Rulemaking - Rulemaking Apparatus

Rulemaking Apparatus

Public participation requires some official method for the agency to communicate to the public. Generally, agencies produce an official gazette, or periodical for publishing all rulemaking notice, such as the Federal Register. Once a rule is final, the language of the rule itself (not the supporting analysis or data) is codified in the official body of regulations, such as the Code of Federal Regulations (CFR).

In essence, the accountability of the rulemaking system assumes that the public actually does take note of all of the notices in the Federal Register, which can run over a hundred pages per day. In practice, many industry or public advocacy lobbyists and lawyers monitor the Federal Register Table of Contents every day by email on behalf of their constituents or clients.

Public comments are the heart of the public’s ability to participate in the rulemaking process. The agency rulemaking is usually required to consider and publish a written response to all comments. Although high-profile rulemakings may include public hearings, most rulemakings are simply noticed in the Federal Register with a call for written comments by a set deadline.

Holding agencies accountable for objective, fact-based rulemaking requires maintaining a formal record of the facts and analysis behind the rule. Agencies must assemble and make public a rulemaking record that includes all information considered as part of the rulemaking process.

These records can be enormous and can easily fill scores to hundreds of boxes. Interested parties generally must travel to an agency repository to inspect and copy this record. In the United States the Federal government is moving toward posting rulemaking dockets on-line at www.regulations.gov. Supporting documentation for 37% of new rulemakings was available on-line as of August 2006. By August 2007 it was available for 80% of new rulemakings. Interested parties frequently comb through the agency’s own data to find flaws in the agency’s reasoning. Also, interested parties’ comments on the rule then become part of this record.