From: Brookings
Summary
This report analyzes the complex dynamics surrounding the federal rulemaking process, focusing on the relationship between agency responsiveness and rule durability. Using the Accountability and State Plans rule as a case study, author Elizabeth Mann Levesque explores the input that the department received from public comments and Congress, as well as how the department revised the draft rule in response to this feedback. The analysis within provides insight into how the public, agencies, and Congress shape the content and lifespan of final rules.
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After the comment period closes, the agency drafts revisions to the rule. When revising draft regulations, the agency considers input received during the comment period, additional relevant evidence in the rulemaking record,[5] the agency’s interpretation of the law, and the administration’s perspective on what policies would most effectively fulfill the law’s goals.[6] Agencies are not required to include revisions recommended by commenters (Naughton et al. 2009, p. 260), although they must respond to each “significant” issue raised by commenters when they publish the final rule (Garvey 2017, p. 3). “Significant” rules require final approval from OIRA (Carey 2013, p. 2). Once approved by the required institutions, the final rule is published in the Federal Register.[7]
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Conclusion
This report began with the observation that agencies, and particularly the political appointees that run them, are motivated to influence public policy. Rule durability is thus an important consideration when agencies decide how to respond to input received from public comments and members of Congress during the rulemaking process. While the CRA is not always a relevant political tool, given that it can only be used to repeal a rule within 60 days of Congress receiving the final rule (Carey 2013), its use in this case underscores the significance of the political environment for rule durability. To create a durable Accountability rule, the Department of Education may have had to eliminate what it considered key provisions of the regulation central to the department’s oversight role under ESSA. The broader implication is that credible threats to final rules, either via judicial review or congressional action, may force agencies to choose between substantive revisions to the final rule or the risk of subsequent repeal.