MEMORANDUM
Fr: Name
Re: Rulemaking
Reason and Purpose of Rulemaking
Over the last five years, Congress has on average enacted 322 laws per year. However, the enactment of a law does not mean that it is implemented or put into practice. To be sure, most laws that Congress passes are fairly wide-ranging documents that simply spell out the broad goals that Congress expects the legislation to achieve. In short, laws as enacted by Congress do not include the specific details, guidelines or rules in regards to what is required in order for the law to be effective, what are means to achieve its goals as well as the requirements that the relevant parties need to follow in order to comply with the law, and what punishment will be imposed for failure to comply with the law.
The reason why Congress does not include these details in the law are twofold. First, Congress does not have the expertise, skills and specific knowledge necessary to be able to draft effective guidelines for areas laws that cover everything from healthcare to criminal justice to climate control (OMB Watch, n.d.). Second, Congress does not have the continuity to develop the expertise that is necessary to develop the rules (OMB Watch, n.d.). However, while Congress does not itself draft the rules that are needed to put the law into practice; they also do not abandon their constitutional responsibilities under its legislative powers. Consequently, Congress delegates the authority to make the rules and regulation that give meaning to the laws it passes to administrative agencies. An administrative agency is a federal governmental unit created by Congress that has acquired deep and broad expertise and experience and given over a specific area of the society that are the responsibility of the national government to regulate such as healthcare.
The Rulemaking Process and Procedures
Accordingly, federal regulation is a two-step process in which the first step is the passage and enactment of a law by Congress focusing on resolving a particular issues or problem. In the second step an administrative agency, using the framework that Congress set forth in the law, develops the rules and guidelines to implement that law. While administrative agencies are generally given a significant amount of discretion in how and what rules they develop; Congress nevertheless has ultimate supervisory authority over them. Consequently, Congress has enacted a number of laws that in essence provide the guidelines and procedures that an administrative agency must comply with in order to validly and effectively complete their rulemaking function. Two of the more relevant statues in regards to the general workings of administrative agencies are the Federal Registration Act (FRA) of 1935 and the Administrative Procedure Act (APA) of 1946.
Under the FRA, Congress required all administrative agencies to give the public an opportunity to inspect the rules and regulations that they make by: (1) filing agency documents with the Office of the Federal Register, and (2) publishing the documents in the Federal Resister and (3) making sure that any agreed upon final rule is codified in the Code of Federal Regulation (Copeland, 2008). The reasoning behind Congress’ enactment of the FRA was to give the public a streamlined means to learn, comment on and understand what rules were in force and whether or how those rules affected them. As the number of law enacted by Congress has increased, the FRA has been invaluable in facilitating how the public is informed.
Under the APA, Congress set out the general rulemaking process that an administrative agency must go through before a rule will be considered final. According to the APA, the most common rulemaking process is commonly known as the “notice and comment” process (Copeland, 2008). This process requires that an administrative agency: (1) publish a “Notice of Proposed Rulemaking” with the Federal Register, (2) provide a specific amount of time in which any interested party may file a comment or opinion about the proposed rule. (3) consider the comments or opinions made about the proposed rule, and (4) publish a final rule “incorporating a general statement of its basis and purpose” (Copeland, 2008). Once a final rule has been published, under the APA, in cannot become effective until at least 30 days after its publication.
While the APA sets the general rulemaking process for an administrative agency, it is by no means the only way. Depending on the either the terms of the enacted law or the importance of the law to the president several other steps can be added to the process as described under the APA (Copeland, 2008). For instance, the president acting through the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) might require that an administrative agency submit a proposed rule for his review either before it is published in the Federal Register or before a final rule is decided on.
The Influence of Rulemaking in Legislation
Despite both congressional and executive supervision over administrative agencies; they still, as mentioned, have broad discretion to make rules as they see fit. Accordingly, since many of the laws that Congress enacts are too broad to be effective, a substantial amount of the policies and laws that govern the nation are developed and implemented by administrative agencies. While this is not necessarily a negative but it is a fact that is important to know and understand. Furthermore, since the administrative agencies are the “on the ground” governmental unit tasked with rulemaking, they must often work together with the parties that the rules are meant to regulate including private industry, the non-profit sector, interest groups, and individual citizens (Furlong, 1997). While these parties, and all other parties, have the chance to influence rule making through the public comment process, some interested parties may nevertheless have informal influences over administrative agency decision-makers simply based on the fact that they often work together in the specific area of interest. Again, this is not to say such informal influences are a negative, in fact it is sometimes through these informal influence networks that an administrative agency will better understand a particular issue of importance; however, it is another aspect of rulemaking that must be taken into consideration when analyzing the influence of rulemaking on legislation. Lastly, the president, as mentioned, can also have considerable influence on rulemaking, not only through the reviews that OIRA perform but also indirectly through the people that he nominates to lead or manage a particular administrative agency. While they are and generally act independently, that fact that an administrative agency leader was put into the job by the president may potential give him indirect influence over which rules are proposed or what the contents of a final rule include.
References
Copeland, C.W. (2008, Aug. 28). The federal rulemaking process: An overview. Retrieved from http://wikileaks.org/wiki/CRS-RL32240
Furlong, S.R. (1997). Interest group influence on rule making. Administration & Society, 29(3). 325-347
OMB Watch Regulatory Resource Center (OMB Watch). (n.d.). Background on the rulemaking process. Retrieved from http://www.foreffectivegov.org/files/regs/rcenter/backgroundpdfs/I.-V..pdf
