How a Law becomes a Regulation
1. From Congress to the Agency
Victories in Congress do not automatically result in safer vehicles and highways. First, Federal agencies, such as the National Highway Traffic Safety Administration (NHTSA) and the Federal Motor Carriers’ Association (FMCSA), have to take the mandates of Congress and use them as the basis for regulations that can be enforced to increase safety.
Laws passed by Congress to require agency regulation often have deadlines written into them that provide that agencies must implement a rule in full, or being the rulemaking process, by a certain date.
2. Agency publishes ANPRMs and NPRMs
The Agency rulemaking process is influenced by public notice that the rulemaking is underway and by public comments on the draft version of the rule. Most often, agencies propose rules in ANPRM (Advanced Notice of Proposed Rulemaking) or NPRM (Notice of Proposed Rulemaking) form and publish them in public dockets available as part of a compendium called the Federal Register, which is published daily when the government is open.
The agencies’ rulemaking documents are also available over the Internet for most of the rules published since 1995 on the Department of Transportation’s Docket Management System (DMS) Web site. (A list of key docket numbers is included at the bottom of this page.)
Introduction to the Docket Management System – click here
Search the DMS with a docket number – click here
Advanced search of the DMS (search by agency, date, key word, submitter, etc) – click here
3. Safety Advocates, Industry Lobbyists and others comment on draft rule proposals
Once ANPRMs and NPRMs are added to the public docket, anyone can comment on them. It is important that safety advocates and survivors, along with consumer and safety organizations like Public Citizen, participate, to urge that NHTSA and FMCSA keep the safety of consumers in mind when they pass regulations. Far too often, the industry has a strong influence over the scope and content of the rules!
While Public Citizen frequently submits lengthy comments, comments submitted through the Web can be as short or long as commenters wish, and can be typed in on the form available through the docket’s Web server or attached if a longer document.
Comment to a rulemaking docket – click here
4. Agency develops a final rule
In general, following extensive agency research and examination of comments submitted by the public and industry, the agency will publish and issue a final rule.
The rule must also be “cleared” by the Office of Management and Budget (OMB), within the White House. While OMB’s clearance is supposed to be on limited grounds, in the past few years, the OMB has played a major role in revising final rules, often changing the rules to lessen the burden on industry and weaken the safety benefit for the public. OMB has also interfered before the final rule stage, to influence the shape of the rule.
After the final rule clears OMB for the last time, NHTSA/FMCSA publishes it. The final rule may take effect immediately or it may set out a phase-in schedule for its requirements. In either case, when issued, the final rule has the force of law.
5. Interested parties can petition for agency reconsideration, or for court review, of final rules
After a final rule is published, interested parties, including both the public and the industry, can petition the agency to change or improve the rule. Petitions for reconsideration of the rule submitted to the agency may focus on the difference between Congressional intent and agency action, the effect of OMB’s changes, the deadlines set out in a rule and/or unforeseen industry difficulty in producing vehicles that will comply with the rule.
Members of the public or industry may also challenge in court inadequacies in the rule. Because the agency is the expert, courts will only overturn the rule if it violates the instructions given to the agency by Congress, or if the rule is so lacking in reason that the court deems it to be “arbitrary and capricious.” Although this is a difficult standard to meet, some rules, such as the tire pressure monitoring rule weakened by NHTSA after changes by OMB, have been overturned by the courts. When the courts overturn a rule, the agency must issue a new one consistent with the court’s decision in the case.