The U.S. Rulemaking Process: Has it Become Too Difficult?

Abstract

The modem process for making administrative policy-the informal, notice-and-comment rulemaking process-was developed in the U.S. when the Administrative Procedure Act (APA) was enacted in 1946. The "notice-and-comment" label derives from the fact that the APA requires: publication of a notice of proposed rulemaking, opportunity for public participation in the rulemaking by submission of written comments, publication of a final rule and accompanying explanation.

This applies to the substantive rulemaking of every agency of the federal government and provides the procedural minimum for most significant rulemakings. More elaborate public procedures such as oral hearings may be used voluntarily by agencies in matters of great import.

As the virtues of this streamlined process for policymaking became more apparent, Congress began to authorize more rulemaking and agencies began to shift their focus from case-by-case policymaking to rulemaking. The "consumer decade" of the 1970s led to the enactment of major new health, safety, and environmental laws, all of which contained broad rulemaking powers. By the end of the 1970s agencies were proposing and finalizing regulations at an unprecedented rate.1 Then the reaction set in-concerns about over-regulation arrived with the Reagan administration. The White House and Congress sparred over how to control the bureaucracy, and challenges to rules also began to receive a more hospitable reception in the courts as standards of judicial review tightened.

Since then, Congress, presidents, and the courts have each taken steps to require that agencies follow more rigorous rulemaking procedures. Congress has enacted both agency-specific and government-wide stah1tes requiring additional procedural and analytical requirements. Presidents beginning with the Nixon administration have issued executive orders giving the White House Office of Management and Budget (OMB) increasing power to review agency proposed and final rules before they can be published in the Federal Register. And judicial review of rules continues to be quite intensive. The result of all these developments is that informal rulemaking is now in danger of being ensnared in the same type of red tape that government has traditionally been accused of inflicting upon the public.

Keywords: administrative law, rulemaking process