Every regulation that is passed in the US has to go through a proper rule-making process. The US Federal Government rule-making process is a lengthy process, and only some of them make it all the way through all 9 steps; some just stop in the middle. US Federal agencies like DHS are required to publish their priorities in the Unified Agenda, also called the Regulatory Agenda, on the rules that the agency plans to implement with an approximate timeline.
You can check the most recent Spring 2021 Regulatory Agenda on H1Bs, F1, H4 issues. In this article, we will explain the federal rule-making process in layman terms for easy understanding. Office of Budget and Management (OMB) plays a critical role in the rule-making process.
Step 1: Initiating Events
Rulemaking takes origin based on one of these: Federal agencies’ priorities, plans, scientific data, accidents, technologies, etc.; or based on statutory mandates, required reviews, lawsuits, petitions, OMB Prompt letters or recommendations from other agencies, states, federal advisory committees, etc.
Step 2: Determination Where a Rule is Needed
If the federal agency believes that a rule is needed, as per the Administrative procedure act for public benefit, federal agencies are required to publish information regarding rulemaking in Federal Register.
Step 3: Preparation of Proposed Rule
During this step, the agency would work on the rule, add, change or remove regulatory text as needed and may contain a request for public comments. There may be an optional advance notice to proposed rulemaking as needed. Also, if the rule has a $100 million USD annual impact on economy, then economic impact analysis is required.
If the rule falls under aspects like military, foreign affairs, public property, non-significant rules, emergency, etc. they may skip steps three to six. Otherwise, in general, most of the rules would go through steps from three to six.
Step 4: OMB Review of Proposed Rule
If the rule is categorized as “significant”, as per executive order, the Office of Management and Budget(OMB) would need to review the proposed rule before publication to the federal register. As per EO 12866, this could take anywhere from a few days to 90 days.
Step 5: Publication of Proposed Rule
After OMB reviews the rule, it is published in the federal register. The publication of the rule is mandatory as per the Administrative procedural act provision.
Step 6: Public Comments
In this step, the rulemaking agency would provide the public the opportunity to submit written comments. The agency needs to provide an option to provide comments via electronic means. The comment period can vary from 30 days to 60 days. For significant rules, it would be 60 days and for a complex rule-making process, agencies may provide longer periods such as 180 days or more. The public may request more time to submit comments and also agencies may consider late comments if their schedule permits. There may be a public hearing as well sometimes.
Step 7: Preparation of Final Rule, Interim Final Rule, Or Direct Final Rule
In this stage, public comments are reviewed and considered for preparing the final rule. The final rulemaking process does not work like a ballot, where the final rule is based on a number of comments that are in support of the rule that is in opposition. The final rule published needs to consider user comments and solve the problem and goals of the rule. The proposed rule text can be changed, modified, deleted as it goes to the final rule. Also, if the rule has $100 million USD annual impact to the economy, then economic impact analysis is required.
Interim Final Rule : Sometimes, depending on the kind of rule based on aspects like unnecessary burden, impracticable or contrary to public interest Interim Final Rule is published without going through proposed rule stage( Step 5). In such cases public comments are allowed after the rule is published and agency can revise rule based on public comments as needed.
Direct Final Rule : This is similar to the Interim Final Rule, but there is no public comment period after publication. It is based on the grounds that these kinds of rules are uncontroversial.
Step 8: OMB Review of Final Rule, Interim Final Rule, or Direct Final Rule
In this step, OMB reviews all the rules and provides feedback for rules that are categorized as “significant”
Step 9: Publication of Final Rule, Interim Final Rule, or Direct Final Rule
The final rule is published in Federal register and the agency has to submit most of these final rules, interim final rules and direct final rules along with all supporting info to both houses of US Congress and General accounting office before the effective date. The reason for the delayed effective date is to consider any issues raised by congress or president’s office.
Also, major rules are subject to a delayed effective date. These are also published in Code of Federal Regulations.
Reg Map – Informal Rulemaking One Pager
As per EO 12988, the rule-making documents should be written in clear language to help reduce litigation. There are many subtle things that are part of the process, below is a simplistic view for anyone to understand the rule making process. There are two versions representing the same as shown below
Latest Version of Regulation-Making Process (Reg Map – Informal Rulemaking)
Below is the screenshot of the single-page version of the latest version of the Rule Making Process. Check the official PDF presentation of the same.
Below is the previous version of the Reg Map, that outlines the overall steps in the process. The actual PDF copy of Rule Making Process is at Reginfo.gov – RegMap. Both the above and below are pretty much similar, but the above one is the latest version.
You may also read Guide to Rulemaking Process on FederalRegister.gov . Also, the rule making dashboard gives you an overview of current status of rules in progress. What do you think of the Rule Making process in USA ?