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What is the administrative agency process for creating regulations?
The quasi-legislative process by which administrative agencies create regulations is “formal”, “informal” or “hybrid”. Formal rulemaking generally proceeds as follows:
- Public Announcement – The agency develops a proposed regulation and announces the rule or regulation to the public.
- Public Comment – Following the announcement of the new regulations, the administrative agency allows for public comment on the regulation. Individuals may write letters, enter comments on the website, and speak at an open public forum regarding the proposed regulation. At the public hearing, interested parties are allowed to present evidence in support of, or in opposition to, a proposed rule or regulation.
- Final Rulemaking – The agency will take public comment and incorporate those comments into a final draft of the regulation. If the proposed regulation garners much public interest, Congress will seek a report or explanation of actions from the agency.
The informal rulemaking process does not require a hearing. The hybrid procedure requires a hearing, but the process is less detailed than the formal process.
Discussion: Do you believe the process of public announcement, comment period, and final rulemaking is effective in notifying the public and gauging public sentiment?
- Your opinion may vary based on whether you have ever tracked a new rule going through the administrative process. Many would argue that the public comment period is useless, as the administrative agency rarely heeds the comments. Others would argue that this voluntary comment period is adequate to gauge public sentiment in the rulemaking process.
Practice Question: Gene is very upset by a proposed federal regulation passed by the Federal Communications Commission (FCC) that will impact cable and Internet distribution. What are Gene’s options for voicing her opinion about the proposed regulation?
- First, Gene can provide detailed comment once the rules are posted for public comment. She can send emails directly to the administrative agency urging specific action. Finally, she can contact her Congressman and Senator in hopes of creating pressure on the agency in the rulemaking process.
Spurlin, Candice J. and Garry, Patrick M. and Bishop, Jami and Hollers, Logan and Boyle, Joseph, The Role of Public Comment in the Administrative Agency Process: A Case Study of the Rulemaking Processes of One South Dakota Agency (June 1, 2011). Sustainable Development Law Journal, Vol. 14, p. 148, 2011. Available at SSRN: https://ssrn.com/abstract=2017708