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Administrative Law Research: Rulemaking Process

FederalRegister.gov

Federalregister.gov is the online version of the Federal Register. It allows you to follow proposed rules by type or agency, and you can set up alerts on whichever rules or documents interest you. To learn more about the rulemaking process, check out the interactive regulatory timeline available on regulations.gov or check out the FAQ from the Office of Information and Regulatory Affairs.

What is a rule?

A rule (also referred to as a regulation) is a statement of law from an agency that is "...designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…”  A.P.A. 551

Congress may require an agency to issue a regulation or it may simply give an agency the discretion to do so.   Congress often gives agencies flexibility in deciding how best to implement laws because it does not have the time or the expertise necessary to make all of the detailed decisions required. 

The Rulemaking Process

The rulemaking process is governed by the APA. The majority of regulations are created through a process called 553 Rulemaking – 553 referencing the section of the APA containing the procedure for how an agency is to make a rule.  This is also known as informal rulemaking or “notice and comment rulemaking” after one of the main requirements imposed by section 553.

In short, 553 requires “due process and participation” in rulemaking.    This can be simplified into 3 steps:

 

1. Notice
The notice requirement is accomplished by publishing a “Notice of Proposed Rulemaking” in the Federal Register.  The Federal Register is a daily publication reporting on all administrative actions.   Per the APA, this notice of proposed rulemaking must include:

  • The authority the agency is relying upon to propose the rule
  • The language of the proposed rule.  This also usually includes a “preamble” describing the purpose of the rule and what the agency hopes to accomplish by its promulgation.
  • An invitation for interested person to submit comments on the proposed rule and the details for when and how such comments should be submitted.

2. Comments and Consideration
As detailed in the Noticed of Proposed Rulemaking, most comments are submitted in writing, although when it feels it is needed an agency may elect to hold hearings.  Congress has said that some agencies, such as the FTC, are required to hold oral hearings when promulgating rules, but that is the exception rather than the rule. Regulations.gov allows interested parties to comment on proposed regulations and view other party's comments. Users can search for proposed regulations or browse all the administrative actions in 1 of 10 subject areas.

3. Publication of Final Rule
The final step of the rulemaking process is publication of the final rule in the Federal Register.  This final notice references the original notice of proposed rulemaking and includes another short summary of the purpose of the rule.  The final notice will also respond to what the agency heard from the public during the comments period.   The agency will include the details of when the rule will go into effect, no sooner than 30 days after the final notice is published. 

The most important part of this notice is the text of the rule. The final notice will include a statement such as “For the reasons discussed in the preamble, the Secretary amends title 123 of the Code of Federal Regulations by adding..." and then states the language of the new rule.