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E-Rulemaking
Neil EisnerAssistant General Counsel for Regulation and Enforcement
January 2003
The Informal Rulemaking Process
The Administrative Procedure Act (APA) Requirements
Rulemaking
The “agency process for formulating, amending, or repealing” “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….”
Formal Rulemaking
Used where a statute other than APA requires rule to “be made on the record after opportunity for an agency hearing”Rarely used, except for ratemaking, food additives, and other limited categories
Hybrid Rulemaking
Additional statutory requirements--e.g., OSHA, Clean Air Act, FTC Act. . .
Adjudication
Used to issue an agency’s final disposition “in a matter other than rulemaking but including licensing”
Basic Requirements for Informal Rulemaking
Simple processNPRM (proposed rule or alternatives; often provide data and explanation, and ask questions)Public commentsFinal rule (respond to comments and provide basis and purpose)Exceptions
Docket
Public AccessRulemaking and supporting documentsPublic commentsSummaries of Ex Parte communications
Increasing internet-access
Publication Requirements
Legislative rulesMust be published in Federal Register or personallyserved to have effect
Interpretative rules, policy statements and staff manuals
If not published or actual and timely notice is notprovided, must be electronically available before theagency can rely on them, use them, or cite them asprecedent
ExtrasANPRMSNPRMIFRRequest for commentsHearingsSecond round of commentsReply commentsNegotiated rulemaking
Other Requirements Make the Process More Complex
Substantive and Process RequirementsStatutesExecutive OrdersAgency Regulations/OrdersPresidential/OMB Memoranda
Court Decisions
What is the Role of the Courts?(Judicial Review)
Various statutes impose different standards, but under APA can challenge a rule because:
Arbitrary, capricious, abuse of discretion,or illegalUnconstitutionalIn excess of statutory authorityFailed to follow legal procedure
Can also “compel action unlawfully withheld or unreasonably delayed”
Implementation of RulesGuidance/interpretationsPolicy statementsCompliance and enforcement activities
TrainingReporting requirementsInspectionsEnforcement/adjudication
Reviews of Existing Rules
Required by statute and Executive OrderSome rules force via sunset datesGood practice
Problems not always solvedChanges in state of the artEtc.
Time consumingPublic can petition for changes under APA
How Does the Process Work?
Rulemaking Process -Proposed Rule
IDENTIFICATION OF NEEDStatutory MandateAgency identification of problem
Inspector reports/agency oversightAccidentEnforcement issuesRequests for interpretation
PetitionChanges in state-of-artPolicy initiativesIndependent agency recommendationsEtc.
DEVELOPMENTAnalysis of alternativesConsideration of legal authority/ requirementsConsideration of additional actions/rule stageBriefing of senior Departmental officials,as appropriate
Preparation of supporting analyses and rulemaking documents
AGENCY REVIEWConcurrence of variousinitiating office officialsBriefing and coordination withDepartmental officials, asappropriateApproval by Administrator (ordesignate)
SIGNIFICANTNONSIGNIFICANT
FEDERAL REGISTER
DEPARTMENTAL REVIEWAppropriate review and approval bysecretarial officesIn some cases, other parts of department may reviewSecretary must approve
OMB REVIEWOMB must approve most rulemakings;review may include other Federal agencies
Rulemaking Process - Final Rule
AGENCY REVIEW
DEVELOPMENT
Including decision whether to issue final rule, SNPRM, withdraw, etc.
REVIEW OF COMMENTS
SIGNIFICANT
DEPARTMENTAL REVIEW
OMB REVIEW
FEDERAL REGISTER
NONSIGNIFICANT
Rulemaking Process
StatuteRule Need for New
Statute/Rule
Implementation, etc.
What is E-Rulemaking?
Use of electronic technology to:Provide the public with a more effective way to participate in decision makingProvide agencies with more effective tools to develop rulemakings and to manage, track, and coordinate the rulemaking processProvide the public with better access to information about rules
Why Use E-Rulemaking?
Better access and tools = better participation and better and more acceptable rules.
Use of E-Rulemaking in the Process
Tremendous opportunitiesBut: Problems
Lack of budgetary resourcesLack of confidence (e.g., analysis of comments)Lack of need/desire (e.g., drafting tool)
Need to do better job identifying what the government employees and the public want/needThe following slides show many current or planned uses of e-rulemaking
Development of Proposed Legislation
Identification of Need
Accident Data
Development
Analysis of alternatives
Development
Consideration of Legal Authority/Requirements
Substantive Authority/Requirements
Procedural Requirements
Development
Preparation of Supporting Analyses and Rulemaking Documents
Templates
Drafting Assistance
Reviewing , Cutting and Pasting from Electronic Docket
Agency/Departmental Review
CoordinationWithin DepartmentWith other agencies (OMB, SBA Advocacy, Federal Register, etc.)
Tracking/Management
Agency/Departmental Review
CoordinationCirculation
Agency/Departmental Review
CoordinationElectronic Commenting and Editing
Agency/Departmental Review
Tracking and ManagementDataSchedulesReportsAutomatic completion of some fieldsIntranet access
Data
Schedule
Reports
Examples of Reports
Future Enhancement
Regulatory Agenda
Public Information/Status Report
Public Participation
Docket RecordsList ServeComment SubmissionChat Rooms/Electronic Public Meetings
Docket Management System (DMS)
Rulemaking Docket
Centralized, Internet-Accessible, Electronic Storage System.Rulemaking and Supporting Material.Public Comment.Also used for Adjudicatory Dockets and Data Quality Records.User can electronically search, read, and submit; can obtain reports and use links.
DMS History
• 1995: Electronic Dockets open.
• 1997: Internet Access.
• 1998: All DOT Agencies on system.
• 1998: Electronic Filing.
• 2002: List Serve.
• 2002: Data Quality Records.
DMS - List of Rulemakings with Open Comment Periods
DMS - List of Items in Particular Rulemaking Docket
DMS - Scanned Hard Copy Submissions
DMS Successes• Concurrent access to all dockets.
• Internet access (24X7).
• Before DMS, at most, 50-100 people a day would come in to review records--now, web site receives over 2 million hits a year and over 287,000 users.
• System has over 1.4 million pages available.
• Space requirements cut in half.
• Staff reduced from 24 to 14; yet they have more expertise.
• Saves DOT over $1.3 million annually. Public saves, too.
• Especially valuable with anthrax mail-related problems.
• Improved security
DocketsFuture Enhancements
Full-text searchMulti-media capabilitiesGovernment-wide rulemaking comment site/docket
Docket/Internet Access
Problems/Issues SignaturesObscenityCopyrighted materialIllegally obtained informationPrivacy
DMS List Serve
DMS - Electronic Comment Submission
Chat Room
Rule Implementation
Guidance, Training and PolicyElectronic reportingAdjudicatory dockets
Guidance, Training and Policy
DOT-Wide
Guidance, Training and Policy
Agency-Specific
Questions and Answers
Guidance, Training and Policy
DOL: Interactive Site
Registration and Payment of Fees
E-Rulemaking - What’s NeededMore resourcesBetter use of resources/more coordinationMore “interaction” between proposal and comment (e.g., a comment submission form with questions needing answers)Tools for reviewing/organizing comments (but will or can it be relied on)More standard forms (but will they lessen analysis and remember that one-size does not always fit all)
What’s Needed - ContinuedMore electronic supplements to the comment process
Public meetings/hearingsAdvisory committeesNegotiated rulemaking
More links among regulations, statutes, and interpretationsBetter ways for the public to identify proposed and final rules that apply to them (e.g., more interactive software)Ways to get more people to participate in the process and to do it more effectively -- especially small entitiesAnd the list goes on . . . .
ConclusionSignificant improvementsMore neededBut: remember budgetary constraints and significant differences among agencies