Informal rulemaking
| What is rulemaking in the context of the administrative state? Rulemaking is a process by which administrative agencies amend, repeal, or create an administrative regulation. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period. When required by statute, certain agencies must follow the formal rulemaking process, which incorporates a trial-like hearing in place of the informal comment period, or hybrid rulemaking, which blends specified elements of formal rulemaking into the informal rulemaking process. Learn about rulemaking here. |
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Informal rulemaking, in the context of administrative law, is a rulemaking process that enables federal agencies to amend, repeal, or create an administrative regulation. Unlike formal rulemaking, which requires the deliberation of a proposed rule during a trial-like hearing process, informal rulemaking only requires the consideration of written public feedback on proposed rules submitted during a comment period. Informal rulemaking is also referred to as notice-and-comment rulemaking or 553 rulemaking.[1][2]
Background
The informal rulemaking process was established in 1946 under the Administrative Procedure Act (APA). The specific procedures that federal agencies must follow as part of the informal rulemaking process are outlined in U.S. Code § 553. For this reason, informal rulemaking is also referred to as 553 rulemaking.[2][3]
Most federal agencies use the informal rulemaking process to develop, modify, or repeal administrative rules. Generally, agencies only use the formal rulemaking process when required by statute. Unlike formal rulemaking, informal rulemaking does not require agencies to conduct hearings on proposed rules. Instead, the informal rulemaking process relies on a public comment period to consider written external feedback and to craft regulations in a manner that aims to be responsive to stakeholders. Since informal rulemaking incorporates a public comment period, the process is also referred to as notice-and-comment rulemaking.[2]
Procedure
According to the Office of Information and Regulatory Affairs (OIRA), the informal rulemaking process consists of the following nine steps:
Step one: Idea for a rule
A federal agency's initial motivation to create, modify, or repeal a rule may come from several sources:
- Congress may pass new legislation that directs a federal agency to take rulemaking action.
- An agency's internal priorities may spur the development or modification of administrative rules.
- External factors, such as new technology, scientific data, or accidents in the field, may influence an agency's rulemaking priorities.
- Required reviews, lawsuits, petitions, and OIRA prompt letters may initiate the rulemaking process.
- Recommendations from other agencies, committees, or groups, may also instigate the rulemaking process.[1][2]
Step two: Discussion
Once an agency has arrived at an idea for a new rule, agency actors must discuss the proposal and determine whether publication of a proposed rule in the Federal Register is required. According to OIRA, provisions of the Administrative Procedure Act in U.S. Code § 552 require the publication of the following rulemaking actions in the Federal Register:[1]
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Step three: Preparation of proposed rule
- See also: Proposed rule
If the suggested agency action requires publication in the Federal Register, an agency must prepare a proposed rule outlining the recommended action and establishing a public comment period to receive feedback.[1]
According to OIRA, provisions of the Administrative Procedure Act in U.S. Code § 553 exempt certain rules in the following categories from the proposed rule requirement:
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Step four: OMB review of proposed rule
- See also: Presidential Executive Order 12866
Executive Order 12866 requires that the Office of Management and Budget (OMB) review any proposed rules, except those from independent federal agencies, that are deemed to be significant rules. The OMB has 90 days (with a possible 30 day extension) to complete its review of a significant rule.[1][5][6]
The proposed rule cannot be published in the Federal Register until the OMB completes its review without recommendations or the review period expires. The OMB may choose to send the proposed rule back to the agency for reconsideration if the agency fails to justify the regulation, if the analysis is faulty, or if the proposed rule is not in line with the president's priorities. Agencies must reconsider any rule returned with comments or changes following the review.[7]
Step five: Publication of proposed rule
- See also: Federal Register
Following preparation of the proposed rule and review by the OMB (if applicable), the proposed rule is published in the Federal Register. Proposed rules follow a standard format that begins with a preamble, which includes several subsections, continues with a statement of authority, and concludes with the full text or narrative description of the proposed measure. The published proposed rule also includes information about the public comment period.[1][8]
Step six: Comment period
- See also: Comment period
The comment period, usually ranging between 30 to 60 days, provides the public with the opportunity to send written feedback to the agency regarding the proposed rule. Under Executive Order 12866, the recommended length of the comment period is 60 days. However, if the proposed rule is complex, the agency may schedule a longer public comment period, such as 180 days.[1][8]
Step seven: Preparation of final rule
- See also: Final rule
After the conclusion of the comment period, the agency incorporates any necessary public feedback and drafts a final rule. The final rule includes information about the rationale for the regulation as well as any necessary responses to public comments.[1][8]
Step eight: OMB review of final rule
Executive Order 12866 requires that the OMB review any final rules, except those from independent federal agencies, that are deemed to be significant rules. Similar to the OMB review of the proposed rule, agencies must reconsider any draft final rules returned with comments or changes following the review.[1]
Step nine: Publication of final rule
Following OMB review, if applicable, the agency must publish the final rule in the Federal Register. Final rules generally follow a standard format that begins with a preamble, which includes several subsections, continues with a statement of authority, and concludes with the full text of the measure. In most cases, a final rule cannot take effect until the rule has been submitted to both houses of Congress and to the General Accounting Office (GAO). After publication in the Federal Register, a final rule is added to the Code of Federal Regulations.[1][8]
See also
External links
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 Office of Information and Regulatory Affairs, "Reg Map," accessed August 15, 2017
- ↑ 2.0 2.1 2.2 2.3 JUSTIA, "Informal Rulemaking," accessed August 15, 2017
- ↑ Cornell Law School—Legal Information Institute, "5 U.S. Code § 553 - Rule making," accessed August 16, 2017
- ↑ 4.0 4.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Federal Register, "Executive Order 12866," October 4, 1993
- ↑ Center for Effective Government, "Executive Order 12866," accessed July 20, 2017
- ↑ Office of Information and Regulatory Affairs, "OIRA Return Letters," accessed August 18, 2017
- ↑ 8.0 8.1 8.2 8.3 Federal Register, "A Guide to the Rulemaking Process," accessed August 16, 2017
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