Direct Final Rulemaking to Reduce Needless Review

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.