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Rulemaking procedures may be formal or informal, depending on the agency and the types of rules involved. Many jurisdictions also have separate procedures for regular rulemaking, which allows ample time for the public to review and comment on proposed rules, and emergency rulemaking, which moves much faster and is only available in specified circumstances.
Federal agencies, including executive, legislative, and independent agencies, must follow the procedures set forth in the Administrative Procedure Act (APA).
1. Legislation
Most administrative rules originate with laws passed by the U.S. Congress or a state legislature. A law may provide for the creation of an agency, along with guidelines that the agency can use in rulemaking. Statutes also establish goals for an agency to pursue, and executive orders may direct agencies to create rules for specific objectives.
2. Advance Notice
If an agency wants early input from the public on a set of rules, it can publish an advance notice. This usually occurs before the agency has completed a draft of a proposed rule, and it involves publication of the agency’s preliminary analysis of an issue or objective.
3. Drafting the Proposed Rule
The agency is responsible for drafting proposed rules. The language of administrative rules can be quite dense. This is often the inevitable result of the detail required to guide the agency in enforcing the relevant laws. Much like the legislation on which the rules are based, it may also be the result of compromises between interested parties.
An agency may draft a proposed rule entirely internally, or it may invite other interested parties to participate in the process.
4. Publication of the Proposed Rule
Once a draft of the proposed rule is complete, the agency publishes it for public review and comment. Proposed federal rules are published in the Federal Register, a daily periodical published by the federal government. States have their own similar periodical publications, such as the Utah State Bulletin.
5. Public Comment
Once the agency has published the proposed rule, it must accept written comments from the public for a specified period of time, which is usually 30 days but may be as long as 180 days. The Federal Register website allows people to submit comments online, and people may still submit comments by mail. The agency may also hold meetings at which people may comment on the proposed rule. These meetings must be announced in advance and be open to the public.
Regulations.gov is an electronic source providing access to make or view comments. In addition, Regulations.gov provides access to information regarding the status of changes to regulations.
RegInfo.gov is a United States Government website produced by the Office of Management and Budget and the General Services Administration. Reginfo.gov provides reliable, transparent information about regulations under development to enable the public to participate effectively in the regulatory process.
6. Finalization
The agency may make modifications to the rule based on input from the public, and it often publishes a response to specific concerns raised in public comments. If the public comments contain substantial opposition to the rule as written, the agency may rewrite the rule and publish it for public comment again, essentially repeating the previous two steps of the process. Once all of the deadlines for public involvement have passed, the final rule is published in the Federal Register and added to the Code of Federal Regulations.
A new rule generally identifies the date on which it will take effect. This date is usually well into the future to give anyone subject to the rule sufficient time to come into compliance. In rare cases, though, a rule may take effect immediately.
The steps outlined above assume a smooth rulemaking process free of significant complaints about the substance of the rules or adherence to rulemaking procedures. Members of the public or interested parties may raise objections at various points during the process, or even seek judicial review by filing a lawsuit. Courts generally give a considerable amount of deference to government agencies, which are presumed to have a high degree of knowledge of the technical aspects of the issues that they regulate, such as food, taxation, or labor. On procedural issues, such as alleged violations of “open meeting” laws, courts may be more likely to get involved.
Although many people are familiar with the United States judicial court system, many laws and binding legal decisions come from administrative agencies. Administrative agencies can be basically defined as official government bodies that have the power and authority to direct, supervise, and implement certain legislative acts or statutes. Not all administrative agencies have the term “agency” in the title. Many are referred to as boards, departments, divisions, or commissions.
Administrative agencies act in a judicial-like capacity when issuing decisions that interpret and enforce regulations. These decisions are rarely gathered in one place, and some agencies do not publish decisions in any format. However, many federal agencies publish the various decisions and opinions they issue on their websites.
Agency websites often provide links to the statutory authority governing the agency and the regulatory authority issued by the agency. Agency websites are more routinely also providing access to decisions issued in carrying out their quasi-judicial functions. However, while an agency website may provide access to decisions, in some instances, the agency does not provide the ability to search a database of decisions.
Some agency websites provide access to and allow search of agency administrative decisions. Other agencies provide access to agency decisions but may not provide a robust search functionality.