Use direct final rulemaking to reduce needless double review of noncontroversial rules. (1) The head of each regulatory agency should use "direct final" rulemaking or a similar approach at least once in the next year (or explain why it cannot be done).[Endnote 16] The direct final process should only be used for rules that the agency believes are so noncontroversial that no one would file adverse or negative comments on the proposal. Under this process, the agency would publish a direct final rule in the Federal Register. The Federal Register notice should explain that the rule would become effective in 60 (or some other appropriate number) days if, within 30 (or some other appropriate number) days, the agency did not receive notice from any person of the intention to file adverse or negative comments.[Endnote 17] If the agency is notified that adverse comments would be filed, the agency would be required to withdraw the direct final rule, republish it as a proposed rule, and go through the usual notice-and-comment procedures. Endnotes 16. Agencies can use direct final rules without new legislation, although the process does pose some litigation risk. Arguably, direct final rules meet the requirements of the APA. However, an argument could be made to the contrary. Agencies should determine when it is appropriate to take that risk after consultation with their general counsels. One factor that may make it easier for EPA to use the process is the special provisions in the Clean Air Act and the Toxic Substances Control Act that require anyone challenging a rule to bring the judicial challenge within 60 days after the rule is published in the Federal Register. 42 U.S.C. 7607(b)(1) (1991 Supp.); 15 U.S.C. 2618 (1988). Agencies that do not want to take the litigation risk associated with direct final rules should structure review procedures to accomplish nearly the same thing. Instead of a direct final rule automatically going into effect unless the agency withdraws it, the agency could publish in the Federal Register a notice of no adverse comment that makes the rule final. Internal and OMB review procedures should not require review of such a notice if everyone is notified that this process might be used. 17. The rule cannot become effective until at least 30 days after the close of the public comment period. See 5 U.S.C. 553. 18. Administrative Conference of the United States, Recommendation 86-6, "Petitions for Rulemaking," 1 C.F.R. 305.86-6. 19. In setting up such procedures, care must be taken not to turn over to private parties the governmental functions of setting the agency's agenda and analyzing rules. The regulations should ensure that the agency's decision to withdraw a proposal would not be subject to additional judicial review merely because the agency has invited rulemaking petitions. 20. 5 U.S.C. App. (1988). 21. The Carnegie Commission recommended this procedural innovation. Carnegie Commission on Science, Technology, and Government, Risk and the Environment: Improving Regulatory Decision Making (Washington, D.C., June 1993), p. 111.
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