C. 35 whose terms miss some of the conduct Summary Agency policymakers should carefully consider the procedural choices open to them. Generally speaking, unless the agency's underlying statute indicates otherwise, the agency should feel reasonably confident that its choice between rulemaking and adjudication will be respected by the courts. Thus the question becomes one of timing, coverage, need for public participation, public perceptions of fairness and ultimate effectiveness. Where the agency is, in effect, announcing a future policy, we believe it generally is best to use the rulemaking process. 35/ The over- and under-inclusiveness of rules is discussed in the Administrative Conference's Statement on Guidelines for Choosing the Appropriate Level of Agency Policy Articulation (June 10, 1983). The statement, based on a study done for the Conference by Professor Colin S. Diver, is included as Appendix G on page 300 of this guide. 36/ See "CPSC, Not Known As Enforcer, Begins to Project a New Image," Legal Times of Washington, p. 1 (Feb. 9, 1981). CHAPTER FOUR: THE AGENCY PROCESS PRIOR TO THE NOTICE OF PROPOSED RULEMAKING The movement in the last decade has been towards increasing the burden on agencies to demonstrate the need for and rationality of rules they adopt. As a result, the agency process which precedes rulemaking is becoming increasingly important. The length and structure of the internal process prior to publication of a notice of proposed rulemaking (NPRM) will vary with the complexity and significance of a proposed rule, as well as the nature of the event that leads to the start of work on a rule. Nevertheless, the pre-NPRM process warrants careful consideration in all rulemakings. A. Common Events "Triggering" Rulemaking. Rulemakings often are quite different in their manner and pace of development, and the event that "triggers" a rulemaking may be a major factor influencing the way the rulemaking is conducted. Some of the events or actions that are the impetus for rulemaking are identified below. 1. Agency initiative or investigation. A change in agency policy, public complaints, fruits of the agency's own investigation or its realization that it has developed a pattern of practice or a series of related adjudicative precedents over the years may lead an agency to decide to begin the rulemaking process. Various methods used by agencies to initiate rulemakings were described in reports agencies issued to implement Exeuctive Order 12044. For example, the Environmental Protection Agency required that a "notification form" be sent to senior management by the head of the office that wanted to start work on a new rule. 1 Similarly, National Credit Union Administration required that an "initiation statement" be prepared by the person or office suggesting the need for a rule. The (then) Department of Health, Education and Welfare required that the appropriate initiating 1/ 43 Fed. Reg. 23,680 (1978). 2/ 43 Fed. Reg. 23,688 (1978). 2 84 office prepare a "proposal to regulate" within 45 days after a triggering event.3 2. Congressional or judicial directives. New legislation mandating the promulgation of rules is a common triggering event. There are many such requirements in the various environmental statutes. 4 Congressional oversight and appropriations committees, as well as individual congressmen, also may cause agencies to consider rulemaking. New rulemaking legislation has led to an increasing number of cases in which litigants have sought court enforcement of statutory rulemaking deadlines or requirements. Agencies may have to adjust their priorities in order to comply with court orders issued in such cases. 5 3. Public petitions. As discussed in Chapter Two, the APA provides that "[elach agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule."6 Though agencies have a great deal of discretion in responding to such petitions, agencies sometimes are persuaded to begin a rulemaking proceeding. Rulemaking petitons are most influential when the petitioners can show that a factual situation exists which justifies, or even requires, rulemaking under a particular statute. 4. Another agency's action or initiative. Agency rulemaking can be triggered by action taken by another federal agency. For example, the independent National Transportation Safety Board investigates accidents involving the various 3/ 43 Fed. Reg. 23,119 (1978). / See Tomlinson, Report on the Experience of Various Agencies With Statutory Time Limits Applicable to Licensing or Clearance Functions and to Rulemaking, 1978 ACUS Recommendations and Reports 119, 216-233 for a discussion of these statutes. 5/ See Chapter Two at pp. 44-45. 6/ 5 U.S.C. $553(e) (1976). 7/ For example, in Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983), the court ordered the Occupational Safety & Health Administration to expedite a hazardous substances rulemaking after petitioners demonstrated that the substance posed a "grave danger" to employees. Under the OSH Act, that finding justifies agency adoption of emergency temporary standards regulating hazardous substances. 9 8 transportation modes. It is authorized to make safety recommendations to the Secretary of Transportation, who, under the Transportation Safety Act of 1974, must respond to the recommendations within 90 days." The response may take the form of rulemaking. Another example of agency rulemaking initiated by the action of another agency is the Office of Management and Budget's authority under Executive Order 12291 to designate existing agency rules for review.10 The Presidential Task Force on Regulatory Relief also has triggered agency proceedings to amend or repeal rules. 5. Advisory committee proposals. Many agencies have formally established advisory committees, chartered under the 11 Federal Advisory Committee Act, and the committees may be charged with suggesting proposed rules. Advisory committees also may be created by statute to aid in the process of developing rules. An example is the National Advisory Committee on Occupational Safety and Health, which was created by statute to make recommendations to the Secretary of Labor on proposed rules 12 suggested by outside petition or following staff investigation. B. Internal Organization and Staffing. The number of persons any agency can devote to a prerulemaking investigation usually is quite small. However, given the level of analysis now required before an agency may adopt a significant or major rule, agencies should pay close attention to staffing and organization prior to publication of notice of proposed rulemaking (NPRM). Once a NPRM is published, the rulemaking staff has many tasks to perform-prepare notices, analyze written comments, respond to inquiries by persons outside the agency (e.g., 8/ Pub. L. No. 93-633, S 307, 88 Stat. 2156, 2172 (codified at 49 U.S.C. S 1906 (1976)). 9/ See, e.g., F. Emery, Rulemaking As An Organizational Process (unpublished report to the Administrative Conference of the U.S. 1982) (hereafter cited as Emery Report). The first appendix is a case study of the FAA's combustion heater rule, commenced following receipt of a NTSB recommendation. 10/ See discussion of the order in Chapter Two, at p. 54. TI/ 5 U.S.C., App. 1. 12/ 29 U.S.C. $656 (1976). work of units outside the office having primary res the rule should be carefully structured so tha rmation or views are obtained without "bogging" stigation with internal disputes and delay. The Environmental Protection Agency employ ce" and "working group" process for developing rule roach appears to have much to offer. The pr cribed in EPA's report on implementation of Preside cutive order on improving government regulations, as The second general principle of the inte starts when the lead office invites Assis 87 |