Public comments help agencies improve regulations. Although agencies do research and consider as many options and outcomes as possible, the public can bring a fresh perspective or greater insight into the outcomes of the regulations.
Because regulatory agencies gain so much from the public’s experience, Federal law requires that agencies publish a notice of their proposed changes to regulations in the Federal Register [link], and provide time for the public to submit comments. Per the Administrative Procedure Act (APA) of 1946, agencies must consider all “relevant matter presented”, and address these concerns and comments in the notice they publish when the change is made final. The APA ensures public transparency in the rulemaking process, while holding the government accountable to address public input. This transparency and accountability ensures integrity throughout the process.
Additionally, multiple Presidential Executive Orders (EOs) address improving existing regulations. For example, Executive Order 13610 explicitly requires agencies to invite “public suggestions about regulations in need of retrospective review and about appropriate modifications to such regulations.” For more information on EOs concerning rulemaking, visit OMB’s page on regulatory matters.
Other laws that govern the rulemaking process include: E-Government Act of 2002 [PDF], Unfunded Mandates Reform Act of 1995 [PDF], and Congressional Review Act of 1996 [PDF]. Together, these laws drive transparency, accountability, and integrity in the rulemaking process.
Agencies may create or change regulations in three instances: when Congress has passed a law that the agency is delegated to implement, when there is a court decision, or when the agency has the authority to address an initiative or solve a problem.
To create or change regulations, agencies create documents called “rules” that outline how and why they plan to change the Code of Federal Regulations. Many of these rules must be reviewed by the Office of Management and Budget, after which they are published in the Federal Register and opened for public comment.
This is where the public is key to the process. Agencies review the comments and address them in the final version, which is also published in the Federal Register. Agencies must also submit the final version to Congress for review under the CRA.
For a more detailed look, please see the Reg Map at reginfo.gov.
A wide range of stakeholders have interests in Federal rulemaking. The following case studies provide examples of how stakeholder groups may participate throughout the lifecycle of a regulation.
- Members of the public and prospective planning: The Unified Agenda (UA) of Federal Regulations forecasts twice yearly the regulatory and deregulatory activities for development throughout the Federal Government. Fall editions of the UA include the Regulatory Plan, which presents agency statements of regulatory priorities and additional information about the most significant regulatory activities planned for the coming year. This gives members of the public and interest groups an opportunity to plan in advance in anticipation of FR notices of proposed rulemakings. The public at large and interest groups may be more likely to be interested in the public impacts of rulemaking, such as protecting the environment.
- Regulated entities engaged in active rulemaking: Regulated entities, such as the pharmaceutical, banking, and auto industries, while interested in the Unified Agenda, are more likely to be highly familiar with existing regulations and will regularly monitor proposed regulations. Such regulated entities, along with trade and other associations, will closely follow the Federal Register and be prepared to submit detailed comments. In addition, they are likely to proactively engage regulators by identifying regulatory requirements “which may be redundant, inconsistent, or overlapping” as described by EO 12866.
- Researchers and agencies conducting retrospective reviews: The purpose of retrospective reviews is to examine existing regulations to determine how effective they have been in achieving their objectives and, if necessary, ways of improving effectiveness, while considering the cost-effectiveness of any changes. Both independent researchers and federal agencies may conduct such reviews. Dockets in Regulations.gov contain not only the rulemaking and associated comments, but also Regulatory Impact Analyses and supporting documentation that may contain a wealth of scientific or other data. This baseline information, along with new information from other sources, can support requirements of Executive Order 13563, “Improving Regulation and Regulatory Review,” by supporting “retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”
U.S. General Services Administration