executive order on improving government regulations required all significant regulations to be accompanied by a plan for evaluating 86 the regulation after its issuance. It also required agencies to periodically review existing regulations to decide whether they 87 were achieving the policy goals set forth in the order." President Reagan's executive order contains a similar requirement for agency review, but it also authorizes the Director of the Office of Management and Budget to designate existing agency rules for 88 review and to establish schedules for such reviews by agencies. The Regulatory Flexibility Act calls for review of rules on a tenyear cycle, with the provision for extensions of up to an additional 89 five years.

90

Whether or not a periodic review requirement applies to a particular rulemaking, agencies adopting a final rule should consider techniques for evaluating its impact after it becomes effective. The evaluation plan requirement in President Carter's executive order was not widely implemented, although some agencies (e.g., the National Highway Traffic Safety Administration and the Environmental Protection Agency) took steps to conduct post-promulgation evaluations. Any rigorous evaluation of a rule's effects requires an initial expenditure of resources to obtain "baseline" data against which change can be measured. That kind of data may be difficult or costly to obtain, although less so when an initial regulatory analysis is performed. However, agencies are not limited to choosing between a rigorous, empirical postpromulgation evaluation and no evaluation at all. Agencies may issue instructions to staff to report back at the end of a specified time on any observed or reported effects of the rule. Some agencies issue rules on an "interim" basis and then later make adjustments in "final rules," taking taking into account

information.

92

91

new

86/ Exec. Order No. 12,044, supra note 75, at $ 2(d)(8). 87/ Id., S 4.

88/ Exec. Order No. 12,291, supra note 76, at § 3(i). 89/ 5 U.S.C. S 610 (Supp. V 1981).

90/

U.S. Regulatory Council, A Survey of Ten Agencies' Experience with Regulatory Analysis, supra note 60, at 32-33. 91/ Id.

(Continued)

In a recently published rule, the Federal Trade Commission included a provision requiring it to initiate a rulemaking amendment proceeding within four years after the effective date This provision was explained in the preamble to the

93

of the rule.
rule, as follows:

The Commission has established this early
review procedure to ensure that there is a need
to continue the rule after it has had an
opportunity to work in the market place. If the
rule operates as expected, there should be
increased competition in the market which may
obviate the need for continued federal
intervention. Requiring an early amendment
proceeding commits the Commission to
conducting a public proceeding, open to full
participation, to review the operation of the
rule and its eff ect. At this time, the
Commission expects to have data from its own
internal impact evaluation to aid in the
consideration of these issues. The Commission
will consider whether the rule should be
modified or terminated at that time.

Finally, agencies may be able to include "sunset" provisions in final rules to insure that rule requirements do not remain on the books after they accomplish their purpose. For example, an information disclosure requirement may be included in a rule in order to correct for failure of the market to supply certain information. However, the agency may expect that, after a time, it will become standard practice for the information to be di sclosed, and the rule requirement (and any ancillary requirements, such as record retention) will be unnecessary. A "sunset provision" would remove the requirement more efficiently than a rulemaking amendment proceeding.95

92/ Of course, under the APA any rule that is promulgated with a specified effective date is a "final rule," subject to judicial review, regardless of the agency's decision to characterize it as an "interim," rather than a "final rule."

93/ See FTC Funeral Industry Practices Rule, 16 C.F.R. S 453.10 (1983). This provision also commits the Commission to completing the amendment proceeding within eighteen months.

94/ 47 Fed. Reg. 42,260, 42,299 (Sept. 24, 1982).

(Continued)

96

3. Determining the effective date for the final rule. With narrow but significant exceptions 95 the APA provides that agency rules may not be made effective until 30 days after 97 publication in the Federal Register. The delayed effective date provision was included to give persons affected by the rule a reasonable time to prepare to comply with the rule or take other action.98 Other action might include petitioning for exemption from rule requirements or pursuit of judicial review of the rule. The delayed effective date provision also gives the agency an opportunity to modify the rule to avoid previously unforeseen and undesirable consequences of its rule.

Determining the effective effective date of rules has been complicated by requirements for additional review of rules. Executive Order 12291 requires final rules subject to it to be reviewed by the Office of Management and Budget prior to their publication in the Federal Register. Since the order establishes no deadline for completion of OMB review, agencies cannot set a precise effective date until the review is completed. Also, the Paperwork Reduction Act gives OMB 60 days after publication of a final rule to disapprove any collection of information requirement in the agency's rule. OMB has issued rules that expansively define the term "collection of information" to include, among other things, information disclosure requirem ents and labeling requirements, 100 Thus, it is possible that critical aspects of proposed rules may not be made effective until at least 60 days following publication of the rule. Of course, if OMB's objections are met, this requirement need not delay the rule's taking effect. Legislative review requirements may also preclude fixing a

99

95/ Of course, the Office of the Federal Register must be given notice whenever rule provisions expire by their own terms. 1 C.F.R. S 21.6 (1983).

96/ See discussion in Chapter Two at text accompanying nn. 124126.

97/ 5 U.S.C. S 553(d) (1976).

98/ Attorney General's Manual on the Administrative Procedure Act 36 (1947).

99/ 44 U.S.C. S 3504(h)(5) (Supp. V 1981).

100/ See Chapter Two, text accompanying nn. 193-194.

precise effective date when the agency approves a final rule. However, most existing legislative review requirements are attached to legislative veto provisions that appear to be 101 unconstitutional in light of recent Supreme Court decisions.

104

4. Publishing the final rule. The APA requires agencies to publish in the Federal Register all "substantive rules of 102 general applicability." Failure to publish makes the final rule unenforceable against any person not having actual and timely 103 notice of its terms. The APA requires that the statement of basis and purpose be incorporated in the rule, so the statement of basis and purpose is also subject to the publication requirement. The Regulatory Flexibility Act gives the agency the option of either publishing the final regulatory flexibility analysis in the Federal Register or including instructions to the public on 105 how to obtain copies of the analysis." Executive Order 12291 requires that final regulatory impact analyses be made available to the public, but publication of the analyses in the Federal Register is not mandated, 106

Executive Order 12291 clearance. It should be noted here that agencies subject to Executive Order 12291 are directed to refrain from publishing final major rules or the final regulatory impact analysis "until the agency has responded to the [OMB] Director's views, and incorporated those views and the agency's response in the rulemaking file."107 There is no limit on the time allowed for this review, although OMB must advise the agency within 30 days of submission of a final major rule--or 10 days of submission of a nonmajor rule-that it will submit 108 views. The executive order contains exemptions from the pre

101/ See cases cited in Chapter One at p. 8, n. 21.

102/ 5 U.S.C. S 552(a)(1)(D) (1976).

103/ 5 U.S.C. S 552(a)(1) (1976). But see Chapter Two at p. 21, n. 20 (cases in which failure to publish did not result in invalidation of agency action).

104/ 5 U.S.C. § 553(c) (1976).

105/ 5 US.C. $ 604(b) (Supp. V 1981).

106/ Exec. Order No. 12,291, S 3(h), supra note 76, at 130.

107/ Id., S 3(f)(2).

108/ Id., S 3(e)(2).

publication review requirement, and any of its other procedural requirements, if (1) the rule responds to an emergency that makes

compliance "impracticable,"109 or (2) the executive order

requirements conflict with deadlines imposed by statute or court 110 order,* or (3) the rule falls within a class or category of rules that has been exempted from the requirement by the Director of 111 OMB.

b. Federal Register requirements. Title 1 of the Code of Federal Regulations contains the rules of the Administrative Committee of the Federal Register which govern the filing and publication of documents in the Federal Register. In an earlier chapter we discussed the general format requirements that apply to documents submitted for publication in the Federal Register and, also, the requirements governing incorporation of material by reference into rules. 112 However, there are other requirements and provisions that are particularly relevant to publication of final rules.

First, agencies should not expect the Office of the Federal Register to publish a final rule that does not comply with the Register's minimum requirements. One requirement agencies should be aware of is that the Office of the Federal Register "may not accept a document for filing and publication if it combines material that must appear under more than one category in the

Federal Register."114 Thus, a single document containing both

final rule text and proposed rule text will not be accepted for publication. The reason for this requirement is that certain categories of documents, such as final rules, are incorporated into

109/ Id., S 8(a)(1) at 133. (However, the agency can only defer preparation and submission of the regulatory impact analysis required for a major rule.)

110/ Id., S 8(a)(2).

IIT/ Id., S 8(b).

112/ See Chapter Five, text accompanying nn. 21-26.

113/ The Director of the Federal Register is specifically authorized to return non-conforming documents to the issuing agency. 1 C.F.R. S 2.4(b) (1983).

114/ 1 C.F.R. S 18.2 (1983). The categories of Federal Register documents are listed in the Office of the Federal Register's Document Drafting Handbook $ 1.4 (June 1980) at 2-3.