How does RULEMAKING work?
Rulemaking is the process federal agencies use to make new regulations. These regulations affect everything from the air we breathe and the food we eat, to the cars we drive and the roads we drive them on. Congress passes the broad laws that govern us, but most of the details are left to federal agencies to figure out through the rulemaking process. What most people don’t realize is that everyone has a right to participate in the process. Agencies must publish their proposed rules, along with an explanation of what they are trying to do, and give people time (usually 60 days) to comment on the proposal. Anyone can file a comment (you don’t even have to be a citizen or eligible to vote). And agencies are required to read all the comments they get, and take them into account in their final decision. Rulemaking is one of the few government processes where a single individual can make a difference in what the federal government decides to do.more
The lifecycle of a rule begins when Congress passes a law authorizing (sometimes, even requiring) an agency to create regulations to achieve certain goals or solve specific problems. Various groups within the agency – including experts in the area, economists, and lawyers — work together to draft a proposed rule. During this process, they often get informal input from groups who will be affected by the new regulation. The agency is required to prepare several different analyses of the proposal’s impact. The most important is the “Regulatory Impact Assessment” (RIA) that must calculate the estimated costs and benefits of the rule to those who would be regulated by it and to society generally. Other required analyses include impacts on the environment, small business and local governments, and privacy. All these analyses will be included when the agency asks for comments on the proposal. But, before the proposal is released to the public for their comments, the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budgetmust sign off on it. OIRA may get the views of other agencies who have responsibility for related areas/problems. It determines whether the RIA is correct, and also whether the proposal is consistent with the President’s policy priorities. Often, OIRA asks the agency to provide other information, revise the RIA, and/or make changes in the proposal.After the proposal clears ORIA, the agency publishes it in the Federal Register. This Notice of Proposed Rulemaking (NPRM) usually includes the actual text of the proposed new regulation. It explains what the statutory authority for the new proposal is, what the agency is trying to accomplish, and why it thinks this is the best way to achieve the statute’s goals. It often explains the background of the proposal, including the history of Congress’s and the agency’s own efforts in the area. The NPRM will summarize the RIA and other required analyses, identify any studies or data the agency is using, and pose questions to commenters.
Once the NPRM is published, the public comment period begins. During this time (usually, 30 to 90 days), any individual, group, corporation, or other organization can submit questions, concerns, ideas, data, and alternate proposals. This can be done by using the official federal online rulemaking portal (http://www.regulations.gov), or by ordinary mail to an address given in the NPRM. Sometimes, people comment on the proposed rule on news sites, blogs, or other online discussion sites. Unfortunately, these comments are unlikely to be read by the agency. When people discuss the proposal on Regulation Room, however, their views do get to the agency. Near the end of the comment period, discussion on the site is summarized by the Regulation Room moderators. The summary, which is long and detailed, is posted and people have a chance to suggest changes. The Regulation Room team submits the final summary to the agency through regulations.gov, so that it will count as a public comment on the proposal.
The agency must then read every single comment it receives. It pays particular attention to comments that contain new information, a new perspective, responses to specific questions the agency posed in the NPRM, and different ideas on how the agency can accomplish the goals Congress told it to accomplish. (Want to learn more about writing comments that are useful for the agency? See Effective Commenting.)
Once the agency has read and considered all the comments, it decides whether to go ahead with a final rule. This process can take a few months, or even longer. The agency might adopt a final rule identical, or very similar, to the initial proposal, or it might make changes based on the comments. It might even decide to stop the rulemaking altogether. If it wants to go ahead with some rule, it must again get clearance from OIRA. When the agency is ready to go, it must publish the final rule in the Federal Register. With the actual language of the rule, it must include a detailed statement describing the comments it received and explaining why it decided on the particular final version it is publishing. This explanation must respond to significant criticisms, concerns, and questions in the comments, and discuss why alternate proposals would have been less effective.
Once a rule is final and becomes effective, it has as much legal authority as a statute. Violating it can result in fines, loss of licenses or certificates, and sometimes even jail. If someone affected by the rule believes that the agency exceeded the power Congress gave it, that it failed to consider something important raised in the comments, or that it made an unreasonable decision, he/she may ask the federal court to overturn the rule.
How does EFFECTIVE COMMENTING work?
The rulemaking process isn’t a vote. Unlike members of Congress or the President, federal agencies aren’t allowed decide based on majority rule. Instead, they are supposed to use expertise and practical experience to come up with the overall best answer to the problems Congress has told them to solve. They must have good reasons, sound data, etc. for the regulations they make: the courts would overturn a rule that the agency adopted just because a majority of commenters supported it. So, the kind of public participation that really matters is when people explain not only what they think the agency should (or shouldn’t) do, but why. One person with some new information or a really good idea will have more impact than 1,000 people who just give an unsupported opinion. So, how do you make comments that count?more
Start by focusing on parts of the agency proposal that will affect you directly, or that you have knowledge about or experience with. Express your concerns, suggestions, and recommendations clearly. Your points are more likely to get the agency’s attention, if you:
- Give specific examples
- Show that you’ve considered the pros, cons, and practicality of the idea
- Provide data if you know about any, or at least identify the kinds of information that would be important to have
- Link to online references and original source materials
Stay on topic, express thoughtful disagreement in civil terms, and stay away from ridicule, sarcasm, and personalized attack. The agency has to take account of all points of view; if you just attack or ignore people who take a different position than you, you aren’t helping the agency figure out why one position deserves to be adopted over the other.
Good comments avoid repeating what has already been said. Remember, the goal is quality, not quantity of comments. If you can add to what someone else has already said and make it better, reply to their comment and add your idea, reason or information. If you think someone has made a point as effectively as possible, and there’s really not anything you can add to improve it, you can ”Endorse” their comment. That way your view can be part of the final summary sent to the agency, without adding a lot of repetition that can bury some really important points.
Finally, remember that even though the federal government as a whole has a lot of power, individual federal agencies have only the power that Congress specifically gives them. Sometimes, important parts of a proposed rule reflect what the agency’s statute requires or prohibits. Agencies can’t do much with comments that complain about things only Congress can change. The Regulation Room Issue posts try to give you information about significant statutory requirements or limits that affect what the agency may do. If you have a question about the agency’s legal authority, ask it. Some other user, or the moderator, may know the answer.
You’ll see that some comments are marked by the moderators as “Recommended” ( the heart icon). ”Recommended” means that the comment has some or all of the qualities of an effective comment. The Regulation Room Team does not take a position on any of the issues in a proposal: our goal is helping people participate as effectively as possible in rulemaking, whatever position or views they have. We encourage diverse points of view, and we respect the diversity of values expressed by users. So, comments are Recommended not for what they say, but for how they say it: they give reasons, bring in information, consider alternatives, show that the writer is trying to consider the issue from all sides, etc. close
How does this SITE work?
The goal of Regulation Room is not just more public participation in rulemaking, but better participation. The site is designed to make it easier for this to happen. The problems agencies try to solve are usually difficult and complicated, so the best participation often comes from commenters who take the time to get below the surface and learn more about the proposed rule. Regulation Room helps users do that in several ways. more
The important issues (topics) in each rule are divided into “Issue Posts.” These let you focus on the particular topics most important to you. Each post has a set of subtopics. These review the problem the agency is trying to solve, lay out the solutions it is proposing, and identify specific information or ideas the agency hopes the public can provide. If you’re unsure what a term or abbreviation means, you can mouse over it and a definition will pop up. (If we’ve missed something you think should be defined, drop us a note at Contact Us.) Each post also contains links to important agency documents, including sections of the NPRM, the text of the proposed rule, and the economic or other analyses done on the rule. Many also contain links to other laws and regulations on the same topic, as well as other outside sources that might be useful. Finally, there are pages like this one that help users become more familiar with the rulemaking process. You can watch this short video to see a step-by-step guide on how to use Regulation Room to participate.The other important aspect of how the site works is the moderator team. Our moderators are students trained in law and group facilitation techniques. A moderator will read every comment within a few hours of when it is posted. Moderators may point commenters to other relevant material on the site, encourage them to discuss a point raised by another commenter, or ask them to supply reasons, information, data, etc. to make their comment more effective. Moderators are trained to have a neutral, objective approach to the discussion: We are advocates of an effective discussion process, not of any particular viewpoint. You can learn more about the Regulation Room team here.
A note on site policy: Regulation Room does not pre-screen comments before they are posted. As much as possible, moderators allow users to engage each other in conversation without intervention by us. But we are committed to maintaining an environment in which productive discussion about important issues can happen. We will take action towards any content that we believe undermines such an environment. See Terms and Conditions. Our action may range from a gentle reminder about the ground rules for discussion, to redacting (removing a portion of) comments, to removing the entire comment, to disabling a user account in extreme cases. We will always indicate when and why we have redacted or removed a comment. Comments that have been removed can be viewed on the Quarantine page. close