The Rulemaking Process

The Rulemaking Process

Rulemaking is the process by which federal agencies create regulations that carry the force of law. The primary method is informal (notice-and-comment) rulemaking, governed by Section 553 of the Administrative Procedure Act.

Types of Rulemaking

Informal (notice-and-comment) rulemaking — the most common method:

1. The agency publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register

2. The public has an opportunity to submit written comments (typically 30–90 days)

3. The agency considers the comments and publishes the final rule with a statement of basis and purpose

4. The rule takes effect (usually 30 days after publication)

Formal rulemaking — required when the enabling statute specifies rules must be made "on the record after opportunity for an agency hearing." Involves a trial-like proceeding with testimony and cross-examination. Rarely used today.

Hybrid rulemaking — combines elements of both (e.g., public comments plus oral presentations). Some statutes require this.

Negotiated rulemaking — the agency convenes a committee of affected stakeholders to develop a proposed rule through consensus before initiating notice-and-comment.

Executive Review of Regulations

Since 1981, significant regulations have been subject to review by the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget:

The Congressional Review Act (CRA)

The CRA gives Congress the power to disapprove agency rules through a joint resolution of disapproval within 60 legislative days of the rule's submission to Congress. If approved by both chambers and signed by the President (or enacted over a veto), the rule is nullified, and the agency cannot issue a substantially similar rule without new legislation.

Regulatory Flexibility Act

The Regulatory Flexibility Act requires agencies to assess the impact of proposed rules on small entities (small businesses, small organizations, and small governmental jurisdictions) and consider less burdensome alternatives.

Publication and Codification