III--ADMINISTRATIVE CONFERENCE OF THE UNITED
305--RECOMMENDATIONS OF THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES
1 C.F.R. s 305.72-5
s 305.72-5 Procedures for
the Adoption of Rules of General Applicability
(Recommendation No. 72-5).
(a) The Administrative
Procedure Act, 5 U.S.C. 553 (1970), provides
simple, flexible and efficient procedure for
rulemaking including publication of a notice of
proposed rulemaking in the Federal Register,
opportunity for submission of written comments, and
opportunity in the discretion of the agency for
oral presentation. This notice-and-comment
rulemaking procedure is extensively used and on the
whole has worked well. Each agency is of course
free to provide additional procedural protection to
private parties in any proceeding.
(b) There are statutes
that require procedures in addition to those
required by section 553. Some require opportunity
for oral arguments, some require agency
consultation with advisory committees, and some
require trial-type procedure.
(c) The Administrative
Conference believes that statutory requirements
going beyond those of section 553 should not be
imposed in absence of special reasons for doing so,
because the propriety of additional procedures is
usually best determined by the agency in the light
of the needs of particular rulemaking proceedings.
The Administrative Conference emphatically believes
that trial- type procedures should never be
required for rulemaking except to resolve issues of
1. This recommendation
applies only to rules of general applicability and
not to rules of particular applicability, only to
substantive rules and not to procedural rules, only
to legislative rules and not to interpretative
rules, and only to rulemaking governed by section
553 and not to rulemaking excepted from the
requirements of section 553.
2. In future grants of
rulemaking authority to administrative agencies,
Congress ordinarily should not impose mandatory
procedural requirements other than those required
by 5 U.S.C. 553, except that when it has special
reason to do so, it may appropriately require
opportunity for oral argument, agency consultation
with an advisory committee, or trial-type hearings
on issues of specific fact.
3. Congress should never
require trial-type procedures for resolving
questions of policy or of broad or general fact.
Ordinarily it should not require such procedures
for making rules of general applicability, except
that it may sometimes appropriately require such
procedures for resolving issues of specific fact.
Existing statutes imposing a requirement of
trial-type procedures for rulemaking of general
applicability should be reexamined in light of
4. A study of proceedings
conducted by the Food and Drug Administration
pursuant to section 701(e) of the Federal Food,
Drug and Cosmetic Act, 21 U.S.C. 371(e)(1970), has
demonstrated that that section should be amended so
as to make clear that trial-type hearings are not
required except on issues of specific fact.
5. Each agency should
decide in the light of the circumstances of
particular proceedings whether or not to provide
procedural protections going beyond those of
section 553, such as opportunity for oral argument,
agency consultation with an advisory committee,
opportunity for parties to comment on each other's
written or oral submissions, a public-meeting type
of hearing, or trial-type hearing for issues of
Authority: 5 U.S.C.
SOURCE: 38 FR 19782, July
23, 1973; 57 FR 61760, 61768, Dec. 29, 1992, unless