Federal Rulemaking

Congress and presidents have worked to enhance oversight of the federal rulemaking process to promote greater transparency and public participation, and to reduce regulatory burden. For example, recent administrations have directed agencies to identify rules that are obsolete or in need of revision. More recently, President Biden issued an Executive Order directing the Office of Management and Budget (OMB) to recommend ways to improve and modernize the regulatory review process.

The process for creating federal regulations generally has three main phases: initiating rulemaking actions, developing proposed rules, and developing final rules. In practice, however, this process is often complex, requiring regulatory analysis, internal and interagency reviews, and opportunities for public comments.

Transparency of the regulatory process is important—it helps the public better understand the rulemaking process and aids in congressional oversight. Federal agencies need to ensure that they also have effective processes to develop, review, disseminate, and evaluate their regulations, related guidance, and user fees.

There are a number of ways to improve the transparency and effectiveness of the federal rulemaking process.

• Federal agencies can design their regulations in many ways. For example, some regulatory designs establish an outcome but allow flexibility in how to achieve it, while others are more prescriptive and require certain technologies or actions. Somekey considerationsfor regulatory design and enforcement can help guide agencies in developing rules to achieve intended policy outcomes.
• Federal agencies may issue more regulations shortly before a president leaves office—i.e., "midnight rulemaking." A review of the Clinton, Bush, Obama, and Trump administrations found that, in the last 120 days of these administrations, agencies published about 2.5 times as many regulations and were less likely to provide Congress the required time to review a regulation.
• Federal agencies are usually required to publish a proposed rule in the Federal Register and solicit public comments before finalizing regulations. However, there are exceptions to expedite rulemaking in certain circumstances, such as for an emergency or other “good cause.” Although agencies often request public comments on rules they’ve expedited, they do not always respond to these comments. Further, agencies often seek electronic comments on Regulations.gov, although experts have criticized this website’s ability to ensure the authenticity of the comments.
• Each year, nearly every adult and business provide some form of information to a federal agency—such as tax forms or benefits applications. Agencies estimate the time and resources it takes to provide this information to help manage the paperwork burden placed on the public. The law requires agencies to solicit public input on information collections to validate their estimates. But while agencies often consulted the public via stakeholder and board meetings, they often did not explicitly ask for input on estimates.
• OMB reviews rules considered “significant” under criteria established by executive order. Rules designated as significant require additional interagency reviews and an assessment of the rule’s costs and benefits. However, agencies do not always explain why a rule has been designated significant.

Recent Reports

Federal Regulation: Selected Emerging Technologies Highlight the Need for Legislative Analysis and Enhanced Coordination