Early but Not Often: A Look into the Use of ANPRMs in Rulemaking

Julie Balla

By Julie Balla

May 03, 2019

In August 2018, the Federal Motor Carrier Safety Administration (FMCSA) used an advance notice of proposed rulemaking (ANPRM) to solicit public feedback on an existing “hours-of-service” rule that affects commercial truck drivers. FMCSA asked for specific information from commenters regarding rest breaks, electronic logging devices, and other provisions of the rule. In response, over 5,000 comments were submitted to regulations.gov, suggesting significant interest in potential changes to the existing rule. FMSCA plans to release a notice of proposed rulemaking (NPRM) in June.

As in the FMCSA case, agencies can use ANPRMs to engage the public early in the rulemaking process. Prior to the proposal of a new rule, agencies may decide to seek public comment on whether a new rule is necessary and what should be included if the rule progresses.  Agencies are not required by the Administrative Procedure Act to issue these pre-rule documents, but ANPRMs can be valuable in gathering information from relevant stakeholders before a rule change is already in motion. For the “hours-of-service” rule, public input was requested early using an ANPRM, however this is not the case for all or even most rules.

Few Rules are Preceded by an ANPRM

Since 1993, agencies have issued an annual average of 13 ANPRMs for significant rules (as defined by Executive Order 12866).[1] The actual number of ANPRMs varies from year to year, ranging from as few as two to as many as 31. However, the use of ANPRMs is fairly consistent across the last four presidential administrations. An average of 11.25 ANPRMs were issued per year under President Clinton, 13.75 under President Bush, 13.38 under President Obama, and 11.5 in the first two years of the Trump administration.

Number of ANPRMs Published for Significant Rules by Presidential Year 
 

Executive branch agencies issue approximately 200-300 significant rules each year, which means that fewer than 5% of such rules are preceded by an ANPRM. Given the importance of public participation in the rulemaking process, this is concerning. While agencies issue NPRMs and solicit comments for most significant rules, it can be difficult for the public to substantively change a regulation after it has been proposed, pointing to the potential importance of earlier public participation.

Requests for Information, Notices, and other Pre-rules

It is important to note that the data cited here include only those documents classified specifically as ANPRMs and do not include other “pre-rules,” such as requests for information, determinations to regulate, preliminary notices, and notices of public meetings. Even if one were to include such documents, however, the average number of pre-rules issued for significant rules each year is approximately 14 over the last 25 years.

Further research

Given the potential value of early public participation, it is possible that Congress will require agencies to issue ANPRMs for all major rules. Although there are strong arguments for increased used of ANPRMs, what is ultimately needed is an evaluation the practical effects of early participation in rulemaking. Relevant questions include: Who submits comments in response to ANPRMs? What is the quality of these comments? Does this early participation have an effect on the time it takes to issue rules, by either slowing down or speeding up the process? Definitive answers to such important questions await detailed analysis of the agency and stakeholder behavior during and after ANPRM comment periods. To learn more about the effectiveness of ANPRMs in informing rulemaking, more data are required. Further research might include a deeper dive into the number of ANPRMs that become NPRMs and major rules, and the difference in number of ANPRMs issued by agency.

 

[1] This information consists only of executive branch rules, and therefore does not include independent agencies. The total excludes any RIN numbers that were not published in the Unified Agenda and do not link to an ANPRM in the appropriate docket.