The Federal Rulemaking Process: An Overview

Publication Date: February 2005

Publisher: Library of Congress. Congressional Research Service

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Research Area: Government

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Abstract:

Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. Although not as frequently examined as congressional or presidential policy making, the process of developing and framing rules is viewed by some as central to the definition and implementation of public policy in the United States. Regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. The terms "rule" or "regulation" are often used interchangeably in discussions of the federal regulatory process. The Administrative Procedure Act of 1946 defines a rule as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." The procedures that federal agencies are required to follow in writing regulations is called the rulemaking process, and are the subject of this report.

During the past 50 to 60 years, Congress and various Presidents have developed an elaborate set of procedures and requirements to guide the federal rulemaking process, often with the implicit or explicit goal of reducing the amount of regulatory burden placed on the public. Statutory rulemaking requirements applicable to a wide range of agencies include the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, the Unfunded Mandates Reform Act, and the Information Quality Act. These and other cross-cutting rulemaking requirements often require some type of analysis on the part of the rulemaking agency before issuing a covered rule, but also often give agencies substantial discretion regarding whether the requirements are applicable. Other statutorily-based rulemaking requirements are contained in agency- or program-specific laws, which provide varying levels of discretion regarding the substance of agencies' rules and may impose (or exclude) additional analytical or procedural requirements. The most important of the current set of presidential rulemaking requirements are in Executive Order 12866, which establishes presidential review of covered agencies' rulemaking within the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA). The executive order requires covered agencies to submit their significant rules to OIRA for review before they become final, and requires those rules to meet certain minimal standards. Other executive orders and presidential directives delineate other specific rulemaking requirements incumbent on covered agencies. However, these requirements also often provide substantial discretion to agencies regarding whether, and if so how, they are applied.

The purpose of this report is to provide Congress with an overview of the federal rulemaking process and a brief discussion of the major laws and executive orders that prescribe the procedures agencies are to apply when promulgating regulations. This report will be updated when new requirements are put in place or when the requirements in this report change. For information on federal regulatory reforms initiated in recent decades, see CRS Report RL32356, Federal Regulatory Reform: An Overview, by Curtis W. Copeland.