A Law is Enacted…What Happens Next (with regard to rulemaking)?
Congress passes the laws, but executive branch agencies promulgate the regulations that implement the laws. Congress may require executive agencies to issue regulations or may authorize the agencies to issue regulations at their own discretion. Agencies typically have at least some degree of flexibility in implementing the laws passed by Congress.
Although Congress is responsible for legislation, executive branch agencies are responsible for the promulgation of regulations to implement the laws. If the law contains directives instructing an agency to issue regulations to implement the law, the agency must publish in the Federal Register, and follow the rulemaking process. The law may also specify a timeline for promulgation of the rule.
The United States saw a huge growth in the state of administrative agencies in the Twentieth Century. The legislature and the President began to delegated control of many functions to administrative agencies. Eventually, these administrative agencies evolved into powerful entities that exercised enforcement, legislative and judicial functions. The rise of this administrative state led to a confusing amount of rules and regulations, and following the enactment of the New Deal legislation, the need for a system to publish and organize these rules and regulations became obvious.
The current regulatory process has its origins in the Federal Register Act (P.L. 74-220, 49 Stat. 500, Chapter 417), enacted on July 26, 1935, to “provide for the custody of Federal proclamations, orders, regulations, notices, and other documents, and for the prompt and uniform printing and distribution thereof.” Prior to the enactment of the Federal Register Act, the rulemaking process had no centralized repository or publication system.
The regulatory process is government by the Administrative Procedure Act of 1946 (P.L. 79-404, 60 Stat. 237, Chapter 324), enacted on June 11, 1946, “to improve the administration of justice by prescribing fair administrative procedure”; and by other laws. The Administrative Procedure Act established a process for public participation in the rulemaking process by requiring executive agencies to issue proposed rules and take public comments, and, in most cases, delay the effective date for 30 days or more. Publishing in the Federal Register provides constructive notice of the rulemaking, the legal basis for the rulemaking, and changes made to the Code of Federal Regulations (CFR) by the rule.
The Congressional Review Act, section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, which is Title II of the Contract with America Advancement Act of 1996 (P.L. 104-121, 110 Stat. 847), established procedures for legislative review allowing Congress to disapprove and possibly invalidate a rule.
Rulemaking
5 U.S.C. § 551(5) provides "rule making" means agency process for formulating, amending, or repealing a rule.Formal vs. Informal
Formal: When rules are required by statute to be made on the record after opportunity for an agency hearing, the formal hearing procedures of the Administrative Procedures Act apply. Thus, absent such a statement in the authorizing legislation, rulemaking will be informal.
ELEMENTS OF NOTICE AND COMMENT RULEMAKING
1. Interested persons get notice in advance of any agency rulemaking proposal.
2. The notice is specific enough to permit assessment of the effects of the proposal.
3. Interested persons can submit views and data in writing; orally in discretion of agency.
4. Agency must "consider " (not necessarily "follow") public comment received.
5. Agency must explain rule and some courts have required quite thorough explanations.
Proposed Rules
A NOTICE OF PROPOSED RULEMAKING (NPRM), or a PROPOSED RULE, announces changes to the Code of Federal Regulations (CFR), publishes proposed text or describes the proposal, and solicits public comments on the proposal. Some proposed rules have an AUTHORITY section where the statutory authority for the rulemaking is cited. Some Federal Register (FR) documents, extend the time to comment on a previously published proposed rule, or announce a public hearing on the proposal, or withdraw or amend an NPRM in response to comments or subsequent events. The FR also contains preliminary rulemaking documents, such as ADVANCE NOTICES OF PROPOSED RULEMAKING, PETITIONS FOR RULEMAKING, and NEGOTIATED RULEMAKING DOCUMENTS.
These kinds of documents are included in the PROPOSED RULES section of the Federal Register, which is arranged alphabetically by agency. A proposed rule contains the main discussion of the issues, and objectives of the regulation.
A rule must follow the format laid out in 1 CFR § 18.12, entitled Preamble requirements. Rules must have HEADINGS that contain specific information that is repeated whenever the agency takes action on the rule. The ACTION heading changes.
This heading has a docket number, which identifies the document within the agency's internal filing system, and a regulation identifier number (RIN) above the name of the rule.
The Regulatory Information Service Center assigns RIN's to each regulatory action an agency listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions. The RIN enables you to find the action in the Unified Agenda. Not all proposed or final rules have either or both numbers.
Immediately below the heading are a CAPTIONS.
The SUMMARY caption gives the background of the change in the existing rule, the reason for issuing a new rule, or the rulemaking objectives.
The DATES caption states when comments must be submitted.
The ADDRESSES caption states where and by what method comments may be submitted to the agency.
The FOR FURTHER INFORMATION caption gives the names and addresses of individuals at the agency who are knowledgeable about the issues in the proposed regulation.
The SUPPLEMENTARY INFORMATION caption in a proposed rule contains the main discussion of the issues, and objectives of the regulation. In a final rule, a discussion of the history of the rulemaking, and a response to the comments that were received on the proposal will also be included under this caption. Sometimes a final rule will differ from a proposal as a result of comments, and those differences will be discussed here.
In a final rule the Supplement Information caption contains a discussion of the history of the rulemaking, and a response to the comments received on the proposal.
Sometimes, the proposed or final rules have a REGULATORY ANALYSIS, or REGULATORY MATTERS, or REGULATORY EVALUATION, or STATUTORY AND EXECUTIVE ORDER REVIEWS, depending on the agency, or PROCEDURAL REQUIREMENTS section. Other statutes or Executive Orders can be mentioned in the section, to prove the agency considered matters the legislative branch and the president believe are important. Sometimes, especially when the agency considers a proposed action to be a mere routine matter, this analysis is simply folded into SUPPLEMENTARY INFORMATION.
At the completion of the time for public comments, the agency considers the comments, and may issue a FINAL RULE.
According to the APA at 5 USC § 553 (d), most final rules are not effective until 30 days after publication in the Federal Register. However, an agency may set an effective date later than 30 days with just cause. Also, the statutory provisions for congressional review of final rules results in effective dates for major rules having a higher level of uncertain than in the past. These provisions may be found at 5 USC § 801 (a)(3)(A-C).
After the requirements are fulfilled, final rules are published in the Federal Register's Rules and Regulations section. Many will be amendments to the Code of Federal Regulations (CFR), and will be included in the next revision of the affected Title.
The CAPTIONS in a final rule are quite similar to a proposed rule. The ACTION caption and Dates caption will change. The DATES caption, in a proposed rules provides the last date for receipt of comments. This will sometimes changed to the EFFECTIVE DATE, and provides the date the final rule can be enforced. In direct or interim final rules, the DATES caption may be the date comments must be received at the agency. In a temporary rule, the date references the span of time the rule will be in effect.
SUPPLEMENTARY INFORMATION will include a discussion of the preceding proposal, background to the rulemaking process, and will respond to the comments that were received. The preamble for the FINAL RULE can also provide additional information like the intended scope or interpretation of regulation.
Sometimes there will be a List of Subjects covered by the rule, formal words of issuance, such as, "...accordingly, 4 CFR part 21 is amended as follows," and the new text of the rule as it will appear in the CFR. Amendatory instructions state exactly what language, if any, is being deleted.
Some proposed rules are simultaneously published as proposed rules and as DIRECT FINAL RULES or IMMEDIATE FINAL RULES. This occurs when an agency views its action as noncontroversial and anticipates no relevant adverse comments. Direct final rulemaking is a variation of § 553's notice-and-comment procedures, but is much more efficient; thus, direct final rulemaking satisfies the good cause exemption to 5 USC § 553.
Interim FinalsAnother rulemaking method is INTERIM FINAL RULEMAKING. This process, like the direct final rulemaking process, utilizes the good cause exception in 5 USC § 553(b)(B), but for different reasons. Interim final rules are promulgated when an agency is under pressure to act swiftly and are usually effective immediately, on the day of publication, or within 30 days of publication.
Direct final rules are usually noncontroversial but Interim final rules are often very controversial. Comments (POST-PROMULGATION COMMENTS, after the fact) are requested on whether the rule should be altered. The comments must persuade the agency it should consider changing the rule. In contrast, even one negative comment can prevent a direct final rule from going into effect. An interim final rule is often followed by a final rule, confirming the rule was final and addressing any comments received.
TEMPORARY FINAL RULES result in short-term changes to existing rules but do notamend the CFR.
The Date caption is important as it provides specific beginning and ending dates for the change. Some even give the exact time of day to apply the amendment. Usually, temporary rules are effective 30 days after publication in the FR, unless good cause is shown for making them effective sooner.
The Action caption for a Temporary Final Rule may read a Notice of temporary deviation from regulations.
The NOTICES section of the Federal Register contains documents that apply to and affect the public, but that do not amend the CFR. The form of a notice is very similar to a rule or a proposed rule, but, of course, there is no cite to the CFR in the heading.
The captions usually (but not always) follow in the same order as the captions for rules.
Presidential Documents are not related to rulemaking procedures. PresidentialProclamations and Executive Orders must be published in the FR; other types of documents may be published in the FR. Although Presidential Documents are frequently grouped together at the end of an FR issue in their own Separate Part, they can appear at the beginning of an issue. You will not find them in every FR issue, as they only appear when they are signed by the President and submitted to the OFR for publication.
There is no legal distinction between EO's and proclamations. The choice of which to use is determined by the subject matter.
Proclamations are frequently issued to announce ceremonial occasions; notice the three examples on the right. Some proclamations are substantive, and usually pertain to international trade or tariffs.
Executive Orders direct the operations of government officials and agencies, and through them the president exercises his constitutional authority as Commander in Chief. We have discussed several EOs already, that concerned agency rulemaking. EOs are numbered consecutively in the order they are received at the OFR, and eventually reprinted -- as are proclamations -- in Title 3 of the CFR and other places.
The Federal Register (FR) is a daily log of the actions of administrative agencies, specifically those actions that have "general applicability and legal effect."
That means they: confer a right, privilege, authority, immunity, or impose an obligation, and are applicable to the general public.
Federal Register articles are organized into the following categories:
Proposed Rules:
The Proposed Rules categories can include many types of actions, including advanced notice of proposed rulemaking (ANPRM), notice of proposed rulemaking (NPRM), extension of time to submit comments on proposed rules, further notice of proposed rulemaking, withdrawal of proposed rule, annual review of regulations (opportunity to comment)
An agency can, but is not required to, issue an ANPRM, discussing its intention to issue a regulation. This discussion may include a general summary of the agency's proposal, but will not include specific language.
Following the advance notice or as a first step in the regulatory promulgation process, an agency then publishes the NPRM, containing the proposed rule and requesting comments.
The preamble to the proposed rule typically includes:
Rules:
After reviewing the comments received, the agency may, but is not required to, issue a "final rule making". Final rules have the force of law and general applicability to the public. In certain situations a final rule may be promulgated without a prior proposed rule. Most rules are codified in the CFR.
The preamble to the final rule includes the effective date, which is usually at least 30 days from the date of publication or at least 60 days for major rules.
An interim final rule can become effective on the date of publication or in less than 30 days in an emergency or if there is a good cause.
A direct final rule for non-controversial actions can be issued without a proposed rule following a comment period, providing that there are no negative comments
The preamble of the final rule also typically includes a statement of the requirements of the law, cites to the proposed rule and other rulemaking history, discussion and analysis of public comments received, and justification for the agency’s decision,
A list of subjects follows the preamble, as well as detailed information on how the rule amends the CFR.
Notices:
Notices do not amend the CFR or propose to amend the CFR. The Notice category includes such things as meeting notices and environmental impact statements
The Federal Register (FR) is published by the Office of the Federal Register, National Archives and Records Administration (NARA). It is the official "gazette" of the United States Government giving documents from resource evidentiary status. FR is published every federal business day. No federal holidays or weekends!
For more information, consult the National Archives' Federal Register Tutorial
The CFR is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis on a staggered schedule:
The CFR is organized by Title (broad subject area); Chapter (rules of an individual agency); Part (rules on a single program or function); Section (rules on one provision of program/function); and Paragraph (detailed, specific requirement). Sections may contain up to 6 levels of paragraphs.
In citing these, the number before the decimal point refers to the part, with the section of the part following the decimal.
Regulations are usually grouped together in one part of a title of the CFR. At the beginning of a part, or group of related regulations, there will be a table of contents listing the various regulations in that part. Then, there is an "authority note " showing the statutory or executive authority under which regulations in that part were issued. If a regulation within that part is based on different authority, a separate authority note follows that specific regulation.
Following the part's authority note is a "source note," providing the citation and date of the Federal Register in which the part was last published in full. As was the case with authority notes, separate source notes may follow particular regulations.
[When the FR content has been loaded by ProQuest, the FR citation in the CFR Source section will be hyperlinked to those FR articles.Where the Authority cited is to a Public Law, there will be a hyperlink to the legislative history of that Public Law on Legislative Insight. Where the Authority cited is to an Executive Order, there will be a hyperlink to that Executive Order in the Congressional EOPP collection. The hyperlink functionality is dependent on customer entitlement.]
The Code of Federal Regulations is organized by subject, whereas the Federal Register comes out chronologically. After being published in the Federal Register, all currently in force regulations are brought together and arranged by subject in the CFR. Proposed regulations, notices, agendas, and other information printed in the Federal Register do not appear in the Code of Federal Regulations. However, presidential documents from the Federal Register are published in Title 3 of the Code of Federal Regulations.
Parallel Table of Authorities
The following table lists rulemaking authority (except 5 U.S.C. 301) for regulations codified in the Code of Federal Regulations. Also included are statutory citations which are noted as being interpreted or applied by those regulations.
The table is divided into four segments: United States Code citations, United States Statutes at Large citations, public law citations, and Presidential document citations. Within each segment the citations are arranged in numerical order