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In administrative law, rulemaking refers to the process that executive agencies use to create, or ‘promulgate,’ regulations.In general, a legislature first sets broad policy mandates by passing laws, then an executive agency creates more detailed standards through rulemaking.
1 Introduction
Legislatures rely on rulemaking to add more detailed scientific, economic, or industry expertise to a policy -- flushing out the broader mandates of authorizing legislation. For example, typically a legislature would pass a law mandating the establishment of safe drinking water standards, then assign an agency to develop the list of contaminants and safe levels through rulemaking.
The rulemaking process has been critical to the success of some of the most notable government achievements of the 20th century, including programs for environmental protection, food safety, workplace safety, financial reporting , transportation safety , and others.
Yet, the rise of the rulemaking process itself is a matter of political controversy, as the complexity and obscurity of rulemaking tends to undercut the democratic ideal of a government that is closely watched by and accountable to its citizens.
2 Purposes
At first blush, executive agency rulemaking appears to be an oxymoron. Executive agencies are usually described as executing, not making, the rules. Given the scope of modern regulation, however, legislatures frequently find areas where it is impractical for lawmakers to apply the level of detail or expertise required to establish complete standards. Common purposes of rulemaking include:
- Adding local knowledge. For example, noise abatement legislation instructs the U.S. Federal Aviation Administration promulgate regulations that establish specific routes for each airport where large planes may fly.
- Adding scientific expertise.
- Adding implementation detail. Legislation on automobile fuel efficiency, for example, often delegates the development of the actual engine tests used to calculate 'city mileage' and 'highway mileage'.
- Adding industry expertise. The U.S. Clean Air ActA Clean Air Act may be one of a number of pieces of legislation relating to reduction of smog and atmospheric pollution in general. Congress passed the Clean Air Act in 1963, the Clean Air Act Amendment in 1966, the Clean Air Act Extension in 1970, Clean and Clean Water ActThe United States Congress passed the Federal Water Pollution Control Act 33 U. 1251 et seq. 1972), and it became known as the Clean Water Act after Congress passed significant set of amendments to it in 1977. This legislation established the symbolic goa require the Environmental Protection AgencyThe mission of the United States Environmental Protection Agency (EPA) is to protect human health and to safeguard the natural environment: air, water, and land. The EPA began operation on December 2, 1970. The EPA is not a cabinet agency, but its adminis to determine the appropriate emissions control technologies on an industry-by-industry basis.
- Adding flexibility. More detailed regulations allow for more nuanced approaches to various conditions than a single legislative standard could. Moreover, regulations tend to be more easily changed as new data or technologies emerge.
- Finding compromise. In some cases, a divided legislature can reach an agreement on a compromise legislative standard, while each side holds out hope that the implementing regulations will be more favorable to its cause.
3 The rulemaking process
Rulemaking processes are generally designed to ensure that
- the public is informed of proposed rules before they take effect;
- the public can comment on the proposed rules and provide additional data to the agency;
- the public can access the rulemaking record and analyze the data and analysis behind a proposed rule;
- the agency analyzes and responds to the public's comments;
- the agency creates a permanent record of its analysis and the process;
- the agency's actions can be reviewed by a judge or others to ensure the correct process was followed.
For example, a typical U.S. federal rulemaking would contain these steps:
- Legislation. The U.S. Congress passes a law and assigns an agency to promulgate additional regulations.
- Advance Notice of Proposed Rulemaking. This optional step entails publishing the agency's initial analysis of the subject matter, often asking for early public input on key issue. Any data or communications regarding the upcoming rule would be made available to the public for review.
- Proposed Rule. In this step, the agency publishes the acutal proposed regulatory language, a full discussion of the justification and analysis behind the rule, and the agency's response to any public comment on the advance notice.
- Public comment. Once a proposed rule is published, a public comment period begins, allowing the pbulic to submit written comments to the agency. The agency is required to respond to each issue raised in the comments. Depending on the complexity of the rule, comment periods may last for 30 to even 180 days.
- Final Rule. Usually, the proposed rule become the final rule with some minor modifications. In this step, the agency publishes a full response to issues raised by public comments and an updated analysis and justification for the rule, including an analysis of any new data submitted by the public. In some cases, the agency may publish a second draft proposed rule, expecially if the new draft is so different from the proposed rule that it raises new issues that have not been submitted to public comment.
- Judicial review. In some cases, members of the public or regulated parties file a lawsuit alleging that the rulemaking is improper. While courts generally offer significant deference to the agency's technical expertise, they do review closely whether the regulation exceeds the rulemaking authority granted by the authorizing legislation and whether the agency properly followed the process for public notice and comment.
- Effective date. Except in extraordinary circumstances, the rule does not become effective for some time after its initial publication to allow regulated parties to come into compliance. Some rules provide several years for compliance.
