As the "drop dead date" for Obama administration regulations draws near, we are expecting a flood of "midnight regulations." Regulatory agencies, in an eleventh-hour attempt to pass new rules before the start of the next administration, will make a huge push in ushering in new proposals. In preparation for this regulatory outburst, we have provided a brief guide explaining how proposed rules become regulations.
What is a Regulation?: A Guide to the Rulemaking Process
How does rulemaking begin?
All proposed rules are filed in the Federal Register. This includes a document evaluating the problem the regulation would solve. Agencies publish a bi-yearly "Regulatory Plan" that should announce future rule-making. But many proposed rules are unexpected or reactionary.
Rules are proposed not only to solve problems but also to shape public opinion or to control business activities.
What is a proposed rule?
A proposed rule is submitted to the Federal Register for public comment and possibly Executive Branch review before it becomes a regulation.
Rules are not subject to Congressional review except for in extreme cases. Some say this gives regulatory agencies more power than Congress.
Rules are not laws. The power to issue regulations is a delegated authority. The proposal of a rule is intended to increase the efficiency of a law. But our laws do not stop crime. This is not how our criminal justice system works.
What is the public comment period?
During the comment period, anyone can comment on an "Advance Notice of Proposed Rulemaking." The comment period is open for at least 30 and sometimes over 180 days. Most comment periods last 60 days.
Commenting does not work the same as voting. The process is not a ballot initiative. It is an evaluation of public opinion, new data, persuasive arguments, questions, and criticism.
Public comments can shape a rule and sometimes even "block" a final rule. Public comments can really impact the rule-making process.
Should I submit a comment?
Every comment helps combat the epidemic of regulatory overreach. The overreach of government regulatory agencies, combined with their vast powers of discretion, can take away our right to property, harm our small businesses, and endanger our individual liberties.
One last point to consider: the dangers of regulatory over-reach go far beyond the belittlement of our Constitutionally guaranteed rights to life and property. Regulatory overreach severely harms our nations economy.
What happens to a final rule?
In the last step of the rulemaking process, agencies publish changes to the Code of Federal Regulations (CFR) and publish the final rule in the Federal Register.
After publication, a new regulation enters a phase of compliance and review. This is when agencies enforcing a rule issue "guidance documents" to those who will be affected.