18 FAM 201.4
RULEMAKING PROGRAM
(CT:PPP-17; 04-11-2019)
(Office of Origin: A/GIS/DIR)
18 fam 201.4-1 Policy AND
OBJECTIVES
18 FAM 201.4-1(A) Policy
(CT:PPP-2; 03-19-2018)
a. It is Department of State policy that all Department
rulemaking actions are processed and issued in a consistent manner and in
accordance with all applicable standards, requirements and legal provisions.
b. The Department is committed to promulgating rules that
are narrowly tailored to impose the least burden on the U.S. public necessary
to achieve Department objectives. Therefore, it is Department policy to
prioritize initiatives that will produce significant quantifiable reductions in
public burden, or produce significant quantifiable monetary savings. Offices
must take continuing steps to reassess regulatory requirements and, where
appropriate, to streamline, improve, or eliminate those requirements that may
be outmoded, ineffective, insufficient or excessively burdensome.
c. The Department is further committed to advancing
the three principles of open government--transparency, participation, and
collaboration. Documents constructed under this section must conform to these
principles:
(1) Transparency promotes
accountability by providing the public with information about what the
Government is doing.
(2) Participation allows
members of the public to contribute ideas and expertise so that their
Government can make policies with the benefit of information that is widely
dispersed in society. Regulations must be based, to the extent feasible and
consistent with law, on the open exchange of such information and perspectives
among state, local, and tribal officials, experts in relevant disciplines,
affected stakeholders in the private sector, and the public as a whole.
(3) Collaboration improves the
effectiveness of Government by encouraging partnerships and cooperation within
the Federal Government, across levels of government and between the Government
and private institutions.
18 FAM 201.4-1(B) Objectives
(CT:PPP-2; 03-19-2018)
a. The purpose of the Departments Rulemaking program
is to comply with the Administrative Procedure Act (APA), pertinent Executive
Orders and all Office of Management and Budget (OMB) requirements in the most
efficient, effective and accurate manner.
b. The Department achieves its purpose through meeting
the following program objectives:
(1) Provide central program administration via the
Office of Directives Management (A/GIS/DIR) with legal guidance from the
management section of the Office of the Legal Adviser (L/M);
(2) Provide expert interpretation of the APA,
Executive Orders, OMB requirements, and Federal Register (FR) requirements
(including any changes to such) to the Departments bureaus and offices;
(3) Provide on-going training and guidance to
Department staff who prepare and clear on rules and FR rule notices;
(4) Maintain efficient and effective administrative
processes that, if followed, result in OMB and FR approvals;
(5) Manage the Departments retroactive rule reviews
to evaluate and eliminate rules that present undue burdens on the public, and
which will result in cost savings to the Federal Government; and
(6) Archive all rules and supporting records according
to National Archives retention schedules.
18 FAM 201.4-1(C) Scope
(CT:PPP-2; 03-19-2018)
The Rulemaking program applies to the Department of State
and its operations worldwide.
18 FAM 201.4-1(D) Applicability
(CT:PPP-2; 03-19-2018)
This program is to be used for all Department of State
rules and accompanying FR rule notices.
18 FAM 201.4-2 Authorities
(CT:PPP-2; 03-19-2018)
Department rulemaking is executed under the applicable
laws of the United States, principally those contained in:
(1) Federal Register Act (44 U.S.C. Chapter 15): the
enabling statute for the National Archives and Records Administration (NARA),
acting through the Office of the Federal Register, to receive and publish
documents such as regulations and other notices in the Federal Register.
(2) Administrative Procedure Act (5 U.S.C. 551 through 559): governs the way in which Federal
agencies propose and establish regulations. The APA also sets up a process for
Federal courts to directly review agency decisions.
(3) Federal Advisory Committee Act (5 U.S.C.
Appendix): governs the actions of Federal advisory committees. In particular,
it has special emphasis on open meetings, chartering, public involvement and
reporting. The U.S. General Services Administration oversees the process.
(4) Freedom of Information Act (5 U.S.C. 552): allows
for the full or partial disclosure of previously unreleased information and
documents controlled by the U.S. Government.
(5) Plain Writing Act of 2010 (5 U.S.C. 301 note): has
a stated purpose of improving effectiveness and accountability of Federal
agencies to the public by promoting clear Government communication that the
public can understand and use.
(6) Privacy Act (5 U.S.C. 552a): governs the
collection, maintenance, use, and dissemination of personally identifiable
information about individuals that is maintained in systems of records by
federal agencies.
(7) Government in the Sunshine Act (5 U.S.C. 552b(c)):
lists the situations in which a federal advisory committee may close its
meeting, if authorized by the appropriate official.
(8) Negotiated Rulemaking Act (5 U.S.C. 561 et seq.):
establishes a framework for the conduct of negotiated rulemaking to encourage
agencies to use the process when it enhances the informal rulemaking process.
(9) Regulatory Flexibility Act (5 U.S.C. 601 et seq.):
imposes both analytical and procedural requirements on Federal agencies. When
this Act applies to a rulemaking, agencies must carefully consider the economic
impacts its rules will have on small entities, and ensure that small entities
have a voice in the regulatory development process.
(10) Small Business Regulatory Enforcement Fairness Act
and Congressional Review Act (5 U.S.C. 801 et seq.): mandates that Federal
agencies establish a policy or program that reduces and waives civil penalties
for violations of a statutory or regulatory requirement by a small entity,
among other things. This set of statutes also provides for Congressional
review of final rules and, in certain cases, modification of the effective date
of rules.
(11) Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et
seq.): designed to reduce the total amount of paperwork burden the federal
government imposes on private businesses and citizens. The Act imposes
procedural requirements on agencies that wish to collect information from the
public. It also established the Office of Information and Regulatory Affairs
within the Office of Management and Budget.
(12) Executive Order 12866, as amended: establishes
policies to reform and make more efficient the regulatory process. Its stated
purpose is to enhance planning and coordination with respect to both new and
existing regulations; to reaffirm the primacy of Federal agencies in the
regulatory decision-making process; to restore the integrity and legitimacy of
regulatory review and oversight; and to make the process more accessible and
open to the public. The Executive Order defines significant rulemakings and
setting out a process for interagency review of those rules.
(13) Executive Order 13563: builds on Executive Order
12866 with to ensure that regulations are accessible, consistent, written in
plain language, and easy to understand. One main feature of the order mandates
the periodic and ongoing retrospective analysis of existing rules, with a purpose
of eliminating rules that are outmoded, ineffective, insufficient, or
excessively burdensome, and to modify, streamline, expand, or repeal them in
accordance with what has been learned.
(14) Executive Order 13132: prohibits agencies from
issuing a regulation that has federalism implications; that imposes substantial
direct compliance costs; and that is not required by statute, unless the
Federal Government takes certain actions. The Department may not issue a
regulation that has federalism implications and that preempts State law, unless
the Department consults with state and local officials early in the process of
developing the proposed regulation.
(15)Executive Order 13175: requires agencies to
reconsider federal policies that have tribal implications, to strengthen U.S.
government-to-government relationships with Indian tribes, and avoid or reduce
any unfunded mandates upon Indian tribes.
18 FAM 201.4-3 Administrative
PROCEDURE ACT (APA)
(CT:PPP-2; 03-19-2018)
a. The APA governs the process by which Federal
agencies propose and establish new regulations. The APA generally requires
agencies to provide public notice and seek comment prior to enacting new
regulations. The APA also lays out the process for judicial review of rules in
federal court.
b. The purposes of the APA are to:
(1) Require agencies to keep the public informed of
their organization, procedures and rules;
(2) Provide for public participation in the rulemaking
process;
(3) Establish uniform standards for the conduct of
formal rulemaking and adjudication; and
(4) Define the scope of judicial review.
c. The Act imposes a number of procedural requirements
on an agency that wishes to enact regulations. These procedures can be found
at the Rulemaking page of the Office of Directives Management website.
18 FAM 201.4-4 Key Definitions
(CT:PPP-2; 03-19-2018)
Advance Notice of Proposed Rulemaking
(ANPRM): A notice published in the Federal Register that provides public
notice of a proposed rulemaking, and solicits comments from the public for a
period of usually 60 days. An ANPRM generally does not provide the actual text
of a planned rule but explains what the rule is intended to do and why. Its
purpose is to solicit public input on various issues relating to the intent of
and reason for the rulemaking.
Direct Final Rule: A direct final rule is not preceded by a proposed rule. It
may be used for routine and noncontroversial regulations that the Department
believes will not generate adverse comment. A direct final rule becomes
effective on the date specified in the rulemaking, unless adverse comment is
received on the rule within a specified comment period before that date.
eRulemaking Program: a collaborative, inter-agency effort, with an aim to
establish a common, automated, and integrated repository for managing Federal
rulemaking and non-rulemaking actions that follow a structured notice and
comment process.
Federal Docket Management System
(FDMS): The federal governments agency-facing system, which
consolidates dockets of various departments and agencies and allows for central
management through a web-based environment.
Final rule: A final rule is
the formal, permanent issuance of a rule. Usually preceded by an interim or
proposed rule, a final rule does not solicit comments from the public, but
contains the appropriate regulatory analyses (or incorporates by reference the
analyses in a previous interim or proposed rule).
Interim rule: An interim rule
carries the force of law upon its effective date, but is temporary in nature,
pending the issuance of a final rule or its withdrawal. An interim rule
solicits comments from the public for a period of, usually, 60 days.
Proposed rule: Proposed rules
have no force of law; they simply inform the public of the Departments policy
considerations, and solicit comments usually for a period of 60 days.
Regulation Identifier Number (RIN):
Obtained by the Office of the Legal Adviser, General Management (L/M), for
program offices. This is a tracking number for planned Code of Federal
Regulations (CFR) changes.
Regulations.gov: The federal governments public-facing
website for participating agencies. The public may view the full text of
rulemaking actions, submit comments, and view the comments of others.
Regulatory findings (also regulatory
analysis and notices): The part of a rule notice that addresses the
issuing agencys acknowledgement that the following authorities have been
considered (this list is not exhaustive):
Administrative Procedure Act
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995 (UMRA)
Small Business Regulatory Enforcement Fairness Act of 1996 and
Congressional Review Act
Executive Order 12866
Executive Order 13132
Executive Order 12988, Civil Justice Reform
Executive Order 13175
Paperwork Reduction Act
ROCIS (Regulatory Information Service
Center (RISC) and Office of Information and Regulatory Affairs (OIRA) Combined
Information System): Managed by the General Services Administration
(GSA) and NARA, this is the basic database for OMB rule reviews. All Executive
Order (EO) review submissions are done through this system by uploading the
rule notice and any relevant documents.
Retrospective Analyses of Existing
Rules: The continuing requirement to review existing significant
regulations and consider how best to promote retrospective analysis of rules
that may be outmoded, ineffective, insufficient, or excessively burdensome, and
to modify, streamline, expand, or repeal them in accordance with what has been
learned. OMB requires a semiannual report, which details the status of the
Department's review efforts.
Rule: An agency statement of
general or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency.
Significant regulatory action:
These are defined in Executive Order 12866 as those that have an annual effect
on the economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local, or tribal governments or
communities; create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency; materially alter the budgetary impact
of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients; or raise novel legal or policy issues arising out of
legal mandates, the President's priorities or the principles set for in
Executive Order 12866.
Unified Regulatory Agenda (Unified
Agenda): The Agenda provides information, in a uniform format, about
regulations that the U.S. Government is considering or reviewing. The Agenda
includes regulatory agendas from most Federal agencies, excluding agencies of
the U.S. Congress.
18 FAM 201.4-5 PROGRAM
RESPONSIBILITIES
18 FAM 201.4-5(A) Under
Secretary for Management (M)
(CT:PPP-17; 04-11-2019)
Pursuant to Delegation of Authority 462, dated January
9, 2019, by which the Secretary of State delegated management-related
functions to M, the Under Secretary for Management is the Department of State
Regulatory Policy Officer (RPO). This position is mandated by Section 6 of Executive
Order 12866, as amended.
18 FAM 201.4-5(B) Chief
Information Officer (CIO)
(CT:PPP-2; 03-19-2018)
The CIO is the official executive representative of the
Department in the inter-agency eRulemaking program. The CIO budgets the funds
that support the Department's participation in the Regulations.gov website.
The CIO signs the annual eRulemaking Memorandum of Understanding on behalf of
the Department.
18 FAM 201.4-5(C) Assistant
Secretary for Administration (A)
(CT:PPP-2; 03-19-2018)
The Assistant Secretary for Administration provides senior
leadership for the Rulemaking program.
18 FAM 201.4-5(D) Office of
Directives Management (A/GIS/DIR)
(CT:PPP-2; 03-19-2018)
a. The Office of Directives Management (A/GIS/DIR)
manages the Rulemaking program for the Department under the authority of the
Assistant Secretary for Administration and with the legal assistance of L/M.
b. A/GIS/DIR:
(1) Works collaboratively with bureaus and offices
that write, change, or repeal Department rules. Provides guidance throughout
the process to ensure the Department is in compliance with the APA, OMB and FR
requirements;
(2) Reviews and approves all FR notices and rule
dockets prior to their submission. Ensures notices and rule dockets are
complete and accurate;
(3) Inputs all required data into the Federal Docket
Management System (FDMS) and into ROCIS;
(4) Facilitates discussions between Department
bureaus/ offices and the Federal Register and/or OMB concerning issues on FR
notices and rules;
(5) Reads and interprets all legal and regulatory
mandates; changes Department guidance as needed. Creates and maintains
efficient and effective administrative practices and processes for rulemaking
based on the current OMB requirements;
(6) Provides training to Department staff on FR
notices and rulemaking;
(7) Develops rulemaking reports and statistics for OMB
as required. Works with bureaus and office to find and compile data for one
combined report from the Department;
(8) Maintains the Departments archive and historical
records of all rules (past and present); submits records to NARA according to
Records Disposition Schedules;
(9) Obtains feedback on other agency rules from
bureaus and offices who are stakeholders and provides that consolidated
feedback to OMB;
(10) Serves as a single point of contact for OMB and
the Federal Register on the Department's rules;
(11) Provides daily courier service to the Federal
Register, and
(12) Represents the Department on both the Executive
Committee and Advisory Committee of the eRulemaking Board.
18 FAM 201.4-5(E) Bureaus/Offices
Originating Rules
(CT:PPP-2; 03-19-2018)
Department bureaus and offices seeking to write, amend, or
terminate a rule are responsible for:
(1) Consulting with A/GIS/DIR throughout the effort;
(2) Following Department procedures and requirements
for rulemaking as described on the Office of Directives Management website;
(3) Obtaining necessary clearances according to the
Department's procedures and any internal clearances as required by the head of
the Bureau; and
(4) Responding with pertinent data when OMB has a
reporting requirement and/or issues a data call.
18 FAM 201.4-5(F) Office of the
Legal Adviser (L)
(CT:PPP-2; 03-19-2018)
The Office of the Legal Adviser reviews rules as
appropriate for content and legal sufficiency and provides legal guidance and
direction to program offices as needed. The Office of General Management (L/M)
compiles and submits the Unified Regulatory Agenda and obtains RINs for
Department rules.
18 FAM 201.4-6 TYPES OF RULES
(CT:PPP-2; 03-19-2018)
The program office determines the type of rulemaking
action, depending on its purposes. Some types are:
Advance notice of proposed rulemaking
Proposed rule
Final rule
Final rule; delay of effective date
Final rule; suspension of effectiveness
Final rule; confirmation of effective date
Final rule; correction
Final rule; interpretation
Final rule; petition for reconsideration
Interim rule
Interim rule with request for comments
Direct final rule
Temporary rule
The majority of Department rule types are proposed,
interim, final, and direct final.
18 FAM 201.4-7 RULES PROPOSED BY
OTHER FEDERAL AGENCIES
(CT:PPP-2; 03-19-2018)
The Office of Management and Budget sends significant
rules drafted by other Federal agencies to the regulatory coordinator in
A/GIS/DIR, who tasks bureaus and offices with reviewing and providing comments
and/or clearance on the drafts. As needed, the coordinator compiles the
Department response on behalf of the commenting offices and does such follow-up
liaison and discussion as needed. Conversely, Department of State rules that
OMB designates as significant are reviewed by other interested agencies within
the Federal Government.
18 FAM 201.4-8 THE OFFICE OF
INFORMATION AND REGULATORY AFFAIRS (OIRA)
(CT:PPP-2; 03-19-2018)
a. Throughout this subchapter, the Office of Management
and Budget (OMB) is used generically without specifying any one of its offices.
However, OIRA is really the OMB office with responsibility specifically for
rulemaking.
b. In addition to reviewing government collections of
information from the public under the Paperwork Reduction Act, OIRA reviews
draft proposed and final regulations under Executive Order 12866 and develops
and oversees the implementation of government-wide policies in the areas of
information policy, privacy and statistical policy.
c. Executive Order 12866 assigned OIRA the
responsibility of coordinating the review of significant regulations before
publication. This is to ensure agency compliance with the principles in the
Executive Order, which include incorporating public comment, considering
alternatives to the rulemaking, and analyzing both costs and benefits.
d. The Department of State has an assigned desk officer
in OIRA and that individual works closely with the Office of Directives
Management and L/M on the Unified Agenda and rulemaking efforts.