Calling this article “for dummies” is tongue-in-cheek, because the inner workings of government and the development of public policy are shrouded in mystery for most people. However this mystery does not persist because the process is too difficult for the average person to understand (my rant about how foolish it is that this part of the policy process is not taught in middle schools or high schools is for another day). In fact, the beauty of the rulemaking process is that it is designed to engage those outside the government world.
After getting personally involved in the rulemaking process to determine energy efficiency standards for various electronic products, I learned what occurred behind the curtains for these federal energy regulations– just how involved the process of determining these regulations were, how many different parties came into play, and how backed in data, testing, analysis, and public feedback these final regulations were. Many resources exist that explain the whole rulemaking process in more detail and completeness than I will, and a few of those resources can be found at the end of this post, but as someone who spent several years on the inside I will provide a brief overview of the process and a few insights I picked up along the way.
What is a Rulemaking?
A rulemaking is the process that is mandated for creating federal regulations, including the analysis of the effects of a potential regulation and the solicitation of public feedback along the way. Rather than having lawmakers themselves create the specific regulations for certain topics, Congress instead authorizes federal agencies to dive into the details and research, analyze, and dictate the final details of those rules. The regulations produced at the end of a rulemaking have all the effect of a law, and all existing federal regulations are listed in the Code of Federal Regulations (CFR). For anyone looking to find out the particulars of any federal regulation, the CFR is the repository to reference. Federal regulations cover a broad range of topics—from energy to telecommunications to patents and more, with these topics being listed in the CFR’s Table of Contents.
The Beginning of the Rulemaking Process
While the federal agencies, such as the Department of Energy (DOE) or the Environmental Protection Agency (EPA), are the main entities that control the rulemaking process, no regulations can be issued without proper statutory authority being first granted. Even though the regulations posted in the Federal Register (FR) are attached to Executive Branch agencies, the authority to issue these regulations comes from Congress. Each regulation proposed and ultimately issued has an authority section somewhere in the beginning so the reader can trace its history and why it was initiated.
The Congressional authority for a rulemaking can either come from the law that first created the federal agency and dictated which areas it had jurisdiction to regulate (such as the above right, where EPA references the authority to regulate air pollutants from the general powers granted to EPA by Congress), or Congress can pass a law that specifically directs an existing agency to go through the rulemaking process and set regulations for a particular topic of interest (such as the above left, where DOE references the authority from a law that Congress passed instructing DOE to establish energy conservation standards for certain appliances by a given date).
Stepping Through the Rulemaking Process
Make no mistake about it—the rulemaking process for federal regulations is very long and in depth. Nothing is done haphazardly, with the people behind it conducting extremely extensive factfinding and analysis. The amount of cumulative effort that goes into regulating, for example, the energy efficiency of a lightbulb or ceiling fan is mindboggling. While the process behind each rulemaking could differ depending on the regulation’s history, complexity, urgency, importance, or politics, the generally expected process is outlined as follows:
Notice of Proposed Rulemaking
The Notice of Proposed Rulemaking (abbreviated as either NOPR or NPRM) is often the first official document published that announces the beginning of the rulemaking process. Included in the NOPR is a preamble detailing the goal of the rulemaking, the authority granting the agency the power, and the relevant dates and contact information for the rulemaking; the supplemental information section that discusses the initial framework, background data, preliminary analysis, and merits of the proposal; and a preview of what the regulation language would look like in the CFR. The NOPR is not the final regulation, but rather serves to inform the public about the initial findings of the analysis based on the preliminary information collected and provide the public stakeholders the opportunity to provide feedback on those findings (more on that later).
There do exist a couple of exceptions where the NOPR won’t be the first notice from an agency regarding the rulemaking process:
- An agency might receive a petition for rulemaking from an interest group or member of the public, making the case for why a specific regulation is needed. The agency might then publish that petition in the FR to solicit comments on whether a rulemaking on that topic should be pursued.
- Alternatively, an agency may, for particularly complex or critical rulemaking, choose to publish a preliminary document in the FR, such as an Advanced Notice of Proposed Rulemaking (ANOPR) or a Framework Document. The goal of publishing either of these documents would be to solicit public feedback earlier on in the information gathering and analysis to ensure the initial framework set up for analysis is headed in the right direction. Neither of these documents are mandatory, but when a potential regulation might have additional complications then the use of these early publications ensure those issues can be addressed thoroughly.
- Lastly, there are times where an agency initiates a negotiated rulemaking. When this happens, the agency will invite the stakeholders and major players to meetings to try and reach an agreement on the terms of a proposed rule. These meetings will include representatives from multiple viewpoints on the topic, and if a consensus can be reached then the agency may endorse those terms as a basis for the proposed rule.
After a NOPR (or earlier preliminary document) is published in the FR, the agency will request comments from the public during an official comment period. These comments can be either in agreement or in opposition, and they can pertain to the rulemaking generally or to a specific part of the analysis. The typical comment period will last 30 to 60 days, though it can vary. More complex rules might have longer comment periods to allow stakeholders enough time to digest and respond to the proposed rulemaking, or the public can even request the comment period be extended if there are extenuating circumstances (though if the agency does not find there to be good reason to do so, they do not have to grant this request). Additionally, if the agency finds that comments received were not of the type and quality needed to move forward with the next stage of the analysis, the comment period can be re-opened. The agency might also find that the initial round of comments brought up new and complicated issues that requires further public comment. In these instances, the agency can open a second comment period to allow reply comments on the newly arisen issues, or alternatively the agency might publish a second NOPR instead of moving onto the Final Rule.
What is most important to remember about the comment period is that this is one of the best opportunities for you, as either a private citizen or a member of an organization, to directly impact and influence the regulations that will affect you.
After the completion of the NOPR, the agency will ultimately publish a Final Rule in the FR. The format of the Final Rule will look very similar to that of the NOPR, with the same general sections and analyses. However, the ‘Dates’ section will no longer dictate when the comment period will close—rather it will indicate the date that the new regulation is effective (generally within 30 days of publication). The Final Rule now represents the new law of the land and will include a section of what changes need to be made to the CFR (as well as the effective date)—these changes can be a whole new section to the CFR, removing existing sections, or piece-by-piece edits to CFR text. This changing of the CFR text is the final step in the rulemaking process.
In accordance with the Congressional Review Act, all Final Rules are subsequently reviewed by Congress. If both the House and Senate pass a resolution of disapproval of a regulation within 60 days (without Presidential veto), the Final Rule becomes void and cannot be republished in its existing state. Such overturning of Final Rules is typically uncommon, however, as Congress only successfully exerted this power one time from its inception in 1996 through 2016 (though the unique political climate in 2017 led to the Congressional Review Act to be successfully invoked 14 times, leading some to debate the merits of retaining this Congressional power and a bill proposed in the Senate to repeal it).
Despite the Congressional Review Act, the role of Congress in the rulemaking process is typically to simply grant the regulatory powers to the agencies, leaving the details and analysis to the experts employed by the agencies. It would be naïve to think, however, that the final direction ultimately chosen at the end of a rulemaking was not influenced by politics. After analyzing and presenting all the facts on the table, the final direction resides with the priorities and policy preferences of the leaders of the agency and, by extension, the Executive Branch.
How you can participate
As stated earlier, one of the key components of a federal regulation that separates it from a law is the built-in mechanism to solicit feedback from the public. There are a few different ways this feedback is collected, each with their own advantages.
As mentioned earlier, after each NOPR, private citizens and interest groups alike are engaged to comment on the proposed rule, enabling them to directly affect the final regulations in a way not typical of all public policy. There are several primary goals of collecting these public comments:
- They give citizens, interest groups, companies, and any other affected group the opportunity voice their position on the potential rule and how it might affect them by providing information the agency might not have been able to gather on its own;
- They help the agency to improve the final regulations by considering this previously undiscovered information or vetting the information it did gather; and
- They reduce the likelihood that stakeholders find issue with the regulations and bring those complaints to the courts.
To accomplish these goals, the continued engagement (both formal and informal) of the public is critical. Those who are submitting comments, though, should take note that the process dictated by what position receives the greatest volume of comments. Rather, the content of each comment is added into the public record of the rulemaking along with the data, expert opinions, and other facts. The comments are your opportunity to convince the agency that there is additional data to consider or new arguments to address. These comments can shift the direction of the rulemaking if they are factual, demonstrable, and convincing, as all comments made on the public record are then mentioned and specifically addressed in the subsequent publication stage—either agreeing with them or presenting reason to refute them. Later, I plan on writing a blog post that will give some tips and tricks on how to make public comments as effective as possible at influencing the rulemaking (update: read blog post on how to make effective public comments here).
While preparing any of the public notices, the federal analysts might contact stakeholders (interest groups, affected companies, etc.) to be interviewed about the facts behind the regulation. Engaging in these conversations before the publication of the NOPR and Final Rule allows for a constructive and in-depth back-and-forth where the stakeholder can work to convince the analysts about their point-of-view. When these interviews occur, they are often the best opportunity for a stakeholder to convey their arguments and influence the rulemaking.
Another way these key stakeholders are engaged by the rulemaking process is through public hearings. These hearings often occur after each NOPR or preliminary notice, though they are only required by certain agencies. The agency will specifically invite the key stakeholders to attend, though they are open to the public for anyone with an interest in the rulemaking. Public hearings are another opportunity where back-and-forth discussions can occur, both for the agency to explain the proposal and answer questions about the analysis that has been put forth and for the stakeholders to argue their cases in person. The other unique aspect of these public meetings is they allow for an on-the-record dialogue between the different stakeholders themselves, should there be disagreement among them.
If you want to keep up with potential new rulemakings that are of interest to you, the FR allows you to subscribe to customized daily updates. You can have all FR notices from a specific agency emailed to you every day they become available, or you can even subscribe based on keywords—regardless of which agency it comes from. To subscribe, create an account on federalregister.gov and then add subscriptions at this link.
Additionally, at least once a year every agency publishes a regulatory agenda. This agenda will outline the planned regulatory and deregulatory actions for the coming season or year. If there is a particular agency whose regulations are of interest to you, follow this link to read the list of current regulatory items on the agenda.
Sources and Additional Reading:
Flowchart of the Federal Rulemaking Process- Citizen.org (this resource is more in depth than the title ‘flowchart’ will make you think—but a great, thorough resource)
From two specific federal agencies of interest to the topics in this blog:
Federal Register Notice: Costs and Benefits of Net Energy Metering: Request for Information
Article updated on October 10, 2017
About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.