Repost from Regulatory Studies Center. Notice & Comment: How Agencies Use Advance Notices of Proposed Rulemaking

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Advance Notices: A Practical Solution?, by Sofie E. Miller & Saayee Arumugam. Original source: Regulatory Studies Center, Regulatory Insights

On June 4, 2015, Susan E. Dudley appeared before a Roundtable Discussion of the Senate Subcommittee on Regulatory Affairs and Federal Management and gave testimony on practical solutions for improving the federal regulatory process. During the discussion, members of the subcommittee mentioned the possibility of using advance notices of proposed rulemaking (ANPRMs) to improve public participation in the rulemaking process.[1] For example, Congress is considering legislation that would require ANPRMs for all major regulations and rules that raise novel legal and policy issues.[2]

The Administrative Procedure Act does not require, or even mention, ANPRMs. ANPRMs are different from proposed rules in that they don’t typically present a particular policy proposal on which the public can comment. Instead, they might seek comments from the public on more general topics, such as what type of information hydraulic fracturing operations should report[3] or how to subject grocery stores to implementation of the FDA Food Safety Modernization Act.[4] These ANPRMs are intended to gather data or perspectives from the public before the agency has settled on a specific policy solution or group of specific policy solutions.

Eventually, agencies can use public input to develop a proposed rule, which is open for public comment again. Because ANPRMs invite public comments on general regulatory frameworks before the agency has identified specific policy options, they make public input a more instrumental part of the rulemaking process.

Agencies already use ANPRMs to gather public input, and have for many years. However, our analysis sought to answer these questions: How frequently do agencies use ANPRMs? Which agencies use ANPRMs most frequently? Do agencies use ANPRMs to solicit public input on minor regulatory issues, or for bigger policy questions? The below analysis provides answers to each of these questions for use by policymakers, agencies, and the public alike as we contemplate practical solutions for improving the regulatory process.