Monday, March 28, 2011

What is an Advanced Notice of Proposed Rulemaking (ANPRM)?

BY HAYLEY KOTEEN

We are told that the legislative branch makes the laws and the executive branch enforces them. But that is not entirely the case. Through the executive branch there are administrative agencies that promulgate rules and regulations, which have the force and effect of law. If you fail to follow these rules and regulations, you will be subject to a penalty.

Congress must delegate the rulemaking power to a specific agency in order for that administrative agency to promulgate a rule. For example, the reason that the Department of Justice (DOJ) (an administrative agency) has the authority to make rules regarding accessibility in public accommodations is because Congress delegated this responsibility to the DOJ in the Americans with Disabilities Act (ADA). See 42 U.S.C. § 12186(b). After there has been a delegation, the agency is required to follow certain procedures. Some statutes require what is referred to as a “hearing on the record.” These hearings look similar to a trial in court—evidence is presented and there is an opportunity to cross-examine witnesses.

The ADA does not require a hearing on the record, so the hearing looks more like a legislative hearing, where individuals and organizations give testimony on the record in support of or against a rule or regulation. Statutes like the ADA are required to abide by Section 553 of the Administrative Procedures Act (APA), which are the procedures for “Notice and Comment Rulemaking.”

For notice and comment rulemaking, the APA requires the agency to publish a Notice of Proposed Rulemaking (NPRM) in the federal register and provide an opportunity for interested persons to comment. The final rule must be very similar to the NPRM in order to comply with the law; otherwise, the rule can be challenged in court. Thus, if the agency receives too many negative comments they may have to draft an entirely new NPRM, starting the process all over again.


"... if the agency receives too many negative comments they may have to draft an entirely new NPRM, starting the process all over again."


To avoid this, most NPRM’s contain the text of the actual rule that it proposed to adopt. Agencies do this in order to protect themselves from litigation. To decide what the NPRM’s language should look like, agencies have increasingly promulgated what is known as the Advanced Notice of Proposed Rulemaking (ANPRM).

The APA does not require ANPRM’s but many agencies utilize them to get a sense of what the regulated community would and would not like to see in the regulation. The ANPRM is usually a generalized statement of what the agency purports to do. Once the ANPRM is published in the federal register, the comment period is usually around 6 months. From there it can take between 18 and 20 months to analyze the issues raised before promulgating an NPRM. Once the NPRM is published in the federal register, the comment period is also around 6 months and the agency can take around another year to analyze those comments before promulgating the final rule. When a final rule is promulgated, it does not take effect right away; usually, the agency gives the regulated community a grace period to change their practices accordingly.

Applying this to the DOJ’s ANPRM on web accessibility in my last post (2/27/11), it is understandable why we likely will not see any real changes for a few years. The comment period for that ANPRM ended in January. We might not see an NPRM until around the summer or fall of 2012. If the DOJ issues an NPRM at that time, the comment period is usually around six months. When the comment period closes it can take over a year for the agency to promulgate a final rule. This depends on the number of comments the agency gets, how many of those comments are negative, and how significant the negative comments are. My guess is we will see a final rule on web accessibility around summer or fall of 2013 at the earliest.

According to the ANPRM, the DOJ is considering an effective date of 6 months after the rule is published in the federal register. Because of this whole process, it will probably be years before we see any regulatory changes. Hopefully, once an NPRM is issued, private businesses will make changes on their own accord in preparation for a final rule. This will not be enforceable, however, until the actual regulation is enacted.


ABOUT HAYLEY KOTEEN
Hayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.

2 comments:

  1. Once an agency promulgates a regulation, it has the force and effect of law. If the DOJ ends up amending the regulation to mandate web accessibility, businesses will be required by law to change their websites accordingly. The DOJ has promulgated an ANPRM to start the process to make such a change: http://www.ada.gov/anprm2010/web%20anprm_2010.htm. Unfortunately, we are unlikely to see a final rule that has the force and effect of law for a few years.

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