Rulemaking

by

Sara R. Rinfret, Jeffrey Cook

• LAST REVIEWED: 21 April 2021
• LAST MODIFIED: 21 April 2021
• DOI: 10.1093/obo/9780199363445-0009

Introduction

Rulemaking is the process by which federal or state agencies translate vague congressional statues into rules of law. The federal process is guided by the Administrative Procedures Act (APA) of 1946, and states have enacted similar legislation to guide state agency processes. The APA requires any agency that produces a rule to notify the public, allow time for public comment, and respond to those comments. The rulemaking process can be broken down into three stages, including the pre-proposal, notice and comment, and rule finalization stages. Stage 1, the pre-proposal stage, consists of the agency activities to produce a draft rule. Stage 2, the notice and comment stage, includes the process outlined by the APA when the agency formally publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register. Stage 3 of the rulemaking process begins once the comment period ends. At this juncture, agency personnel review the comments to determine the language and substance of the final rule and publish it in the Federal Register. Once a rule is finalized, it carries the same weight as a congressional law. Since the early 1990s, scholars have become more interested in analyzing the rulemaking process. First, some scholars have focused on describing how the rulemaking process unfolds across the bureaucracy, and they provide a roadmap toward implementing 21st-Century Rulemaking strategies to make the process more efficient. In this regard, scholars have illustrated the need for more collaborative rulemaking processes; which methods work best continues to be a debate in the field. The second area of research focuses on Rulemaking and the Role of Institutions in influencing outcomes. These scholars are interested in explaining the role of the president, Congress, and the courts in the rulemaking process with the goal of determining which institution(s) is most influential in shaping regulatory outcomes. The third track of research addresses Stakeholders and Rulemaking and attempts to determine which groups are more influential and at which stage. Finally, a small, but growing, scholarship addresses the above questions within the context of State Rulemaking. This article provides an overview of prevalent research in each of these areas.

The Foundations of Rulemaking Literature

Kerwin and Furlong 2019 remains the seminal text in the field, providing an in-depth look at rulemaking processes, presidential and congressional involvement, and future trends. Thus, it is from this text that most scholarship in the regulatory field begins. West 2005 is also influential, as the author tracks the evolution of scholarship on rulemaking and asserts that scholarship in the field is particularly weak at the pre-proposal stage of the process. This work has since spurred a fruitful dialogue between scholars regarding this stage in the process. Eisner, et al. 2018 provides a theoretical approach to analyze regulatory change, which has become increasingly valuable due to early-21st-century trends of congressional gridlock. Wagner, et al. 2017 contends our foundational lens is static, while rulemaking is best understood as a dynamic process. More recently, Potter 2019 and Rinfret 2021, an edited volume, offer tangible examples of rulemaking stages with contemporary examples.

• Eisner, Marc Allen, Jeff Worsham, and Evan J. Ringquist, and Francesca V. Nestor. 2018. Contemporary regulatory policy. 3d ed. Boulder, CO: Lynne Rienner.

  The authors attempt to explain regulatory change through the use of three theoretical perspectives, including bureaucratic politics, policy subsystems, and principal-agent theory. The authors use these approaches to better understand specific cases across financing, labor, workplace, and environmental regulations to best understand regulatory change.

• Kerwin, Cornelius M., and Scott R. Furlong. 2019. Rulemaking: How government agencies write law and make policy. 5th ed. Thousand Oaks, CA: CQ.

  DOI: 10.4135/9781544332918

  In their seminal work, Kerwin and Furlong document the many aspects of administrative rulemaking and its importance to understanding bureaucratic decision making in the United States. Most notably, this work defines and captures the stages of rulemaking, those involved during the process across presidencies, and lessons for the future.

• Potter, Rachel Augustine. 2019. Bending the rules: Procedural politicking in the bureaucracy. Chicago, IL: Univ. of Chicago Press.

  DOI: 10.7208/chicago/9780226621883.001.0001

  The author examines how bureaucrats across federal agencies respond to incentives created by procedure bound policymaking. She examines agencies within the executive branch from 1995–2014 to demonstrate how the rulemaking process has evolved over time.

• Rinfret, Sara. 2021. Who really makes environmental policy: Creating and implementing environmental rules and regulations. Philadelphia, PA: Temple Univ. Press.

  This edited volume offers a contemporary perspective on the rulemaking process, it stages, and its impact on compliance. Environmental case studies are used to trace the reader through the process and federal, state, and local examples.

• Wagner, Wendy, William West, Thomas McGarity, and Lisa Peters. 2017. Dynamic rulemaking. New York University Law Review 92:183–266.

  The scholars suggest that rulemaking should be viewed through a lens of dynamism instead of as a static process. Put simply, the argument is that regulatory agencies should constantly review regulations due to political and economic environments.

• West, William. 2005. Administrative rulemaking: An old and emerging literature. Public Administration Review 65.6: 655–668.

  DOI: 10.1111/j.1540-6210.2005.00495.x

  West discusses how the literature has evolved in examining the role of rulemaking in US public policymaking. He suggests that scholars should begin to shift their focus from examining institutional effects (e.g., Congress, courts, president) to evaluating agency pre-proposal processes.