In December, Policy Integrity submitted comments to the Administrative Conference of the United States (ACUS) on its Draft Recommendations of best practices for agencies developing and using temporary rules. While we agreed with many of the proposed recommendations, we suggested that ACUS strengthen its recommendations by:
- Providing concrete guidance for agencies to engage with the public about temporary rules;
- Encouraging agencies to utilize information gathered during a temporary rule's effective period to assess the costs and benefits of extending its effectiveness;
- Recommending that agencies adopt internal practices to increase transparency surrounding their usage of temporary rules;
- Recommending agencies consider the costs (including the feasibility of review and the consequences of unintentional expiration) and benefits (including increased efficiency and opportunities for regulatory learning) of temporary rules when deciding whether to designate a rule as temporary;
- Noting that temporary rules may be useful when regulating under uncertainty; and
- Clarifying that ACUS is not endorsing the broad use of sunset provisions as part of agency experimentation, and that its recommendations only apply to prospective rules.