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More insight into the regulatory process: Part 2

Jan. 12, 2017
One of the more vexing (if minor) issues when dealing with federal regulations (and especially ones affecting trucking) is sorting out the “alphabet soup” of acronyms involved: NPRM, ANPRM, OMB, etc. Yet it’s important to understand what they all mean and how they impact rulemaking efforts.

One of the more vexing (if minor) issues when dealing with federal regulations (and especially ones affecting trucking) is sorting out the “alphabet soup” of acronyms involved: NPRM, ANPRM, OMB, etc. Yet it’s important to understand what they all mean and how they impact rulemaking efforts.

So as follow on to the first part of my interview with David Kelly – a longtime automotive industry expert who served as acting administrator for the National Highway Traffic Safety Administration (NHTSA) under President George W. Bush – we’ll dig into some of the intricate parts of the rulemaking process.

First up are notice of proposed of rulemakings or “NPRMs” and advanced notice of proposed rulemakings or “ANPRMs” – and there’s a distinct difference between the two of them, Kelly stressed.

“An ANPRM usually is done when an agency is collecting information – they are not making a declarative statement on what they want to do, or what standards they want to be able to create,” he explained. “This [an ANPRM] is used when the agency doesn’t know what it wants to do or they are looking to gather specific information on an issue; they want data and they want to know what people think about this policy or about that policy. It is literally just asking of questions.”

Now, the ANPRM process can be largely skipped if the agency knows what is wants to do or has been directed by Congress to do something. This is when the NPRM comes into play, Kelly noted.

At this point, “this is what agency believes; this is the administration’s policy,” he emphasized. “There may be a couple of issues where the agency is undecided and so that is why they request comments; they will lay out several scenarios or options they are looking at, then they take those comments, evaluate them, and then issue a final rulemaking.”

David Kelly, former acting administrator for NHTSA

On paper, all of that is a 60 to 90 days, Kelly said – on paper.

“But these things never happen on time or on schedule,” he noted. “In a perfect world, you’d be able to get a rulemaking out in nine months. But that does not happen. The reality is a rulemaking takes a year to two years and a controversial one will take a lot longer, say four years, from when the process starts.”

One reason for that delay, though, revolves around the rulemaking review process both within an agency’s department and the executive branch as a whole.

“Once an agency completes its rulemaking process, the secretary of the overall department secretary gets to review it to make sure it’s aligned with departmental policy,” Kelly explained. “Sometimes, the secretary’s office will work on the agency level to develop a particular rule, but they typically don’t do that. They are not the subject matter experts and are just reviewing it at a policy level.”

Here, though, he said it’s important to remember that a transportation rulemaking – “let’s say one regarding motor carriers,” Kelly said – gets lumped in with Federal Aviation Administration (FAA) rulemakings and others at the department level.

This is when “prioritization” becomes a big factor, he pointed out.

The Eisenhower Executive Office Building, next to the White House, where OMB is located

“At this stage, the priorities go from agency priority to department priority as what gets sent over to the Office of Management and Budget [OMB],” Kelly emphasized. “FAA and FHWA [the Federal Highway Administration] are the ‘big guns’ [in the Department of Transportation]; from a policy perspective, the priorities are with the airlines and highways. Now, eventually, almost everything gets over to OMB; it’s a question of when it gets there.”

OMB is critical in this process as its role is to assist the President in a overseeing the preparation of the Federal budget and in supervising all Federal agencies. The OMB also oversees and coordinates the Administration's procurement, financial management, information, and – you guessed it – regulatory policies.

So when a rulemaking gets to OMB, Kelly said, it gets looked at it in terms of administration policy. “And the way OMB looks at administration policy may not be the same way DOT looks at it,” he stressed.

“And not only does OMB conduct a review of a rule, they then send that rule to every single other department for a review. It gets sent to the Department of Commerce, to the Small Business Administration (SBA), to the Department of Energy – it gets sent everywhere,” Kelly pointed out. “So now you have agencies that have no dog in the fight at all signing off on your rulemakings – or not signing off on them, as the case may be.”

And if you get into a scenario where two agencies are at polar opposites on a proposed regulation, it slows the rulemaking process down further still – and leaves OMB trying to figure out how to navigate a way out. “And this is all over a rulemaking that hasn’t officially started yet; the clock hasn’t even started on that two to four year process yet,” he explained.

In my final post on the subject tomorrow, we’ll look at the role Congress plays in officially reviewing regulations – and how that role can impact “last minute” rulemaking efforts during the transition period from one Presidential administration to the next.

About the Author

Sean Kilcarr 1 | Senior Editor

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