Breakdown of the Regulatory Rulemaking Process

Before this process begins, the agency must determine that a new rule is necessary. In short, an event initiates the rulemaking process. As mentioned, this can stem from a Congressional mandate, from the president (if it is already within the president’s authority to make such a rule), or from the agency itself (if it is within the agency’s authority).

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In the case of the latter, factors such as the development of new technology, petitions from interest groups, recommendations from Congress or federal advisory committees, or if an event or accident occurred, can impact the agency’s rulemaking priorities.

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Agencies may gather information and confer with experts before putting forward a proposed rule. At this stage, an “Advance Notice of Proposed Rulemaking” may be published in the Federal Register which gives the American people the opportunity to provide comments on the draft of the proposed rule. Anyone can submit suggestions that will improve the draft proposal, or they can provide reasons that the rule should not be issued.

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Once the proposed rule is finalized, and before it is made public in the Federal Register, the president may review the rule. The president is aided by the Office of Information and Regulatory Affairs (OIRA) – which falls under the Office of Management and Budget. OIRA must review proposed a rule that is deemed “significant” – which means the rule will have a substantial economic impact, will address a major policy issue, or conflict with the actions of another agency – before publication.

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In the case of a proposed “significant” rule, the agency will be required to put together analyses of the estimated costs and benefits of the proposal. For example, these costs can include the paperwork burden on the public, economic costs, or the rule’s impact on small businesses, families, federalism, or state, local, and tribal governments. If the costs do not outweigh the benefits, and the proposed rule is in line with the president’s agenda, a Notice of Proposed Rulemaking (NPRM), the official document announcing the proposed rule, is published in the Federal Register.

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The NPRM, or the proposed rule, outlines the issues, possible actions, and how to submit comments. It also provides supplementary information, data, or evidence to support the proposed rule and identifies the legal authority the agency will use to issue the rule.

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At this stage, the American people have the opportunity to provide comments, criticisms, and suggestions to the proposed rule. This is done most efficiently online. Typically, the comment periods are open from 30 to 60 days, but in some cases can be shorter or longer depending on the proposed rule in question. Additionally, some agencies gather comments from Americans in public hearings or public meetings. If new issues are raised during this comment period, the agency may choose to update and reissue new proposed rules to reflect this input.

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After this comment period closes, an agency may decide to have a reply period, which encourages more dialogue by giving people the chance to respond to previous comments.

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Based on what was learned during the notice-and-comment period, and in the lead-up to issuing the proposed rule, if the agency determines the proposed rule is still the best approach to solve the issue or problem at hand, it will proceed toward issuing a final rule. The comment period could also lead to the changing or clarifying of the proposed rule. If this is not the case, the proposed rule may be discarded, or, as previously mentioned, supplementary proposed rules may be put forward.

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At this point, the president and OIRA will again review “significant” final rules before they are published. OIRA sends the rules to other agencies that have a stake in the federal law that the rule will impact. In some cases, agency review is mandatory.

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Similar to the proposed rule, a final rule is published in the Federal Register and must indicate when it goes into effect, the agency’s legal authority for doing so, the purpose of the rule, the facts and data that were used in the creation of the rule, responses to criticisms that were raised, and why alternative options were not selected. Also, it must include the full regulatory text and instructions for updating the Code of Federal Regulations.

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Before a rule goes into effect, Congress must first review it. Congress can pass a resolution of disapproval, which the president can then sign or veto. If the president vetoes the resolution, Congress can override it with a 2/3 vote, thereby making the new rule void.

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Congress does not often kill rules in this manner, but rather, most often chooses to exercise its oversight through public hearings, through new legislation, or using its power of the purse.

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After receiving the green light from Congress, the final rule typically goes into effect no less than 30 days after it is published in the Federal Register. However, this is not always the case. With “good cause” a rule can be made effective sooner, and in other cases of significant rules, the effective date will be delayed for at least 60 days.

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When a new president takes office, they can choose to keep the rules from the previous administration in place, update them, or eliminate them. The rulemaking process is ongoing.