Printable Version Email to a Friend |
Influencing the Rulemaking Process: Points of Citizen Involvement
|
There are three major sources to monitor with respect to rulemaking activity at the state level.
A partial listing of these resources for each state is available from the National Association of Secretaries of State (Administrative Code and Registers Section). Additional listings of online resources for rules and regulations in each state is currently available through the Wyoming Secretary of State website. |
Forums and Public Meetings Held by the Agency
Many agencies hold forums and/or public meetings where there is a good possibility of discussions on the agency's future plans for rule changes. This is a good time to get to know the agency's key personnel who are often in attendance at these meetings. As one longtime rules advocate stated, "a lot of my success is based on the working relationships that I have developed with agency personnel."
Attending the public meetings is also a good opportunity to sign up to get on an agency's different mailing lists. Contact the agency you are interested in, and inquire as to how you can find out about upcoming forums or public meetings. You can also find public meeting announcements listed in your state's register, journal, or bulletin.
Obtaining Agency Plans for Developing or Changing Rules
Though the exact schedule depends upon the state, agencies publish their rulemaking agendas in the state register in order to lay out their anticipated rulemaking activities. State registers should be monitored on a regular basis, as some agencies may fail to meet mandated reporting timelines. Agencies increasingly provide updates on their agendas and activities, upon request. Check with the particular agency in which you are interested in to see whether they charge a fee for such updates.
Agendas also contain the contact information for key personnel who are, or will be, working on the rule changes. Contacting the agency personnel as soon as the rule-making agenda is published allows you to get involved and informed, even before the agency initiates the actual rule-making process. This extra time enables you to be well prepared and knowledgeable about the issue you intend to comment on, and to involve others.
Commenting on Agency Thinking in the Early Stages of Activity
The next step comes when an agency publishes its pre-proposal or notice of intended rulemaking in the state register, which usually includes the following information:
- a brief description of the proposed rule-change,
- contact information, and
- details as to how, when, and where citizens may present their views on these proposed changes.
Particular Types of Rulemaking
In some states, agencies may implement particular types of rulemaking processes. One type of particular interest is negotiated rulemaking. This is a voluntary process through which an agency may, but is not required to, contact and involve stakeholders or representative interests in discussions regarding a possible rule-change before it publishes a proposal. These discussions may include the process of formulating the proposed rule-change and/or negotiations on the language used in the rule, sometimes utilizing an outside mediator. If an agency does not provide an opportunity for interested parties to participate in the rules process before the publication of the proposed rule, it must provide a written justification as to why this opportunity was not offered.
Citizens often can request a formal negotiated process. A request, however, does not guarantee that such a process will occur. Because of the cost and time involved, this course should only be pursued if that is the only way to resolve differences between stakeholders and an agency. There are times, however, when an agency will hold informal discussions with the stakeholders, and they are just that - informal discussions on possible rule changes.
Other types of rulemaking that may take place include:
- Emergency Rulemaking, in which rules are adopted, amended, or repealed when there is a danger to the public's health, safety, or welfare and are in effect usually for a limited time-period.
- Exempt Rulemaking (or "identical in substance"), in which rules are adopted that are identical in substance to federal regulations a state is required to adopt and enforce.
- Expedited Rulemaking, in which an agency adopts a rule without holding a public hearing. This is typically used only when the agency is not expecting any opposition to the proposed change.
- Peremptory Rulemaking, which consists of the immediate adoption of rulemaking that is required as a result of federal law, rule, collective bargaining agreement, or court order under conditions that preclude an agency's discretion in determining the rule's content.
Each state will have information available on the guidelines around these rulemaking processes. You will need to contact the rules-coordinator of the agency to find out their specific procedures, if available, for negotiated rulemaking.
Commenting as Agency Plans Evolves
There is a period of time between publication of the pre-proposal/notice of intended rulemaking, and publication of the actual proposal or notice of proposed rulemaking, which is ideal for talking with agency personnel. The notice contains the text of what has been proposed, and also includes the location, time, and date of upcoming public hearings on the proposed rulemaking activity.
Participating in Public Hearings
The Public Hearing is just that: an opportunity for members of the public to state their concerns, or support, for a particular rule-change. The public hearing is usually presided over by the agency's rules-coordinator and/or staff. Key agency personnel are also usually present. If time allows, it is not unusual for staff to stay behind to talk with citizens after the hearing, to answer additional questions or speak to the public's concerns. In addition, citizens often have time on the day of the public hearing to submit any concerns or provide any supporting material via fax or e-mail. All input from citizens is included in the rulemaking file as part of the final proposal. The agenda, meeting format, and guidelines is presented in advance of hearings, usually when the meetings themselves are announced.
It may sound obvious, but you will be more successful if you are well prepared when attending a public hearing. The number one tip for those participating is this: Keep it Simple! If you can keep your written comments short (one page or less), concise, and to the point - that will be appreciated, and your comments will be effective. But, if more information is needed, provide it.
Know what you want to say; know the specifics of the section of the state code that you are referring to; and have the facts ready to back up your claims. It also helps to offer alternatives to the proposed rulemaking activity.
If you don't feel comfortable speaking at this meeting you can submit your comments in writing; in person, by fax, email or phone.
Hearing the Agency's Intention
After an agency holds a public hearing, and before it files the rule in final form in the state's register, the agency must prepare a concise explanatory statement, and provide it to all citizens who provided input. (Others can contact the agency's rules-coordinator to get on the mailing list to receive this statement). This statement includes the agency's reasons for the rule-change, along with a comparison of any changes in the text as published, and the final rule being adopted. A summary of comments received and how these comments were/were not used by the agency in writing the final rule is also included.
Challenging a Rule
Citizens can also act to appeal and amend existing rules, or initiate the adoption of a new rule.
- Appeal to the Agency: Citizens petition an agency to request the adoption, amendment, or repeal of a rule. This is usually done through a specific form or written request submitted by e-mail, fax, or postal mail within a set period of time. The agency will then have a period of time in which to respond to the petition. It may deny the petition with an explanation for doing so, addressing the concerns that led you to file an appeal. The agency may also state alternative ways for addressing your concerns. Or, the agency may initiate the rule-making process by adopting, amending or repealing a rule based on what you have proposed.
- Appeal to the Executive: Citizens can, usually, appeal to the governor, mayor, or executive if the agency denies the petition to repeal or amend a rule. There is often a limited window of time in which to file an appeal, and in which a response must be issued. If the appeal is denied, the executive will comment on the specific areas of concern, perhaps state possible alternative ways to address those concerns, or actually engage the agency at issue initiate the rule-making process.
- Appealing the Rulemaking: Citizens can often appeal the rulemaking itself, as opposed to a rule, when emergency, exempt, expedited, or peremptory rulemaking is involved. Such appeals are made to ensure that the particular process was properly employed and administered as warranted. An appeal in such instances is usually directed towards the governor or executive to repeal the rule produced through such processes.
If you are the party initiating action, e.g., filing a request for a rule change - it helps to talk to the agency's key personnel about your issues before you actually file a formal request to adopt, amend, or repeal a rule.
Adapted from Influencing the Rulemaking Process in Washington State: A Role for Citizens in Public Policy (July 2003), produced through the Civic Engagement Project, a joint project of OMB Watch, Charity Lobbying in the Public Interest, and the University of Washington School of Social Work.