November 26, 2014
Federal Regulations and the Rulemaking Process
Overview
The Rulemaking Process
What Is Federal Rulemaking? Congress often grants
Introduction. By delegating authority to administrative
rulemaking authority to federal agencies to implement
agencies to write and enforce regulations that have the force
statutory programs. The regulations issued pursuant to this
and effect of law, Congress provides federal agencies with
authority carry the force and effect of law and can have
considerable power. Therefore, in order to control the
substantial implications for policy implementation. When
process by which agencies create these rules, Congress has
issuing these regulations, agencies are required to follow a
enacted procedural statutes, such as the APA, that dictate
certain set of procedures prescribed in law and executive
what procedures an agency must follow to establish a final,
orders. These procedures collectively comprise the federal
legally binding rule. The rulemaking process, including the
rulemaking process.
requirements of the APA, is summarized in Figure 1.
“A valid legislative rule is binding upon all persons,
Figure 1. The Rulemaking Process
and on the courts, to the same extent as a
congressional statute. When Congress delegates
rulemaking authority to an agency, and the agency
adopts legislative rules, the agency stands in the
place of Congress and makes law.” National Latino
Media Coalition v. Federal Communications
Commission, 816 F.2d 785, 788 (D.C. Cir. 1987).
Why Would Congress Delegate Rulemaking Authority?
There are a number of reasons why Congress may want to
delegate rulemaking authority to agencies. Perhaps most
importantly, agencies have a significant amount of expertise
and can “fill in” technical details of programs that Congress
created in statute. This may be useful for Congress, whose
Members are responsible for establishing policy in a wide
range of issue areas. The rulemaking process also contains
opportunities for public participation and transparency
through the public comment process required under the
Administrative Procedure Act (APA). Finally, even after
delegating rulemaking authority, Congress retains its
general legislative power, which gives it the ability to
conduct oversight and modify or repeal regulations. As
such, delegating authority can enable Congress to focus on
“big picture” issues, rather than debating all the technical

details required to implement a complex public policy fully.
Source: Graphic created by CRS.
Why Would Congress Refrain from Delegating
Administrative Procedure Act: Notice and Comment
Rulemaking Authority? There are also a number of
Rulemaking. Unless an agency’s authorizing statute
reasons why Congress may not want to delegate rulemaking
provides for different procedures, the APA provides the
authority, or reasons for which Congress would want to do
default practice that all agencies must follow in order to
so with caution. One commonly cited reason is that, unlike
promulgate rules. These procedures apply whenever an
Members of Congress, agency personnel and officials who
agency creates, amends, or repeals a rule.
write regulations are not directly accountable to the
electorate. More generally, Congress faces the possibility
Section 553 of the APA requires that an agency must first
that agencies will issue rules in a manner that Congress
provide notice that it intends to promulgate a rule. An
views as inconsistent with congressional intent. As
agency does this by publishing a notice of proposed
mentioned above, however, Congress retains its general
rulemaking in the Federal Register. The notice must
legislative power and may amend or repeal a regulation.
provide (1) the time, place, and nature of the rulemaking
proceedings; (2) a reference to the legal authority under
which the rule is proposed; and (3) either the terms or
subject of the proposed rule.
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Federal Regulations and the Rulemaking Process
The agency must allow “interested persons an opportunity”
Appropriations. Congress may use the “power of the
to comment on the proposed rule. Typically, an agency will
purse” to require agencies to act in certain ways. If
provide at least 30 days for public comment. The agency is
Congress does not want an agency to undertake a certain
required to review the public comments, and may make
rulemaking proceeding, it may prohibit the agency from
changes to the proposal based on those comments.
using any appropriated funds to develop or promulgate the
rule.
Once this process is complete, the agency may publish the
final rule in the Federal Register along with a “concise
Judicial Review of Agency Action
general statement” of the rule’s “basis and purpose.” The
rule may not go into effect until at least 30 days after it is
Availability of Judicial Review. The APA provides for a
published in the Federal Register, with certain exceptions.
strong presumption of judicial review. Judicial recourse is
available for any party aggrieved by a final agency action
Importantly, an agency need not follow notice and
unless a statute precludes judicial review, or if a decision is
comment procedures when promulgating certain rules such
left to agency discretion by law.
as interpretive rules, general statements of policy, and rules
affecting only agency management or personnel. Also, if it
Scope of Judicial Review. Under the APA, a court may
is “impracticable, unnecessary, or contrary to the public
compel any agency action that is unreasonably delayed or
interest,” an agency may forgo these procedures.
unlawfully withheld. Furthermore, a court may vacate an
agency rule if the agency acted (1) arbitrarily or
The Role of the President in Rulemaking. In 1981,
capriciously; (2) in excess of statutory authority; (3)
President Ronald Reagan issued Executive Order 12291,
contrary to a constitutional right; or (4) without following
which established centralized review of almost all agency
proper procedures.
rules through the Office of Management and Budget’s
(OMB’s) Office of Information and Regulatory Affairs
Helpful Resources
(OIRA). In 1993, President William Clinton issued
Executive Order 12866, which replaced President Reagan’s
For more information, see the following CRS reports:
order and established the process that is still in effect today.
• CRS Report RL32240, The Federal Rulemaking
Under President Clinton’s order, agencies (other than
Process: An Overview
independent regulatory agencies) submit their “significant”
•
proposed and final rules to OIRA for review prior to
CRS Report R43056, Counting Regulations: An
Overview of Rulemaking, Types of Federal Regulations,
publication. In addition, covered agencies must determine
and Pages in the Federal Register
whether a rule is “economically significant”—for example,
•
has a $100 million effect on the economy—and conduct a
CRS Report R41974, Cost-Benefit and Other Analysis
Requirements in the Rulemaking Process
cost-benefit analysis of the rule if they determine that it is.
• CRS Report R41546, A Brief Overview of Rulemaking
OIRA reviews the rule and the cost-benefit analysis to
ensure that the rule is consistent with the President’s policy
and Judicial Review
• CRS Report R43203, Chevron Deference: Court
preferences.
Treatment of Agency Interpretations of Ambiguous
Congressional Oversight
Statutes
• CRS Report R43710, A Primer on the Reviewability of
Agency Delay and Enforcement Discretion
Statutory Control over Agency Action. Congress
maintains ultimate control over an agency’s actions.
Congress can pass statutes that expand or contract agency
In addition, there are a number of useful websites for
tracking regulations. A few of these sites and some of the
authority, repeal existing rules, or compel an agency to
issue certain rules. It is often important for Congress to
possible uses are listed below. CRS is available to provide
assistance with using these sites.
draft legislation precisely to ensure the agency acts as
Congress intends. Congress may also change the procedures
• http://www.federalregister.gov (search through current
an agency must follow in order to promulgate a valid
and past issues of the Federal Register)
regulation. Finally, Congress can use the Congressional
• http://www.regulations.gov (submit comments on
Review Act (CRA) to overturn rules through enactment of a
agency rules and track other comments)
joint resolution of disapproval.
• http://www.reginfo.gov (search proposed and final rules
under review at OIRA)
Other Forms of Congressional Oversight. Beyond
• http://www.gao.gov/legal/congressact/fedrule.html
Congress’s power to legislate, Congress may also use the
(search for “major” rules and rules submitted to the
traditional tools of congressional oversight to direct agency
Government Accountability Office under the
priorities. Such congressional actions might include holding
Congressional Review Act)
committee hearings or gathering information on an
agency’s rulemaking activities through informal staff
Maeve P. Carey, mcarey@crs.loc.gov, 7-7775
interviews.
Daniel T. Shedd, dshedd@crs.loc.gov, 7-8441


IF10003
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