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Administrative Law: Rulemaking Process

Guide to researching regulations

Rulemaking Process

Pre-rule and Review Stage

Authorizing statute

Congress passes a general law and gives a government agency the authority to implement that law.  This law is called the authorizing statute or the enabling statute.

The agency develops regulations, or rules, to carry out the legal duties that Congress gave them.

Review

Rules often appear for the first time in the Unified Agenda. The Unified Agenda is a list of declared actions and rules that agencies anticipate making.  It is published twice a year.  Organized by agency, the the Unified Agenda often includes the title of the rule, summary, date, and whether it is proposed or final.

Research Tip: Usually things in the Unified Agenda have not been published in the Federal Register yet, so the Unified Agenda is typically the first public notification of rulemaking.  Stakeholders will keep a close watch on this list to know what is coming up.

Before agencies officially submit a proposed rule, they have to submit a draft of the proposal to the White House.  It goes to the Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA).  OIRA must approve the proposed action to make sure it is constitutional and within the agency's authority to enact.

Submission to OIRA is the next public opportunity to know about an upcoming rule.

Search for rules under review at reginfo.gov.

  • Must search by agency
  • OIRA classifies rules as "economically significant", "significant", "not significant", or "international impact".  Use Advanced Search to search by these categories.

Main Rulemaking Stage

If OIRA passes the intended rule through its review, the agency publishes it for the first time in the Federal Register as a proposed rule.  The Federal Register is considered the first official notice to the public.

Most rules go through these steps:

Proposed Rule

Rules are first published as a Proposed Rule.  A Proposed Rule is a draft of what the rule might be.  It should contain all the public information necessary for stakeholders to understand the what the rule does, why it is being proposed, and how it will affect others.

Comment Period

Proposed Rules will have a comment period where the agency accepts feedback on the rule. Comments from the general public as well as from businesses and lobbyists are allowed.  Agencies are required to state where and how people should submit comments, but most are accepted electronically at regulations.gov.

Regulations.gov

  • View comments on proposed rules. 
  • Search by docket number or RIN number for greatest accuracy.
  • Comments have deadline for submission.

Final Rule

After the comment period closes, the agency will re-write the rule based on comments received.  The final version appears in the Federal Register.  No more comments are allowed. The final rule shows the finished text of the regulation and when it goes into effect.  The final version marks the end of the regulatory process.

Codification Stage

Final rules are incorporated into the Federal Code of Regulations (CFR). 

CFR

  • regulations currently in effect (repealed or modified rules not shown)
  • organized by subject/agency
  • Final rule indicates where in the CFR the rule will go, allowing you to pinpoint its location.

 

 

Simple Rulemaking Diagram

Diagram of Rulemaking Process