The Federal Regulatory Process

​The federal rulemaking process—how regulations are made—is governed by the Administrative Procedure Act, Congressional Review Act, Paperwork Reduction Act and Regulatory Flexibility Act. The rulemaking process can lead to the creation of new rules or to the amendment, modification or repeal of existing rules. Executive orders, which are issued by the president, also establish principles and guidance for the rulemaking process. State and local governments may have their own variations on this system. Below is an outline of how the process works at the federal level:

• Pre-rule stage: Government agencies cannot issue any rules unless granted the authority to do so by law. Agencies evaluate the alternatives to a rulemaking and weigh the potential benefits of the rule over its potential costs. Agencies normally submit an "Advanced Notice of Proposed Rulemaking" to the Federal Register for public view. The public now may begin to comment on whether the rulemaking should be initiated.
  
• Proposed rule stage: During a 60-day period, agencies accept public comments about the proposed rulemaking. Some comment periods may be shorter or longer than 60 days based on different agencies' guidelines. Depending on the content and potential impact of the proposed rule, thousands of comments may come in from the public or there may be no comments.
  
• Final rule stage: Agencies review all comments during the comment analysis process stage to determine whether to proceed with the rulemaking process as originally proposed or to issue a new or modified proposal. The agencies' analysis may also lead to a withdrawal of the proposed rule. If the rule is finalized, it will be published in the Federal Register. Most rules become effective 30 days after publication; few become effective in less than 30 days.
  
• State and local rulemaking: State and local rulemaking processes, procedures and comment periods may differ from the federal regulatory scheme, and HR professionals should be aware of them.
  

Understanding all levels of laws and regulations—federal, state and local—is becoming more important every day and is a necessity for HR professionals. The SHRM Body of Applied Skills and Knowledge (SHRM BASK), the foundation of SHRM certification, includes U.S. Employment Law & Regulations as a required aspect of HR Expertise. This technical competency covers "knowledge and application of all relevant laws and regulations in the U.S. relating to employment—provisions that set the parameters and limitations for each HR functional area and for organizations overall."

Proficiency in U.S. Employment Law & Regulations means that an HR professional has the knowledge, skills and resources to ensure that HR programs, practices and policies align and comply with laws and regulations and can help employees and the organization avoid illegal and noncompliant HR-related behaviors.

Embrace a commitment to the HR profession and set yourself apart by doing the research to fully understand the regulatory process.

Matthew W. Burr, SHRM-SCP, is the owner of Burr Consulting LLC in Elmira, N.Y., and McKinney, Texas, a co-owner of Labor Love LLC, an HR consultant, an adjunct professor, and an on-call mediator and fact finder for the New York State Public Employment Relations Board.