Legislative Changes to Speed the Rulemaking Process

4. Evaluate and draft proposed legislative changes to speed the
rulemaking process. (4)

Heads of regulatory agencies, in coordination with the Regulatory
Coordinating Group (RCG) and ACUS should:

--identify existing statutes that unnecessarily require
cross-examination and other adjudicative fact-finding procedures in
rulemakings and should recommend whether the administration should seek
legislative changes;

--identify which, if any, statutes should be amended to limit the amount
of time parties have to challenge a rule, or to limit the issues on
judicial review to those that were raised during the public comment
period, and should recommend whether the administration should seek
legislative changes; and

--recommend whether the administration should seek amendments to ensure
that regulatory statutes provide sufficient flexibility for agencies to
issue "generic rules" that would settle, in one proceeding, issues that
would otherwise recur in numerous separate rulemakings or enforcement
proceedings.

The Chair of the RCG, in coordination with ACUS, ould study whether:

--The administration should seek an amendment to the Federal Advisory
Committee Act to exempt advisory committees that meet only once from its
requirements.[Endnote 20]

--It would be feasible, useful and constitutional for agencies to be
able to seek judicial resolution (similar to a declaratory judgment) by
a court of difficult statutory interpretations that are important to
resolve before an agency finalizes a rule and expends significant
resources.[Endnote 21] If the administration seeks legislation, the
procedure to be established should ensure that affected interests are
represented and that issues are not presented prematurely (i.e., before
the agency has definitively determined that there is an actual problem
of statutory interpretation).

Endnotes

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.