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by Andy Karellas
Following the Rules A Guide to the Federal Regulator y Process
Did you read today’s issue of the Federal Register? Odds are that it’s not high on your reading list, but for federal policy, it’s an important resource to track the status of federal regulations and to better understand the potential impact for your state and district.
According to a 2015 report by the White House O!ce of Management and Budget, unfunded mandates and federal regulations cost states, cities and the general public between $57 billion and $85 billion each year. While state leaders are working to maintain a balanced budget in their respective states, they often can’t factor in the potential economic costs imposed by federal regulations.
The federal regulation—or rulemaking—process can be daunting and complicated for many state leaders. Who has the authority to write regulations? How can state leaders provide input? When does a rule go into e"ect? Who has oversight of regulations?
These are questions that have been raised throughout the course of our nation’s history. Over the years, Congress and presidents have
taken steps to improve the process by enacting policies focused on transparency, mandatory reporting and increased oversight.
Spurred by the New Deal legislation in the 1930s, Congress passed the Federal Register Act in 1935 that established a uniform system for handling and communicating regulations issued by agencies to the public. This is the origin of the current Federal Register, which is published daily and available online.
One of the most signi#cant policies enacted to shape the regulatory process was the Administrative Procedure Act of 1946, or the APA, which established the framework for the rulemaking process largely used today. It required agencies to publish a notice of the proposed rulemaking, also known as NPRM, to collect comments from the public and provide at least a 30-day waiting period before the rule can become e"ective.
For state and local governments, one of the most signi#cant policies enacted was the Unfunded Mandates Reform Act of 1995, or UMRA. The law was designed to limit the imposition of unfunded federal mandates on state, local and tribal governments by requiring regulatory agencies to
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assess the expenditures that may result from a proposed rule. In addition, UMRA requires federal agencies to provide speci!c analysis and increased consultations with states, local and tribal governments for rules estimated to cost more than $100 million per year, de!ned as major rules. It’s worth noting, however, that federal agencies regularly avoid those requirements and issue rules without providing a full impact analysis.
The O"ce of Information and Regulatory A#airs, or OIRA, within the White House O"ce of Management and Budget is the central authority responsible for reviewing and monitoring regulations issued by federal agencies to ensure they are in full compliance with the law.
“The O"ce of Information and Regulatory A#airs works with agencies to ensure that the regulations issued by the Obama administration protect the health and safety of the American people without imposing undue burdens,” said Administrator Howard Shelanski, who leads the o"ce and is appointed by the president. “State and local governments are a key partner in implementing many rules and o#er a unique voice in the regulatory process; we encourage agencies to bring this voice into the policy process as early as possible.”
Naturally, not all federal agencies process regulations in the same way—they each have unique personnel and statutory authority, which can further complicate the process.
Following is a general outline of the steps in the federal rulemaking process.
Navigating the Rulemaking Process How Rules are Proposed Federal agencies get their authority to issue regulations from laws enacted by Congress or delegated from an insisting presidential authority. Congress may pass laws that speci!cally direct an agency to solve a particular issue or accomplish an initiative.
To help the public understand when an agency plans to issue proposed rules, each agency is required to publish a regulatory plan, often referred to as the “Uni!ed Agenda.” These plans are published on the Federal Register and the Federal Digital system, www.FDsys.gov.
There are occurrences when an agency may take preliminary steps and issue an “Advance Notice of Proposed Rulemaking” to receive more input from the public to shape the proposed rule and to analyze its potential impact. Agencies may convene outreach events with the public and provide opportunities to comment on the preliminary rules.
In addition, for rules that are assessed to cost more than $100 million, the agency is required to further analyze the impact on state, local and tribal governments, while also reviewing the potential a#ects to small businesses, as mandated by the Regulatory Flexibility Act.
Notice of Proposed Rule and Comment Period The proposed rule, or Notice of Proposed Rulemaking—or NPRM—is the o"cial document that outlines an agency’s proposed rule to address a particular problem or achieve a speci!c goal. The proposed rule is published in the Federal Register and online at www.regulations. gov and includes a summary, background, compliance statements and instructions on how to submit comments.
Federal agencies typically establish a comment period ranging from 30 to 180 days, depending on the scope of the proposed rule. It is not uncommon for federal agencies to extend the comment period, however, if they require more time to adequately assess the concerns from the public and members of Congress.
During the comment period, many agencies hold public hearings, roundtable meetings, conference calls, webinars and other outreach events to gather input. The federal agency then reviews the comments, which are public, to assess any changes. If there are major changes, the agency may publish a supplemental proposed rule to implement the changes. Federal agencies also may consult with other agencies that share oversight responsibilities for the issue.
Finally, before issuing a !nal rule, especially for major rules, OIRA will conduct a !nal review and assessment of the proposed rule to ensure they are in compliance with the required statutes.
Issuing the Final Rule and Oversight Similar to the proposed rule, the !nal rule will include a full summary, explanation of the rule, regulatory goals and the date on which the rule goes into e#ect. Generally, rules go into e#ect no less than 30 days following publication in the Federal Register, and major rules are required to have a 60-day waiting period.
During the waiting period, agencies may provide further guidance to assist the public in complying with the new regulation. This is also the opportunity for compliance o"cials, Congress and the public to review the !nal rule. Congress has the authority to void a rule if they pass a resolution of disapproval and the president signs it, however, this has only happened once since 1996.
“State and local governments are a key partner in implementing many rules and offer a unique voice in the regulatory process; we encourage agencies to bring this voice into the policy process as early as possible.” » Howard Shelanski, administrator of the O"ce of Information and Regulatory A#airs, O"ce of Management and Budget
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How a Rule is Proposed
Notice of Proposed Rule and Comment Period
Issuing the Final Rule and Oversight
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3 Congress enacts a law that speci!cally directs an agency to solve an issue or accomplish an initiative.
The Notice of Proposed Rulemaking—or NPRM—is published in the Federal Register (and www.regulations.gov).
Public comment period begins, lasting 30–180 days. Agencies may hold public hearings, roundtable meetings, conference calls, webinars and other outreach events to gather input, and public comments also may be submitted online.
Publication and promulgation of the !nal rule in the Federal Register. Generally, a rule goes into e"ect no less than 30 days after it is published in the Federal Register, and major rules are required to have a 60-day waiting period.
O#ce of Information and Regulatory A"airs conducts a !nal review and assessment of the proposed rule to ensure compliance with the required statutes.
Agency publishes a regulatory plan, or “Uni!ed Agenda,” in the Federal Register and the Federal Digital system, www.FDsys.gov.
For rules that are assessed to cost more than $100 million, an assessment of a rule’s impact on state, local and tribal governments is conducted.
Navigating the Rulemaking Process Sometimes referred to as administrative law, federal rules or regulations provide the technical, operational or legal details required to implement a federal law. These mandatory requirements may apply to individuals, businesses, nonpro!t organizations, or state or local governments.
Knowing how the federal regulations are created is the !rst step in understanding how to participate in the process. Here is a general framework of the federal rulemaking process … and how to navigate it e"ectively.
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Best Practices for Participating in the Rulemaking Process
Monitor and read the Federal Register. You can set alerts to get noti!ed of proposed rules that might a"ect your state and local constituents.
Submit comments on proposed rules. Communicating your viewpoints remains the key way to ensure your concerns are heard by federal agencies. Public comments can be submitted and are made public on regulations.gov.
Request a meeting with the O!ce of Information and Regulatory A"airs and the federal agency. There is no harm in requesting a meeting directly with OIRA and the key federal agency to discuss the proposed rule. Interested parties can request a meeting with the administrator of OIRA by emailing [email protected] or calling (202)395-6880.
Join an agency’s federal advisory committee. There are approximately 1,000 advisory committees with more than 60,000 members who advise the president and federal agencies on policy initiatives, including federal regulations. Joining an agency’s federal advisory committee is a great way to stay connected and informed on the latest policy initiatives being developed at the federal level.
Introduce yourself to the federal agency’s intergovernmental a"airs, or IGA, o!ce. Within each federal agency, an intergovernmental a"airs o#ce serves as the liaison for state, local and tribal governments. IGA sta" within an agency can be a key resource to help you navigate the particular federal agency.
Communicate with your local members of Congress. Congress plays an important role in monitoring and overseeing federal regulations. It’s important that state policymakers communicate concerns to congressional leaders in an e"ort to identify opportunities to coordinate e"orts related to federal regulation between state and federal governments.
As part of our ongoing e"orts to advance the role of states in our federal system, The Council of State Governments’ Washington, D.C. o#ce works to identify opportunities to improve the federal regulatory process. The CSG federal a"airs team works closely with Congress and executive branch leaders to ensure the federal government fully analyzes and considers the costs of regulations on state and local governments before issuing a !nal rule, and to identify real and concrete ways to improve the state-federal regulatory process.
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