PUBLISHING THE FINAL RULEMAKING DECISION 1 The Administrative Procedure Act does not require agencies to act on rulemaking proposals within a prescribed time after the end of public proceedings. Consequently, rulemakings can become mired in the final, deliberative stage of proceedings. In some cases, the lack of planning or preparation in earlier stages of the rulemaking becomes evident at the end. In other cases, internal policy debate may not have begun in earnest in the earlier stages, or the public proceedings may have raised significant issues that were not considered before the notice of proposed rulemaking was issued. The deliberative stage is especially likely to be protracted when factual and policy analysis is delayed until after the close of public proceedings. A lengthy period for analysis at this point may lead to information becoming stale; lower staff morale or the loss of key staff members, and a decrease in public interest in the proceeding. Therefore, agencies should encourage, or even require, the rulemaking staff to conduct interim factual and policy analysis throughout the course of rulemaking, so that the agency can act expeditiously after the end of public proceedings to either withdraw, adopt, or initiate further proceedings on the rule. It is a disservice to the interested public and a potential drain on agency resources to allow a rulemaking proposal to languish in the agency after public proceedings end. A. Structuring the Deliberative and Drafting Process. The need for formal structuring of the agency's deliberative and drafting process is greatest when rulemaking is undertaken by large agencies and involves complex issues or important policy 1/ Section 6(a) of the APA, codified at 5 U.S.C. S 555(b), does require agencies to conclude matters "within a reasonable time," and courts are authorized to compel agency action "unreasonably delayed," 5 U.S.C. S 706(1) (1976). See Chapter Nine at note 5 and accompanying text. 181 decisions. This section, however, deals with a number of issues that agencies should consider in rulemaking, regardless of agency's size or the significance or complexity of the proposed rule. 1. Agency organization and staffing. Many of the considerations relevant to agency organization and staffing in the pre-NPRM stage also apply to the deliberative stage. For example, the agency needs to involve persons with experience in relevant disciplines in the final decisionmaking process. And, as in the preNPRM stage, the agency must balance the need for effective internal review with the need to act without undue delay in the rulemaking. There are, however, some additional concerns that must be addressed in the deliberative stage. 3 a. Role of the rulemaking staff. The usual agency practice is for the rulemaking staff that originally investigated the problem and developed the proposed rule to assist the agency head in deciding on the final action to take in the rulemaking. The APA places no restriction on such staff assistance, and usually no other agency component is as familiar with the record and issues as the rulemaking staff.2 However, as discussed in the preceding chapter, the rulemaking staff often will have a commitment to specific rule provisions or approaches as a result of its long involvement with the subject. For this reason, interested persons with views strongly opposed to those of the staff are likely to consider unrestricted staff access to the decisionmaker as unfair. Moreover, the agency decisionmaker needs some mechanism to check potential staff bias. One way to counter such bias is to establish an internal review process that brings other perspectives to the issues involved in the rulemaking. b. Internal review procedure. Establishing an effective review procedure that does not lead to crippling delay is a perennial problem for agencies. The procedure must assure that proposed rules and other matters reach the agency head in a state that permits a decision to be made. More specifically, any internal 2/ See generally Asimow, When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum. L. Rev. 759 (1981). 3/ See Chapter Seven at text accompanying nn. 83-93. policy disputes must have been previously resolved or be presented for agency head resolution, and the final staff recommendations must be supported by thorough, yet easily understandable decision documents. Agency heads are busy people. They often lack the time or personal staff to digest lengthy reports or independently search the record for information. Therefore, if the issues are not thoroughly supported and clearly presented, the agency head may well send the proposed rule back for further work. Considering the time it takes to get a matter on the agenda of many agencies, delay will surely occur if the matter has to be rescheduled. The agency components that need to "sign off" on the staff's final rulemaking recommendations will usually be those offices involved in review prior to publication of the NPRM or consulted during the rulemaking proceeding. These offices typically include the office of the general counsel, the policy planning office, regional offices, offices with related subject-matter responsibilities, and in a few agencies, a separate office assigned the task of overall review or management of agency rulemaking efforts. Internal agency review by these interested offices serves the following important functions: (1) it brings diverse perspectives to the issues (2) it assures that the policy decisions and legal (3) it assures that the final agency decision is 4/ Re-scheduling matters before multi-headed agencies subject to the Government in the Sunshine Act, 5 U.S.C. S 552b, will likely take longer than re-scheduling a matter before a single-headed agency. The ways agencies structure their internal review process to realize these objectives vary greatly, and depend on factors, such as whether the agency is single or multi-headed; performs a single mission or multiple missions; is large or small; is geographically centralized or not, and undoubtedly others. There is some evidence that the most successful internal review procedures use a "team" approach-in which the various interested offices are involved at various points throughout the rulemaking-rather than a "linear" review process in which the office of primary responsibility develops a firm rulemaking recommendation, then sends it by the other offices on its way to final action. 5 The Another aspect of internal review of the final rulemaking recommendations is whether the review is written or oral. fact that numerous offices "sign off" (i.e., initial their approval) on a proposal does not mean that effective, meaningful review has taken place.6 In some cases, an office may approve a proposal because its own program is not threatened, and it wants to avoid alienating the originating office. Or the reviewing office simply may want to avoid the delay that might result from sending the proposal back for additional work.8 Unless the reviewing offices are charged with preparing indepth written analyses of rulemaking proposals-as might be the case in obtaining separate legal or economic analyses-agencies may find that more effective and expeditious review can be obtained through an oral review process." 9 5/ A "team" vs. "linear" distinction is used in Emery, Rulemaking as an Organizational Process 37-43 (unpublished report prepared for the Administrative Conference, 1982). See also Chapter Four at text accompanying nn. 13-15 (concerning pre-NPRM staffing). 6/ See, e.g., Emery Report at 38: "[F]rom our case studies it is clear that there is little correlation between the numbers of persons who review and sign off on a document and the intensity or quality of that review." 7/ See, e.g., Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 54-59 (1975) (description of EPA's internal review process). 8/ Emery Report, supra note 5 at 36-37. 9/ See discussion of agency "regulations councils," Chapter IV at n. (Continued) C. Disqualification of decisionmakers. The propriety of agency officials' participation in rulemaking was an issue in several recent lawsuits. In each case, rule challengers alleged the agency official was biased or had prejudged the issues in the proceeding, and they asked the court to disqualify the official from further participation or to invalidate the final agency rule. The decisions in these cases firmly establish that the disqualification standard that applies in adjudication is inappropriate for informal rulemaking. The disqualification standard for rulemaking enunciated by the courts places a heavy burden on those seeking disqualification. The case that first stated the standard for disqualification of agency officials for bias in rulemaking is Association of National 10 Advertisers v. Federal Trade Commission, in which the Court of Appeals for the D.C. Circuit considered whether certain statements of FTC Chairman Pertschuk warranted his disqualification from participating in a rulemaking proceeding conducted under the Magnuson-Moss Federal Trade Commission Improvements Act.11 The court refused to disqualify Chairman Pertschuk for remarks made during the proceeding, and it declared that in rulemaking an agency member may be disqualified "only when there has been clear and convincing showing that [he] has an unalterably closed mind on matters critical to the disposition of the proceeding."12 The ANA court rejected the district court's characterization of Magnuson-Moss Act rulemaking as a "quasi-adjudicative" proceeding, even though that Act provides for cross-examination and rebuttal on disputed issues of material fact, as well as the "substantial evidence" test for judicial review. 13 The court further 28 and accompanying text. 10/ 627 F.2d 1151 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980). 11/ Pub. L. No. 93-637, title II, 88 Stat. 2193 (codified at 15 U.S.C. S 57a (1976)). 12/ Association of Nat'l Advertisers v. FTC, supra note 10, at 1170. 13/ Id. at 1160-61. The Magnuson-Moss Act's procedural requirements are summarized in Judge MacKinnon's dissenting (Continued) |