, Agency Guidance Through Interpretive Rules, 84
Fed. Reg. 38,927 (Aug. 8, 2019); Admin. Conf. of the U.S., Recommendation 2017-5, Agency Guidance Through
Policy Statements, 82 Fed. Reg. 61,734 (Dec. 29, 2017).
7
Although these disclaimers are not dispositive, courts generally give them weight. See, e.g., Cement Kiln
Recycling Coal. v. EPA, 493 F.3d 207, 228 (D.C. Cir. 2007) (“[W]e have previously relied on similar disclaimers as
relevant to the conclusion that a guidance document is non-binding.”).
8
See, e.g., Recommendation 2019-1, supra note 6; Recommendation 2017-5, supra note 6.
9
See Cary Coglianese, Public Availability of Agency Guidance Documents 7–9 (May 15, 2019) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/consultant-report-public-availability-agency-guidancedocuments.

Committee on Regulation
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The aspects of rulemaking most often addressed by these rules on rulemakings relate to:
•
•
•
•
•
•
•
•
•
•

petitions for rulemaking;
internal initiation, review, or approval of rulemakings;
ex-ante regulatory analyses (e.g., benefit-cost analysis, regulatory flexibility analysis);
negotiated rulemaking;
waivers of APA exemptions (e.g., waiver of exemption for rules related to grants, loans,
contracts, and property);
submission of sensitive information (e.g., trade secrets);
minimum comment periods;
ex parte communications;
the effective or issued date of rules; and
retrospective review.

Appendix A gives examples of these procedures drawn from actual agency rules on
rulemakings. Appendix B offers three examples of full-length rules on rulemakings. As
discussed in the Executive Summary, these examples are offered merely to illustrate how these
concepts apply in practice: this project does not endorse any particular agency’s rule on
rulemakings.
III.

Legal Considerations

Notice and Comment
Under the APA, agencies are generally required to publish a “general notice of proposed
rulemaking . . . in the Federal Register.”10 They are then generally required to “give interested
persons an opportunity to participate in the rule making through submission of written data,
views, or arguments . . . .”11 This is often referred to as the “notice-and-comment process.”
Important exceptions to the notice-and-comment requirement are for “rules of agency
organization, procedure, or practice,” interpretive rules, and “general statements of policy.”12
Although agencies need not put procedural rules, interpretive rules, and general statements of
policy through notice and comment, they are permitted to do so and indeed, frequently do. The
Administrative Conference has recommended that agencies seek public input on proposed rules
even in many instances in which they are not required to do so.13
The distinction between substantive rules, which must undergo notice and comment, and
procedural rules, which need not, has been the subject of much litigation. Certain kinds of rules
are clearly procedural. One kind of procedural rule is a rule that dictates how people must
10

5 U.S.C. § 553(b).
Id. § 553(c).
12
Id. § 553(b)(3)(A).
13
See, e.g., Recommendation 2019-1, supra note 6; Recommendation 2017-5, supra note 6; Admin. Conf. of the
U.S., Recommendation 92-1, The Procedural and Practice Rule Exemption from the APA Notice-and-Comment
Rulemaking Requirements, 57 Fed. Reg. 30,102 (Jul. 8, 1992).
11

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Page 5
present their views to the agency.14 For example, a rule that requires people to put their names
and addresses on rulemaking petitions for the agency to consider them, or to write the word
“sensitive” on a comment in order for the agency to protect it from disclosure, is clearly
procedural and would not need to undergo notice and comment. On the other hand, rules are
clearly substantive when they substantially affect the rights and interests of the public.15 For
example, a rule that requires the agency to use a particular value of a statistical life in a
rulemaking is clearly substantive and would require notice and comment.
These clear cases notwithstanding, the distinction between “substantive” and
“procedural” rules is notoriously murky.16 Additionally, rules on rulemakings often combine
substantive provisions with purely procedural provisions. If a rule on rulemakings has both, the
part that is substantive must go through notice and comment. The part that is procedural need
not.17 Therefore, agencies should tread carefully if they decide not to use the notice-andcomment process to issue their rules on rulemakings.
Agencies’ Adherence to Their Own Pronouncements
Legislative rules are enforceable by private litigants on judicial review.18 In other words,
if an agency takes an action that does not accord with a pronouncement that it put forward in a
legislative rule, a person can challenge that action, assuming he or she has standing. Under
certain circumstances, rules that agencies characterize as non-legislative rules, such as general
statements of policy, may likewise be enforceable by private litigants on judicial review.19
Courts have held agencies to the pronouncements in such documents if they speak in sufficiently
mandatory language20 or if the agency has applied the document in an inflexible fashion.21 In
some cases, courts may treat such provisions cast in sufficiently definitive language as
constituting legislative rules. In other cases, courts may not treat such provisions as legislative
rules but nevertheless hold agencies to such provisions on some other basis.22 Either way, the
result is the same, and the agency must abide by the language in the document. For this reason,
when issuing rules on rulemakings that take the form of general statements of policy, or when
issuing documents that may not be rules at all, such as explanatory documents, agencies should
recognize that the use of mandatory language or other manifestations of intent to be bound by
such documents may result in their being bound by such documents.

14

See Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014).
See Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014).
16
See, e.g., JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (confessing that “we have struggled with the
distinction between ‘substantive’ and ‘procedural’ rules”); American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045
(D.C. Cir. 1987) (noting that the line dividing substantive and procedural rules is a “hazy” one).
17
I am not aware, though, of any instances in which an agency has made a rule divisible in this respect for purposes
of notice and comment.
18
See, e.g., Accardi v. Shaughnessy, 347 U.S. 260 (1954).
19
See Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569 (2006).
20
See, e.g., Morton v. Ruiz, 415 U.S. 199, 235 (1974) (requiring agency to adhere to internal policy manual that
used binding language).
21
See, e.g., Vietnam Veterans v. Sec’y of the Navy, 843 F.2d 528, 539 (D.C. Cir. 1988).
22
See, e.g., Metzger & Stack, supra note 4, at 1281–86.
15

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The language an agency uses in any given document will affect whether or not a court
will consider the agency to be bound by the document. Using words such as “must,” “shall,” or
“will” increases the probability that a court will find a document binding on the agency.23 By
contrast, characterizing a document as an “FAQ” or “internal manual” decreases that probability.
Furthermore, including disclaimer language that states that the document does not confer any
procedural or substantive rights or benefits also decreases that probability.24
It will not always be easy to predict how courts will treat specific language in an agency’s
pronouncement about rulemaking. In this light, agencies should attempt to be as definitive as
possible with respect to their intent either to be bound or to retain per se discretion to depart from
specific procedures.
Publication of Rules on Rulemakings
The Freedom of Information Act (FOIA) requires “substantive rules of general
applicability adopted as authorized by law” and “rules of procedure” to be published in the
Federal Register.25 FOIA also requires certain other documents, namely “statements of general
policy” and “interpretations of general applicability formulated and adopted by the agency,” to
be published in the Federal Register.26 Finally, FOIA requires that, among other documents,
“statements of policy and interpretations which have been adopted by the agency and are not
published in the Federal Register,” and “administrative staff manuals and instructions to staff
that affect a member of the public” be made available electronically but need not be published in
the Federal Register.27
The Federal Register Act requires all rules that have “general applicability and legal
effect” to be published in the CFR.28 The CFR defines “general applicability and legal effect” as
“any document issued under proper authority prescribing a penalty or course of conduct,
conferring a right, privilege, authority, or immunity, or imposing an obligation, and relevant or
applicable to the general public, members of a class, or persons in a locality, as distinguished
from named individuals or organizations.”29
A rule on rulemakings that is a legislative rule must be published in both the Federal
Register and CFR. Agencies sometimes publish rules in the CFR without considering whether
they are legislative or non-legislative and without characterizing the rules as either. Courts do not
consider publication in the CFR to be dispositive of legislative-rule status, or even an especially
important consideration.30 A rule on rulemakings that is a general statement of policy or an
23

See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011).
See, e.g., Cement Kiln Recycling Coal., 493 F.3d 207.
25
5 U.S.C. § 552(a)(1).
26
Id.
27
Id. § 552 (a)(2).
28
44 U.S.C. § 1510(a).
29
1 C.F.R. § 1.1.
30
See, e.g., Health Ins. Ass’n of Am. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994) (stating that “publication in the
Code of Federal Regulations, or its absence” is only “a snippet of evidence of agency intent” that the published
pronouncement has binding effect).
24

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interpretive rule of general applicability that is formulated and adopted by the agency must be
published in the Federal Register. Other documents related to the agency’s rulemaking process
might only need to be made available electronically and not published in either the Federal
Register or the CFR.
IV.

Policy Considerations

To identify the key policy considerations associated with rules on rulemakings, I spoke
with numerous regulatory experts, including a number of members of the Administrative
Conference. My conversations with regulatory experts included a March 2020 roundtable, which
consisted of government officials and academics. Officials from the following agencies
participated in this roundtable: the Centers for Medicare and Medicaid Services; the Coast
Guard; the Department of Commerce; the Department of Education; the Department of Justice;
the Department of Labor; DOT; the Environmental Protection Agency; the Equal Employment
Opportunity Commission; the Federal Communications Commission; the Federal Trade
Commission; the Office of Management and Budget; and the Securities and Exchange
Commission.
The agencies represented a wide cross section of the Executive Branch: four independent
agencies and eight non-independent agencies.31 In addition, staff members from the House of
Representatives, from both the majority and minority, participated.
I also conducted multiple interviews with academics after the roundtable. The roundtable
and interviews allowed me to hear a diverse range of perspectives on policy considerations
involving rules on rulemakings. These discussions revealed that rules on rulemakings serve
important rule of law purposes by promoting accountability, transparency, and efficiency.32
Accountability
Rules on rulemakings promote accountability in two ways. First, they ensure that agency
leadership has approved the policies and procedures the agency will follow when conducting
rulemaking. Second, they can provide accountability in connection with individual rulemakings
by creating an internal approval process by which agency leadership reviews proposed and final
rules. For example, DOT’s rule on rulemakings creates such a structure,33 as does the Coast
Guard’s.34 This ensures internal accountability and provides an opportunity for the political
leadership of the agency to review and sign off on rules in which such higher-level review is
31

I consider the Equal Employment Opportunity Commission, the Federal Communications Commission, the
Federal Trade Commission, and the Securities and Exchange Commission to be “independent agencies.” See, e.g.,
JENNIFER L. SELIN & DAVID E. LEWIS, ADMIN. CONF. OF THE U.S., SOURCEBOOK OF UNITED STATES EXECUTIVE
AGENCIES 42 (2d ed. 2018), available at https://www.acus.gov/publication/sourcebook-united-states-executiveagencies-second-edition.
32
The law review literature on the benefits of agencies’ pre-committing to certain procedures reflects many of these
same themes. See, e.g., Metzger & Stack, supra note 4; Elizabeth Magill, Agency Self-Regulation, 77 GEO. WASH. L.
REV. 859 (2009).
33
See 49 C.F.R. § 5.13(b).
34
See 33 C.F.R. § 1.05-10.

Committee on Regulation
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deemed appropriate. Of course, imposing an extensive internal review process can add to the
time required to finalize a rule, and an agency must carefully consider the appropriate amount of
internal review and the level at which sign-off is required for any given type of rulemaking.
Transparency
Rules on rulemakings dictate the practices agencies will follow in rulemakings, and it is
important that the public has access to such documents. Whether explanatory documents should
be made similarly publicly available will depend on whether the materials include information of
interest to the public. For example, agencies should make available to the public materials that
include FAQs or background descriptions of the notice-and-comment process.35 By contrast,
materials that address matters solely of interest to agency officials (e.g., what font to use when
writing a notice of proposed rulemaking) need not be made publicly available.
Members of the roundtable also highlighted the importance, as part of promoting
transparency, of ensuring that relevant materials are not just available on agency websites, but
that they are easily findable on these websites. DOT’s website illustrates one approach to
effectively publishing rulemaking materials in an easy-to-find way. DOT publishes its rule on
rulemakings and its explanatory documents in a single section of its website titled “Regulations.”
DOT also indexes these materials with headings and subheadings, allowing people to easily
home in on particular procedures. Appendix C offers a snapshot of DOT’s indexing of its rule on
rulemakings and its explanatory documents.
Efficiency
Both agency staff and members of the public may benefit from having all rulemaking
procedures cataloged in a comprehensive, easy-to-find rule on rulemakings. This is especially
true of rules on rulemakings that are consolidated in a single document, though it can also be true
of a series of rules on rulemakings so long as they are logically organized and maintained in a
way that allows agency staff and the public to easily find the provisions of interest. The upfront
time required to promulgate such a rule/set of rules can save time down the road by facilitating
agency official access to relevant provisions and allowing agency officials to field public
inquiries by pointing to a readily available set of public documents (and ideally reducing the
incidence of such inquiries by facilitating easy public access to such documents).

35
This is consistent with Executive Order 13,891. This Executive Order, which applies to all agencies other than
independent regulatory agencies, defines “guidance document” as “an agency statement of general applicability,
intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory,
or technical issue, or an interpretation of a statute or regulation.” It requires agencies to establish a searchable,
indexed database on their websites containing all of their guidance documents in effect. See Exec. Order No. 13,891,
Promoting the Rule of Law Through Improved Agency Guidance Documents, 84 Fed. Reg. 55,235 (Oct. 15, 2019).

Committee on Regulation
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V.

Issues for Committee to Consider in Formulating a Recommendation

Rather than providing recommendations, I am identifying some issues for Committee
members to consider in formulating a recommendation. The Committee may, of course, have
others.
Concepts for Committee Discussion
(1) What are the key considerations for agencies as they decide whether or not to issue one or
more rules on rulemakings? And, if they decide to issue one or more such rules, what are the key
considerations in deciding what goes into the rules?
Potential benefits agencies should consider in deciding whether to issue such rules and what to
include therein include promoting (1) public accountability and predictability by binding the
agency to a set of procedures for all rules; (2) internal efficiency by ensuring that agency staff
have clear directions on how to proceed when issuing rules; (3) internal accountability by
providing an opportunity for high-level agency leadership, potentially including political
appointees, to weigh in on certain types of rules; and (4) transparency by ensuring that the public
can easily find an agency’s rulemaking policies.
Potential costs include (1) binding the agency in a way that reduces flexibility down the road,
especially in situations that present unpredictable circumstances in which greater flexibility is
needed and (2) slowing down the rulemaking process. To what extent can these costs be
mitigated by drafting rules on rulemakings in a way that ensures needed flexibility? Are those
costs less significant for rules on rulemakings promulgated under the APA’s procedural rules
exception, or the exception for interpretive rules and general statements of policy, given that
agencies may amend such rules without going through the notice-and-comment process?
(2) Are there benefits to consolidating all rulemaking procedures in a single rule, or are there
instances in which it is preferable to issue a series of rules, each addressing a different aspect of
the rulemaking process?
(3) The recommendation likely should not attempt to dictate what provisions rules on
rulemakings should contain, which is a determination that is best left to the discretion of
individual agencies. But it could highlight a “menu of options” drawn from preexisting rules on
rulemakings that agencies should consider in deciding what to include in any rule on
rulemakings they issue. This menu of options could include:
a. petitions for rulemaking;
b. internal initiation, review, or approval of rulemaking;
c. ex-ante regulatory analyses (e.g., benefit-cost analysis, regulatory flexibility
analysis);
d. negotiated rulemaking;
e. waivers of APA exemptions (e.g., waiver of exemption for rules related to grants,
loans, contracts, and property);
f. submission of sensitive information (e.g., trade secrets);

Committee on Regulation
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Page 10
g.
h.
i.
j.

minimum comment periods;
ex parte communications;
the effective or issued date of rules; and
retrospective review.

(4) How should agencies go about making rules on rulemakings public? Where should they place
them on their websites to ensure that the public can easily access them? What sorts of search
features should they enable in order to promote easy access to rules on rulemakings?
In speaking to this topic, the Committee should consider the approach taken in past
Administrative Conference recommendations addressing how agencies should make important
documents publicly available. The relevant recommendations are Recommendation 2017-1
(Adjudication Materials on Agency Websites),36 Recommendation 2018-5 (Public Availability of
Adjudication Rules),37 and Recommendation 2019-3 (Public Availability of Agency Guidance
Documents).38 Each of these recommendations encourages agencies to ensure that relevant
documents are easily accessible from the agency’s home page (using techniques like linked tabs
or pull-down menus); to design their search engines to allow one to easily identify relevant
documents; and to use techniques such as indexing, tagging, or sorting tables to ensure that
relevant documents are easily findable.
(5) If the agency also issues explanatory documents, how should the agency go about making
those documents public, and how should the agency ensure that it clearly distinguishes such
materials from rules on rulemakings?
In making this recommendation, the Committee should be mindful of Recommendation 2019-3
(Public Availability of Agency Guidance Documents), which defined “guidance documents” very
broadly to include not only the APA terms “interpretive rules” and “general statements of
policy,” but also “other materials considered to be guidance documents under other, separate
definitions adopted by government agencies.”39 Those rules on rulemakings that are issued as
general statements of policy would fall within this Recommendation’s scope, as would
explanatory documents. The Recommendation encourages agencies to ensure that guidance
documents are easily accessible from the agency’s home page (using techniques like linked tabs
or pull-down menus); to design their search engines to allow one to easily identify relevant
documents; to use techniques such as indexing, tagging, or sorting tables to ensure that relevant
documents are easily findable; and to publish information about new or revised documents in the
Federal Register. The Committee should consider structuring any recommendation so that it
aligns with Recommendation 2019-3.

36

Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication Materials on Agency Websites, 82 Fed. Reg.
31,039 (July 5, 2017).
37
Admin. Conf. of the U.S., Recommendation 2018-5, Public Availability of Adjudication Rules, 84 Fed. Reg.
2142 (Feb. 6, 2019).
38
Admin. Conf. of the U.S., Recommendation 2019-3, Public Availability of Agency Guidance Documents, 84 Fed.
Reg. 38,931 (Aug. 8, 2019).
39
Id.

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For those rules on rulemakings that qualify as “interpretive rules” or “general statements of
policy,” the Committee should consider Recommendation 2019-1 (Agency Guidance Through
Interpretive Rules) and Recommendation 2017-5 (Agency Guidance Through Policy Statements).
These recommendations note that, although it is sometimes appropriate for an agency, as an
internal agency management matter, to direct some of its employees to act in conformity with a
guidance document, this should not interfere with affording members of the public a fair
opportunity to argue for lawful approaches other than those put forward by a guidance document
or to request modification, rescission, or waiver of a guidance document. The Committee should
likewise consider Executive Order 13,891, which requires that agencies, other than independent
regulatory agencies, make certain policy statements and interpretive rules publicly available
online and label such documents so that their non-binding nature is clear.

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Appendix A: Agency Rules on Rulemakings by Issue
This appendix presents examples of agency provisions that present good illustrations of each
type of rule on rulemakings. This list is by no means comprehensive. I have just selected good
illustrations from across the twenty-seven policies I reviewed. For readability, all provisions are
direct quotations, presented without quotations marks, unless otherwise stated, and quotations
omit internal subdivisions.
1. Procedures Related to Petitions for Rulemaking
Department of Housing and Urban Development (24 C.F.R. § 10.20)
Any interested person may petition the Secretary for the issuance, amendment, or
repeal of a rule. Each petition shall: Be submitted to the Rules Docket Clerk
[omitted for brevity]; Set forth the text of substance of the rule or amendment
proposed or specify the rule sought to be repealed; explain the interest of the
petitioner in the action sought; and set forth all data and arguments available to
the petitioner in support of the action sought.
No public procedures will be held directly on the petition before its disposition. If
the Secretary finds that the petition contains adequate justification, a rulemaking
proceeding will be initiated or a final rule will be issued as appropriate. If the
Secretary finds that the petition does not contain adequate justification, the
petition will be denied by letter or other notice, with a brief statement of the
ground for denial. The Secretary may consider new evidence at any time;
however, repetitious petitions for rulemaking will not be considered.
Department of the Interior (43 C.F.R. § 14.2)
Under the [APA], any person may petition for the issuance, amendment, or repeal
of a rule. The petition will be addressed to the Secretary of the Interior, U.S.
Department of the Interior, Washington, DC 20240. It will identify the rule
requested to be repealed or provide the text of a proposed rule or amendment and
include reasons in support of the petition. The petition will be given prompt
consideration and the petitioner will be notified promptly of action taken. A
petition for rulemaking may be published in the FEDERAL REGISTER if the official
responsible for acting on the petition determines that public comment may aid in
consideration of the petition.
United States Coast Guard (33 C.F.R. § 1.05-20)
Any member of the public may petition the Coast Guard to undertake a
rulemaking action. There is no prescribed form for a petition for rulemaking, but
the document should provide some supporting information as to why the
petitioner believes the proposed rulemaking is necessary and the document should

Committee on Regulation
November 25, 2020
Page 13
clearly indicate that it is a petition for rulemaking. Petitions should be addressed
to [omitted for brevity].
The petitioner will be notified of the Coast Guard's decision whether to initiate a
rulemaking or not. If the Coast Guard decides not to pursue a rulemaking, the
petitioner will be notified of the reasons why. If the Coast Guard decides to
initiate rulemaking, it will follow the procedure outlined in this subpart. The
Coast Guard may publish a notice acknowledging receipt of a petition for
rulemaking in the FEDERAL REGISTER.
Any petition for rulemaking and any reply to the petition will be kept in a public
docket open for inspection.
2. Procedures Related to Internal Initiation, Approval, or Review of Rules
Department of Labor (29 C.F.R. § 2.8)
Final agency decisions issued under the statutory authority of the U.S.
Department of Labor may be issued by the Secretary of Labor, or by his or her
designee under a written delegation of authority. The Administrative Review
Board, an organizational entity within the Office of the Secretary, has been
delegated authority to issue final agency decisions under the statutes, executive
orders, and regulations according to, and except as provided in Secretary's Order
01-2020 (or any successor to that order).
Department of Transportation (49 C.F.R. Part 5)
Non quotation: DOT has an extensive set of procedures governing how rules are
to be proposed and approved internally. For example: the head of a subcomponent
prepares a “Regulatory Initiation Request” and submits it to the Office of the
Secretary of Transportation (OST) for approval before the subcomponent may
proceed with any rulemaking; OST reviews and clears all rules for the
Department; and all rules must appear in the regulatory agenda at least six months
before issuance. For further details on this process, please consult the rule.
United States Coast Guard (33 C.F.R. § 1.05-10)
Most rules of local applicability are issued by District Commanders, Captains of
the Port, and District Bridge Managers while rules of wider applicability are
issued by senior Coast Guard officials at Coast Guard Headquarters. For both
significant rulemaking (defined by Executive Order 12866, Regulatory Planning
and Review) and non-significant rulemaking, other than those areas delegated to
District Commanders, Captains of the Port, and District Bridge Managers the
regulatory process begins when an office chief with program responsibilities
identifies a possible need for a new regulation or for changes to an existing

Committee on Regulation
November 25, 2020
Page 14
regulation. The need may arise due to statutory changes, or be based on internal
review or public input. Early public involvement is strongly encouraged.
After a tentative significant regulatory approach is developed, a significant
regulatory project proposal is submitted to the Marine Safety and Security
Council for approval. The proposal describes the scope of the proposed
regulation, alternatives considered, and potential cost and benefits, including
possible environmental impacts. All significant regulatory projects require Marine
Safety and Security Council approval.
Significant rulemaking documents must also be approved by the Commandant of
the Coast Guard.
If the project is approved, the necessary documents are drafted, including
documents to be published in the FEDERAL REGISTER. These may include
regulatory evaluations, environmental analyses, requests for comments,
announcements of public meetings, notices of proposed rulemakings, and final
rules.
3. Procedures Related to Ex-Ante Regulatory Analyses (e.g., benefit-cost analysis,
regulatory flexibility analysis)
Department of Housing and Urban Development (24 C.F.R. § 10.7)
An Advance Notice of Proposed Rulemaking . . . briefly outlines: the proposed
new program or program changes, and why they are needed; the major policy
issues involved; [and] an estimate of the reporting or recordkeeping requirements,
if any, that the rule would impose.
United States Coast Guard (33 C.F.R. § 1.05-20)
The [rulemaking] proposal describes the scope of the proposed regulation,
alternatives considered, and potential cost and benefits, including possible
environmental impacts.
4. Procedures Related to Negotiated Rulemaking
Department of Transportation (49 C.F.R. § 5.13)
DOT negotiated rulemakings are to be conducted in accordance with the
Negotiated Rulemaking Act, 5 U.S.C. 561-571, and the Federal Advisory
Committee Act, 5 U.S.C. App. 2, as applicable. Before initiating a negotiated
rulemaking process, the OA or OST component should: assess whether using
negotiated rulemaking procedures for the proposed rule in question is in the
public interest, in accordance with 5 U.S.C. 563(a), and present these findings to

Committee on Regulation
November 25, 2020
Page 15
the RRTF; consult with the Office of Regulation on the appropriateness of
negotiated rulemaking and the procedures therefor; and receive the approval of
the RRTF for the use of negotiated rulemaking.
Unless otherwise approved by the General Counsel, all DOT negotiated
rulemakings should involve the assistance of a convener and a facilitator, as
provided in the Negotiated Rulemaking Act. A convener is a person who
impartially assists the agency in determining whether establishment of a
negotiated rulemaking committee is feasible and appropriate in a particular
rulemaking. A facilitator is a person who impartially aids in the discussions and
negotiations among members of a negotiated rulemaking committee to develop a
proposed rule. The same person may serve as both convener and facilitator.
All charters, membership appointments, and FEDERAL REGISTER notices must be
approved by the Secretary. Any operating procedures (e.g., bylaws) for negotiated
rulemaking committees must be approved by OGC.
United States Coast Guard (33 C.F.R. § 1.05-60)
The Coast Guard may establish a negotiated rulemaking committee under the
Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act
(FACA) (5 U.S.C. App. 2) when it is in the public interest. Generally, the Coast
Guard will consider negotiated rulemaking when: there is a need for a rule; there
are a limited number of representatives for identifiable parties affected by the
rule; there is a reasonable chance that balanced representation can be reached in
the negotiated rulemaking committee and that the committee members will
negotiate in good faith; there is a likelihood of a committee consensus in a fixed
time period; the negotiated rulemaking process will not unreasonably delay the
rule; the Coast Guard has resources to do negotiated rulemaking; and the Coast
Guard can use the consensus of the committee in formulating the NPRM and final
rule.
5. Statement regarding waiver of APA exemptions (e.g., waiver of exemption for rules
related to grants, loans, contracts, and property)
Federal Emergency Management Agency (44 C.F.R. § 1.4)
It is the policy of FEMA to provide for public participation in rulemaking
regarding its programs and functions, including matters that relate to public
property, loans, grants, or benefits, or contracts, even though these matters are not
subject to a requirement for notice and public comment rulemaking by law.

Committee on Regulation
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Department of Housing and Urban Development (24 C.F.R. § 10.1)
It is the policy of the Department of Housing and Urban Development to provide
for public participation in rulemaking with respect to all HUD programs and
functions, including matters that relate to public property, loans, grants, benefits,
or contracts even though such matters would not otherwise be subject to
rulemaking by law or Executive policy.
Securities and Exchange Commission (17 C.F.R. § 201.192)
Whenever the Commission proposes to issue, amend, or repeal any rule or
regulation of general application other than an interpretive rule; general statement
of policy; or rule of agency organization, procedure, or practice; or any matter
relating to agency management or personnel or to public property, loans, grants,
benefits, or contracts, there shall first be published in the FEDERAL REGISTER a
notice of the proposed action.
6. Procedures Related to Submission of Sensitive Information (e.g., trade secrets)
Federal Aviation Administration (14 C.F.R. § 11.35)
You should not submit sensitive security information to the rulemaking docket,
unless you are invited to do so in our request for comments. If we ask for this
information, we will tell you in the specific document how to submit this
information, and we will provide a separate non-public docket for it. For all
proposed rule changes involving civil aviation security, we review comments as
we receive them, before they are placed in the docket. If we find that a comment
contains sensitive security information, we remove that information before
placing the comment in the general docket.
When we are aware of proprietary information filed with a comment, we do not
place it in the docket. We hold it in a separate file to which the public does not
have access, and place a note in the docket that we have received it. If we receive
a request to examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a request
under the DOT procedures found in 49 CFR part 7.
7. Minimum Comment Periods
Federal Emergency Management Agency (44 C.F.R. § 1.4)
It is the policy of FEMA that its notices of proposed rulemaking are to afford the
public at least sixty days for submission of comments unless the Administrator
makes an exception and sets forth the reasons for the exception in the preamble to
the notice of proposed rulemaking. This period shall also include any period of

Committee on Regulation
November 25, 2020
Page 17
review required by the Office of Management and Budget in accordance with the
Paperwork Reduction Act of 1980.
Department of Housing and Urban Development (24 C.F.R. § 10.1)
It is the policy of the Department that its notices of proposed rulemaking are to
afford the public not less than sixty days for submission of comments . . . Unless
required by statute, notice and public procedure will be omitted if the Department
determines in a particular case or class of cases that notice and public procedure
are impracticable, unnecessary or contrary to the public interest.
United States Coast Guard (33 C.F.R. § 1.05-15)
Advance Notices of Proposed Rulemaking, Notices of Proposed Rulemaking,
Supplemental Notices of Proposed Rulemaking, and Interim Rules will usually
provide 90 days, or more if possible, after publication for submission of
comments. This time period is intended to allow interested persons the
opportunity to participate in the rulemaking process through the submission of
written data and views.
8. Procedures Related to Ex Parte Communications
Federal Emergency Management Agency (44 C.F.R. § 1.6)
In rulemaking proceedings subject only to the procedural requirements of 5
U.S.C. 553: all oral communications from outside FEMA of significant
information and argument respecting the merits of a proposed rule, received after
notice of proposed informal rulemaking and in its course by FEMA or its offices
and divisions or their personnel participating in the decision, should be
summarized in writing and placed promptly in the Rules Docket File available for
public inspection.
FEMA may conclude that restrictions on ex parte communications in particular
rulemaking proceedings are necessitated by consideration of fairness or for other
reasons.
Department of Justice (28 C.F.R. § 50.17)
In rulemaking proceedings subject only to the procedural requirements of 5
U.S.C. 553: a general prohibition applicable to all offices, boards, bureaus and
divisions of the Department of Justice against the receipt of private, ex parte oral
or written communications is undesirable, because it would deprive the
Department of the flexibility needed to fashion rulemaking procedures
appropriate to the issues involved, and would introduce a degree of formality that
would, at least in most instances, result in procedures that are unduly complicated,

Committee on Regulation
November 25, 2020
Page 18
slow, and expensive, and, at the same time, perhaps not conducive to developing
all relevant information.
All written communications from outside the Department addressed to the merits
of a proposed rule, received after notice of proposed informal rulemaking and in
its course by the Department, its offices, boards, and bureaus, and divisions or
their personnel participating in the decision, should be placed promptly in a file
available for public inspection. All oral communications from outside the
Department of significant information or argument respecting the merits of a
proposed rule, received after notice of proposed informal rulemaking and in its
course by the Department, its offices, boards, bureaus, and divisions or their
personnel participating in the decision, should be summarized in writing and
placed promptly in a file available for public inspection.
The Department may properly withhold from the public files information exempt
from disclosure under 5 U.S.C. 552.
The Department may conclude that restrictions on ex parte communications in
particular rulemaking proceedings are necessitated by considerations of fairness
or for other reasons.
9. Procedures Related to the Effective or Issued Date of Rules
Federal Emergency Management Agency (44 C.F.R. § 1.4)
A final substantive rule will be published not less than 30 days before its effective
date unless it grants or recognizes an exemption or relieves a restriction or unless
the rulemaking document states good cause for its taking effect less than 30 days
after publication.
Department of Housing and Urban Development (24 C.F.R. § 10.1)
A final substantive rule will be published not less than 30 days before its effective
date, unless it grants or recognizes an exemption or relieves a restriction or unless
the rule itself states good cause for taking effect upon publication or less than 30
days thereafter.
United States Coast Guard (33 C.F.R. § 1.05)
A direct final rule will be published in the FEDERAL REGISTER with an effective
date that is generally at least 90 days after the date of publication.
10. Procedures Related to Retrospective Review
Federal Emergency Management Agency (44 C.F.R. § 1.8)

Committee on Regulation
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Page 19
As part of the semiannual agenda described in §1.7 of this part, FEMA will
publish in the FEDERAL REGISTER and keep updated a plan for periodic review of
existing rules at least within 10 years from date of publication of a rule as final.
This includes those that have significant impact on a substantial number of small
entities.
The purpose of the review shall be to determine whether such rules should be
continued without change, or should be amended or rescinded, consistent with the
stated objectives of applicable statutes, including minimizing any significant
economic impact of the rules upon a substantial number of small entities.
In reviewing rules FEMA shall consider the following factors: The
continued need for the rule; the nature, type and number of complaints or
comments received concerning the rule from the public; the complexity of the
rule, including need for review of language for clarity; the extent to
which the rule overlaps, duplicates or conflicts with other Federal rules,
and, to the extent feasible, with State and local governmental rules; and
the length of time since the rule has been evaluated or the degree to which
technology, economic conditions, or other factors have changed in the area
affected by the rule.
Department of Transportation (49 C.F.R. § 5.13)
All departmental regulations are on a 10-year review cycle, except economically
significant and high-impact rules, which are reviewed every 5 years in accordance
with §5.17(f) of this subpart.
The OA or OST component that issued the regulation will review it for the
following: continued cost justification: Whether the regulation requires
adjustment due to changed market conditions or is no longer cost-effective or
cost-justified in accordance with §5.5(h); regulatory flexibility: Whether the
regulation has a significant economic impact on a substantial number of small
entities and, thus, requires review under 5 U.S.C. 610 (section 610 of the
Regulatory Flexibility Act); innovation: Whether there are new or emerging
technologies, especially those that could achieve current levels of safety at the
same or lower levels of cost or achieve higher levels of safety, use of which is
precluded or limited by the regulation; general updates: Whether the regulation
may require technical corrections, updates (e.g., updated versions of voluntary
consensus standards), revisions, or repeal; plain language: Whether the regulation
requires revisions for plain language; and other considerations as required by
relevant executive orders and laws. The results of each OA's or OST component's
review will be reported annually to the public.

Committee on Regulation
November 25, 2020
Page 20
Any member of the public may petition the Department to conduct a retrospective
review of a regulation by filing a petition in accordance with the [appropriate
procedures].

Committee on Regulation
November 25, 2020
Page 21
Appendix B: Full-Length Rules on Rulemakings
Text is current as of September 17, 2020
U.S. Department of Transportation
Title 49: Transportation
PART 5— ADMINISTRATIVE RULEMAKING, GUIDANCE, AND ENFORCEMENT
PROCEDURES

Subpart B—Rulemaking Procedures
Contents
§5.3 General.
§5.5 Regulatory policies.
§5.7 Responsibilities.
§5.9 Regulatory Reform Task Force.
§5.11 Initiating a rulemaking.
§5.13 General rulemaking procedures.
§5.15 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda).
§5.17 Special procedures for economically significant and high-impact rulemakings.
§5.19 Public contacts in informal rulemaking.
§5.21 Policy updates and revisions.
§5.23 Disclaimer.
§5.3 General.
(a) This subpart governs all DOT employees and contractors involved with all phases of
rulemaking at DOT.
(b) Unless otherwise required by statute, this subpart applies to all DOT regulations, which
shall include all rules of general applicability promulgated by any components of the Department
that affect the rights or obligations of persons outside the Department, including substantive
rules, rules of interpretation, and rules prescribing agency procedures and practice requirements
applicable to outside parties.
(c) Except as provided in paragraph (d) of this section, this subpart applies to all regulatory
actions intended to lead to the promulgation of a rule and any other generally applicable agency
directives, circulars, or pronouncements concerning matters within the jurisdiction of an OA or
component of OST that are intended to have the force or effect of law or that are required by
statute to satisfy the rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556.

Committee on Regulation
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(d) This subpart does not apply to:
(1) Any rulemaking in which a notice of proposed rulemaking was issued before December
20, 2018, and which was still in progress on that date;
(2) Regulations issued with respect to a military or foreign affairs function of the United
States;
(3) Rules addressed solely to internal agency management or personnel matters;
(4) Regulations related to Federal Government procurement; or
(5) Guidance documents, which are not intended to, and do not in fact, have the force or
effect of law for parties outside of the Department, and which are governed by part 5, subpart C
of this chapter.
§5.5 Regulatory policies.
The policies in paragraphs (a) through (j) of this section govern the development and
issuance of regulations at DOT:
(a) There should be no more regulations than necessary. In considering whether to propose
a new regulation, policy makers should consider whether the specific problem to be addressed
requires agency action, whether existing rules (including standards incorporated by reference)
have created or contributed to the problem and should be revised or eliminated, and whether any
other reasonable alternatives exist that obviate the need for a new regulation.
(b) All regulations must be supported by statutory authority and consistent with the
Constitution.
(c) Where they rest on scientific, technical, economic, or other specialized factual
information, regulations should be supported by the best available evidence and data.
(d) Regulations should be written in plain English, should be straightforward, and should be
clear.
(e) Regulations should be technologically neutral, and, to the extent feasible, they should
specify performance objectives, rather than prescribing specific conduct that regulated entities
must adopt.
(f) Regulations should be designed to minimize burdens and reduce barriers to market entry
whenever possible, consistent with the effective promotion of safety. Where they impose
burdens, regulations should be narrowly tailored to address identified market failures or specific
statutory mandates.

Committee on Regulation
November 25, 2020
Page 23
(g) Unless required by law or compelling safety need, regulations should not be issued
unless their benefits are expected to exceed their costs. For each new significant regulation
issued, agencies must identify at least two existing regulatory burdens to be revoked.
(h) Once issued, regulations and other agency actions should be reviewed periodically and
revised to ensure that they continue to meet the needs they were designed to address and remain
cost-effective and cost-justified.
(i) Full public participation should be encouraged in rulemaking actions, primarily through
written comment and engagement in public meetings. Public participation in the rulemaking
process should be conducted and documented, as appropriate, to ensure that the public is given
adequate knowledge of substantive information relied upon in the rulemaking process.
(j) The process for issuing a rule should be sensitive to the economic impact of the rule;
thus, the promulgation of rules that are expected to impose greater economic costs should be
accompanied by additional procedural protections and avenues for public participation.
§5.7 Responsibilities.
(a) The Secretary of Transportation supervises the overall planning, direction, and control of
the Department's Regulatory Agenda; approves regulatory documents for issuance and
submission to the Office of Management and Budget (OMB) under Executive Order (E.O.)
12866, “Regulatory Planning and Review” (Oct. 4, 1993); identifies an approximate regulatory
budget for each fiscal year as required by E.O. 13771, “Reducing Regulation and Controlling
Regulatory Costs” (Jan. 30, 2017); establishes the Department's Regulatory Reform Task Force
(RRTF); and designates the members of the RRTF and the Department's Regulatory Reform
Officer (RRO) in accordance with E.O. 13777, “Enforcing the Regulatory Reform Agenda”
(Feb. 24, 2017).
(b) The Deputy Secretary of Transportation assists the Secretary in overseeing overall
planning, direction, and control of the Department's Regulatory Agenda and approves the
initiation of regulatory action, as defined in E.O. 12866, by the OAs and components of OST.
Unless otherwise designated by the Secretary, the Deputy Secretary serves as the Chair of the
Leadership Council of the RRTF and as the Department's RRO.
(c) The General Counsel of DOT is the chief legal officer of the Department with final
authority on all questions of law for the Department, including the OAs and components of OST;
serves on the Leadership Council of the RRTF; and serves as the Department's Regulatory Policy
Officer pursuant to section 6(a)(2) of E.O. 12866.
(d) The RRO of DOT is delegated authority by the Secretary to oversee the implementation
of the Department's regulatory reform initiatives and policies to ensure the effective
implementation of regulatory reforms, consistent with E.O. 13777 and applicable law.

Committee on Regulation
November 25, 2020
Page 24
(e) DOT's noncareer Deputy General Counsel is a member of the RRTF and serves as the
Chair of the RRTF Working Group.
(f) DOT's Assistant General Counsel for Regulation supervises the Office of Regulation
within the Office of the General Counsel (OGC); oversees the process for DOT rulemakings;
provides legal advice on compliance with APA and other administrative law requirements and
executive orders, related OMB directives, and other procedures for rulemaking and guidance
documents; circulates regulatory documents for departmental review and seeks concurrence from
reviewing officials; submits regulatory documents to the Secretary for approval before issuance
or submission to OMB; coordinates with the Office of Information and Regulatory Affairs
(OIRA) within OMB on the designation and review of regulatory documents and the preparation
of the Unified Agenda of Regulatory and Deregulatory Actions; publishes the monthly internet
report on significant rulemakings; and serves as a member of the RRTF Working Group.
(g) Pursuant to delegations from the Secretary under part 1 of this title, OA Administrators
and Secretarial officers exercise the Secretary's rulemaking authority under 49 U.S.C. 322(a),
and they have responsibility for ensuring that the regulatory data included in the Regulatory
Management System (RMS), or a successor data management system, for their OAs and OST
components is accurate and is updated at least once a month.
(h) OA Chief Counsels supervise the legal staffs of the OAs; interpret and provide guidance
on all statutes, regulations, executive orders, and other legal requirements governing the
operation and authorities of their respective OAs; and review all rulemaking documents for legal
sufficiency.
(i) Each OA or OST component responsible for rulemaking will have a Regulatory Quality
Officer, designated by the Administrator or Secretarial office head, who will have responsibility
for reviewing all rulemaking documents for plain language, technical soundness, and general
quality.
§5.9 Regulatory Reform Task Force.
(a) Purpose. The Regulatory Reform Task Force (RRTF) evaluates proposed and existing
regulations and makes recommendations to the Secretary regarding their promulgation, repeal,
replacement, or modification, consistent with applicable law, E.O. 13777, E.O. 13771, and E.O.
12866.
(b) Structure. The RRTF comprises a Leadership Council and a Working Group.
(1) The Working Group coordinates with leadership in the Secretarial offices and OAs,
reviews and develops recommendations for regulatory and deregulatory action, and presents
recommendations to the Leadership Council.
(2) The Leadership Council reviews the Working Group's recommendations and advises the
Secretary.

Committee on Regulation
November 25, 2020
Page 25
(c) Membership. (1) The Leadership Council comprises the following:
(i) The Regulatory Reform Officer (RRO), who serves as Chair;
(ii) The Department's Regulatory Policy Officer, designated under section 6(a)(2) of E.O.
12866;
(iii) A representative from the Office of the Under Secretary of Transportation for Policy;
(iv) At least three additional senior agency officials as determined by the Secretary.
(2) The Working Group comprises the following:
(i) At least one senior agency official from the Office of the General Counsel, including at a
minimum the Assistant General Counsel for Regulation, as determined by the RRO;
(ii) At least one senior agency official from the Office of the Under Secretary of
Transportation for Policy, as determined by the RRO;
(iii) Other senior agency officials from the Office of the Secretary, as determined by the
RRO.
(d) Functions and responsibilities. In addition to the functions and responsibilities
enumerated in E.O. 13777, the RRTF performs the following duties:
(1) Reviews each request for a new rulemaking action initiated by an OA or OST
component; and
(2) Considers each regulation and regulatory policy question (which may include proposed
guidance documents) referred to it and makes a recommendation to the Secretary for its
disposition.
(e) Support. The Office of Regulation within OGC provides support to the RRTF.
(f) Meetings. The Leadership Council meets approximately monthly and will hold specially
scheduled meetings when necessary to address particular regulatory matters. The Working Group
meets approximately monthly with each OA and each component of OST with regulatory
authority, and the Working Group may establish subcommittees, as appropriate, to focus on
specific regulatory matters.
(g) Agenda. The Office of Regulation prepares an agenda for each meeting and distributes it
to the members in advance of the meeting, together with any documents to be discussed at the
meeting. The OA or OST component responsible for matters on the agenda will be invited to
attend to respond to questions.

Committee on Regulation
November 25, 2020
Page 26
(h) Minutes. The Office of Regulation prepares summary minutes following each meeting
and distributes them to the meeting's attendees.
§5.11 Initiating a rulemaking.
(a) Before an OA or component of OST may proceed to develop a regulation, the
Administrator of the OA or the Secretarial officer who heads the OST component must consider
the regulatory philosophy and principles of regulation identified in section 1 of E.O. 12866 and
the policies set forth in §5.5 of this subpart. If the OA Administrator or OST component head
determines that rulemaking is warranted consistent with those policies and principles, the
Administrator or component head may prepare a Rulemaking Initiation Request.
(b) The Rulemaking Initiation Request should specifically state or describe:
(1) A proposed title for the rulemaking;
(2) The need for the regulation, including a description of the market failure or statutory
mandate necessitating the rulemaking;
(3) The legal authority for the rulemaking;
(4) Whether the rulemaking is expected to be regulatory or deregulatory;
(5) Whether the rulemaking is expected to be significant or nonsignificant, as defined by
E.O. 12866;
(6) Whether the final rule in question is expected to be an economically significant rule or
high-impact rule, as defined in §5.17(a) of this subpart;
(7) A description of the economic impact associated with the rulemaking, including whether
the rulemaking is likely to impose quantifiable costs or cost savings;
(8) The tentative target dates for completing each stage of the rulemaking; and
(9) Whether there is a statutory or judicial deadline, or some other urgency, associated with
the rulemaking.
(c) The OA or OST component submits the Rulemaking Initiation Request to the Office of
Regulation, together with any other documents that may assist in the RRTF's consideration of the
request.
(d) The Office of Regulation includes the Rulemaking Initiation Request on the agenda for
consideration at the OA's or OST component's next Working Group meeting.

Committee on Regulation
November 25, 2020
Page 27
(e) If the Working Group recommends the approval of the Rulemaking Initiation Request,
then the Request is referred to the Leadership Council for consideration. In lieu of consideration
at a Leadership Council meeting, the Working Group, at its discretion, may submit a
memorandum to the RRO seeking approval of the Rulemaking Initiation Request.
(f) The OA or OST component may assign a Regulatory Information Number (RIN) to the
rulemaking only upon the Leadership Council's (or RRO's) approval of the Rulemaking Initiation
Request.
(g) The Secretary may initiate a rulemaking on his or her own motion. The process for
initiating a rulemaking as described herein may be waived or modified for any rule with the
approval of the RRO. Unless otherwise determined by the RRO, the Administrator of the Federal
Aviation Administration (FAA) may promulgate an emergency rule under 49 U.S.C.
106(f)(3)(B)(ii) or 49 U.S.C. 46105(c), without first submitting a Rulemaking Initiation Request.
(h) Rulemaking Initiation Requests will be considered on a rolling basis; however, the
Office of Regulation will establish deadlines for submission of Rulemaking Initiation Requests
so that new rulemakings may be included in the Unified Agenda of Regulatory and Deregulatory
Actions.
§5.13 General rulemaking procedures.
(a) Definitions—(1) Significant rulemaking means a regulatory action designated by OIRA
under E.O. 12866 as likely to result in a rule that may:
(i) Have an annual effect on the U.S. economy of $100 million or more or adversely affect
in a material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities;
(ii) Create a serious inconsistency or otherwise interfere with an action taken or planned by
another agency;
(iii) Materially alter the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or
(iv) Raise novel legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in E.O. 12866.
(2) Nonsignificant rulemaking means a regulatory action not designated significant by
OIRA.
(b) Departmental review process. (1) OST review and clearance.
(i) Except as provided herein or as otherwise provided in writing by OGC, all departmental
rulemakings are to be reviewed and cleared by the Office of the Secretary.

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(ii) The FAA Administrator may promulgate emergency rules pursuant to 49 U.S.C.
106(f)(3)(B)(ii) and 49 U.S.C. 46105(c), without prior approval from OST; provided that, to the
maximum extent practicable and consistent with law, the FAA Administrator will give OST
advance notice of such emergency rules and will allow OST to review the rules in accordance
with the provisions of this subpart at the earliest opportunity after they are promulgated.
(2) Leadership within the proposing OA or component of OST shall:
(i) Ensure that the OA's or OST component's Regulatory Quality Officer reviews all
rulemaking documents for plain language, technical soundness, and general quality;
(ii) Ensure that the OA's Office of Chief Counsel (or for OST rules, the Office within OGC
responsible for providing programmatic advice) reviews all rulemaking documents for legal
support and legal sufficiency; and
(iii) Approve the submission of all rulemaking documents, including any accompanying
analyses (e.g., regulatory impact analysis), to the Office of Regulation through the Regulatory
Management System (RMS), or a successor data management system, for OST review and
clearance.
(3) To effectuate departmental review under this subpart, the following Secretarial offices
ordinarily review and approve DOT rulemakings: The Office of the Under Secretary for Policy,
the Office of Public Affairs, the Office of Budget and Programs and Chief Financial Officer,
OGC, and the Office of Governmental Affairs. The Office of Regulation may also require review
and clearance by other Secretarial offices and OAs depending on the nature of the particular
rulemaking document.
(4) Reviewing offices should provide comments or otherwise concur on rulemaking
documents within 7 calendar days, unless exceptional circumstances apply that require expedited
review.
(5) The Office of Regulation provides a passback of comments to the proposing OA or OST
component for resolution. Comments should be resolved and a revised draft submitted to the
Office of Regulation by the OA or OST component within 14 calendar days.
(6) The Office of Regulation prepares a rulemaking package for the General Counsel to
request the Secretary's approval for the rulemaking to be submitted to OMB for review (for
significant rulemakings) or to the FEDERAL REGISTER for publication (for nonsignificant
rulemakings). These rulemaking packages are submitted through the General Counsel to the
Office of the Executive Secretariat.
(7) The Office of Regulation notifies the proposing OA or OST component when the
Secretary approves or disapproves the submission of the rulemaking to OMB or to the FEDERAL
REGISTER.

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(8) The Office of Regulation is responsible for coordination with OIRA staff on the
designation of all rulemaking documents, submission and clearance of all significant rulemaking
documents, and all discussions or meetings with OMB concerning these documents. OAs and
OST components should not schedule their own meetings with OIRA without Office of
Regulation involvement. Each OA or OST component should coordinate with the Office of
Regulation before holding any discussions with OIRA concerning regulatory policy or requests
to modify regulatory documents.
(c) Petitions for rulemaking, exemption, and retrospective review. (1) Any person may
petition an OA or OST component with rulemaking authority to:
(i) Issue, amend, or repeal a rule;
(ii) Issue an exemption, either permanently or temporarily, from any requirements of a rule;
or
(iii) Perform a retrospective review of an existing rule.
(2) When an OA or OST component receives a petition under this paragraph (c), the petition
should be filed with the Docket Clerk in a timely manner. If a petition is filed directly with the
Docket Clerk, the Docket Clerk will submit the petition in a timely manner to the OA or
component of OST with regulatory responsibility over the matter described in the petition.
(3) The OA or component of OST should provide clear instructions on its website to
members of the public regarding how to submit petitions, including, but not limited to, an email
address or Web portal where petitions can be submitted, a mailing address where hard copy
requests can be submitted, and an office responsible for coordinating such requests.
(4) Unless otherwise provided by statute or in OA regulations or procedures, the following
procedures apply to the processing of petitions for rulemaking, exemption, or retrospective
review:
(i) Contents. Each petition filed under this section must:
(A) Be submitted, either by paper submission or electronically, to the U.S. Department of
Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
(B) Describe the nature of the request and set forth the text or substance of the rule or
specify the rule that the petitioner seeks to have issued, amended, exempted, repealed, or
retrospectively reviewed, as the case may be;
(C) Explain the interest of the petitioner in the action requested, including, in the case of a
petition for an exemption, the nature and extent of the relief sought and a description of the
persons to be covered by the exemption;

Committee on Regulation
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(D) Contain any information and arguments available to the petitioner to support the action
sought; and
(E) In the case of a petition for exemption, unless good cause is shown in that petition, be
submitted at least 60 days before the proposed effective date of the exemption.
(ii) Processing. Each petition received under this paragraph (c) is referred to the head of the
office responsible for the subject matter of that petition, the Office of Regulation, and the RRO.
No public hearing, argument, or other proceeding must necessarily be held directly on a petition
for its disposition under this section.
(iii) Grants. If the OA or component of OST with regulatory responsibility over the matter
described in the petition determines that the petition contains adequate justification, it may
request the initiation of a rulemaking action under §5.11 or grant the petition, as appropriate.
(iv) Denials. If the OA or component of OST determines that the petition is not justified, the
OA or component of OST denies the petition in coordination with the Office of Regulation.
(v) Notification. Whenever the OA or OST component determines that a petition should be
granted or denied, and after consultation with the Office of Regulation in the case of denial, the
office concerned prepares a notice of that grant or denial for issuance to the petitioner, and issues
it to the petitioner.
(d) Review of existing regulations. (1) All departmental regulations are on a 10-year review
cycle, except economically significant and high-impact rules, which are reviewed every 5 years
in accordance with §5.17(f) of this subpart.
(2) The OA or OST component that issued the regulation will review it for the following:
(i) Continued cost justification: Whether the regulation requires adjustment due to changed
market conditions or is no longer cost-effective or cost-justified in accordance with §5.5(h);
(ii) Regulatory flexibility: Whether the regulation has a significant economic impact on a
substantial number of small entities and, thus, requires review under 5 U.S.C. 610 (section 610 of
the Regulatory Flexibility Act);
(iii) Innovation: Whether there are new or emerging technologies, especially those that
could achieve current levels of safety at the same or lower levels of cost or achieve higher levels
of safety, use of which is precluded or limited by the regulation.
(iv) General updates: Whether the regulation may require technical corrections, updates
(e.g., updated versions of voluntary consensus standards), revisions, or repeal;
(v) Plain language: Whether the regulation requires revisions for plain language; and

Committee on Regulation
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(vi) Other considerations as required by relevant executive orders and laws.
(3) The results of each OA's or OST component's review will be reported annually to the
public.
(4) Any member of the public may petition the Department to conduct a retrospective
review of a regulation by filing a petition in accordance with the procedures contained in
paragraph (c) of this section.
(e) Supporting economic analysis. (1) Rulemakings shall include, at a minimum:
(i) An assessment of the potential costs and benefits of the regulatory action (which may
entail a regulatory impact analysis) or a reasoned determination that the expected impact is so
minimal or the safety need so significant and urgent that a formal analysis of costs and benefits is
not warranted; and
(ii) If the regulatory action is expected to impose costs, either a reasoned determination that
the benefits outweigh the costs or, if the particular rulemaking is mandated by statute or
compelling safety need notwithstanding a negative cost-benefit assessment, a detailed discussion
of the rationale supporting the specific regulatory action proposed and an explanation of why a
less costly alternative is not an option.
(2) To the extent practicable, economic assessments shall quantify the foreseeable annual
economic costs and cost savings within the United States that would likely result from issuance
of the proposed rule and shall be conducted in accordance with the requirements of sections
6(a)(2)(B) and 6(a)(2)(C) of E.O. 12866 and OMB Circular A-4, as specified by OIRA in
consultation with the Office of Regulation. If the proposing OA or OST component has
estimated that the proposed rule will likely impose economic costs on persons outside the United
States, such costs should be reported separately.
(3) Deregulatory rulemakings (including nonsignificant rulemakings) shall be evaluated for
quantifiable cost savings. If it is determined that quantification of cost savings is not possible or
appropriate, then the proposing OA or OST component shall provide a detailed justification for
the lack of quantification upon submission of the rulemaking to the Office of Regulation. Other
nonsignificant rulemakings shall include, at a minimum, the economic cost-benefit analysis
described in paragraph (e)(1) of this section.
(f) Regulatory flexibility analysis. All rulemakings subject to the requirements of 5 U.S.C.
603-604 (sections 603-604 of the Regulatory Flexibility Act), and any amendment thereto, shall
include a detailed statement setting forth the required analysis regarding the potential impact of
the rule on small business entities.
(g) Advance notices of proposed rulemaking. Whenever the OA or OST component
responsible for a proposed rulemaking is required to publish an advance notice of proposed

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rulemaking (ANPRM) in the FEDERAL REGISTER, or whenever the RRTF determines it
appropriate to publish an ANPRM, the ANPRM shall:
(1) Include a written statement identifying, at a minimum:
(i) The nature and significance of the problem the OA or OST component may address with
a rule;
(ii) The legal authority under which a rule may be proposed; and
(iii) Any preliminary information available to the OA or OST component that may support
one or another potential approach to addressing the identified problem;
(2) Solicit written data, analysis, views, and recommendations from interested persons
concerning the information and issues addressed in the ANPRM; and
(3) Provide for a reasonably sufficient period for public comment.
(h) Notices of proposed rulemaking—(1) When required. Before determining to propose a
rule, and following completion of the ANPRM process under paragraph (g) of this section, if
applicable, the responsible OA or OST component shall consult with the RRTF concerning the
need for the potential rule. If the RRTF thereafter determines it appropriate to propose a rule, the
proposing OA or OST component shall publish a notice of proposed rulemaking (NPRM) in
the FEDERAL REGISTER, unless a controlling statute provides otherwise or unless the RRTF (in
consultation with OIRA, as appropriate) determines that an NPRM is not necessary under
established exceptions.
(2) Contents. The NPRM shall include, at a minimum:
(i) A statement of the time and place for submission of public comments and the time,
place, and nature of related public rulemaking proceedings, if any;
(ii) Reference to the legal authority under which the rule is proposed;
(iii) The terms of the proposed rule;
(iv) A description of information known to the proposing OA or OST component on the
subject and issues of the proposed rule, including but not limited to:
(A) A summary of material information known to the OA or OST component concerning
the proposed rule and the considerations specified in §5.11(a) of this subpart;
(B) A summary of any preliminary risk assessment or regulatory impact analysis performed
by the OA or OST component; and

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(C) Information specifically identifying all material data, studies, models, available
voluntary consensus standards and conformity assessment requirements, and other evidence or
information considered or used by the OA or OST component in connection with its
determination to propose the rule;
(v) A reasoned preliminary analysis of the need for the proposed rule based on the
information described in the preamble to the NPRM, and an additional statement of whether a
rule is required by statute;
(vi) A reasoned preliminary analysis indicating that the expected economic benefits of the
proposed rule will meet the relevant statutory objectives and will outweigh the estimated costs of
the proposed rule in accordance with any applicable statutory requirements;
(vii) If the rulemaking is significant, a summary discussion of:
(A) The alternatives to the proposed rule considered by the OA or OST component;
(B) The relative costs and benefits of those alternatives;
(C) Whether the alternatives would meet relevant statutory objectives; and
(D) Why the OA or OST component chose not to propose or pursue the alternatives;
(viii) A statement of whether existing rules have created or contributed to the problem the
OA or OST component seeks to address with the proposed rule, and, if so, whether or not the OA
or OST component proposes to amend or rescind any such rules and why; and
(ix) All other statements and analyses required by law, including, without limitation, the
Regulatory Flexibility Act (5 U.S.C. 601-612) or any amendment thereto.
(3) Information access and quality. (i) To inform public comment when the NPRM is
published, the proposing OA or OST component shall place in the docket for the proposed rule
and make accessible to the public, including by electronic means, all material information relied
upon by the OA or OST component in considering the proposed rule, unless public disclosure of
the information is prohibited by law or the information would be exempt from disclosure under 5
U.S.C. 552(b). Material provided electronically should be made available in accordance with the
requirements of 29 U.S.C. 794d (section 508 of the Rehabilitation Act of 1973, as amended).
(ii) If the proposed rule rests upon scientific, technical, or economic information, the
proposing OA or OST component shall base the proposal on the best and most relevant
scientific, technical, and economic information reasonably available to the Department and shall
identify the sources and availability of such information in the NPRM.

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(iii) A single copy of any relevant copyrighted material (including consensus standards and
other relevant scientific or technical information) should be placed in the docket for public
review if such material was relied on as a basis for the rulemaking.
(i) Public comment. (1) Following publication of an NPRM, the Department will provide
interested persons a fair and sufficient opportunity to participate in the rulemaking through
submission of written data, analysis, views, and recommendations.
(2) The Department, in coordination with OIRA for significant rulemakings, will ensure that
the public is given an adequate period for comment, taking into account the scope and nature of
the issues and considerations involved in the proposed regulatory action.
(3) Generally, absent special considerations, the comment period for nonsignificant DOT
rules should be at least 30 days, and the comment period for significant DOT rules should be at
least 45 days.
(4) Any person may petition the responsible OA or OST component for an extension of
time to submit comments in response to a notice of proposed rulemaking. Petitions must be
received no later than 3 days before the expiration of the time stated in the notice. The filing of
the petition does not automatically extend the time for comments. The OA or OST component
may grant the petition only if the petitioner shows a substantive interest in the proposed rule and
good cause for the extension, or if the extension is otherwise in the public interest. If an
extension is granted, it is granted as to all persons and published in the FEDERAL REGISTER.
(5) All timely comments are considered before final action is taken on a rulemaking
proposal. Late-filed comments may be considered so far as possible without incurring additional
expense or delay.
(j) Exemptions from notice and comment. (1) Except when prior notice and an opportunity
for public comment are required by statute or determined by the Secretary to be advisable for
policy or programmatic reasons, the responsible OA or OST component may, subject to the
approval of the RRTF (in consultation with OIRA, as appropriate), publish certain final rules in
the FEDERAL REGISTER without prior notice and comment. These may include:
(i) Rules of interpretation and rules addressing only DOT organization, procedure, or
practice, provided such rules do not alter substantive obligations for parties outside the
Department;
(ii) Rules for which notice and comment is unnecessary to inform the rulemaking, such as
rules correcting de minimis technical or clerical errors or rules addressing other minor and
insubstantial matters, provided the reasons to forgo public comment are explained in the
preamble to the final rule; and
(iii) Rules that require finalization without delay, such as rules to address an urgent safety or
national security need, and other rules for which it would be impracticable or contrary to public

Committee on Regulation
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policy to accommodate a period of public comment, provided the responsible OA or OST
component makes findings that good cause exists to forgo public comment and explains those
findings in the preamble to the final rule.
(2) Except when required by statute, issuing substantive DOT rules without completing
notice and comment, including as interim final rules (IFRs) and direct final rules (DFRs), must
be the exception. IFRs and DFRs are not favored. DFRs must follow the procedures in paragraph
(l) of this section. In most cases where an OA or OST component has issued an IFR, the RRTF
will expect the OA or OST component to proceed at the earliest opportunity to replace the IFR
with a final rule.
(k) Final rules. The responsible OA or OST component shall adopt a final rule only after
consultation with the RRTF. The final rule, which shall include the text of the rule as adopted
along with a supporting preamble, shall be published in the FEDERAL REGISTER and shall satisfy
the following requirements:
(1) The preamble to the final rule shall include:
(i) A concise, general statement of the rule's basis and purpose, including clear reference to
the legal authority supporting the rule;
(ii) A reasoned, concluding determination by the adopting OA or OST component regarding
each of the considerations required to be addressed in an NPRM under paragraphs (h)(2)(v)
through (ix) of this section;
(iii) A response to each significant issue raised in the comments to the proposed rule;
(iv) If the final rule has changed in significant respects from the rule as proposed in the
NPRM, an explanation of the changes and the reasons why the changes are needed or are more
appropriate to advance the objectives identified in the rulemaking; and
(v) A reasoned, final determination that the information upon which the OA or OST
component bases the rule complies with the Information Quality Act (section 515 of Pub. L. 106554—Appendix C, 114 Stat. 2763A-153-54 (2001)), or any subsequent amendment thereto.
(2) If the rule rests on scientific, technical, economic, or other specialized factual
information, the OA or OST component shall base the final rule on the best and most relevant
evidence and data known to the Department and shall ensure that such information is clearly
identified in the preamble to the final rule and is available to the public in the rulemaking record,
subject to reasonable protections for information exempt from disclosure under 5 U.S.C. 552(b).
If the OA or OST component intends to support the final rule with specialized factual
information identified after the close of the comment period, the OA or OST component shall
allow an additional opportunity for public comment on such information.
(3) All final rules issued by the Department:

Committee on Regulation
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(i) Shall be written in plain and understandable English;
(ii) Shall be based on a reasonable and well-founded interpretation of relevant statutory text
and shall not depend upon a strained or unduly broad reading of statutory authority; and
(iii) Shall not be inconsistent or incompatible with, or unnecessarily duplicative of, other
Federal regulations.
(4) Effective dates for final rules must adhere to the following:
(i) Unless required to address a safety emergency or otherwise required by law, approved by
the RRTF (or RRO), or approved by the Director of OMB (as appropriate), no regulation may be
issued by an OA or component of OST if it was not included on the most recent version or
update of the published Unified Agenda.
(ii) No significant regulatory action may take effect until it has appeared in either the
Unified Agenda or the monthly internet report of significant rulemakings for at least 6 months
prior to its issuance, unless good cause exists for an earlier effective date or the action is
otherwise approved by the RRTF (or RRO).
(iii) Absent good cause, major rules (as defined by the Congressional Review Act, 5 U.S.C.
801-808) cannot take effect until 60 days after publication in the FEDERAL REGISTER or
submission to Congress, whichever is later. Nonmajor rules cannot take effect any sooner than
submission to Congress.
(l) Direct final rules. (1) Rules that the OA or OST component determines to be
noncontroversial and unlikely to result in adverse public comment may be published as direct
final rules. These include noncontroversial rules that:
(i) Affect internal procedures of the Department, such as filing requirements and rules
governing inspection and copying of documents,
(ii) Are nonsubstantive clarifications or corrections to existing rules,
(iii) Update existing forms,
(iv) Make minor changes in the substantive rules regarding statistics and reporting
requirements,
(v) Make changes to the rules implementing the Privacy Act, or
(vi) Adopt technical standards set by outside organizations.
(2) The FEDERAL REGISTER document will state that any adverse comment must be received
in writing by the OA or OST component within the specified time after the date of publication

Committee on Regulation
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and that, if no written adverse comment is received, the rule will become effective a specified
number of days after the date of publication.
(3) If no written adverse comment is received by the OA or OST component within the
original or extended comment period, the OA or OST component will publish a notice in
the FEDERAL REGISTER indicating that no adverse comment was received and confirming that the
rule will become effective on the date that was indicated in the direct final rule.
(4) If the OA or OST component receives any written adverse comment within the specified
time of publication in the FEDERAL REGISTER, the OA or OST component may proceed as
follows:
(i) Publish a document withdrawing the direct final rule in the rules and regulations section
of the FEDERAL REGISTER and, if the OA or OST component decides a rulemaking is warranted,
a proposed rule; or
(ii) Any other means permitted under the Administrative Procedure Act. (5) An “adverse”
comment for the purpose of this subpart means any comment that the OA or OST component
determines is critical of the rule, suggests that the rule should not be adopted or suggests a
material change that should be made in the rule. A comment suggesting that the policy or
requirements of the rule should or should not also be extended to other Departmental programs
outside the scope of the rule is not adverse. A notice of intent to submit an adverse comment is
not, in and of itself, an adverse comment.
(m) Reports to Congress and GAO. For each final rule adopted by DOT, the responsible OA
or OST component shall submit the reports to Congress and the U.S. Government Accountability
Office to comply with the procedures specified by 5 U.S.C. 801 (the Congressional Review Act),
or any subsequent amendment thereto.
(n) Negotiated rulemakings. (1) DOT negotiated rulemakings are to be conducted in
accordance with the Negotiated Rulemaking Act, 5 U.S.C. 561-571, and the Federal Advisory
Committee Act, 5 U.S.C. App. 2, as applicable.
(2) Before initiating a negotiated rulemaking process, the OA or OST component should:
(i) Assess whether using negotiated rulemaking procedures for the proposed rule in question
is in the public interest, in accordance with 5 U.S.C. 563(a), and present these findings to the
RRTF;
(ii) Consult with the Office of Regulation on the appropriateness of negotiated rulemaking
and the procedures therefor; and
(iii) Receive the approval of the RRTF for the use of negotiated rulemaking.

Committee on Regulation
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(3) Unless otherwise approved by the General Counsel, all DOT negotiated rulemakings
should involve the assistance of a convener and a facilitator, as provided in the Negotiated
Rulemaking Act. A convener is a person who impartially assists the agency in determining
whether establishment of a negotiated rulemaking committee is feasible and appropriate in a
particular rulemaking. A facilitator is a person who impartially aids in the discussions and
negotiations among members of a negotiated rulemaking committee to develop a proposed rule.
The same person may serve as both convener and facilitator.
(4) All charters, membership appointments, and FEDERAL REGISTER notices must be
approved by the Secretary. Any operating procedures (e.g., bylaws) for negotiated rulemaking
committees must be approved by OGC.
§5.15 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda).
(a) Fall editions of the Unified Agenda include the Regulatory Plan, which presents the
Department's statement of regulatory priorities for the coming year. Fall editions also include the
outcome and status of the Department's reviews of existing regulations, conducted in accordance
with §5.13(d).
(b) The OAs and components of OST with rulemaking authority must:
(1) Carefully consider the principles contained in E.O. 13771, E.O. 13777, and E.O. 12866
in the preparation of all submissions for the Unified Agenda;
(2) Ensure that all data pertaining to the OA's or OST component's regulatory and
deregulatory actions are accurately reflected in the Department's Unified Agenda submission;
and
(3) Timely submit all data to the Office of Regulation in accordance with the deadlines and
procedures communicated by that office.
§5.17 Special procedures for economically significant and high-impact rulemakings.
(a) Definitions—(1) Economically significant rule means a significant rule likely to impose:
(i) A total annual cost on the U.S. economy (without regard to estimated benefits) of $100
million or more, or
(ii) A total net loss of at least 75,000 full-time jobs in the U.S. over the five years following
the effective date of the rule (not counting any jobs relating to new regulatory compliance).
(2) High-impact rule means a significant rule likely to impose:
(i) A total annual cost on the U.S. economy (without regard to estimated benefits) of $500
million or more, or

Committee on Regulation
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(ii) A total net loss of at least 250,000 full-time jobs in the U.S. over the five years
following the effective date of the rule (not counting any jobs relating to new regulatory
compliance).
(b) ANPRM required. Unless directed otherwise by the RRTF or otherwise required by law,
in the case of a rulemaking for an economically significant rule or a high-impact rule, the
proposing OA or OST component shall publish an ANPRM in the FEDERAL REGISTER.
(c) Additional requirements for NPRM. (1) In addition to the requirements set forth in
§5.13, an NPRM for an economically significant rule or a high-impact rule shall include a
discussion explaining an achievable objective for the rule and the metrics by which the OA or
OST component will measure progress toward that objective.
(2) Absent unusual circumstances and unless approved by the RRTF (in consultation with
OIRA, as appropriate), the comment period for an economically significant rule shall be at least
60 days and for a high-impact rule at least 90 days. If a rule is determined to be an economically
significant rule or high-impact rule after the publication of the NPRM, the responsible OA or
OST component shall publish a notice in the FEDERAL REGISTER that informs the public of the
change in classification and discusses the achievable objective for the rule and the metrics by
which the OA or OST component will measure progress toward that objective, and shall extend
or reopen the comment period by not less than 30 days and allow further public comment as
appropriate, including comment on the change in classification.
(d) Procedures for formal hearings—(1) Petitions for hearings. Following publication of an
NPRM for an economically significant rule or a high-impact rule, and before the close of the
comment period, any interested party may file in the rulemaking docket a petition asking the
proposing OA or OST component to hold a formal hearing on the proposed rule in accordance
with this subsection.
(2) Mandatory hearing for high-impact rule. In the case of a proposed high-impact rule, the
responsible OA or OST component shall grant the petition for a formal hearing if the petition
makes a plausible prima facie showing that:
(i) The proposed rule depends on conclusions concerning one or more specific scientific,
technical, economic, or other complex factual issues that are genuinely in dispute or that may not
satisfy the requirements of the Information Quality Act;
(ii) The ordinary public comment process is unlikely to provide the OA or OST component
an adequate examination of the issues to permit a fully informed judgment on the dispute; and
(iii) The resolution of the disputed factual issues would likely have a material effect on the
costs and benefits of the proposed rule or on whether the proposed rule would achieve the
statutory purpose.

Committee on Regulation
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(3) Authority to deny hearing for economically significant rule. In the case of a proposed
economically significant rule, the responsible OA or OST component may deny a petition for a
formal hearing that includes the showing described in paragraph (d)(2) of this section but only if
the OA or OST component reasonably determines that:
(i) The requested hearing would not advance the consideration of the proposed rule and the
OA's or OST component's ability to make the rulemaking determinations required under this
subpart; or
(ii) The hearing would unreasonably delay completion of the rulemaking in light of a
compelling safety need or an express statutory mandate for prompt regulatory action.
(4) Denial of petition. If the OA or OST component denies a petition for a formal hearing
under this subsection in whole or in part, the OA or OST component shall include a detailed
explanation of the factual basis for the denial in the rulemaking record, including findings on
each of the relevant factors identified in paragraph (d)(2) or (3) of this section. The denial of a
good faith petition for a formal hearing under this section shall be disfavored.
(5) Notice and scope of hearing. If the OA or OST component grants a petition for a formal
hearing under this section, the OA or OST component shall publish notification of the hearing in
the FEDERAL REGISTER not less than 45 days before the date of the hearing. The document shall
specify the proposed rule at issue and the specific factual issues to be considered in the hearing.
The scope of the hearing shall be limited to the factual issues specified in the notice.
(6) Hearing process. (i) A formal hearing for purposes of this section shall be conducted
using procedures borrowed from 5 U.S.C. 556 and 5 U.S.C. 557, or similar procedures as
approved by the Secretary, and interested parties shall have a reasonable opportunity to
participate in the hearing through the presentation of testimony and written submissions.
(ii) The OA or OST component shall arrange for an administrative judge or other neutral
administrative hearing officer to preside over the hearing and shall provide a reasonable
opportunity for cross-examination of witnesses at the hearing.
(iii) After the formal hearing and before the record of the hearing is closed, the presiding
hearing officer shall render a report containing findings and conclusions addressing the disputed
issues of fact identified in the hearing notice and specifically advising on the accuracy and
sufficiency of the factual information in the record relating to those disputed issues on which the
OA or OST component proposes to base the rule.
(iv) Interested parties who have participated in the hearing shall be given an opportunity to
file statements of agreement or objection in response to the hearing officer's report, and the
complete record of the proceeding shall be made part of the rulemaking record.
(7) Actions following hearing. (i) Following completion of the formal hearing process, the
responsible OA or OST component shall consider the record of the hearing and, subject to the

Committee on Regulation
November 25, 2020
Page 41
approval of the RRTF (in consultation with OIRA, as appropriate), shall make a reasoned
determination whether:
(A) To terminate the rulemaking;
(B) To proceed with the rulemaking as proposed; or
(C) To modify the proposed rule.
(ii) If the decision is made to terminate the rulemaking, the OA or OST component shall
publish a notice in the FEDERAL REGISTER announcing the decision and explaining the reasons
therefor.
(iii) If the decision is made to finalize the proposed rule without material modifications, the
OA or OST component shall explain the reasons for its decision and its responses to the hearing
record in the preamble to the final rule, in accordance with paragraph (e) of this section.
(iv) If the decision is made to modify the proposed rule in material respects, the OA or OST
component shall, subject to the approval of the RRTF (in consultation with OIRA, as
appropriate), publish a new or supplemental NPRM in the FEDERAL REGISTER explaining the
OA's or OST component's responses to and analysis of the hearing record, setting forth the
modifications to the proposed rule, and providing an additional reasonable opportunity for public
comment on the proposed modified rule.
(8) Relationship to interagency process. The formal hearing procedures under this
subsection shall not impede or interfere with OIRA's interagency review process for the
proposed rulemaking.
(e) Additional requirements for final rules. (1) In addition to the requirements set forth in
§5.13(k), the preamble to a final economically significant rule or a final high-impact rule shall
include:
(i) A discussion explaining the OA's or OST component's reasoned final determination that
the rule as adopted is necessary to achieve the objective identified in the NPRM in light of the
full administrative record and does not deviate from the metrics previously identified by the OA
or OST component for measuring progress toward that objective; and
(ii) In accordance with paragraph (d)(7)(iii) of this section, the OA's or OST component's
responses to and analysis of the record of any formal hearing held under paragraph (d) of this
section.
(2) Absent exceptional circumstances and unless approved by the RRTF or Secretary (in
consultation with OIRA, as appropriate), the OA or OST component shall adopt as a final
economically significant rule or final high-impact rule the least costly regulatory alternative that
achieves the relevant objectives.

Committee on Regulation
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Page 42
(f) Additional requirements for retrospective reviews. For each economically significant
rule or high-impact rule, the responsible OA or OST component shall publish a regulatory
impact report in the FEDERAL REGISTER every 5 years after the effective date of the rule while
the rule remains in effect. The regulatory impact report shall include, at a minimum:
(1) An assessment of the impacts, including any costs, of the rule on regulated entities;
(2) A determination about how the actual costs and benefits of the rule have varied from
those anticipated at the time the rule was issued; and
(3) An assessment of the effectiveness and benefits of the rule in producing the regulatory
objectives it was adopted to achieve.
(g) Waiver and modification. The procedures required by this section may be waived or
modified as necessary with the approval of the RRO or the Secretary.
§5.19 Public contacts in informal rulemaking.
(a) Agency contacts with the public during informal rulemakings conducted in accordance
with 5 U.S.C. 553. (1) DOT personnel may have meetings or other contacts with interested
members of the public concerning an informal rulemaking under 5 U.S.C. 553 or similar
procedures at any stage of the rulemaking process, provided the substance of material
information submitted by the public that DOT relies on in proposing or finalizing the rule is
adequately disclosed and described in the public rulemaking docket such that all interested
parties have notice of the information and an opportunity to comment on its accuracy and
relevance.
(2) After the issuance of the NPRM and pending completion of the final rule, DOT
personnel should avoid giving persons outside the Executive Branch information regarding the
rulemaking that is not available generally to the public.
(3) If DOT receives an unusually large number of requests for meetings with interested
members of the public during the comment period for a proposed rule or after the close of the
comment period, the issuing OA or component of OST should consider whether there is a need
to extend or reopen the comment period, to allow for submission of a second round of “reply
comments,” or to hold a public meeting on the proposed rule.
(4) If the issuing OA or OST component meets with interested persons on the rulemaking
after the close of the comment period, it should be open to giving other interested persons a
similar opportunity to meet.
(5) If DOT learns of significant new information, such as new studies or data, after the close
of the comment period that the issuing OA or OST component wishes to rely upon in finalizing
the rule, the OA or OST component should reopen the comment period to give the public an
opportunity to comment on the new information. If the new information is likely to result in a

Committee on Regulation
November 25, 2020
Page 43
change to the rule that is not within the scope of the NPRM, the OA or OST component should
consider issuing a Supplemental NPRM to ensure that the final rule represents a logical
outgrowth of DOT's proposal.
(b) Contacts during OIRA review. (1) E.O. 12866 and E.O. 13563 lay out the procedures for
review of significant regulations by OIRA, which include a process for members of the public to
request meetings with OIRA regarding rules under OIRA review. Per E.O. 12866, OIRA invites
the Department to attend these meetings. The Office of Regulation will forward these invitations
to the appropriate regulatory contact in the OA or component of OST responsible for issuing the
regulation.
(2) If the issuing OA or OST component wishes to attend the OIRA-sponsored meeting or if
its participation is determined to be necessary by the Office of Regulation, the regulatory contact
should identify to the Office of Regulation up to two individuals from the OA or OST
component who will attend the meeting along with a representative from the Office of
Regulation. Attendance at these meetings can be by phone or in person. These OIRA meetings
are generally listening sessions for DOT.
(3) The attending DOT personnel should refrain from debating particular points regarding
the rulemaking and should avoid disclosing the contents of a document or proposed regulatory
action that has not yet been disclosed to the public, but may answer questions of fact regarding a
public document.
(4) Following the OIRA meeting, the attendee(s) from the issuing OA or OST component
will draft a summary report of the meeting and submit it to the Office of Regulation for review.
After the report is reviewed and finalized in coordination with the Office of Regulation, the
responsible OA or OST component will place the final report in the rulemaking docket.
§5.21 Policy updates and revisions.
This subpart shall be reviewed from time to time to reflect improvements in the rulemaking
process or changes in Administration policy.
§5.23 Disclaimer.
This subpart is intended to improve the internal management of the Department. It is not
intended to, and does not, create any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its agencies or other entities, officers or
employees, or any other person. In addition, this subpart shall not be construed to create any
right to judicial review involving the compliance or noncompliance with this subpart by the
Department, its OAs or OST components, its officers or employees, or any other person.

Committee on Regulation
November 25, 2020
Page 44
Federal Emergency Management Agency
Title 44: Emergency Management and Assistance
PART 1—RULEMAKING; POLICY AND PROCEDURES

Subpart A—General
Contents
§1.1 Purpose.
§1.2 Definitions.
§1.3 Scope.
§1.4 Policy and procedures.
§1.5 Rules docket.
§1.6 Ex parte communications.
§1.7 Regulations agendas.
§1.8 Regulations review.
§1.9 Regulatory impact analyses.
§1.1 Purpose.
(a) This part contains the basic policies and procedures of the Federal Emergency
Management Agency (FEMA) for adoption of rules. These policies and procedures incorporate
those provisions of section 4 of the Administrative Procedure Act (APA) (5 U.S.C. 553) which
FEMA will follow. This part and internal FEMA Manuals implement Executive Order 12291.
(b) Rules which must be published are described in section 3(a) of the APA, 5 U.S.C.
552(a). FEMA implementation of paragraph (a) is contained in 44 CFR part 5, subpart B.
(c) This part contains policies and procedures for implementation of the Regulatory
Flexibility Act which took effect January 1, 1981.
(d) A FEMA Manual No. 1140.1, “The Formulation, Drafting, Clearance, and Publication
of FEDERAL REGISTER Documents” has been issued describing the internal procedures including
policy level oversight of FEMA for:
(1) Publishing the semiannual agenda of significant regulations under development and
review;
(2) Making initial determinations with respect to significance of proposed rulemaking;
(3) Determining the need for regulatory analyses; and

Committee on Regulation
November 25, 2020
Page 45
(4) Reviewing existing regulations, including the reviews required by the Regulatory
Flexibility Act.
(e) As the FEMA Manual deals with internal management it is not subject to the
requirements either of 5 U.S.C. 552 or 553. Its provisions are not part of this rule and reference
to it is informative only.
[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]
§1.2 Definitions.
(a) Rule or regulation means the whole or a part of any agency statement of general
applicability and future effect designed to (1) implement, interpret, or prescribe law or policy, or
(2) describe procedures or practice requirements. It includes any rule of general applicability
governing Federal grants to State and local governments for which the agency provides an
opportunity for notice and public comment, except that the term rule does not include a rule of
particular applicability relating to rates, wages, prices, facilities, appliances, services, or
allowances therefor or to valuations, costs or accounting, or practices relating to such rates,
wages, structures, prices, appliances, services, or allowances. For purposes of this part the
term rule does not include regulations issued with respect to a military or foreign affairs function
of the United States.
(b) Rulemaking means the FEMA process for considering and formulating the issuance,
amendment or repeal of a rule.
(c) Administrator means the Administrator, FEMA, or an official to whom the
Administrator has expressly delegated authority to issue rules.
(d) FEMA means Federal Emergency Management Agency.
(e) Major rule means any regulation that is likely to result in:
(1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers, individual industries, Federal, State,
or local government agencies, or geographic regions; or
(3) Significant adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
[46 FR 32584, June 24, 1981, as amended at 49 FR 38118, Sept. 27, 1984]

Committee on Regulation
November 25, 2020
Page 46
§1.3 Scope.
(a) This part prescribes general rulemaking procedures for the issuance, amendment, or
repeal of rules in which participation by interested persons is required by 5 U.S.C. 553 or other
statutes, by Executive Order 12291, by FEMA policy, or by §1.4 of this part.
(b) Any delegation by the Administrator of authority to issue rules may not be further
redelegated, unless expressly provided for in the delegation.
(c) This part does not apply to rules issued in accordance with the formal rulemaking
provisions of the Administrative Procedure Act (5 U.S.C. 556, 557).
§1.4 Policy and procedures.
(a) In promulgating new regulations, reviewing existing regulations, and developing
legislative proposals concerning regulation, FEMA, to the extent permitted by law, shall adhere
to the following requirements:
(1) Administrative decisions shall be based on adequate information concerning the need for
and consequences of proposed government action;
(2) Regulatory action shall not be undertaken unless the potential benefits to society for the
regulation outweigh the potential costs to society;
(3) Regulatory objectives shall be chosen to maximize the net benefits to society;
(4) Among alternative approaches to any given regulatory objective, the alternative
involving the least net cost to society shall be chosen; and
(5) FEMA shall set regulatory priorities with the aim of maximizing the aggregate net
benefits to society, taking into account the condition of the particular entities affected by
regulations, the condition of the national economy, and other regulatory actions contemplated for
the future.
(b) It is the policy of FEMA to provide for public participation in rulemaking regarding its
programs and functions, including matters that relate to public property, loans, grants, or
benefits, or contracts, even though these matters are not subject to a requirement for notice and
public comment rulemaking by law.
(c) FEMA will publish notices of proposed rulemaking in the FEDERAL REGISTER and will
give interested persons an opportunity to participate in the rulemaking through submission of
written data, views, and arguments with or without opportunity for oral presentation.
(d) In order to give the public, including small entities and consumer groups, an early and
meaningful opportunity to participate in the development of rules, for a number of regulations

Committee on Regulation
November 25, 2020
Page 47
the Administrator will employ additional methods of inviting public participation. These
methods include, but are not limited to, publishing advance Notices of Proposed Rulemaking
(ANPR), which can include a statement with respect to the impact of the proposed rule on small
entities; holding open conferences; convening public forums or panels, sending notices of
proposed regulations to publications likely to be read by those affected and soliciting comment
from interested parties by such means as direct mail. An ANPR should be used to solicit public
comment early in the rulemaking process for significant rules.
(e) It is the policy of FEMA that its notices of proposed rulemaking are to afford the public
at least sixty days for submission of comments unless the Administrator makes an exception and
sets forth the reasons for the exception in the preamble to the notice of proposed rulemaking.
This period shall also include any period of review required by the Office of Management and
Budget in accordance with the Paperwork Reduction Act of 1980.
(f) Unless required by statute or Executive Order, notice and public procedure may be
omitted if the Administrator, for good cause, determines in a particular case or class of cases that
notice and public procedure is impractical, unnecessary or contrary to the public interest and sets
forth the reason for the determination in the rulemaking document or, for a class of cases, in a
published rule or statement of policy. In a particular case, the reasons for the determination will
be stated in the rulemaking document. Notice and public procedure may also be omitted with
respect to statements of policy, interpretative rules, rules governing FEMA's organization or its
own internal practices or procedures, or if a statute expressly authorizes omission.
(g) A final substantive rule will be published not less than 30 days before its effective date
unless it grants or recognizes an exemption or relieves a restriction or unless the rulemaking
document states good cause for its taking effect less than 30 days after publication. Statements of
policy and interpretative rules will usually be made effective on the date of publication.
(h) This part shall not apply to any regulation that responds to an emergency situation,
provided that, any such regulation shall be reported to the Director, Office of Management and
Budget, as soon as is practicable. FEMA shall publish in the FEDERAL REGISTER a statement of
the reasons why it is impracticable for the agency to follow the procedures of Executive Order
12866 with respect to such a rule, and the agency shall prepare and transmit, if needed, as soon
as is practicable a Regulatory Impact Analysis of any such major rule.
[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984; 50 FR 40004, Oct. 1,
1985]
§1.5 Rules docket.
(a) Documents which are public records and which are a part of a specific rulemaking
procedure, including but not limited to, advance notices of proposed rulemaking, notices of
proposed rulemaking, written comments addressed to the merits of a proposed rule, and
comments received in response to notices, or withdrawals or terminations of proposed
rulemaking, petitions for rulemaking, requests for oral argument in public participation cases,

Committee on Regulation
November 25, 2020
Page 48
requests for extension of time, grants or denials of petitions or requests, transcripts or minutes of
informal hearings, final rules and general notices shall be maintained in the Office of Chief
Counsel. All public rulemaking comments should refer to the docket number which appears in
the heading of the rule and should be addressed to the Rule Docket Clerk, Federal Emergency
Management Agency, Office of Chief Counsel.
(b) Documents which are a part of a specific rulemaking proceeding are public records.
After a docket is established, any person may examine docketed material at any time during
established hours of business and may obtain a copy of any docketed material upon payment of
the prescribed fee. (See part 5 of this chapter.)
[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983]
§1.6 Ex parte communications.
In rulemaking proceedings subject only to the procedural requirements of 5 U.S.C. 553:
(a) All oral communications from outside FEMA of significant information and argument
respecting the merits of a proposed rule, received after notice of proposed informal rulemaking
and in its course by FEMA or its offices and divisions or their personnel participating in the
decision, should be summarized in writing and placed promptly in the Rules Docket File
available for public inspection.
(b) FEMA may conclude that restrictions on ex parte communications in particular
rulemaking proceedings are necessitated by consideration of fairness or for other reasons.
§1.7 Regulations agendas.
(a) The FEMA semi-annual agenda called for by Executive Order 12291 will be part of the
Unified Agenda of Federal Regulations published in April and October of each year.
(b) In accordance with 5 U.S.C. 605, the regulatory flexibility agenda required by 5 U.S.C.
602 and the list of rules, if any, to be reviewed pursuant to 5 U.S.C. 610 shall be included in the
FEMA semiannual agenda described in paragraph (a) of this section.
(c) The semiannual agenda shall, among other items, include:
(1) A summary of the nature of each major rule being considered, the objectives and legal
basis for the issuance of the rule, and an approximate schedule for completing action on any
major rule for which the agency has issued a notice of proposed rulemaking.
(2) The name and telephone number of a knowledgeable agency official for each item on
the agenda; and

Committee on Regulation
November 25, 2020
Page 49
(3) A list of existing regulations to be reviewed under the terms of the Order and a brief
discussion of each such regulation.
[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]
§1.8 Regulations review.
(a) As part of the semiannual agenda described in §1.7 of this part, FEMA will publish in
the FEDERAL REGISTER and keep updated a plan for periodic review of existing rules at least
within 10 years from date of publication of a rule as final. This includes those that have
significant impact on a substantial number of small entities.
(b) The purpose of the review shall be to determine whether such rules should be continued
without change, or should be amended or rescinded, consistent with the stated objectives of
applicable statutes, including minimizing any significant economic impact of the rules upon a
substantial number of small entities.
(c) In reviewing rules FEMA shall consider the following factors:
(1) The continued need for the rule;
(2) The nature, type and number of complaints or comments received concerning the rule
from the public;
(3) The complexity of the rule, including need for review of language for clarity;
(4) The extent to which the rule overlaps, duplicates or conflicts with other Federal rules,
and, to the extent feasible, with State and local governmental rules; and
(5) The length of time since the rule has been evaluated or the degree to which technology,
economic conditions, or other factors have changed in the area affected by the rule.
§1.9 Regulatory impact analyses.
(a) FEMA shall, in connection with any major rule, prepare and consider a Regulatory
Impact Analysis. Such analysis may be combined with the Regulatory Flexibility Analysis
described in §§1.12(f) and 1.16(c) of this part.
(b) FEMA shall initially determine whether a rule it intends to propose or to issue is a major
rule and, if a major rule, shall prepare Regulatory Impact Analyses and transmit them, along with
all notices of proposed rulemaking and all final rules, to the Director, Office of Management and
Budget, as follows:
(1) If no notice of proposed rulemaking is to be published for a proposed major rule that is
not an emergency rule, the agency shall prepare only a final Regulatory Impact Analysis, which

Committee on Regulation
November 25, 2020
Page 50
shall be transmitted, along with the proposed rule, to the Director, Office of Management and
Budget, at least 60 days prior to the publication of the major rule as a final rule;
(2) With respect to all other major rules, FEMA shall prepare a preliminary Regulatory
Impact Analysis, which shall be transmitted, along with a notice of proposed rulemaking, to the
Director, Office of Management and Budget, at least 60 days prior to the publication of a notice
of proposed rulemaking, and a final Regulatory Impact Analysis, which shall be transmitted
along with the final rule at least 30 days prior to the publication of the major rule as a final rule;
(3) For all rules other than major rules, FEMA shall, unless an exemption has been granted,
submit to the Director, Office of Management and Budget, at least 10 days prior to publication,
every notice of proposed rulemaking and final rule.
(c) To permit each major rule to be analyzed in light of the requirements stated in section 2
of Executive Order 12291, each preliminary and final Regulatory Impact Analysis shall contain
the following information:
(1) A description of the potential benefits of the rule, including any beneficial effects that
cannot be quantified in monetary terms, and the identification of those likely to receive the
benefits;
(2) A description of the potential costs of the rule, including any adverse effects that cannot
be quantified in monetary terms, and the identification of those likely to bear the costs;
(3) A determination of the potential net benefits of the rule, including an evaluation of
effects that cannot be quantified in monetary terms;
(4) A description of alternative approaches that could substantially achieve the same
regulatory goal at lower cost, together with an analysis of this potential benefit and costs and a
brief explanation of the legal reasons why such alternatives, if proposed, could not be adopted;
and
(5) Unless covered by the description required under paragraph (c)(4) of this section, an
explanation of any legal reasons why the rule cannot be based on the requirements set forth in
section 2 of Executive Order 12291.

Committee on Regulation
November 25, 2020
Page 51
Department of Housing and Urban Development
Title 24: Housing and Urban Development

PART 10—RULEMAKING: POLICY AND PROCEDURES
Contents
Subpart A—General
§10.1
§10.2
§10.3
§10.4

Policy.
Definitions.
Applicability.
Rules docket.

Subpart B—Procedures
§10.6 Initiation of rulemaking.
§10.7 Advance Notice of Proposed Rulemaking.
§10.8 Notice of proposed rulemaking.
§10.10 Participation by interested persons.
§10.12 Additional rulemaking proceedings.
§10.14 Hearings.
§10.16 Adoption of a final rule.
§10.18 Petitions for reconsideration.
§10.20 Petition for rulemaking.
AUTHORITY: 42 U.S.C. 3535(d).
SOURCE: 44 FR 1606, Jan. 5, 1979, unless otherwise noted.
Subpart A—General
§10.1 Policy.
It is the policy of the Department of Housing and Urban Development to provide for public
participation in rulemaking with respect to all HUD programs and functions, including matters
that relate to public property, loans, grants, benefits, or contracts even though such matters would
not otherwise be subject to rulemaking by law or Executive policy. The Department therefore
publishes notices of proposed rulemaking in the FEDERAL REGISTER and gives interested persons
an opportunity to participate in the rulemaking through submission of written data, views, and
arguments with or without opportunity for oral presentation. It is the policy of the Department

Committee on Regulation
November 25, 2020
Page 52
that its notices of proposed rulemaking are to afford the public not less than sixty days for
submission of comments. For some rules the Secretary will employ additional methods of
inviting public participation. These methods include, but are not limited to, publishing Advance
Notices of Proposed Rulemaking (ANPR), conducting public surveys, and convening public
forums or panels. An ANPR will be used to solicit public comment early in the rulemaking
process for significant rules unless the Secretary grants an exception based upon legitimate and
pressing time constraints. Unless required by statute, notice and public procedure will be omitted
if the Department determines in a particular case or class of cases that notice and public
procedure are impracticable, unnecessary or contrary to the public interest. In a particular case,
the reasons for the determination shall be stated in the rulemaking document. Notice and public
procedure may also be omitted with respect to statements of policy, interpretative rules, rules
governing the Department's organization or its own internal practices or procedures, or if a
statute expressly so authorizes. A final substantive rule will be published not less than 30 days
before its effective date, unless it grants or recognizes an exemption or relieves a restriction or
unless the rule itself states good cause for taking effect upon publication or less than 30 days
thereafter. Statements of policy and interpretative rules will usually be made effective on the date
of publication.
[44 FR 1606, Jan. 5, 1979, as amended at 47 FR 56625, Dec. 20, 1982]
§10.2 Definitions.
(a) Rule or Regulation means all or part of any Departmental statement of general or
particular applicability and future effect designed to: (1) Implement, interpret, or prescribe law or
policy, or (2) describe the Department's organization, or its procedure or practice requirements.
The term regulation is sometimes applied to a rule which has been published in the Code of
Federal Regulations.
(b) Rulemaking means the Departmental process for considering and formulating the
issuance, modification, or repeal of a rule.
(c) Secretary means the Secretary or the Under Secretary of Housing and Urban
Development, or an official to whom the Secretary has expressly delegated authority to issue
rules.
§10.3 Applicability.
(a) This part prescribes general rulemaking procedures for the issuance, amendment, or
repeal of rules in which participation by interested persons is required by 5 U.S.C. or by
Department policy.
(b) The authority to issue rules, delegated by the Secretary, may not be redelegated unless
expressly permitted.

Committee on Regulation
November 25, 2020
Page 53
(c) This part is not applicable to a determination by HUD under 24 CFR part 966 (public
housing) or 24 CFR part 950 (Indian housing) that the law of a jurisdiction requires that, prior to
eviction, a tenant be given a hearing in court which provides the basic elements of due process
(“due process determination”).
[44 FR 1606, Jan. 5, 1979, as amended at 61 FR 13273, Mar. 26, 1996]
§10.4 Rules docket.
(a) All documents relating to rulemaking procedures including but not limited to advance
notices of proposed rulemaking, notices of proposed rulemaking, written comments received in
response to notices, withdrawals or terminations of proposed rulemaking, petitions for
rulemaking, requests for oral argument in public participation cases, requests for extension of
time, grants or denials of petitions or requests, transcripts or minutes of informal hearings, final
rules and general notices are maintained in the Rules Docket Room (Room 5218), Department of
Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410. All public
rulemaking comments should refer to the docket number which appears in the heading of the rule
and should be addressed to the Rules Docket Clerk, Room 5218, Department of Housing and
Urban Development, 451 7th Street, SW., Washington, DC 20410.
(b) Documents relating to rulemaking proceedings are public records. After a docket is
established, any person may examine docketed material at any time during regular business
hours, and may obtain a copy of any docketed material upon payment of the prescribed fee. (See
part 15 of this title).
Subpart B—Procedures
§10.6 Initiation of rulemaking.
Rulemaking proceedings may be initiated on the Secretary's motion, or on the
recommendation of a Federal, State, or local government or government agency, or on the
petition of any interested person.
§10.7 Advance Notice of Proposed Rulemaking.
An Advance Notice of Proposed Rulemaking issued in accordance with §10.1 of this part is
published in the FEDERAL REGISTER and briefly outlines:
(a) The proposed new program or program changes, and why they are needed;
(b) The major policy issues involved;
(c) A request for comments, both specific and general, as to the need for the proposed rule
and the provisions that the rule might include;

Committee on Regulation
November 25, 2020
Page 54
(d) If appropriate, a list of questions about the proposal that will elicit detailed comments;
(e) If known, an estimate of the reporting or recordkeeping requirements, if any, that the
rule would impose; and
(f) Where comments should be addressed and the time within which they must be
submitted.
§10.8 Notice of proposed rulemaking.
Each notice of proposed rulemaking required by statute or by §10.1 is published in
the FEDERAL REGISTER and includes:
(a) The substance or terms of the proposed rule or a description of the subject matter and
issues involved;
(b) A statement of how and to what extent interested persons may participate in the
proceeding;
(c) Where participation is limited to written comments, a statement of the time within which
such comments must be submitted;
(d) A reference to the legal authority under which the proposal is issued; and
(e) In a proceeding which has provided Advance Notice of Proposed Rulemaking, an
analysis of the principal issues and recommendations raised by the comments, and the manner in
which they have been addressed in the proposed rulemaking.
§10.10 Participation by interested persons.
(a) Unless the notice otherwise provides, any interested person may participate in
rulemaking proceedings by submitting written data, views or arguments within the comment
time stated in the notice. In addition, the Secretary may permit the filing of comments in
response to original comments.
(b) In appropriate cases, the Secretary may provide for oral presentation of views in
additional proceedings described in §10.12.
§10.12 Additional rulemaking proceedings.
The Secretary may invite interested persons to present oral arguments, appear at informal
hearings, or participate in any other procedure affording opportunity for oral presentation of
views. The transcript or minutes of such meetings, as appropriate, will be kept and filed in the
Rules Docket.

Committee on Regulation
November 25, 2020
Page 55
§10.14 Hearings.
(a) The provisions of 5 U.S.C. 556 and 557, which govern formal hearings in adjudicatory
proceedings, do not apply to informal rule making proceedings described in this part. When
opportunity is afforded for oral presentation, such informal hearing is a nonadversary, factfinding proceeding. Any rule issued in a proceeding under this part in which a hearing is held is
not based exclusively on the record of such hearing.
(b) When a hearing is provided, the Secretary will designate a representative to conduct the
hearing, and if the presence of a legal officer is desirable, the General Counsel will designate a
staff attorney to serve as the officer.
§10.16 Adoption of a final rule.
All timely comments are considered in taking final action on a proposed rule. Each
preamble to a final rule will contain a short analysis and evaluation of the relevant significant
issues set forth in the comments submitted, and a clear concise statement of the basis and
purpose of the rule.
§10.18 Petitions for reconsideration.
Petitions for reconsideration of a final rule will not be considered. Such petitions, if filed,
will be treated as petitions for rulemaking in accordance with §10.20.
§10.20 Petition for rulemaking.
(a) Any interested person may petition the Secretary for the issuance, amendment, or repeal
of a rule. Each petition shall:
(1) Be submitted to the Rules Docket Clerk, Room 5218, Department of Housing and Urban
Development, Washington, DC 20410;
(2) Set forth the text of substance of the rule or amendment proposed or specify the rule
sought to be repealed;
(3) Explain the interest of the petitioner in the action sought; and
(4) Set forth all data and arguments available to the petitioner in support of the action
sought.
(b) No public procedures will be held directly on the petition before its disposition. If the
Secretary finds that the petition contains adequate justification, a rulemaking proceeding will be
initiated or a final rule will be issued as appropriate. If the Secretary finds that the petition does
not contain adequate justification, the petition will be denied by letter or other notice, with a brief

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November 25, 2020
Page 56
statement of the ground for denial. The Secretary may consider new evidence at any time;
however, repetitious petitions for rulemaking will not be considered.

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November 25, 2020
Page 57
Appendix C
The Regulations page of DOT’s website demonstrates the agency’s approach to indexing
its rule on rulemakings and its explanatory documents.40

40

DEP’T. OF TRANSPORTATION., REGULATIONS, https://www.transportation.gov/regulations (last visited Sep. 30,
2020).