What is Rulemaking?

Rulemaking is a process that allows government agencies to make regulations. The regulations developed during rulemaking pertain to the mission of the agency and may do anything from providing a framework for enforcing legislation to setting out policy. The process is public in nature, allowing everyone an opportunity to comment and participate. This is designed to prevent agencies from exercising too much power and passing regulations without the consent or will of the public. It also allows agencies to take advantage of knowledge from diverse people and groups while developing rules.

While the legislature is responsible for creating agencies and passing laws, agencies themselves are given a broad mandate. The argument for this is that agencies provide specialized services and have unique expertise. Limiting an agency solely to enforcement of laws passed by the legislature might leave holes in the work that cannot be plugged until the legislature has time to formulate and pass a law. By being able to establish regulations within the scope of their mandates, government agencies can operate more effectively.

A classic situation where rulemaking might be used is a case where the legislature passes a law giving an agency an order, such as cleaning up air and water, but allowing the agency to set the standards used to determine when the air and water are sufficiently clean. The agency conducts extensive research and holds a public comment period before developing a policy that sets out standards. The legislation behind the rulemaking provides the mechanism for enforcement of the policy. Members of government agencies can also be consulted while legislation is being drafted to incorporate their expertise into the law.

In the rulemaking process, agencies start by making a public announcement that they are developing new regulations, soliciting comment and expertise. The agency conducts research to identify the issue being addressed with the regulation, create definitions, and roughs out a regulatory framework. Drafts are released to the public for comment and, after several rounds, a final regulation is released and it goes into effect.

Members of the public do not need attorneys to comment during the rulemaking process. Many government agencies provide information about proposed regulations on their websites and advocacy organizations often alert their members to rules in development that might be relevant to their interests. In the United States, the "Regulations" website provides detailed information about proposed rules and offers forms people can use to provide feedback. The site also allows members of the public to track other public comments.