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Administrative Law: How Federal Regulations Are Made

Federal Notice and Comment Rulemaking

The process of passing regulations is called rulemaking or notice and comment. The basic process consists of publishing notices of proposed regulations with requests for comment in government newsletters called registers. The register for federal regulations is called the Federal Register (Fed. Reg. or F.R.).

Typically, one agency is tasked with supervising other agencies to make sure that they follow the rulemaking process, and may issue letters and determinations sanctioning agencies that do not follow the process. The federal agency that supervises federal rulemaking is the Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget. 

Federal regulations are made through the following steps:

  1. Starting the Rulemaking Process: The rulemaking process is usually initiated by the agency but may also be initiated as a result of petitions by the public or prompting by OIRA:
    1. Unified Agenda of Regulatory and Deregulatory Actions: Describes agencies' long-term plans for making and repealing regulations. 
    2. Petitions to Agencies: Anyone may petition an agency suggesting that they add, remove, or amend a regulation.
    3. Prompt Letters: OIRA may issue letters prompting agencies to pass or repeal regulations. 
  2. Publication in the Federal Register:
    1. Publication Schedule: The Federal Register is published business daily. Beginning in 2014, it is published online only. 
    2. What the Federal Register Includes: The Federal Register includes the text of the regulation; detailed background information explaining why the agency plans to pass the regulation and its anticipated impact; and contact information for submitting comments to the agency about the regulation.
    3. The Federal Register Process:
      1. The default comment period is 60 days but may be longer or shorter based on the specific regulation. After the comment period, the agency publishes a summary of the comments and its responses in the Federal Register.
      2. If the agency makes changes to the regulation based on the comments, it will allow the public additional time to comment.
      3. Once the agency is satisfied with the regulation, it publishes a final notice announcing its adoption.
  3. Review Letters: OIRA may issue letters making suggestions throughout the regulatory process.
  4. Return Letters: OIRA may issue letters rejecting proposed regulations.
  5. Organization by topic in the Code of Federal Regulations: The online CFR is updated daily. The print CFR is published yearly, with different titles published throughout the year. (For example, Titles 1-17 are published in January, while Titles 42-50 are not published until October.) In the interim, changes that have not yet been published in the print CFR are listed in the List of Sections Affected

Federal Notice and Comment Rulemaking: Flowchart

Flowchart summarizing the above explanation of federal rulemaking

Laws Governing Federal Rulemaking

More Information on Federal Rulemaking