Use of Advance Rulemaking Notices Sharply Down Across Federal Agencies, Report Says

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By Stephen Lee

June 30 — Federal agencies are issuing fewer advance notices of proposed rulemaking, new research shows.

Since 2005, the number of advance notices of proposed rulemaking issued governmentwide has dwindled from a high of 66 in 2010 to a low of 27 in 2013, followed by 43 in 2014 and 15 through the first six months of 2015, according to a June 23 report from George Washington University's Regulatory Studies Center.

However, only 8 percent of the advance notices of proposed rulemaking were attached to economically significant rules, the report said. More than half (59 percent) were associated with “nonsignificant” or “substantive, but not significant” rulemakings.

Those numbers suggest a missed opportunity to get the public more involved in important rulemakings, Sofie Miller, senior policy analyst at the Regulatory Studies Center and co-author of the report, told Bloomberg BNA June 30.

“Anything that agencies do to get more public input is probably constructive,” Miller said.

Miller further said that advance notices—which are not required under the Administrative Procedure Act—can be used to get more buy-in from stakeholders before they move forward on their rules.

In some cases, however, agencies face tight statutory deadlines that don't give them time to invite more participation, Miller said.

Labor Groups Critical of Extra Steps 

Some worker advocates hailed the news that advance notices of proposed rulemaking are being used less frequently, arguing that agencies use them either to give the false appearance that they are hard at work on rules or to stall rules they don't actually want to push forward.

The Occupational Safety and Health Administration has a particularly spotty history of abusing advance notices and other voluntary pre-rulemaking steps, such as requests for information, said Adam Finkel, a former OSHA health standards director.

Some union representatives have argued that for highly specialized rulemakings, an advance notice does little to draw more engagement out of the few stakeholders who are already participating in the process.

“Our greatest problem with the use and misuse of ANPRMs is the succession of unreasonable—and usually politically driven—obstacles and delays,” Eric Frumin, safety and health director at Change to Win, told Bloomberg BNA June 30.

Exceptions for Some Agencies 

But at agencies whose rules affect larger groups of stakeholders, such as the Environmental Protection Agency, an advance notice of proposed rulemaking can make sense, said Finkel, now executive director of the University of Pennsylvania Law School's Penn Program on Regulation.

In such cases, advance notices can actually save time by eliminating surprises later in the rulemaking process that must be fought over.

“Sometimes [an agency's] heart isn't in it, and they just put out an ANPRM to waste everybody’s time,” said Finkel. “But there are times when they really do feel like it’s worth, in the long run, getting a preview.”

According to the George Washington University report, the most advance notices issued during the study period came from the National Oceanic and Atmospheric Administration, with 81. Second on the list was the Department of Transportation (45), followed by the Department of the Interior (40), the Agriculture Department (39) and the EPA (31).

The Labor Department ranked 11th, with 15 advance notices of proposed rulemaking.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The George Washington University report is available at http://tinyurl.com/qfqs4ha.