How a Federal Rule Is Made: The Rulemaking Process | Rulemaking 101

Transcript

Narrated by an AI presenter with a synthetic voice. Check the official documents for current dates and details.

Welcome back to Federal Register Daily, the show where we turn the federal rulebook into plain English. I'm your host, and today we're doing something special. We're walking you through the entire life of a federal rule, from idea to law, using a real VA rule about digestive system disability ratings as our case study. You'll learn where the public gets to weigh in, what happens to your comments, and how Congress gets a final check on big rules. If you're new here, hit subscribe so you never miss an episode. Let's get into it.

Most federal rules start the same way, with a proposed rule. Under the law that governs rulemaking, 5 U.S. Code Section 553, agencies generally have to tell the public what they're planning before it becomes final. The statute says, quote, General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named. That notice has to include the time, place, and nature of the proceedings, the legal authority behind the rule, and the terms or a summary of what's being proposed. This is step one, and it's your first chance to find out a rule is coming. The Federal Register comes out every business day, and anyone can read it for free. Think of this notice as the government's rough draft, posted publicly so you can react before it's locked in.

Quick recap: in the standard process, the agency first publishes a proposed rule in the Federal Register explaining what it wants to do and why.

Let's see this in action. In January 2022, the Department of Veterans Affairs published a proposed rule to update its Schedule for Rating Disabilities for the digestive system. As VA put it, quote, These changes add medical conditions not currently in the rating schedule, revise the rating criteria to reflect medical advances, clarify existing rating criteria, and update medical terminology. VA also said it considered the most up-to-date medical knowledge and clinical practice of gastroenterology. VA set a deadline: comments were due by March 14, 2022. That's the window where veterans, advocacy groups, doctors, and anyone else could go to regulations.gov and tell VA what they thought. Regulations.gov lists 22 public comments on this proposal. And as we'll see next, comments can actually change the final rule.

Quick recap: VA proposed updated digestive system disability ratings in January 2022 and gave the public until March 2022 to comment, and Regulations.gov lists 22 comments.

So what happens to those comments? This is where Section 553 comes back in. The law says, quote, After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. In plain terms, the agency can't just ignore what people say. It has to actually consider the comments and then explain, in the final rule, how it responded. This is the heart of notice-and-comment rulemaking. It's not a public vote, but it is a real conversation. Sometimes agencies keep the language the same. Sometimes a single well-placed comment leads to a real change in the final text, which is exactly what happened with the VA digestive rule.

Quick recap: after the comment period closes, the law requires the agency to consider the comments and explain its reasoning in the final rule.

Two years later, in March 2024, VA published its final rule on digestive system ratings, effective May 19, 2024. The final rule includes a long, detailed response to public comments, issue by issue. For example, on esophagus stricture ratings, a commenter pointed out an inconsistency in the draft criteria. VA responded directly, saying, quote, VA agrees and revises the 30% criteria to only include recurrent esophageal strictures while the 50 percent criteria will reference both recurrent and refractory esophageal strictures. That's a real, specific change made because someone caught a problem and wrote in about it. Not every comment led to a change. On speech impairment after loss of the tongue, VA made one change commenters asked for and declined another, explaining that speech is not a function of the digestive body system. Either way, the final rule shows VA's reasoning, comment by comment.

Quick recap: in its March 2024 final rule, VA walked through public comments one by one, making some changes and explaining why it declined to make others.

Notice something about the timing here. VA published its final rule on March 20, 2024, and made it effective on May 19, 2024, exactly 60 days later. Section 553 sets the usual minimum, quote, The required publication or service of a substantive rule shall be made not less than 30 days before its effective date. But VA said this rule may have an annual effect on the economy of 100 million dollars or more, so it is subject to the 60-day delay under the Congressional Review Act. We'll come back to that in a moment. Either way, the gap gives people time to prepare before a new rule kicks in. For veterans and VA staff, it meant time to get ready for the new digestive system rating criteria before it applied to real cases.

Quick recap: the law usually requires at least 30 days between publication and the effective date, and major rules like this one wait at least 60 days.

There's one more check built into the system, especially for big rules. Under 5 U.S. Code Section 801, part of the Congressional Review Act, the law says, quote, Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report. That report has to include a copy of the rule, a statement of whether it's a major rule, and its proposed effective date. This gives Congress a window to review new rules and, if lawmakers choose, pass a joint resolution of disapproval. It's a safety valve that sits on top of everything you just learned.

Quick recap: before a rule takes effect, the agency must report it to Congress and the Comptroller General, giving lawmakers a chance to review it.

So what makes a rule major? Section 804 gives the definition. A major rule is one likely to cause, quote, an annual effect on the economy of $100,000,000 or more, or a major increase in costs, or significant harm to competition. That threshold matters. For the digestive system rule, VA said it may result in an annual effect on the economy of 100 million dollars or more, so it is subject to the 60-day delay in effective date under Section 801. That's why it took effect 60 days after publication.

Quick recap: a rule likely to have a 100 million dollar annual effect on the economy, among other tests, is a major rule, and major rules wait at least 60 days to take effect.

That's the full journey: proposed rule, public comments, agency response, final rule, effective date, and congressional review. Thanks for spending this time with us here on Federal Register Daily. If this helped, please subscribe so you catch every episode. Tell us in the comments, have you ever submitted a comment on a proposed rule, or is there a rule you'd like us to break down next? And keep an eye on regulations.gov, there are open proposed rules right now waiting for your voice.