Ever wondered where federal policies and rules come from and how they’re made? You can rest assured that it’s a lengthy and tedious procedure. When creating new regulations and policies, federal agencies follow a regimented and thorough rulemaking process.
This procedure ensures that transparency is maintained at every step of the way, and that members of the public are kept in the loop so they can provide input, give feedback and share how they feel about the content of the rules.
To gain a better understanding regarding the process of federal rulemaking, let’s go over each step one by one.
Passage Of Enabling Legislation
Before passing any new rule or policy, a federal agency needs to have the statutory authority to go ahead with it. There are certain laws passed by the U.S Congress that direct the federal agency to pass rules and regulations. These laws provide the agency with a general direction; however, the details are most often left to public administrators.
Apart from trying their best to operate within the enabling legislation, federal agencies are required to fully abide by the Administrative Procedures Act—which is the act governing federal rulemaking.
While it may be uncomfortable to watch bureaucrats writing rules and regulations—it may even seem like a separation of the powers solely belonging to the American government—federal agencies are free to enact these rules as long as they lie within the statutory Congress.
One advantage of these administrative laws is that they offer more room for the feelings and thoughts of regular citizens and allow them to have a greater influence on the society they live in. This is because any rules or regulations passed directly involve and affect regular citizens, so it makes sense to have them involved from the get-go.
Some of the opportunities offered to citizens include proposing a suitable rule language and giving feedback regarding the ones proposed by the agencies. This involvement also increases public satisfaction and produces better outcomes than a policy that was put together by Congress alone.
As with all agencies and rulemaking procedures, federal agencies are required to document the entire process. These documents make it easier to notify the public on any activity that may be coming up.
Every year, agencies put together a Regulatory Plan, as well as an Agenda of Regulatory and Deregulatory Activities, which together are called the Unified Agenda.
Getting The Stakeholders Involved
Regulations take time, effort, and public opinion to make, and even after the arduous process, they run the risk of being challenged in court. To mitigate this risk, federal agencies try to get the stakeholders involved in the process as soon as possible.
There are two ways to go about doing this; the formal method, which includes agencies posting an Advance Notice of Proposed Rulemaking in the Federal Register, and the informal way of engaging stakeholders by contacting the ones they know, and accepting feedback before and during the drafting process.
A written proposal is drafted by the federal employees after soliciting input and feedback from the stakeholders. Once drafted, the rules are first run by all relevant personnel within the agency management; a Notice of Proposed Rulemaking is submitted to the Federal Register.
This notice is comprised of several parts:
Summary: A concise and clear statement that describes the problem the proposed rule is aimed toward addressing and how the proposed rule is intended to solve it.
Dates: The date of the closing of public comments.
Addresses: Methods through which the public or a group of citizens may provide comments and feedback.
Supplementary information: An argument in favor of the proposed rules, discussing their advantages, key data regarding the rules, an explanation of the choices made regarding the public policy, and citations of legal authorities.
The Opening And Closing Of Public Comments
This period allows citizens and other interested parties to voice their feelings and opinions about the proposed rule. In an ideal situation, relevant and interested groups of people would have been involved and engaged during the process by the agencies themselves; however, sometimes even the best possible efforts can fall short. This is why public comments are so critical.
There are typically around 30–60 days between the opening and closing of public comments; however, in some cases, this period can also be extended to as long as 180 days. In case the proposed rule is complex, this period can be extended for an even longer duration.
Many agencies prefer online portals to receive public comments, as this helps them keep track of the general public sentiments. In the case of receiving a significant amount of backlash of negative comments regarding a rule, the agency may need to revise and re-propose the rules.
Passing The Final Rule
Once a rule has gone through the entire procedure and received positive feedback from the stakeholders and the public, it is ready to be published. The final rule published in the Federal register is similar to the Notice of Proposed Rulemaking.
The agency is also responsible for responding to major criticisms in the Supplementary Information section to help the public understand the rule and the reasons behind it better.
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