Rulemaking / Writing Agency Regulations

Government agencies at the federal, state, and local levels are responsible for enforcing laws passed by legislative bodies. In order to do this, they must be able to create their own policies, procedures, and rules. This is a critical part of administrative law, since legislation often omits some important details. Legislation is created by elected officials, who are directly accountable to voters. The people who create administrative regulations, however, might be elected, or they might be appointed by elected officials. In order to encourage transparency at all stages of the rulemaking process, government agencies are subject to formalized procedures that allow public input.

Types of Rulemaking

Rulemaking procedures may be formal or informal, depending on the agency and the types of rules involved. Many jurisdictions also have separate procedures for regular rulemaking, which allows ample time for the public to review and comment on proposed rules, and emergency rulemaking, which moves much faster and is only available in specified circumstances.

Steps in the Rulemaking Process

Federal agencies, including executive, legislative, and independent agencies, must follow the procedures set forth in the Administrative Procedures Act (APA). State and local governments may have their own rulemaking procedures, like those enforced by California’s Office of Administrative Law, but the APA offers a useful example of a typical rulemaking process.

1. Legislation

Most administrative rules originate with laws passed by the U.S. Congress or a state legislature. A law may provide for the creation of an agency, along with guidelines that the agency can use in rulemaking. Statutes also establish goals for an agency to pursue, and executive orders may direct agencies to create rules for specific objectives.

2. Advance Notice

If an agency wants early input from the public on a set of rules, it can publish an advance notice. This usually occurs before the agency has completed a draft of a proposed rule, and it involves publication of the agency’s preliminary analysis of an issue or objective.

3. Drafting the Proposed Rule

The agency is responsible for drafting proposed rules. It may do this entirely internally, or it may invite other interested parties to participate in the process. The actual language of administrative rules can be quite dense. This is often the inevitable result of the detail required to guide the agency in enforcing the relevant laws. Much like the legislation on which the rules are based, it may also be the result of compromises between interested parties.

4. Publication of the Proposed Rule

Once a draft of the proposed rule is complete, the agency publishes it for public review and comment. Proposed federal rules are published in the Federal Register, a daily periodical published by the federal government. States have their own similar periodical publications, such as the Utah State Bulletin.

5. Public Comment

Once the agency has published the proposed rule, it must accept written comments from the public for a specified period of time, which is usually 30 days but may be as long as 180 days. The Federal Register website allows people to submit comments online, and people may still submit comments by mail. The agency may also hold meetings at which people may comment on the proposed rule. These meetings must be announced in advance and be open to the public.

6. Finalization

The agency may make modifications to the rule based on input from the public, and it often publishes a response to specific concerns raised in public comments. If the public comments contain substantial opposition to the rule as written, the agency may rewrite the rule and publish it for public comment again, essentially repeating the previous two steps of the process. Once all of the deadlines for public involvement have passed, the final rule is published in the Federal Register and added to the Code of Federal Regulations.

7. Effective Date

Most new rules identify a date on which they will take effect. This date is usually well into the future in order to give anyone subject to the rule sufficient time to come into compliance. This could be anywhere from several months to a year or longer, depending on the subject matter. In rare cases, new rules take effect immediately.

Judicial Review of the Rulemaking Process

The steps outlined above assume a smooth rulemaking process free of significant complaints about the substance of the rules or adherence to rulemaking procedures. Members of the public or interested parties may raise objections at various points during the process, or even seek judicial review by filing a lawsuit. Courts generally give a considerable amount of deference to government agencies, which are presumed to have a high degree of knowledge of the technical aspects of the issues that they regulate, such as food, taxation, or labor. On procedural issues, such as alleged violations of “open meeting” laws, courts may be more likely to get involved.