REPORT FOR THE
A DMINISTRATIVE C ONFERENCE OF THE U NITED S TATES

DEVELOPING REGULATORY ALTERNATIVES THROUGH
EARLY INPUT
Christopher Carrigan
Trachtenberg School of Public Policy and Public Administration
George Washington University

Stuart Shapiro
Bloustein School of Planning and Public Policy
Rutgers University

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).

Recommended Citation
Christopher Carrigan and Stuart Shapiro, Developing Regulatory Alternatives through Early Input (June 4, 2021)
(report to the Admin. Conf. of the U.S.).

Table of Contents
Executive Summary .......................................................................................................................3
Introduction ....................................................................................................................................6
Evidence on Early Consideration of Regulatory Alternatives.................................................12
Agency Requirements and Recommendations ............................................................................12
Agency Consideration of Alternatives in Practice .....................................................................16
Other Statutory Requirements for Early Participation and Consideration of Alternatives.......19
Methodological Approach ...........................................................................................................22
Discussion of Results and Accompanying Recommendations .................................................27
Theme 1: Agencies almost universally engage in the consideration of alternative approaches
when developing rules, particularly when they involve novel or complex issues ......................27
Theme 2: External stakeholders are the primary source for inspiration regarding alternative
policy options when agencies are developing rules ...................................................................30
Theme 3: Agencies generally consider alternative approaches early in the process of
developing the regulation, well before the NPRM is issued.......................................................35
Theme 4: Although agency personnel believe that consideration of alternatives makes for
better final rules, the decision to invest in developing these alternatives does involve tradeoffs
....................................................................................................................................................40
Conclusion ....................................................................................................................................45
Appendix 1: Rules and Associated Supporting Documents Reviewed ...................................48
Appendix 2: Interview Protocol ..................................................................................................50

2

Developing Regulatory Alternatives through Early Input
Administrative Conference of the United States (ACUS) Consultant Report
Christopher Carrigan
George Washington University
Stuart Shapiro
Rutgers University
Executive Summary
Agencies face a multitude of requirements instituted by Congress and the president to guide
their rulemaking procedures. In some cases, these laws and orders, such as Executive Order
12,866 and the Regulatory Flexibility Act, mandate that the agency consider a variety of
regulatory approaches when developing a rule. Moreover, in certain instances, agencies
themselves have developed internal guidance, which builds upon these executive and legislative
requirements, to encourage rulemaking personnel to examine alternatives to a potentially
preferred approach. Yet the limited research that analyzes the extent to which agencies, in
practice, consider alternatives when developing rules offers only mixed support that they do so.
Further, some of the scholarship on the topic questions whether agency incentives support their
consideration and disclosure of any serious examination of alternatives.
This report offers evidence on whether and, if so, how agencies consider and disclose their
review of alternative regulatory approaches as part of their rulemaking processes. Moreover, it
provides information on when in the regulatory process agencies are most apt to concern
themselves with alternative regulatory options. To do so, the evidence discussed in the report
derives from an in-depth examination of 25 economically significant rules finalized during the
Obama and Trump Administrations as well as a series of semi-structured interviews with current
and former personnel from multiple agencies within five executive departments.
In combination, the evidence reveals four themes that describe how agencies vet various
regulatory approaches as well as the degree to which they disclose both these alternatives and
how they came to consider them. First, in practice, agencies almost universally engage in
developing and considering alternatives, particularly for complex and novel rulemakings.
Second, although the preferred approach to gathering information on alternatives varies
substantially between agencies ranging from more formal mechanisms such as issuing an
advance notice of proposed rulemaking to less formal approaches like convening monthly
stakeholder meetings, nevertheless, those outside the agency remain the key source for
generating alternatives and information about them. To the extent to which alternatives are
developed internally, economists play an important role, including documenting those
alternatives in regulatory impact analyses (RIAs).
Third, agency deliberations surrounding alternative regulatory approaches largely occur
early in the process of developing the rule, long before the agency issues a notice of proposed
rulemaking (NPRM). As a result, agencies will rarely receive comments during the NPRM stage
3

that would introduce an alternative approach that they had not already considered. Still, the
robust engagement that agencies undertake early in the process is typically not disclosed in either
the NPRM or the associated final rule. Further, to the extent alternatives are described in public
rulemaking documents, this discussion most often occurs in RIAs, but even there, it may involve
only limited assessment of somewhat unrealistic options. Fourth, although the current and former
agency personnel interviewed universally indicated that contemplating various regulatory
approaches results in better rules, they did acknowledge the tradeoffs in robust consideration of
alternatives, especially the corresponding difficulties in issuing the rule in a timely fashion.
Moreover, in certain instances, statutory language, potentially in connection with judicial review,
and political considerations can limit agencies’ perceptions of the extent to which they can
consider certain alternatives.
These themes point to a series of recommendations described in more detail in the body of
the report and summarized here. Collectively, they attempt to build on the successful, but
sometimes idiosyncratic, practices that agencies currently employ to gather information on
regulatory alternatives. Moreover, they recognize that these robust approaches are not always
documented in public rulemaking documents. This practice has, in some cases, shifted some of
the most desirable aspects of sound policy development that agencies currently employ,
including engaging with the affected stakeholders and considering regulatory alternatives, to a
part of the regulatory process that is generally not visible to the broader public. The following
seven recommendations are, in large part, designed to help mitigate the inconsistency between
what agencies do and what they describe in the documents they publicly release:
1) Any framework instituted to encourage agencies to consider alternative regulatory
approaches early in the rulemaking process in a more systematic way should not involve
broad mandates, thereby recognizing that consideration of alternatives is not appropriate for
every rulemaking situation. Those situations where novel or complex issues are raised in a
rulemaking are particularly appropriate for robust consideration of alternatives.
2) The Office of Information and Regulatory Affairs (OIRA) should consider convening an
interagency working group to gather data on approaches agencies use to generate and solicit
feedback on alternatives and the effectiveness of these approaches in order to produce a
menu of options for agencies on best practices for early engagement with stakeholders and
guidance on how different options may be appropriate in different circumstances.
3) In accordance with ACUS Recommendation 2019-5, agency economists should be involved
early in the rulemaking process and encouraged to develop regulatory alternatives as part of
this involvement.
4) Congress should consider making it clear that if an agency includes in the preamble to their
proposed rule the consideration of realistic alternatives and documentation of early public
involvement in this process, such action would offer evidence that can be used to suggest
that agency is not acting in an “arbitrary” or “capricious” manner in reaching its regulatory
decision; a specific place in the preamble should be created both for describing
communications with stakeholders and for listing regulatory alternatives; and the Office of
Management and Budget should consider updating Circular A-4 to be more specific about
4

the number of non-trivial alternatives an agency should discuss in the NPRM, assuming
consideration of alternatives is warranted for that proposed rule.
5) Agencies should engage in pilot projects using different modes of soliciting public input on
their regulations before issuing NPRMs. The results of these pilot projects should be shared
broadly across the government and individually should be described in the NPRMs for
which they are used.
6) OIRA should consider ways to incentivize agencies to engage stakeholders early in the
rulemaking process particularly with regard to envisioning and vetting alternatives. Any
incentives would need to provide agencies with the opportunity to save time later in the
rulemaking process if they have documented such consideration early in the process.
7) Agencies should not avoid documenting, analyzing, and soliciting public input on
reasonable alternatives in their NPRMs simply because they believe those alternatives are
precluded by statute. Agencies should still present these alternatives along with an
explanation of their views on the legality of those alternative policy choices.

5

Introduction

Agencies issue thousands of regulatory decisions per year, and many of them have
significant economic impacts and high political salience. For example, in 2020 alone, executive
branch agencies issued over 130 rules deemed economically significant, meaning that they
would likely have “an annual effect on the economy of $100 million or more or adversely affect
in a material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities.” 1
Given the salience and potential impacts of their regulatory policy decisions, politically
appointed heads of agencies have an interest in ensuring choices are consistent with their
organizations’ delegations of authority and are made with consideration of public input. To assist
in achieving this end, agencies are mandated to follow a multitude of procedures instituted by
Congress and the president when issuing regulations based on the characteristics of the rule. For
example, regulators must make their proposed regulations available for public comment, and in
certain cases, submit them to the Office of Management and Budget’s (OMB) Office of
Information and Regulatory Affairs (OIRA) for review, analyze their impacts on small
businesses, and measure their costs and benefits. Further, agencies must prepare to defend those
rules when they are challenged in court.2
As a result, some regulatory procedures—such as the requirements that agencies provide
opportunity for comment on their proposed rules and respond to those comments as well as
analyze benefits and costs as part of their broader regulatory impact analyses (RIAs) for

1

GW Regulatory Studies Center (website),“Economically Significant Final Rules Published by
Presidential Year,” accessed February 11, 2021, https://regulatorystudies.columbian.gwu.edu/reg-stats;
Executive Order No. 12,866, Section (3)(f)(1), 58 Fed. Reg. 51735 (1993).
2
Administrative Procedure Act, Pub. L. No. 79-404, 5 U.S.C. § 551 et seq. (1946).
6

significant regulations—can be viewed as vehicles to increase transparency and improve
monitoring of a regulatory agency’s decisions.3 For instance, in performing a benefit-cost
analysis (BCA), agencies are encouraged to identify clearly the rule’s effects, thereby providing
information about potential outcomes to the affected groups and other concerned parties. 4
Similarly, notice-and-comment rulemaking requires that agencies engage with the public’s
reaction to their proposed rules. Together, these procedures should encourage agencies to
consider alternative policy options and solicit public input on these alternatives, especially since
they are mandated to do so, at least for certain classes of rules.
Yet the extent to which these regulatory procedures achieve their goals of encouraging
agencies to consider diverse approaches to regulating and to communicate their regulatory
decisions transparently is unclear.5 In fact, BCAs are not easy for even sophisticated users to
comprehend.6 Moreover, an agency’s incentives in preparing its BCA may not always lend
themselves to producing an analysis that is comprehensible to most observers. 7 Similarly, by the
time the agency reaches the stage in the rulemaking process where the public is offered the
opportunity to comment, it has already engaged in extensive planning around the proposed

Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, “Administrative Procedures as
Instruments of Political Control,” Journal of Law, Economics, and Organization 3, no. 2 (1987): 243-277.
4
Christopher Carrigan, Mark Febrizio, and Stuart Shapiro, “Regulating Agencies: Using Regulatory
Instruments as a Pathway to Improve Benefit-Cost Analysis” (Gray Center for the Study of the
Administrative State Working Paper 20-01, February 2020).
5
Susan Webb Yackee, “Sweet-Talking the Fourth Branch: The Influence of Interest Group Comments on
Federal Agency Rulemaking,” Journal of Public Administration Research and Theory 16, no. 1 (2006):
103-124.
6
Christopher Carrigan and Stuart Shapiro, “What’s Wrong with the Back of the Envelope? A Call for
Simple (and Timely) Benefit-Cost Analysis,” Regulation and Governance 11, no. 2 (2017): 203-212.
7
Wendy E. Wagner, “The CAIR RIA: Advocacy Dressed Up as Policy Analysis,” in Reforming
Regulatory Impact Analysis, ed. Winston Harrington, Lisa Heinzerling, and Richard D. Morgenstern
(New York: Routledge, 2009), 56-81.
3

7

regulation. As a result, the agency may feel wedded to its preferred approach.8 Further, because
it needs to prepare itself for the potential that the rule may later be challenged in court, an agency
may not believe it will benefit from considering reasonable regulatory alternatives or inviting
scrutiny of the rule or associated BCA in public documents.9
With this context as background, this project considers the extent to which agencies consider
alternative regulatory approaches in their rulemakings. For purposes of our discussion, we define
a regulatory alternative as simply an approach that differs from the agency’s preferred or default
mode of regulating. Thus, it can be a wholly different method of regulating. For example,
imposing a planning requirement would be considered a regulatory alternative if the agency’s
preferred or default approach is a technology standard. However, it can also mean varying the
stringency of the regulation. So, a performance standard in which the preferred stringency level
would be reduced or increased is considered a regulatory alternative as well.10
In carrying out our analysis, we define our purpose as two-fold. First, we seek to examine
the extent to which agencies consider alternative regulatory approaches in developing their rules,
and, if so, when in the process they contemplate these alternatives as well as what approaches

Steven J. Balla, “Between Commenting and Negotiation: The Contours of Public Participation in
Agency Rulemaking,” I/S Journal of Law and Policy 1, no. 1 (2004): 59-94.
9
Wagner, “CAIR RIA,” 56-81.
10
The precise definition regarding what a planning requirement, sometimes referred to as managementbased regulation, is relative to a technology standard or a performance standard is not central to the
discussion. That said, a planning requirement refers to a mandate that a regulated entity create and, in
some cases, adopt a plan to manage the risks in their business operations. In contrast, a technology
standard, otherwise known as means-based regulation, requires the regulated entity to adopt a particular
approach or technology to meet the regulatory requirement imposed by the regulator. Finally, a
performance standard, which is alternatively referred to as ends regulation, does not specify the
technology or approach a regulated entity must use to conform, but it does specify the end state in terms
of what the entity must achieve is be considered compliant. See, e.g., Christopher Carrigan and Cary
Coglianese, “The Politics of Regulation: From New Institutionalism to New Governance,” Annual Review
of Political Science 14 (2011): 107-129.
8

8

they take to do so. Connected to this, we study the degree to which agencies document that
process and the alternatives they considered. In examining the methods agencies employ, we are
particularly interested in whether public input plays a role both in the development of
alternatives and in shaping agency decisions around which regulatory approach the agency
ultimately chooses in any given situation. Second, to the extent we find that agencies and their
rules could benefit from greater consideration of alternative regulatory approaches, particularly
early in the rulemaking process and through public input, as well as more transparency around
the efforts they already undertake, we offer a series of recommendations to position agencies to
be able to contemplate and document alternatives in a relatively low-cost and relatively informal
manner. More specifically, we make recommendations as to how agencies can encourage
interested parties to engage with regulators early in the rulemaking process, recognizing that
agencies may be more able to incorporate input at that stage. These recommendations also
acknowledge the actions that agencies are already taking to gather and vet alternatives while
positioning them to disclose these activities more extensively.
To accomplish these tasks, we engaged in a systematic and intensive review of a sample of
25 economically significant rules promulgated during the last two years of the Obama
Administration and the first two and a half years of the Trump Administration. Doing so allowed
us to observe agency practices with respect to disclosing which options they considered, when
they were discussed, and what was the source of those alternatives. In addition, we conducted a
series of semi-structured interviews with current and former agency officials involved in the
rulemaking process from several agencies within five different executive departments. The
purpose of these interviews was to learn about general agency processes around vetting
regulatory alternatives and the role that those inside and outside the agency play in their

9

development and evaluation. Unlike with the document review, the interviews themselves did
not involve discussion of particular rules, except to the extent agency officials raised specific
examples to support their points.
As we describe in greater detail in the body of the report, the analysis yielded a number of
themes that describe how agencies can and do encourage interested parties, including members
of the public, to engage in identifying alternative approaches to regulating when it is most
relevant for them to receive this feedback. First, agencies almost universally make efforts to
consider alternatives when developing their rules, particularly when those rulemakings involve
novel or complex issues. Moreover, although analysis of alternative regulatory options and
solicitation of public input on those alternatives is statutorily required only in limited
circumstances, it is embedded in guidance from OIRA as well as general good practice for
developing rules. Our interview subjects in particular highlighted this latter point as they
unanimously agreed that serious consideration of alternatives made for more effective final rules.
Second, although regulatory alternatives can derive from internal deliberations, especially
when an agency’s economists have a role in the rule development process, external input forms
the primary source of inspiration for regulatory alternatives. Still, the general process for
soliciting information varies greatly among agencies and depends upon their specific
preferences. In fact, approaches they use range quite substantially from issuing advance notices
of proposed rulemaking (ANPRMs) and convening negotiated rulemakings, which may or may
not be statutorily required in particular circumstances, to organizing periodic stakeholder
meetings and relying on advisory groups.
Third, through these various mechanisms, agencies typically gather information on
alternative approaches early in the process of developing a regulation. By the time the notice of

10

proposed rulemaking (NPRM) is issued by the agency, it has largely vetted the alternatives
recommended by stakeholders. Thus, any recommended alternatives offered by the public
through comments do not typically break new ground, and thus, are not influential in shaping the
final rule. Further, in most cases, the preambles of these NPRMs do not typically document the
rich consideration of alternatives that occurs at agencies well before the agency releases that
NPRM for public comment.11 And, when agencies do discuss alternatives in their NPRMs, how
they present the information varies significantly. Moreover, to the extent that alternatives are
described in the documents released with the proposed rule, that discussion largely resides in the
associated RIA, most especially where the results of the BCA are described.
Fourth, although agency personnel almost universally agreed that serious consideration of
alternatives helps them produce better final rules, engaging in this process is not without
tradeoffs, particularly since much of the information used to consider other approaches is
informed by interactions with external stakeholders. Given public concerns with the length of the
rulemaking process as it is, inviting recommendations on alternatives can have the effect of
further elongating the time it takes to promulgate a rule. Moreover, statutory language and
political considerations can, at times, limit the ability of the agency to consider a broad range of
options for regulating in particular cases, an effect which can be exacerbated by the need for the
agency to later defend its rule in court.
Collectively, these themes provide the impetus for a series of recommendations we highlight
in the body of the report. They range from developing greater knowledge around the best
practices for agencies to use when engaging with stakeholders on regulatory alternatives through

This in part explains the view expressed in Donald Elliot’s work that the notice and comment process
resembles “kabuki theater.” See E. Donald Elliott, “Re-Inventing Rulemaking,” Duke Law Journal 41
(1992): 1490-1496.
11

11

working groups and pilot projects to procedural changes to provide agencies with the opportunity
to more clearly convey the significant outreach they already perform to generate and evaluate
regulatory alternatives in their rulemaking processes. Moreover, our recommendations consider
agency incentives by suggesting OIRA consider ways to encourage agencies to provide evidence
that they considered alternatives in good faith as well as by explicitly encouraging agencies to
consider alternatives that they may view as precluded by statute to provide information for future
policy changes. Our overarching goal in offering recommendations is to highlight and
recommend ways that agencies might gather and incorporate feedback on alternatives when
doing so can produce tangible improvements in the resulting rules, while also simultaneously
remaining cognizant of the real burdens associated with doing so.
The remainder of the report proceeds as follows. In the next section, we review the legal
requirements for soliciting input on alternative regulatory policies and the literature on agency
practice in doing so. This is followed by a section where we outline our methodology. The
results of this work are then presented in the succeeding section along with our recommendations
for improving the solicitation of public input on alternative policies in the regulatory process.
Finally, we offer a short conclusion, summarizing our primary findings and recommendations.

Evidence on Early Consideration of Regulatory Alternatives
Agency Requirements and Recommendations
Incorporated in some of the key statutory and executive requirements that guide the
administrative rulemaking process is the mandate that agencies consider alternatives when
issuing certain regulations. For example, Executive Order 12,866, which governs rulemaking at

12

executive branch agencies and requires them to subject their rules to review by OIRA, directs
agencies to include for all economically significant regulations:
An assessment, including the underlying analysis, of costs and benefits of potentially
effective and reasonably feasible alternatives to the planned regulation, identified by the
agencies or the public (including improving the current regulation and reasonably viable
nonregulatory actions), and an explanation why the planned regulatory action is
preferable to the identified potential alternatives.12
In addition to its call for analysis of alternatives for economically significant rules specifically,
Executive Order 12,866 also highlights the importance of contemplating alternatives in
developing regulations more broadly, including considering options such as performance
standards, market-based approaches, information-based alternatives, and the possibility of not
regulating.13
Similarly, OMB Circular A-4, which provides guidance to agencies on preparing RIAs to
support their rules, states that “a good regulatory analysis is designed to inform the public and
other parts of the Government (as well as the agency conducting the analysis) of the effects of
alternative actions.”14 Agencies are told that “once you have determined that Federal regulatory
action is appropriate, you will need to consider alternative regulatory approaches. Ordinarily,
you will be able to eliminate some alternatives through a preliminary analysis, leaving a
manageable number of alternatives to be evaluated.”15

12

Executive Order No. 12,866, Section (6)(a)(3)(C)(iii).
Executive Order No. 12,866, Sections (1)(b)(3) and (8).
14
Office of Management and Budget, Circular A-4: Regulatory Analysis (Sept. 17, 2003): 2,
https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/.
15
Office of Management and Budget, Circular A-4,2.
13

13

Still, the requirement that agencies consider alternatives is not simply restricted to executive
orders and agency guidance. Rather, it is often embedded in the statutory direction that informs
how agencies proceed in their rulemaking efforts as well. Moreover, these statutes can be
specific to the particular rulemaking in question, such as when Congress mandates through law
that an agency promulgate a certain rule and choose the least costly alternative or one that is
“reasonable.”16
Alternatively, these requirements can apply more broadly to certain classes of regulations. In
addition to laws affecting particular agencies or types of policy decisions such as the Small
Business Regulatory Enforcement Flexibility Act (SBREFA) 17 and the National Environmental
Policy Act (NEPA),18 the Regulatory Flexibility Act (RFA), for example, was passed in 1980 to
encourage agencies to consider the impacts of their regulations on small businesses. Specifically,
the RFA contains the requirement that agencies examine alternative regulatory options for those
rules that have a significant impact on a substantial number of small businesses. Section 603(c)
of the RFA directs agencies to include in their regulatory flexibility analyses, “a description of
any significant alternatives to the proposed rule which accomplish the stated objectives of
applicable statutes and which minimize any significant economic impact of the proposed rule on
small entities.”19 In much the same way, for regulations that would impose significant burdens
on state and local governments, the 1995 Unfunded Mandates Reform Act (UMRA) requires

Reeve T. Bull and Jerry Ellig, “Statutory Rulemaking Considerations and Judicial Review of
Regulatory Impact Analysis,” Administrative Law Review 70 (2018): 873-960.
17
Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, 5 U.S.C. § 601612 (1996). This law was an amendment to the Regulatory Flexibility Act, Pub. L. No. 96-354, 5 U.S.C. §
601-612 (1980).
18
National Environmental Policy Act of 1969, Pub. L. No. 91-190, as amended, 42 U.S.C. § 4321-4370h
(1969).
19
Regulatory Flexibility Act, 5 U.S.C. § 601-612.
16

14

agencies to “identify and consider a reasonable number of regulatory alternatives and from those
alternatives select the least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule.”20
ACUS has made several recommendations focused on agency consideration of alternatives.
For example, Recommendation 2018-7, “Public Engagement in Rulemaking,”21 highlights
methods for supplementing the ordinary notice-and-comment process under the Administrative
Procedure Act of 1946 (APA),22 which is the law that, among other provisions, mandates that
agencies subject their proposed rules to public comment as well as consider those comments in
finalizing the associated rules.23 ACUS proposals associated with Recommendation 2018-7
include having agencies more often utilize requests for information (RFIs) as well as publishing
ANPRMs. In a similar vein, ACUS Recommendation 2017-6, “Learning from Regulatory
Experience,” urges agencies to look for alternative solutions and to conduct pilot studies and
solicit input on possible alternatives.24
Beyond the requirements and recommendations to consider alternative approaches to
regulating that originate from outside the agency, at least two regulatory agencies have
developed internally directed guidance to elaborate on the executive and legislative requirements
to consider alternatives in their rulemakings. For example, the Environmental Protection
Agency’s (EPA) Office of Policy established guidance for its rule writers in 1994, later updated
in 2004 and 2011, which requires pre-proposal identification and analysis of alternatives and

20

Unfunded Mandates Reform Act, Pub. L. No. 104-4, 2 U.S.C. § 1501-1504 (1995).
Administrative Conference of the U.S., Recommendation 2018-7, Public Engagement in Rulemaking,
84 Fed. Reg. 2139 (Feb. 6, 2019).
22
Administrative Procedure Act, 5 U.S.C. § 551 et seq.
23
Administrative Procedure Act, 5 U.S.C. § 553.
24
Administrative Conference of the U.S., Recommendation 2017-6, Learning from Regulatory
Experience, 82 Fed. Reg. 61,728 (Dec. 29, 2017).
21

15

public engagement on alternatives for planned significant rules. 25 In 2019, the Department of
Transportation revised its rulemaking procedures to require its agencies to seek the public’s early
input on alternatives to planned economically significant and “high-impact” rules, although these
procedures were recently repealed in April 2021.26
Agency Consideration of Alternatives in Practice
The Government Accountability Office (GAO) has conducted several examinations of the
rulemaking process that included observation of agencies’ solicitation of early input on their
rules as well as consideration of regulatory alternatives. In a 2014 report, GAO described a
sample of 203 regulations, noting that executive agencies included a discussion of alternatives in
about 81 percent of economically significant rules and in about 22 percent of significant rules. 27
The report also noted that agency officials explained to GAO that often their enabling statutes
left little discretion for consideration of alternatives.
In another report from 2012, GAO examined how often agencies used the “good cause”
exception in the APA, which allows agencies to bypass the NPRM stage in the regulatory
process if the associated procedures are “impracticable, unnecessary, or contrary to the public

Environmental Protection Agency, EPA’s Action Development Process: Guidelines for Preparing
Analytical Blueprints (Policy Economics Innovation: OPEI Regulatory Development Series, 2004),
https://nepis.epa.gov/Exe/ZyPDF.cgi/9101X7DX.PDF?Dockey=9101X7DX.PDF.
26
Department of Transportation, Final Rule, Administrative Rulemaking, Guidance, and Enforcement
Procedures, 84 Fed. Reg. 71,714 (Dec. 27, 2019) (49 C.F.R. § 5.17a-b). This rule was rescinded through
Department of Transportation, Final Rule, Administrative Rulemaking, Guidance, and Enforcement
Procedures, 86 Fed. Reg. 17,292 (Apr. 2, 2021).
27
General Accountability Office, GAO-14-714, Federal Rulemaking, Agencies Included Key Elements of
Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent (Sept.
2014). Significant rules refer to those rules which, although they may not reach the $100 million
threshold for annual impact that would designate them as economically significant, are still subject to the
requirements of Executive Order 12,866, as they may interfere with another agency’s actions or raise
“novel legal or policy issues,” among other possibilities.
25

16

interest.”28 GAO determined that agencies published about 35 percent of major rules and about
44 percent of non-major rules without an NPRM during those years.29 The academic literature is
supportive of GAO’s finding that agencies often bypass mandated procedures in promulgating
rules. A study by Connor Raso, for example, suggested that agencies exempt roughly half of
their rule proposals from undergoing notice and comment, over 90 percent from the RFA
requirements to consider impacts on small businesses, and over 99 percent from considering
effects on state, local, and tribal governments as mandated by UMRA.30 It seems likely that an
agency that bypasses the step in which they would receive formal comments on a proposed rule
would also be more apt to skip other, more informal, methods of securing early input on their
regulatory initiatives. Further, to the extent an agency ignores the RFA and UMRA in developing
rules, they are bypassing two laws that explicitly require them to consider alternative approaches
to regulating.
In addition to analyzing whether the proposed rule itself incorporates consideration of
various regulatory approaches, several academic studies have alternatively examined the
question of whether agencies give serious consideration to alternatives when preparing
regulations by studying RIAs. Researching the preparation of RIAs across two administrations,

28

Administrative Procedure Act, 5 U.S.C. § 553(b)(3)(B). The good cause exception in the APA has been
examined by ACUS in Administrative Conference of the U.S., Recommendation 83-2, The “Good
Cause” Exemption from APA Rulemaking Requirements, 48 Fed. Reg. 31,180 (July 7, 1983).
29
General Accountability Office, GAO-13-21, Federal Rulemaking, Agencies Could Take Additional
Steps to Respond to Public Comments (Dec. 2012). Major rules are defined in much the same way as
economically significant rules. The Congressional Review Act labels a major rule as one that “has
resulted in or is likely to result in (a) an annual effect on the economy of $100,000,000 or more; (b) a
major increase in costs or prices for consumers, individual industries, Federal, State, or local government
agencies, or geographic regions; or (c) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets” (5 U.S.C. § 804(2)).
30
Connor Raso, “Agency Avoidance of Rulemaking Procedures,” Administrative Law Review 67, no. 1
(2015): 65-132.
17

Robert Hahn and Patrick Dudley found that the percentage of RIAs that considered at least one
alternative standard or stringency level decreased from 85 percent during the Reagan
administration to 74 percent during the Clinton administration.31 A similar study that focused on
48 RIAs prepared between 1996 and 1999 found that only two-thirds of the RIAs discussed
alternatives at all, and only 25 percent estimated the costs and benefits of alternatives.32
Other studies have evaluated agency consideration of alternatives as part of a broader effort
to ascertain the extent to which agencies fulfill their requirements in conducting analysis more
generally. In one case, Jerry Ellig, Patrick McLaughlin, and John Morrall examined agency RIAs
across a variety of dimensions. Their work showed that a considerable number of RIAs omitted
discussion or economic assessment of alternatives.33 In contrast, Art Fraas and Randy Lutter
demonstrate that some agencies do appear adept at considering alternatives in their RIAs.
Specifically, for a small sample of 12 RIAs, they find that EPA does typically examine
regulatory alternatives, even to the point to which the agency monetized either costs or benefits
of alternatives for 75 percent of the RIAs the authors reviewed.34
The somewhat mixed existing evidence measuring the extent to which agencies consider
alternatives in either their NPRMs or, more commonly, their supporting RIAs is consistent with
an argument that these documents can, at times, be used more to justify agency decisions rather

Robert W. Hahn and Patrick M. Dudley, “How Well Does the US Government Do Benefit-Cost
Analysis?” Review of Environmental Economics and Policy 1, no. 2 (2007): 192-211.
32
Robert W. Hahn, Jason K. Burnett, Yee-Ho I. Chan, Elizabeth A. Mader, and Petra R. Moyle,
“Assessing the Quality of Regulatory Impact Analyses: The Failure of Agencies to Comply with
Executive Order 12,866,” The Harvard Journal of Law and Public Policy 23, no. 23 (2000): 859-886.
33
Jerry Ellig, Patrick A. McLaughlin, and John F. Morrall III, “Continuity, Change, and Priorities: The
Quality and Use of Regulatory Analysis Across US Administrations,” Regulation and Governance 7, no.
2 (2013): 153-173.
34
Art Fraas and Randall Lutter. “The Challenges of Improving the Economic Analysis of Pending
Regulations: The Experience of OMB Circular A-4,” Annual Review of Resource Economics 3, no. 1
(2011): 71-85.
31

18

than to inform them.35 Agencies might be inclined to write more detailed rules and supporting
documents, which include a robust defense of the chosen approach but less consideration of
reasonable alternatives, in an effort to brace themselves for OIRA review and judicial scrutiny. 36
The fact is that RIAs, for example, have become increasingly lengthy over time, and the
associated complexity can serve as a barrier to outside parties who desire to engage with the
agency in providing feedback on both the agency’s regulatory preference and alternatives to that
preference.37
Other Statutory Requirements for Early Participation and Consideration of Alternatives
In addition to the aforementioned statutes that apply to certain classes of rules, executive
directives and guidance, and recommendations from inside and outside agencies, at least two
other statutes create requirements for agencies, in specific contexts, to engage the public early as
well as consider alternatives. These are SBREFA38 and NEPA.39 NEPA applies broadly to
agency policy decisions that affect the environment while the small business panel requirements
in SBREFA40 only focus on regulations that have significant impacts on small businesses.
Moreover, these provisions apply to only three agencies: EPA, the Occupational Safety and
Health Administration (OSHA), and the Consumer Financial Protection Bureau (CFPB).

Wagner, “CAIR RIA,” 56-81.
Wendy Wagner, Katherine Barnes, and Lisa Peters, “Rulemaking in the Shade: An Empirical Study of
EPA's Air Toxic Emission Standards,” Administrative Law Review 63, no. 1 (2011): 99-158. See also
Sean Gailmard and John W. Patty, “Slackers and Zealots: Civil Service, Policy Discretion, and
Bureaucratic Expertise,” American Journal of Political Science 51, no. 4 (2017): 873–89.
37
Carrigan and Shapiro, “Simple (and Timely) Benefit-Cost Analysis,” 203-212.
38
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 601-612.
39
National Environmental Policy Act of 1969, 42 U.S.C. § 4321-4370h.
40
These requirements are found in section 609(b) of the Regulatory Flexibility Act (5 U.S.C. § 601-612),
which the Small Business Regulatory Enforcement Fairness Act amended.
35
36

19

SBREFA requires that when EPA, OSHA, or CFPB is formulating a rule with significant
effects on small businesses, the associated agency must convene a review panel before the
publication of its proposal. A SBREFA panel consists of representatives from the rulemaking
agency, OIRA, and the Chief Counsel for Advocacy at the Small Business Administration. The
panel solicits information and advice from small entity representatives, who are individuals that
represent small entities affected by the proposal. The panel process ensures that small entities
that would be affected by a regulatory proposal are consulted about the pending action and
offered an opportunity to provide information on its potential effects. A panel can develop,
consider, and recommend less burdensome alternatives to a regulatory proposal when
warranted.41
The SBREFA process is specifically geared toward a particular constituency and hence
tends to only produce alternatives that would benefit that constituency (although the agencies are
not required to adopt those alternatives). But, notwithstanding this caveat, it does lead to a level
of engagement by affected agencies with a subsection of the affected public as well as examples
where the process did spur changes in the regulatory proposal that the SBREFA panel was
originally given.42
In contrast, NEPA has a much broader purview than SBREFA, not only with regard to the
agencies to which it applies, but also with respect to the types of policy decisions it considers as
well. The law encompasses government actions, and not just regulations, that have an impact on
the environment. If the impact is major, the agency must develop an environmental impact
statement (EIS) that includes a discussion of “appropriate alternatives to recommended courses

41

Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 601-612.
Stuart Shapiro, Analysis and Public Policy: Successes, Failures and Directions for Reform
(Cheltenham, UK: Edward Elgar, 2016).
42

20

of action in any proposal which involves unresolved conflicts concerning alternative uses of
available resources.”43 Implementation of this requirement often involves a scoping process,
where stakeholders can suggest alternatives before the draft EIS is prepared. The agency then
makes its preferred policy option and any alternatives available to the public to accept feedback
on them.
Given its greater scope and longer history, the literature studying NEPA is much broader
than that considering SBREFA, and it would be impossible to consider it adequately here.44 In
general, NEPA’s impact on public participation and agency consideration of alternatives has
received mixed reviews. There are documented instances where NEPA encouraged meaningful
input, including from disadvantaged communities, as well as examples where agencies changed
their policy choices as a result of this input.45 However, much like RIAs, the EIS requirement has
also been criticized for leading to documents that are thousands of pages long and impenetrable
to lay audiences. In such cases, research suggests that agencies may appear to be less interested
in public input and generally make few changes to their policy choices. 46
The statutory requirements, including those like SBREFA and the RFA that apply to
regulatory questions specifically as well as NEPA which applies more broadly, embody the idea
of trying to ensure that analysis of alternatives includes meaningful public input. The National
Academy of Sciences (NAS) has written several reports regarding the potential for stakeholder

43

National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C), 4332(2)(E).
See, e.g., Lynton Keith Caldwell, The National Environmental Policy Act: An Agenda for the Future
(Bloomington, IN: Indiana University Press, 1998). And, Serge Taylor, Making Bureaucracies Think: The
Environmental Impact Statement Strategy of Administrative Reform (Palo Alto, CA: Stanford University
Press, 1984).
45
Michael R. Greenberg, The Environmental Impact Statement After Two Generations: Managing
Environmental Power (New York: Routledge, 2012).
46
Bradley C. Karkkainen, “Toward a Smarter NEPA: Monitoring and Managing Government’s
Environmental Performance,” Columbia Law Review 102, no. 4 (2002): 903-972.
44

21

participation and analysis of alternatives to work together to improve policy decisions on
complex questions. In one such publication from 1996, they introduce the idea of the “analyticaldeliberative” process, suggesting, “Analysis and deliberation can be thought of as two
complementary approaches to gaining knowledge…. Deliberation is important at each step of the
process that informs risk decisions, such as deciding which harms to analyze, and how to
describe scientific uncertainty and disagreement.”47 They expand on this idea to encompass
environmental decision making in a 2008 report noting, “environmental decisions present very
complex choices among interests and values so that the choices are political, social, cultural, and
economic at least as much as they are scientific and technical.”48
The promise held out in these NAS reports might seem, at best, only realized on occasion in
the regulatory process. Yet, as discussed in the results section, this synthesis between thoughtful
analysis and public participation is occurring more often than is realized. Still, somewhat
counterintuitively, it is occurring at a place in the regulatory process when agency actions are
largely invisible to the broader public and the research community. We discuss this idea further
in the results section. However, we first review the methodological approach we used to reach
this conclusion.

Methodological Approach
As described, the aforementioned literatures in law, public policy, and political science have
revealed only mixed evidence that agencies both seriously consider alternatives in their

47

National Research Council, Understanding Risk: Informing Decisions in a Democratic Society
(Washington, DC: National Academies Press, 1996), 5.
48
National Research Council, Public Participation in Environmental Assessment and Decision Making
(Washington, DC: National Academies Press, 2008).
22

rulemakings as well as encourage participation to develop these other approaches. In fact, if one
theme emerges from this scholarship, it is that the procedural requirements embedded in the
various laws, directives, and guidance can provide perverse incentives for agencies that tend to
nudge them toward being less likely to entertain alternatives seriously, especially at the point in
which they publish their rules for public comment.49 Moreover, rather than transparently
designing rules and supporting documents such as RIAs, agencies appear to be inclined to create
detailed documents that do not include viable alternatives in an effort to prepare themselves to
successfully defend their policy choices against OIRA oversight and judicial review.50 This
pattern seems to hold despite statutory and executive order requirements to consider alternatives
and the possibility that doing so could protect agencies from lawsuits pursuant to these statutes.51
That said, this literature is by no means conclusive. Rather, it is relatively scant as well as
somewhat speculative, especially with respect to portraying the motives of agency officials. For
these reasons, we engaged in data collection along two dimensions to inform our conclusions.
With the first approach, we collected data using publicly available documents, including
proposed and final rules as well as RIAs supporting both, to determine the extent to which
agencies record their consideration of alternative regulatory approaches as well as disclose their
engagement with stakeholders in those documents. With the second, we conducted semistructured interviews with current and former agency personnel intimately involved in the
rulemaking process, asking questions to reveal if and when their agencies consider alternatives as
well as how they gather information to develop them. In combination, the two approaches

Wagner, “CAIR RIA,” 56-81.
Carrigan and Shapiro, “Simple (and Timely) Benefit-Cost Analysis,” 203-212; Wagner, “CAIR RIA,”
56-81.
51
Bull and Ellig, “Statutory Rulemaking Considerations,” 873-960.
49
50

23

provide us with a means to capture information on agency approaches to examining regulatory
alternatives that is not subject to selective recall bias while also having the opportunity to explore
what agencies do that they may not directly disclose in public documents.
In collecting data on agency regulations, we were cognizant of the need to focus on rules in
which the associated agency was technically required to present alternatives to the public so that
we could document the extent to which that agency described its compliance with this
requirement. For this reason, we limited our data collection to regulations that were
economically significant under Executive Order 12,866 and were listed in the annual reports
from OMB to Congress on the costs and benefits of federal regulations.52 Using these reports, we
singled out for analysis those regulations that OMB listed as presenting estimates for the costs
and benefits of the regulation, as these rules not only were the most likely candidates to be
subject to the requirements under the RFA and Executive Order 12,866 to consider alternatives
but also were the most likely to have the most detailed RIAs. If any rules were to document an
agency’s consideration of alternatives, these would be the most likely candidates.
To control for the very different regulatory priorities of the Obama and Trump
Administrations, we created a dataset that was roughly evenly divided between regulations from
each of these two presidencies. The 2019 and 2020 OMB reports listed ten regulations from the
Trump Administration in which the associated agency compiled both benefits and costs. The
2018 report, covered both the end of the Obama Administration and the beginning of the Trump
Administration and contained 18 more such regulations, the vast majority of which were issued

52

The annual reports are available at the OMB website at https://www.whitehouse.gov/omb/informationregulatory-affairs/reports/. The regulations we examined are summarized in Office of Management and
Budget, 2018, 2019, and 2020 Report to Congress on the Benefits and Costs of Federal Regulations and
Agency Compliance with the Unfunded Mandates Reform Act (2020), https://www.whitehouse.gov/wpcontent/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf.
24

before the presidential transition in early 2017. Combining the listings from these three reports
and eliminating duplicates gave us a dataset of 25 regulations, including 12 from the Trump
Administration and 13 from the Obama Administration.
For each of these regulations, we searched for four documents, namely the published
NPRM, the final rule, and the RIAs accompanying each. Although, in most cases, we were able
to find all four documents, a few rules were interim or direct final rules and hence had no
proposal. In addition, a few others had only one RIA that was used to accompany both the
NPRM and the final rule. A complete list of the rules and associated documents we reviewed is
provided in Appendix 1. For the available documents, data were collected to answer a
combination of the following eight questions. Specifically, the questions relevant to the
examination of the RIAs were as follows:
1) How many alternatives were listed in the document?
2) What portion of that document involved discussion of alternatives? To answer this question,
word counts of both the sections that considered alternatives as well as the document as a
whole were computed.
3) Did the agency consider benefits of the alternatives? If so, was the discussion qualitative,
quantitative, or both?
4) Did the agency consider costs of the alternatives? If so, was the discussion qualitative,
quantitative, or both?
Consideration of the NPRM preamble involved answering the aforementioned first two questions
plus the following two questions:
1) Did the agency solicit comments on the alternatives? If so, for how many of them?
2) Did the agency mention consultations with outside parties?

25

Finally, for the preamble to the final rule, coding involved answering the following two
questions:
1) Did the agency receive comments on alternatives? If so, for how many?
2) Did they adopt any of the alternatives? If so, what did they adopt?
For the first two rules on our list, we, as well as our research assistant, collected the data to
ensure that the research assistant had the same understanding of the fields as us. At that point,
one of us coded an additional three rules with the research assistant. After inter-coder reliability
was established, the research assistant collected the data for the remainder of the regulations
under our supervision.
In addition to collecting data through an examination of rulemaking documents, we also
conducted interviews with nine current or former agency representatives from five executive
branch departments, including the Department of Transportation, Department of Labor,
Department of Health and Human Services, Department of Energy, and Department of
Agriculture. Each of these departments or agencies within them had issued rules that were in our
database. However, because of pending legal or policy decisions on the regulations, we did not
ask about any rules in particular. Rather, the interviews focused on the general process that
agencies follow when developing alternatives and soliciting input from stakeholders. The current
and former officials we interviewed were intimately familiar with a wide variety of regulations
promulgated by the agencies.
The questions we asked each individual are attached as Appendix 2. Follow up questions
were asked as appropriate during the interviews, and the interview subjects were promised
confidentiality in order to secure the interviews as well as to ensure that they felt comfortable

26

speaking freely.53 The interviews generally lasted one hour, and several interviews included
multiple officials from the same agency. After the interviews were completed, we scanned them
for common themes. In the next section, we review these themes along with the data analysis we
performed for the aforementioned 25 regulations.

Discussion of Results and Accompanying Recommendations
We have organized our results into themes that emerged from an examination of the data
gathered from analyzing the regulations and conducting the interviews. Because our
recommendations flow naturally from these results, they are highlighted in bold where
appropriate in this section. In combination, the data and interviews paint a picture of agencies
that are generally committed to engaging with stakeholders early in the rulemaking process,
recognize the value of doing so, and utilize a variety of practices for engaging with alternative
regulatory options. Still, these efforts to engage with interested parties to develop and consider
alternative approaches taper significantly by the time the formal NPRM is released and are not
always described in the associated more formal rulemaking documents. Moreover, the practices
vary considerably across agencies, and as a result, opportunities for agencies to learn from each
other are certainly available. Finally, any efforts to expand consideration of alternatives by
agencies should be done with a clear recognition of the costs in terms of rulemaking timeliness
and political and statutory feasibility.
Theme 1: Agencies almost universally engage in the consideration of alternative approaches
when developing rules, particularly when they involve novel or complex issues.

53

Herbert J. Rubin and Irene S. Rubin, Qualitative Interviewing: The Art of Hearing Data, 3rd ed.
(Thousand Oaks, CA: Sage, 2011).
27

Our interviews clearly illustrated that current and former personnel closely involved in
agencies’ rulemaking processes are cognizant of the value of considering a variety of approaches
in developing their rules. This was evident in both the direct responses to our questions as well as
the rich description interviewees were able to provide in highlighting their approaches to
soliciting feedback and imagining options. Interviewees noted that considering a variety of
approaches makes for better rules, with one suggesting, “Everybody agrees that alternatives are a
good thing…. When agencies are encouraged to provide them, that improves the proposal.”
Moreover, they were able to describe numerous instances in which soliciting feedback, both
from external and internal sources, raised novel ideas and resulted in an improved final rule.
That said, agency personnel also noted that soliciting and considering alternatives is more
important in some instances and relatively less so in others. As we describe in association with
Theme 3, agencies frequently confer with stakeholders early in the rulemaking process or even
before a decision has been made to proceed with a rulemaking. In deciding to seek that input
from the public, a number of our interview subjects made clear that there were times when it was
more crucial. The general theme associated with these contexts is that agencies seek input when
such input would be most valuable to helping them produce a final rule.
These circumstances occur when the agency is considering regulating in an area where its
expertise is limited. This was often described as a policy space where an agency was regulating
for the first time and so the issues it was facing were novel. It could also be an area that is high in
technical complexity or involving a new technology of which the agency had limited
understanding. As one agency representative suggested, “Complex rules require an ANPRM so
the agency can ask a lot of questions to determine either the need for an NPRM or the scope and

28

content of an NPRM.” Another noted, “The more complex the question, the more information
we need from outside parties.”
In contrast, in cases in which the agency was merely updating a rule, particularly when it
was associated with a reoccurring process, those interviewed felt receiving input on alternatives
was likely less important, particularly given the time needed to gather information on other
approaches. However, even in cases of what some referred to as “routine rulemaking,” the
vetting of alternatives occurred, just at an earlier stage when the regulatory framework was
initially being developed. Moreover, as the interviewees suggested, these were policy areas in
which agency personnel had developed extensive expertise already based on the fact that the rule
itself was already in place.
Generally, these findings accord with the academic literature studying the regulatory
process, which has long recognized that regulatory politics vary in part due to the complexity of
the issue at hand.54 The same seems to be true for the question of whether and the degree to
which agencies seek early input on regulatory policy decisions. Given that the decision to gather
data on alternative approaches to regulation is not without cost as our discussion of Theme 4
below highlights, any framework or series of recommendations to encourage agencies to
consider alternative approaches should recognize that rule proposals are not “all created equal.”
Instead, forcing agencies to consider alternatives when those alternatives are not likely to shed
any new light on the rulemaking at hand, perhaps because that rulemaking is routine or iterative,

William T. Gormley Jr., “Regulatory Issue Networks in a Federal System,” Polity 18, no. 4 (1986):
595-620.
54

29

will only serve to lead agencies to tend to treat the associated requirement as a procedural “check
box.”55 This leads to our first recommendation.
Recommendation 1: Any framework instituted to encourage agencies to consider
alternative regulatory approaches early in the rulemaking process in a more
systematic way should not involve broad mandates, thereby recognizing that
consideration of alternatives is not appropriate for every rulemaking situation.
Those situations where novel or complex issues are raised in a rulemaking are
particularly appropriate for robust consideration of alternatives.
In addition to serving as a guiding principle for more effective reforms to spur agencies more
generally to continue and expand upon their current processes for considering regulatory
alternatives, this recommendation also largely informs the remaining six recommendations that
we highlight below.
Theme 2: External stakeholders are the primary source for inspiration regarding alternative
policy options when agencies are developing rules.
Although ideas about substitute policies can come from within an agency, frequently
alternatives—whether they be entirely different approaches to the problem the agency is trying to
solve or marginal differences in stringency levels or compliance dates—originate from outside
parties. In fact, during the interviews, respondents’ answers to our questions about consideration

55

As Don Arbuckle has suggested regarding some procedural requirements that agencies must fulfill in
developing rules, “Old impact statement requirements meet a lonely and doleful demise—their once
proud aspirations dulled and forgotten; their exaggerated promise relegated to the impact analysis dust
bin; their sad fall from glory giving rise to a mild and vaguely embarrassing schadenfreude in us all. They
stumble into their dotage in the Federal Register on the concluding pages of rules as humiliated,
featureless, grey boilerplate.” Donald R. Arbuckle, “Regulation’s Impact on Jobs,” The Regulatory
Review, Nov. 26, 2012, https://www.theregreview.org/2012/11/26/26-arbuckle-jobs/.
30

of alternatives invariably tied back to stakeholder engagement, suggesting the extent to which the
two are intertwined. To these current and former agency personnel, considering alternatives is
almost synonymous with engaging interested parties. One agency representative made this
particularly clear in describing periodic discussions that the agency had with stakeholders,
suggesting, “They have monthly meetings with both industry and consumer groups. At these
meetings, there are people coming up with ideas for new rulemakings, and the agency is
constantly getting feedback on what is needed, what is working.”
The monthly calls described by this representative are only one possible venue for agencies
to receive feedback on possible regulatory alternatives. For example, OSHA is formally required
to ask for such input under SBREFA. Presenting an early pre-proposal document to small
business owners both forces the agency to grapple with different alternatives as is required in the
statute and exposes the agency to ideas from this constituency. 56 Some agencies described using
formal mechanisms like ANPRMs or RFIs. Further, negotiated rulemaking was another pathway
mentioned to gather information on alternatives although agency representatives did note the
significant costs associated with organizing this mechanism for feedback. Others suggested
advisory groups as an additional source for inspiration regarding alternative regulatory methods.
Stakeholder meetings were also a popular form of engagement. One interviewee indicated, “For
rules that I think we anticipate would have a broad impact, then we might do more formal
stakeholder meetings ahead of time because we want to get interested parties with opposite views
to play off of each other.”
On occasion, these approaches were required by particular statutes, but in other instances,
the agencies used these approaches to engage the public of their own volition. In fact, although

56

Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 601-612.
31

some agencies did discuss internal documents guiding rulemaking that encouraged rule writers to
consider alternative regulatory approaches, whether they instituted that guidance remained their
choice. As a result, the preferences of the particular office initiating the rulemaking more
determined the mode by which it engaged with stakeholders relative to any set of policies set by
the agency more broadly.
In the end, there appear to be nearly as many ways of engaging stakeholders in the
rulemaking process as there are agencies. On the one hand, this variety allows particular agencies
to fit their mode of engagement to the particular issue at hand and to the relationship they have
with their stakeholders. On the other hand, the plethora of techniques employed to gather
feedback makes it difficult to know which methods of engagement are most effective in different
circumstances. A prescriptive and standardized approach to early engagement is unlikely to be
successful across the federal government. But, a sharing of best practices could allow crossfertilization of agency ideas on engagement. This leads to our second recommendation.
Recommendation 2: OIRA should consider convening an interagency working
group to gather data on approaches agencies use to generate and solicit feedback
on alternatives and the effectiveness of these approaches in order to produce a
menu of options for agencies on best practices for early engagement with
stakeholders and guidance on how different options may be appropriate in
different circumstances.
As described, the preponderance of suggestions for regulatory alternatives originate in
external parties. However, when we asked current and former agency personnel, none of whom
were economists, about their internal processes for generating alternative regulatory options,
they consistently indicated that agency economists played an important role. One interviewee
32

attributed this to the need to meet SBREFA requirements, suggesting “we think of alternatives
early on and our economists have a lot of say about this because of the SBREFA process.” But, it
was not just agencies subject to SBREFA that mentioned the importance of economists. Another
agency representative noted, “The economists play a key role in the process of developing
regulatory alternatives.”
The observations of the interviewees are also supported by our independent review of
rulemaking documents. As we describe in connection with Theme 3 below, agencies’ NPRMs,
final rules, and supporting RIAs generally do not have a robust discussion of regulatory
alternatives. Still, to the extent they do describe other approaches considered, the description is
most often found in RIAs. Given that agency economists are primarily responsible for
developing RIAs, and they are important players in developing alternatives, it stands to reason
that these other approaches would be described there. In fact, we scored each of the rulemaking
documents we analyzed with a zero if there was no discussion of alternatives, a 0.5 if there was a
superficial discussion, and a one if there was a substantive discussion. For the NPRMs, the
cumulative score was 9.5 “points” while, for the RIAs, the score totaled 14.5 points.
Nevertheless, the involvement of economists comes with a caveat. Several agency
representatives acknowledged that economists were involved because of requirements under
Executive Order 12,866 to discuss alternatives in the RIA. This often, but not always, meant that
they were brought in to generate alternatives to policy preferences that were already fairly fixed
within the agency. Moreover, it accords with our observation that the types of alternatives
described by our interviewees, who were important players in the development of the associated
rules, differed qualitatively from the types of alternatives we saw discussed in the public
rulemaking documents. Although the interviewees often mentioned entirely different modes of

33

regulating, as described in connection to Theme 3, our document analysis suggested that the
alternatives differed more with respect to stringency or compliance dates. Moreover, this finding
accords with the argument in the academic literature that sometimes the RIA is used as a
justification for a decision rather than informing the decision.57 When alternatives are developed
in this manner, it does not serve the purpose of encouraging public input on meaningful choices
among regulatory policies.
ACUS Recommendation 2019-5, “Agency Economists,” included a recommendation
that, “To promote meaningful consideration of economic analysis early in the decision-making
process, agencies should consider developing guidance clarifying that economists will be
involved in regulatory development before significant decisions about the regulation are
made.”58 Our work supports this recommendation specifically, as it would help foster a more
systematic process for the internal generation of regulatory alternatives early in the rulemaking
process. This leads to our third recommendation.
Recommendation 3: In accordance with ACUS Recommendation 2019-5, agency
economists should be involved early in the rulemaking process and encouraged to
develop regulatory alternatives as part of this involvement.
In addition to encouraging a more robust discussion of alternatives within the agency,
involving economists earlier when rule development is ongoing would also create the
conditions whereby the associated economic analysis of alternatives could center on those
approaches actually under meaningful consideration by the agency.

Wagner, “CAIR RIA,” 56-81.
Administrative Conference of the U.S., Recommendation 2019-5, Agency Economists, 84 Fed. Reg.
71,349 (Dec. 27, 2019), 7.
57
58

34

Theme 3: Agencies generally consider alternative approaches early in the process of developing
the regulation, well before the NPRM is issued.
As the discussion of Theme 2 suggests, agencies not only focus primarily on external
stakeholders for ideas on regulatory alternatives, but they also gather this information early in the
rule development process, as one might expect they would. As one interviewee suggested, “It
turns out, it is a pretty regular process where we would reach out and get input from stakeholders
before we do an NPRM.” Receiving this input early not only guarantees that the agency receives
the feedback before they are too far down a path with a particular rule, but it also serves to
establish trust and solidify their relationships with their stakeholders. For example, one agency
representative indicated, “We want to develop good relations with our stakeholders so…it makes
it even more important to reach out before.”
However, the other side of this early engagement is that by the time the agency has reached
the stage of issuing an NPRM, it has largely vetted the reasonable alternatives. Thus, the
comments received at this stage are unlikely to break new ground in introducing approaches that
the agency had not previously considered in its prior outreach, a point that was made by multiple
interviewees. That is not to say that rule writers do not take the comments received seriously, and
agency personnel provided numerous examples where input at the NPRM stage did have effects
on the final rule. Moreover, as one respondent suggested, even to the extent the agency does not
incorporate a comment received in response to the NPRM in the final rule, they “are very careful
to explain why. We don’t ignore stakeholders.” Regardless, current and former agency personnel
seemed to suggest that it was rare that a public comment would provide a fundamentally
different regulatory pathway that had not been previously considered through early outreach by
the agency. Moreover, this finding concurs with the robust literature studying the effects of

35

public comments, which broadly suggests that comments may not necessarily result in revisions
to the associated final rules.59 And, when they do inspire revisions, the updates made tend not to
change the associated rule at any fundamental level.60
The fact that agencies process input on rules they are considering well before the NPRM is
written and published may help explain why the robust exchanges agencies have with
stakeholders are not typically documented in rule documents. Our examination of the preambles
to agency NPRMs and final rules as well as the associated RIAs showed very uneven disclosure
of any consideration of alternatives. As described in our discussion of Theme 2, fewer than 40
percent of the preambles to proposed rules included in our sample of 25 regulations had any
substantive discussion of alternative policies. Further, as described, agencies were more likely to
position any discussion of alternatives in their RIAs relative to their NPRMs or final rules.
Still, this approach serves to diminish transparency, as the RIAs are not always published in
the Federal Register61 and over time have become more likely to be longer, denser, and harder
for the public to access and comprehend.62 Moreover, as our document review revealed, too
often in these regulatory documents, the only alternatives presented are a) the preferred option
being proposed by the agency; b) an option of not regulating; and c) an unreasonably stringent
option. In our conversations, agency officials recognized this “Goldilocks” approach (i.e. too hot,
too cold, and just right) to documenting alternatives. Even in the documents in which alternatives

Elliott, “Re-Inventing Rulemaking,” 1490-1496.
Balla, “Between Commenting and Negotiation,” 59-94; Elliott, “Re-Inventing Rulemaking,” 14901496. Also, see Marissa Martino Golden, “Interest Groups in the Rule-Making Process: Who
Participates? Whose Voices Get Heard?” Journal of Public Administration Research and Theory 8, no. 2
(1998): 245-270.
61
Often, RIAs are only available at regulations.gov, if they are published at all.
62
Carrigan and Shapiro, “Simple (and Timely) Benefit-Cost Analysis,” 203-212.
59
60

36

were listed, the number considered was often small and the choices aside from the one being
forwarded by the agency were unrealistic.
The documents available to the public hence tend to convey a different picture with respect
to the extent to which agencies engage early with stakeholders and consider alternatives than
what was offered by our interviewees. Because these public documents are often what is used in
analyses of agencies’ fealty to rulemaking requirements and recommended practices, they are
often criticized as a result, including in the aforementioned GAO reports and academic research.
The preambles and even the RIAs provide an incomplete portrayal of the process that agencies
follow as they develop rules.
More important than creating a negative impression of agency consideration of alternatives,
the lack of public disclosure of the early stages of rulemaking adds opacity to the rulemaking
process and, in doing so, has the potential to diminish faith in the public accountability of
rulemaking.63 In contrast, disclosure of pre-NPRM communications with stakeholders and of
alternatives considered by the agency both increases the transparency of rulemaking and offers
agencies an incentive to engage in these practices. Certainly, it is conceivable that interested
parties will feel less free to share their views if they know those views will be disclosed in a
preamble to a proposed rule. Moreover, agencies themselves might be less inclined to reach out
to interested parties if they are worried about public perceptions that they are communicating
early with some, but others are not included in that outreach. To at least partially counter this,
agencies might broadly list those parties with which they have had discussions about the

Reeve T. Bull, “Making the Administrative State Safe for Democracy: A Theoretical and Practical
Analysis of Citizen Participation in Agency Decisionmaking,” Administrative Law Review 65, no. 3
(2013): 611-664.
63

37

regulation prior to the NPRM and the range of alternatives that have been suggested without
attributing these alternatives to any particular organizations or individuals.
Doing so would serve several purposes. First, it would make clear to those reading the
proposed rules that, in fact, the agency has already engaged in information exchanges with the
affected public. Second, it would provide the public with a list of those alternatives that have
been considered and rejected by the agency as part of this exchange. Both of these pieces of
information could serve to foster comments submitted in response to NPRMs that are more
focused and useful to the associated agency. Finally, it would present a more complete picture of
agency deliberation, which too often appears to begin with the NPRM but, in fact, is nearly
concluded with that document’s publication. This discussion leads to our fourth
recommendation.
Recommendation 4: a) Congress should consider making it clear that if an agency
includes in the preamble to their proposed rule the consideration of realistic
alternatives and documentation of early public involvement in this process, such
action would offer evidence that can be used to suggest that agency is not acting in
an “arbitrary” or “capricious” manner in reaching its regulatory decision; b) A
specific place in the preamble should be created both for describing
communications with stakeholders and for listing regulatory alternatives; and c)
OMB should consider updating Circular A-4 to be more specific about the number
of non-trivial alternatives an agency should discuss in the NPRM, assuming
consideration of alternatives is warranted for that proposed rule.
As we discussed in conjunction with Theme 2, the interviews revealed that agency
approaches to soliciting information on alternatives tend to be ad hoc and based on program
38

office preferences. That said, current and former agency personnel involved in the rule writing
process indicated that requirements for agencies to undertake particular procedures as part of a
rulemaking are followed very seriously. The SBREFA process, requirements that agencies
publish ANPRMs and RFIs, and mandated regulatory negotiation were all mentioned by
interview respondents as important means by which they gather information from the public and
debate regulatory alternatives. While the agency representatives did highlight the burdens these
requirements placed on the agency, they also praised them for encouraging the agency to explore
questions it might have otherwise ignored. For example, in describing the effects of SBREFA,
one interviewee noted, “Since we are required to do the SBREFA process, that encourages the
agency to develop alternatives before the proposal so we have more of an advantage and our
mindset is geared toward alternatives more than most places.” They also noted that while these
requirements could be beneficial, as noted in our discussion of Theme 1, they were not
appropriate or necessary in all rulemaking circumstances.
In our database of regulations, the rule that considered the largest number of alternatives was
an OSHA regulation on beryllium issued at the end of the Obama Administration.64 It is not
likely a coincidence that this regulation was subject to the requirements of SBREFA. As
discussed, the SBREFA process forces agencies to sit down early in the rulemaking process with
parties interested in a regulation. Still, it is also focused only on one constituency, small
businesses. Techniques such as SBREFA and regulatory negotiation by their very nature achieve
the goal of early input on regulatory alternatives but do so only for a limited group of affected
parties. The academic literature has suggested alternative means of getting meaningful input

64

Occupational Safety and Health Administration, Final Rule, Occupational Exposure to Beryllium, 82
Fed. Reg. 2,470 (Jan. 9, 2017).
39

from outside groups that may be more balanced. Techniques such as citizen juries, citizen
advisory committees,65 community involvement including that used in health impact analyses,66
and the NEPA process67 all hold promise for getting more representative input on regulatory
alternatives in some circumstances.68 This leads to our fifth recommendation.
Recommendation 5: Agencies should engage in pilot projects using different modes
of soliciting public input on their regulations before issuing NPRMs. The results of
these pilot projects should be shared broadly across the government (much like
with Recommendation 2) and individually should be described in the NPRMs for
which they are used.
Theme 4: Although agency personnel believe that consideration of alternatives makes for better
final rules, the decision to invest in developing these alternatives does involve tradeoffs.
Although regulatory complexity and novelty are key factors that help determine the extent to
which agencies will seek feedback to develop alternative regulatory approaches, interviewees did
identify some barriers to considering alternatives as a part of the rulemaking process. In
particular, two obstacles were cited by multiple respondents. The first was that agencies
sometimes felt that they were limited in the options they could consider by their enabling
statutes, as well as political factors. We return to this subject later in this section. However, the
other common response was that development and consideration of alternatives adds time to the
regulatory process. Agencies already feel pressure to produce regulations more quickly and the

Bull, “Citizen Participation in Agency Decisionmaking,” 611-664.
Brian L. Cole and Jonathan E. Fielding, “Health Impact Assessment: A Tool to Help Policy Makers
Understand Health Beyond Health Care,” Annual Review of Public Health 28 (2007): 393-412.
67
Shapiro, Analysis and Public Policy.
68
Care would need to be taken with some of these techniques to ensure they do not run afoul of the
Federal Advisory Committees Act (FACA), Pub. L. No. 92-463, 86 Stat. 770 (1972).
65
66

40

mandated consideration of regulatory alternatives in a public forum would further strain what
agency representatives already feel is a lengthy rulemaking process.69 As one interviewee aptly
noted, “We get criticized for [rulemaking] taking so long… That is the tradeoff. We get more
input, it takes longer.”
The legal literature in particular has long debated whether the rulemaking process is
“ossified.” Proponents of the idea have argued that requirements such as hard look judicial
review of agency regulations and BCA have slowed the regulatory process down and, in some
cases, deterred agencies from engaging in rulemaking at all.70 Yet others, citing the extensive
volumes of rulemaking over the past several decades, have appealed to empirical analysis in an
attempt to refute this thesis.71
Regardless of the extent to which the rulemaking process is becoming ossified, our analysis
suggests that agencies are considering alternatives and soliciting public input early in the
rulemaking process, or even before the process begins. As a result, the time constraints cited by
our interview subjects are not preventing them from engaging in these activities on an informal
basis. Still, it is possible that formalizing the process of gathering early input and considering
alternatives will increase the burden on agencies beyond that of the informal practices they
currently utilize. If this is the case, a requirement for agencies to disclose their early contacts
with outside parties and to list alternatives, as we suggest in Recommendation 4, may further

69

Interview subjects were also sensitive to the fact that their agencies were criticized for taking too long
to finalize rules.
70
Thomas O. McGarity, “Some Thoughts on Deossifying the Rulemaking Process,” Duke Law Journal
41, no. 6 (1992): 1385-1462. Also, Richard J. Pierce Jr., “Seven Ways to Deossify Agency Rulemaking,”
Administrative Law Review 47, no. 1 (1995): 59-96.
71
Jason Webb Yackee and Susan Webb Yackee, “Testing the Ossification Thesis: An Empirical
Examination of Federal Regulatory Volume and Speed, 1950-1990,” George Washington Law Review 80,
no. 5 (2012): 1414-1492.
41

stretch out a regulatory process that can even now take much of a president’s term to complete in
some cases.72
In our earlier work, we discussed giving agencies incentives to be more transparent in their
RIAs and in their consideration of regulatory alternatives.73 Much of the discussion in that
research applies here as well. If the more formal steps of documenting stakeholder input on
regulatory alternatives will add time to the rulemaking process, then perhaps time in other areas
can be reduced. Agencies that carefully outline multiple feasible regulatory alternatives and
chronicle their early input from outside parties should be given rewards for doing so.
Yet determining how to institute these rewards is not easy. Still, two possibilities suggest
themselves. Review by OIRA is often cited as a time-consuming portion of the rulemaking
process.74 Agencies that thoroughly document their outside engagement on alternatives and
conduct analyses to consider these various approaches in good faith, even those that would be
more considered “back of the envelope” analysis, could be rewarded with expedited review at
OIRA. Thus, agencies might be able to “apply” for expedited review based on their outside
consultations and documented analysis of realistic alternatives to their proposed policy.
Moreover, having engaged in the SBREFA process could be one avenue by which an agency
might qualify for expedited OIRA review. After all, as one of the primary functions of OIRA
review is to encourage transparency coupled with quality analysis,75 documented efforts by
agencies to consult with outsiders and present meaningful alternatives to the public would ensure

Bethany A. Davis Noll and Richard L. Revesz, “Regulation in Transition,” Minnesota Law Review 104,
no. 1 (2019): 1-100.
73
Carrigan and Shapiro, “Simple (and Timely) Benefit-Cost Analysis,” 203-212.
74
McGarity, “Some Thoughts on Deossifying,” 1385-1462; Pierce Jr., “Seven Ways to Deossify,” 59-96.
75
Richard L. Revesz and Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can
Better Protect the Environment and Our Health (New York: Oxford University Press, 2008).
72

42

that these goals of transparency and sound analysis are being met. This leads to our sixth
recommendation.
Recommendation 6: OIRA should consider ways to incentivize agencies to engage
stakeholders early in the rulemaking process particularly with regard to
envisioning and vetting alternatives. Any incentives would need to provide
agencies with the opportunity to save time later in the rulemaking process if they
have documented such consideration early in the process.
The second area where the rulemaking process could be streamlined is when it reaches the
courts. This is clearly harder to change in a systematic way since judges review regulations
against a wide variety of standards contained not only in the APA but also in agencies’ organic
statutes and the statutes that authorize particular regulations.76 Short circuiting this review
process would likely raise separation of powers issues, and we make no recommendation on that.
That said, agencies may be more inclined to faithfully consider alternatives if courts could give
them more leeway when they do a well-documented job of consulting with the public in the
decision-making phase of rulemaking and in presenting meaningful alternatives clearly in their
regulatory documents.77 Recent trends suggesting that courts are becoming more likely to
scrutinize supporting BCAs may make this possibility feasible.78

76

Jonathan R. Siegel, Administrative Conference of the U.S., Draft Sourcebook of Federal Judicial
Review Statutes (2021), https://www.acus.gov/publication/draft-sourcebook-federal-judicial-reviewstatutes.
77
Bull, “Citizen Participation in Agency Decisionmaking,” 611-664, suggests a similar model where
courts give agencies credit if they convene a “citizens advisory committee.”
78
Caroline Cecot and W. Kip Viscusi, “Judicial Review of Agency Benefit-Cost Analysis,” George
Mason Law Review 22, no. 3 (2014): 575-618. But, see Karkkainen, “Toward a Smarter NEPA,” 903972, for the opposite outcome in some cases under NEPA.
43

Connected to this, our interview subjects repeatedly made clear that agencies care a great
deal about ensuring that their regulatory efforts are sustained against judicial challenges. This
motivation has a wide variety of implications for how agencies consider regulatory alternatives.
One such implication is that if a commenter suggests a regulatory alternative in response to an
NPRM, agencies personnel will try to respond dutifully to the suggestion in the preamble to the
final regulation. Unfortunately, as the current and former agency personnel we interviewed
revealed, by the time the NPRM has been published and comments are submitted, agencies have
already considered and often carefully dismissed many realistic regulatory alternatives earlier in
the development process. Hence, while the agencies must respond to the comments, it is rare that
the public comments present new alternatives that the agencies will meaningfully consider. If, in
association with Recommendation 4, agencies were to discuss in more detail their early
consideration of alternatives, it may make it less likely that the comments submitted would
suggest approaches the agency has already dismissed.
As noted previously, another implication of fealty to the law is that agencies will sometimes
refuse to consider alternatives that they believe are precluded by statute. For example, in
discussing opportunities to consider different regulatory approaches outside of simply issuing
means-based standards in which the regulator directly specifies how the regulated entities can
achieve compliance,79 one respondent indicated that the “statute cabins your ability to do that.”
Certainly, in many circumstances, rule writers and agency attorneys are correct in this belief.
However, it may also be true that agencies are inclined to be conservative in their interpretation
of their statutes, either because of political pressure to favor particular regulatory policies,

79

See, e.g., Carrigan and Coglianese, “The Politics of Regulation,” 107-129.
44

something our interview subjects acknowledged occurs on occasion, or because they exhibit risk
aversion in their approach to defending rules that could be subjected to judicial review. 80
Whether or not agencies are correct about plausible regulatory alternatives being precluded
by statute, this sentiment should not stop them from identifying and conducting basic analysis of
these alternatives for the public.81 If these alternative approaches are precluded by statute,
analysis showing that they are superior to the statutorily prescribed approach may influence
further policy debates in Congress on the subject. And, if there is ambiguity regarding the
legality of a particular regulatory alternative, then placing them in the public domain to solicit
comments will provide the agency with additional perspectives on the legal questions. This leads
to our seventh recommendation.
Recommendation 7: Agencies should not avoid documenting, analyzing, and
soliciting public input on reasonable alternatives in their NPRMs simply because
they believe those alternatives are precluded by statute. Agencies should still
present these alternatives along with an explanation of their views on the legality
of those alternative policy choices.

Conclusion
The data examining the extent to which agencies consider regulatory alternatives that we
collected from public rulemaking documents and the interviews we conducted with current and

Mark Seidenfeld, “Why Agencies Act: A Reassessment of the Ossification Critique of Judicial
Review,” Ohio State Law Journal 70, no. 2 (2009): 251-322.
81
For example, the regulations implementing NEPA required the consideration of reasonable alternatives
“not within the jurisdiction of the lead agency.” The 2020 regulatory revisions to NEPA eliminated this
provision, but it may be restored by the Biden Administration. See, Council on Environmental Quality,
Final Rule, Update to the Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act, 85 Fed. Reg. 43,304 (Jul. 16, 2020).
80

45

former agency officials tell somewhat different stories. Thus, if we had relied solely upon our
data collection, our conclusions would have focused on the apparent lack of meaningful
examination of alternatives and the limited discussion of pre-NPRM stakeholder involvement.
Indeed, this is the conclusion reached in much of the academic literature on the subject. Yet our
interviews with current and former agency personnel intimately involved in the rulemaking
process made clear that agencies engage with interested parties early and often in the rulemaking
process. Further, this engagement often results in agencies evaluating regulatory alternatives and
considering options that they would not have otherwise contemplated.
Nevertheless, to the extent that these insights apply more broadly outside of our sample of
five executive branch departments, this dichotomy raises important questions about the
transparency of the regulatory process. The various executive and statutory directives that
collectively mandate an agency that is considering promulgating a rule to publish an NPRM,
solicit comments, carefully respond to those comments, and in some cases, perform thorough
economic analysis of regulatory proposals has, in effect, shifted some of the most desirable
practices in sound policy development, namely engaging with the affected public and
considering regulatory alternatives, to a part of the regulatory process that is largely out of sight
to the public.
It was clear from our interviews that agency officials value the input they receive and
endeavor to incorporate it in their decisions, with some exceptions due to political or legal
constraints. It was also clear from our examination of the actual NPRMs and RIAs that these
worthwhile practices are not visible to the public nor to those studying the rulemaking process.
Many of our recommendations—ranging from disseminating best practices and offering
incentives to agencies to disclose deliberation of alternatives on the one hand to encouraging

46

more systematic agency disclosure and consideration of statutorily prohibited approaches on the
other hand—are designed to reconcile this inconsistency between what agencies are actually
doing and what they discuss in publicly available documents.

47

Appendix 1: Rules and Associated Supporting Documents Reviewed
Rule

Agency/Department

Date
Finalized

NPRM

Proposed
RIA

Final
Rule

Final
RIA

Energy Conservation Program: Energy
Conservation Standards for
Miscellaneous Refrigeration Products

Department of Energy

10/28/2016

X

X

X

X

Walking-Working Surfaces and Personal
Protective Equipment (Fall Protection
Systems)

Occupational Safety
and Health
Administration

11/18/2016

X

X

X

X

Instituting Smoke-Free Public Housing

Department of
Housing and Urban
Development

12/5/2016

X

X

X

X

Commercial Driver's License Drug and
Alcohol Clearinghouse (MAP-21)

Federal Motor Carrier
Safety Administration

12/5/2016

X

X

X

X

Minimum Training Requirements for
Entry-Level Commercial Motor Vehicle
Operators

Federal Motor Carrier
Safety Administration

12/8/2016

X

X

X

X

Federal Motor Vehicle Safety Standards;
Minimum Sound for Hybrid and Electric
Vehicles

National Highway
Traffic Safety
Administration

12/14/2016

X

X

X

Definition of Form I-94 to Include
Electronic Format
Roadless Area Conservation; National
Forest System Lands in Colorado

Customs and Border
Protection

12/19/2016

Forest Service

12/19/2016

Department of Energy

Energy Conservation Program: Energy
Conservation Standards for Central Air
Conditioners and Heat Pumps
Occupational Exposure to Beryllium
Information and Communication
Technology (ICT) Standards and
Guidelines

Occupational Safety
and Health
Administration
Architectural and
Transportation
Barriers Compliance
Board

X

X

X

X

X

1/6/2017

X

X

X

1/9/2017

X

X

X

X

1/18/2017

X

X

X

X

X

X

X

X

X

X

X

X

Energy Conservation Program: Energy
Conservation Standards for DedicatedPurpose Pool Pumps

Department of Energy

1/18/2017

Energy Conservation Program: Energy
Conservation Standards for Ceiling Fans

Department of Energy

1/19/2017

Food Labeling; Nutrition Labeling of
Standard Menu Items in Restaurants and
Similar Retail Food Establishments;
Extension of Compliance Date; Request
for Comments

Food and Drug
Administration

5/4/2017

Energy Conservation Program: Energy
Conservation Standards for Walk-In
Cooler and Freezer Refrigeration
Systems

Department of Energy

7/10/2017

48

X

X

X

Agency/Department

Date
Finalized

Final
Rule

Final
RIA

Drug Enforcement
Administration

1/23/2018

X

X

Agricultural Marketing
Service

3/13/2018

X

X

Food and Drug
Administration

5/4/2018

X

X

Agricultural Trade Promotion Program

Department of
Agriculture

8/30/2018

X

X

Waste Prevention, Production Subject to
Royalties, and Resource Conservation;
Rescission or Revision of Certain
Requirements

Bureau of Land
Management

9/28/2018

X

X

X

X

National Bioengineered Food Disclosure
Standard

Agricultural Marketing
Service

12/21/2018

X

X

X

X

Food and Drug
Administration

3/18/2019

X

X

X

X

Environmental
Protection Agency

7/8/2019

X

X

X

X

Environmental
Protection Agency

7/9/2019

X

X

X

Environmental
Protection Agency

10/22/2019

X

X

X

Rule
Implementation of the Provision of the
Comprehensive Addiction and Recovery
Act of 2016 Relating to the Dispensing
of Narcotic Drugs for Opioid Use
Disorder
National Organic Program (NOP);
Organic Livestock and Poultry Practices
Food Labeling: Revision of the Nutrition
and Supplement Facts Labels and
Serving Sizes of Foods That Can
Reasonably Be Consumed at One Eating
Occasion

Standards for the Growing, Harvesting,
Packing, and Holding of Produce for
Human Consumption; Extension of
Compliance Dates for Subpart E
Repeal of the Clean Power Plan;
Emission Guidelines for Greenhouse
Gas Emissions From Existing Electric
Utility Generating Units; Revisions to
Emission Guidelines Implementing
Regulations
Review of Dust-Lead Hazard Standards
and the Definition of Lead-Based Paint
Definition of “Waters of the United
States”—Recodification of Pre-Existing
Rules

NPRM

X

Proposed
RIA

X

Note: An “X” in the column labeled NPRM, Proposed RIA, Final Rule, or Final RIA for a
particular rule indicates that document was reviewed for that rule.

49

X

Appendix 2: Interview Protocol
We are going to ask you some questions about your experiences at your agency in
developing rules, especially with respect to the extent and ways in which consideration of
regulatory alternatives plays a role in that process. For purposes of this interview, a regulatory
alternative is simply a different regulatory approach from what is preferred by the agency
personnel primarily responsible for developing the rule. It can be a wholly different mode of
regulating. For example, imposing a planning requirement would be considered a regulatory
alternative if the agency’s preferred or default approach is a technology standard. However, it
can also mean varying the stringency of the regulation. So, a performance standard in which the
preferred stringency level would be reduced is considered a regulatory alternative as well.
We expect that this will take no more than an hour. We will not use your name in any report
and will ask your permission before directly quoting you.
1) Does this definition coincide with your perspective on what a regulatory alternative is?
2) Do you have any questions about the definition of a regulatory alternative or about the
interview more generally?
3) Can you describe your role in the agency?
4) How does that role connect you to the agency’s rulemaking activities?
5) In the rulemaking projects that you have been involved with at your agency, to what extent
do the key personnel responsible for developing the rule consider alternative regulatory
approaches?
6) Is this true of a few, some, most, or all of the rulemakings in which you have participated?
If the respondent indicates that the agency considers alternatives at least sometimes, ask the
following questions:
50

7) Is the process at the agency for considering alternative approaches formalized or is it more
informal?
8) Does that change based on the rule significance? If so, how?
9) Could you describe that formal/informal process including when in regulatory development
alternatives are considered?
10) Based on your experience, describe how the alternatives typically differ from the preferred
regulatory option.
11) Do the personnel involved in the rulemaking generally solicit the views of those outside the
agency on regulatory alternatives? If so, who? Regulated entities? Interest groups? Other
agencies? Academic experts? Others? (If relevant, are SBREFA panels involved?)
12) If so, how do these individuals and entities express their views? Phone calls? Meetings?
Emails? Formal comments? Other approaches?
13) Do the personnel involved in the rulemaking typically solicit the views of those inside the
agency in developing regulatory alternatives? If so, who? Scientific experts? Economists?
Senior leaders? Others?
14) What are the barriers to seriously considering regulatory alternatives?
15) In the typical case, to what degree, if at all, do the alternative regulatory approaches
suggested in public comments to advance notices and notices of proposed rulemakings have
an impact on the final rule?
16) In your experience, have you found that considering alternatives typically improves the final
rule? If so, how? If not, why not?
To the extent we encounter participants that indicate that their agency never considers
alternatives, ask the following questions:

51

17) Why don’t those involved in the rulemaking typically consider alternatives?
18) Are there ever instances where the agency would consider alternatives to the preferred
regulatory approach? If so, when?
19) In the typical case, to what degree, if at all, do the alternative regulatory approaches
suggested in public comments to advance notices and notices of proposed rulemakings have
an impact on the final rule?
20) To what extent do you think it would help the agency craft better rules if it did consider
alternatives regularly in rulemakings?
Ask the following question of both those whose agencies consider alternatives as well as those
whose agencies do not:
21) Do you have any final thoughts you would like us to know about with regard to how your
agency approaches consideration of alternatives that we have not covered? If so, what are
they?

52