Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
Download The Informal Rulemaking Process
Document related concepts
no text concepts found
Transcript
E-Rulemaking Neil Eisner Assistant 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 process NPRM (proposed rule or alternatives; often provide data and explanation, and ask questions) Public comments Final rule (respond to comments and provide basis and purpose) Exceptions Docket Public Access Rulemaking and supporting documents Public comments Summaries of Ex Parte communications Increasing internet-access Publication Requirements Legislative rules Must be published in Federal Register or personally served to have effect Interpretative rules, policy statements and staff manuals If not published or actual and timely notice is not provided, must be electronically available before the agency can rely on them, use them, or cite them as precedent Extras ANPRM SNPRM IFR Request for comments Hearings Second round of comments Reply comments Negotiated rulemaking Other Requirements Make the Process More Complex Substantive and Process Requirements Statutes Executive Orders Agency Regulations/Orders Presidential/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 illegal Unconstitutional In excess of statutory authority Failed to follow legal procedure Can also “compel action unlawfully withheld or unreasonably delayed” Implementation of Rules Guidance/interpretations Policy statements Compliance and enforcement activities Training Reporting requirements Inspections Enforcement/adjudication Reviews of Existing Rules Required by statute and Executive Order Some rules force via sunset dates Good practice Problems not always solved Changes in state of the art Etc. Time consuming Public can petition for changes under APA How Does the Process Work? Rulemaking Process Proposed Rule IDENTIFICATION OF NEED Statutory Mandate Agency identification of problem Inspector reports/agency oversight Accident Enforcement issues Requests for interpretation Petition Changes in state-of-art Policy initiatives Independent agency recommendations Etc. DEVELOPMENT Analysis of alternatives Consideration of legal authority/ requirements Consideration of additional actions/rule stage Briefing of senior Departmental officials, as appropriate Preparation of supporting analyses and rulemaking documents NONSIGNIFICANT AGENCY REVIEW Concurrence of various initiating office officials Briefing and coordination with Departmental officials, as appropriate Approval by Administrator (or designate) SIGNIFICANT FEDERAL REGISTER DEPARTMENTAL REVIEW OMB REVIEW OMB must approve most rulemakings; review may include other Federal agencies Appropriate review and approval by secretarial offices In some cases, other parts of department may review Secretary must approve Rulemaking Process - Final Rule DEVELOPMENT REVIEW OF COMMENTS Including decision whether to issue final rule, SNPRM, withdraw, etc. NONSIGNIFICANT AGENCY REVIEW SIGNIFICANT DEPARTMENTAL REVIEW FEDERAL REGISTER OMB REVIEW Rulemaking Process Statute Need for New Statute/Rule Rule Implementation, etc. What is E-Rulemaking? Use of electronic technology to: Provide the public with a more effective way to participate in decision making Provide agencies with more effective tools to develop rulemakings and to manage, track, and coordinate the rulemaking process Provide 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 opportunities But: Problems Lack of budgetary resources Lack 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/need The 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 Coordination Within Department With other agencies (OMB, SBA Advocacy, Federal Register, etc.) Tracking/Management Agency/Departmental Review Coordination Circulation Agency/Departmental Review Coordination Electronic Commenting and Editing Agency/Departmental Review Tracking and Management Data Schedules Reports Automatic completion of some fields Intranet access Data Schedule Reports Examples of Reports Future Enhancement Regulatory Agenda Public Information/Status Report Public Participation Docket Records List Serve Comment Submission Chat 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 Dockets Future Enhancements Full-text search Multi-media capabilities Government-wide rulemaking comment site/docket Docket/Internet Access Problems/Issues Signatures Obscenity Copyrighted material Illegally obtained information Privacy DMS List Serve DMS - Electronic Comment Submission Chat Room Rule Implementation Guidance, Training and Policy Electronic reporting Adjudicatory 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 Needed More resources Better use of resources/more coordination More “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 - Continued More electronic supplements to the comment process Public meetings/hearings Advisory committees Negotiated rulemaking More links among regulations, statutes, and interpretations Better 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 entities And the list goes on . . . . Conclusion Significant improvements More needed But: remember budgetary constraints and significant differences among agencies
