How a Regulation Becomes a Rule
The purpose of any rule is to enforce an already enacted piece of legislation by the U.S. Congress. All federal agencies are given the power to put forth regulations by Congress, who enables such powers upon creation of the agency. In certain instances, Congress will create the agency for the sole purpose of imposing regulations on certain sectors of society.
Decision to Create Regulation
The first step federal agencies typically take in creating regulations is to prioritize which areas of their jurisdiction most require regulation. They are typically careful not to step outside their legal boundaries in terms of what/whom they can impose a regulation. In some instances, Congress may pass a law that directly assigns regulation to be implemented by a certain agency.
Before an agency moves ahead with attempting to implement a regulation, they consider certain issues: whether their data is the most up-to-date, potential societal repercussions, third-party (other agencies) recommendations and petitions and lawsuits that might affect the proposed regulation.
Once this review has been completed, transparency must be established; the public gains knowledge of proposed regulations through the “Unified Agenda” a bi-annual document released online to which everyone has access. The Unified Agenda details proposed regulations to be considered in the coming half-year. All proposed regulations are available for public comment as required by law, typically through regulations.gov. Finally, the president is also given the opportunity to review the proposal thoroughly, with detailed financial implications mandatory from said agency.
Creation of the Final Rule
Once the public has had a chance to review the document via the Federal Register, it is up to the agency not to base changes on what the people have said, but rather on studies and societal needs. In this case, the president, in conjunction with the Office of Information and Regulatory Affairs, has the opportunity to review and make changes to the proposal before the final rule is drafted. Changes like this only take place when there are significant economic and societal shifts at stake. This will likely prompt the agency to consult with other agencies, which in some cases is made mandatory.
Final Rule Structure
The structure of the final rule is similar every time and by every agency for ease of literacy purposes. The first section is a summary, detailing the socio-economic factors that were considered during creation. Following that, every final rule must contain a “basis and purpose,” so that everyone has a clear idea of what the rule is and why it is being implemented. In addition, the regulation must have an “effective date” which provides everyone with the start date. The regulation is then analyzed by a legal team to ensure its viability and that the agency has not stepped outside its legal boundaries.
The final rule is then re-published in the Federal Register. After publication, the rule can only take effect after 30 days. Once this has been done, the last step is the agency’s responsibility to make changes to the Code of Federal Regulations (CFR). Although the publishing phase is complete, the regulatory process of the rule never ceases because of changes and studies that must be done to keep adapting to the effects of the rule. Agencies are obligated to release guidelines to the public via the Federal Register, and the rule may be put under review if there is enough negative feedback from the public.