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