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Want to Participate in Government Rulemaking? Here's a Guide for GCs

By Casey C. Sullivan, Esq. on July 14, 2015 | Last updated on March 21, 2019

If you're in-house in a heavily regulated industry, you know that government rulemaking can have a major impact on your business' day to day practices. But you don't have to be handling toxic waste or private medical records to have a stake in government regulation. Even a medium sized company may want to influence white collar overtime rules or Affordable Care Act regulations, for example.

In order to influence government rulemaking, you need to know how it works. Here's a quick overview:

Participating in Informal Rulemaking

The vast majority of rulemaking is informal rulemaking, which sounds more relaxed than it is. For the federal government, this process follows a fairly predictable path, governed by the requirements of the Administrative Procedure Act and any other substantive laws.

For most parties, public comment throughout the process is the primary way to impact rulemaking. You may have informal communications with regulatory agencies or even participate in negotiated rulemaking, giving you a more direct hand in the process. For companies that are considering litigating an unfavorable rule, participation throughout the process is necessary to exhaust your administrative remedies beforehand.

Overall, the rulemaking process follows these steps:

1. Initiating Events: These may be statutory mandates, the result of litigation, or stem from a public petition.

2. Notice of Proposed Rulemaking: Public notice given in the Federal Register. GCs should keep their eyes peeled for any possible rulemaking that may affect their industry.

3. Preparation of Proposed Rule: The regulatory agency begins receiving public comments on proposed rulemaking, which can be influential. Agencies may engage in negotiated rulemaking with effected parties as well.

4. Publication and Comment: The actual proposed rule is published in the Federal Register. The public has 60 days, generally, to comment. Comments are often detailed and specific, as they may form the basis of later litigation.

5. Preparation of Final Rule: The agency should consider and respond to public comments and integrate them, as necessary, into the rule. In some cases, the agency may revise a rule so significantly that it will essentially restart the rulemaking process.

6. Final Rule: The agency publishes the final rule, including an explanation of the rule and the reasons behind it, a response to comments and an effective date.

7. The Challenges: Don't like the rule? Well, if you haven't been able to influence it thus far, now's the time to sue. Generally, lawsuits challenging rulemaking will allege that procedural requirements weren't followed or that the reasons behind a rule don't support the conclusions reached.

That Sounds Like a Pain

Rulemaking can be a long, painstaking procedure. Outside parties will often have to compose detailed responses to the rule throughout the process. Failing to raise a complaint and put the agency on notice of an alleged failing can mean that a party won't be able to litigate that issue later on. Of course, if your legal department is too busy to handle such issue, there are plenty of lobbyists, law firms and trade associations that are happy to keep track of government rulemaking on your behalf.

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