Administrative Agency Rulemaking in Texas

Many businesses in Texas, as well as many individuals, have an interest in the rules that various administrative agencies make at the federal, state, and local levels. From rules on pollution emissions to professional licenses, the way we live and work can be greatly affected.

At Lawhorn Law, PC, our administrative law attorney in East Texas will help you understand the stakes associated with relevant existing or pending rules. We will also outline what options you have to comment on a pending rule, dispute an existing rule, or take other action pursuant to your specific wishes and goals. Contact us at 903-999-1234 to schedule a Consultation today.

Administrative Agencies and the Rulemaking Process

The Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, defines a rule as

the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing.

Federal and state administrative agencies create rules through a process that generally involves several steps:

1. Initiation and notice
2. Public comment period
3. Public hearings and meetings
4. Review and revisions
5. Publication and final rule
6. Effective date and implementation
7. Publication in an administrative code
8. Monitoring and enforcement

While the exact procedures vary from federal to state agencies and from state to state, these steps are relatively and generally the same.

Initiation and Notice

The process typically begins with the agency identifying a need for a new rule or a change to an existing rule. The agency drafts the proposed rule language, outlining the:

1. Purpose;
2. Scope; and
3. Requirements of the rule.

Once the draft is prepared, the agency publishes a notice of its intent to create or amend a rule. This notice includes:

1. A summary of the proposed rule;
2. Its purpose; and
3. Information about how interested parties can participate in the rule-making process.

Agencies at the federal level must publish the notice of a proposed rule in the Federal Register, which is the official daily publication of rules, proposed rules, and notices of Federal agencies and organizations. The published notice must include:

1. The date the rule will come into effect;
2. The legal authority the agency has proposed the rule under; and
3. The substance of the rule.

Public Comment Period

After the notice is published, there is usually a designated period during which the public, stakeholders, and interested parties can provide comments on the proposed rule. This public comment period allows individuals, organizations, businesses, and other affected parties to:

1. Voice their concerns;
2. Offer suggestions; and/or
3. Express support for the proposed rule.

The public comment period is typically open from 30 to 60 days. At the close of a public commenting period, the agency may reopen it if insufficient comments are provided.

Public Hearings and Meetings

Some agencies hold public hearings or meetings to gather additional input on the proposed rule. These hearings provide an opportunity for stakeholders to present their views in person and engage in a direct dialogue with agency officials. This step can help the agency better understand the potential impacts of the rule and make informed decisions.

Review and Revisions

Based on the comments received during the public comment period and any input from public hearings, the agency reviews the feedback and may make revisions to the proposed rule. This process ensures that the concerns and perspectives of affected parties are considered and incorporated into the final rule to the extent possible.

Publication of Final Rule

Once the agency has reviewed the feedback and made any necessary revisions, it publishes the final version of the rule. This version includes the specific language of the rule and any changes or modifications that resulted from the public comment and revision process.

Effective Date and Implementation

The final rule usually includes an effective date, which is the date on which the rule officially takes effect and becomes enforceable. Depending on the nature of the rule, there might be a delay between its publication and the effective date to allow affected parties time to prepare for compliance.

Publication in Administrative Code

The final rule is typically published in the Federal Register for federal agencies and the state's administrative code or equivalent regulatory publication for state agencies. Publication ensures the rule is accessible to the public and becomes part of the official body of administrative regulations.

Monitoring and Enforcement

Once the rule is in effect, the agency monitors compliance and enforces the rule's requirements. Monitoring and enforcement can involve inspections, investigations, and actions to address violations.

The process described here is a general outline and can vary from state to state, as mentioned, but also vary depending on the specific agency and the nature of the rule being created or amended. Additionally, some rules might undergo more complex procedures, especially if they involve significant policy changes or have substantial impacts on stakeholders. It is always important to speak to an administrative law attorney in Texas when you have stakes or concerns about a specific rule being made.

Challenges to Administrative Agency Rulemaking in Texas

Administrative law involves a complex set of challenges in both the creation and enforcement of rules by administrative agencies. Awareness of these challenges can help organizations and individuals better understand the stakes and a given rule's impact on their personal and professional matters.

• Balancing Competing Interests. Administrative agencies often need to navigate between different stakeholders' interests. Balancing the needs of industry, the public, environmental concerns, and individual rights can be challenging, as agencies strive to create rules that are fair and effective.
• Transparency and Public Participation. Ensuring meaningful public participation and transparency in the rule-making process is essential. Agencies must make information accessible, provide adequate notice, and create opportunities for public input. Balancing the need for timely decision-making with thorough public engagement can be difficult.
• Capture and Regulatory Capture. Regulatory capture occurs when an agency becomes too influenced by the industries it regulates, often leading to rules that favor those industries over public interests. This challenge requires maintaining the agency's independence and preventing undue influence.
• Overreach and Underreach. Striking the right balance in rule-making is crucial. Overreach, where rules are overly strict or burdensome, can stifle economic growth and innovation. On the other hand, under-reach can lead to insufficient protection for public health, safety, and the environment.
• Complexity and Clarity. Rules must be clear and understandable to be effective. Complex or ambiguous rule language can lead to confusion among regulated parties, making compliance difficult and enforcement challenging.
• Rule Evasion and Avoidance. Regulated entities may attempt to find loopholes or creative interpretations of rules to avoid compliance. Agencies must anticipate these strategies and create rules that address potential evasion tactics.
• Lack of Resources. Administrative agencies often face resource limitations, including budget constraints and staffing shortages. These limitations can hinder effective rule enforcement and the ability to respond to violations promptly.
• Litigation and Legal Challenges. Rule-making decisions are subject to legal challenges. Interested parties may file lawsuits to challenge the validity of rules, alleging violations of administrative procedure or constitutional rights. These legal battles can delay implementation and create uncertainty.
• Rapid Technological Advancements. Technological advancements can outpace the development of regulations. Agencies must adapt quickly to emerging technologies to ensure that rules remain relevant and effective.
• Changing Political Landscape. Changes in political leadership or priorities can impact the direction of rule-making. Agencies may need to navigate shifting agendas while maintaining continuity in their regulatory frameworks.
• Inconsistent Enforcement. Ensuring consistent enforcement of rules across different regions or entities can be a challenge. Inconsistent enforcement can undermine the credibility of the regulatory framework and lead to perceptions of unfairness.
• Resource Allocation in Enforcement. Agencies must decide where to allocate limited enforcement resources. Decisions about which violations to prioritize can impact the overall effectiveness of enforcement efforts.
• Jurisdictional Cooperation. Some rules and violations extend beyond state or national borders. Coordination and cooperation with other jurisdictions are necessary to address these challenges effectively.
• Administrative Burden. Overly burdensome administrative requirements can discourage participation and compliance, especially for small businesses or individuals with limited resources.

Navigating these challenges requires a well-balanced approach that takes into account the agency's mission, the needs of stakeholders, legal considerations, and the broader public interest.

Contact an Administrative Law Attorney in East Texas Today

There is a lot at stake when federal and state agencies make rules that implement laws and policies that govern our lives. If you have questions or want to know more about the administrative rule-making process in Texas, our administrative lawyer at Lawhorn Law, PC can help. Call us at 903-999-1234 or fill out the online form today so that we can schedule a Consultation to discuss your specific questions.