An Overview of Federal Regulations and the Rulemaking Process

An Overview of Federal Regulations and the Rulemaking Process

link to page 1

Updated March 19, 2021
An Overview of Federal Regulations and the Rulemaking
Process
Overview of Rulemaking
with congressional intent. Generally speaking, the more
What Is Federal Rulemaking? Congress often grants
precise statutory directives are, the less discretion an
rulemaking authority to federal agencies to implement
agency has to independently develop policy objectives.
statutory programs. The regulations issued pursuant to this
authority carry the force and effect of law and can have
The Rulemaking Process
substantial implications for policy implementation. When
Introduction. By delegating authority to administrative
issuing these regulations, agencies are required to follow a
agencies to write and enforce regulations that have the force
certain set of procedures prescribed in law and executive
and effect of law, Congress provides federal agencies with
order. These procedures collectively comprise the federal
considerable power. Therefore, to control the process by
rulemaking process.
which agencies create these rules, Congress has enacted
procedural statutes, such as the APA, that dictate what
“A valid legislative rule is binding upon al persons,
procedures an agency must follow to establish a final,
and on the courts, to the same extent as a
legally binding rule. The rulemaking process, including the
congressional statute. When Congress delegates
requirements of the APA, is summarized in Figure 1.
rulemaking authority to an agency, and the agency
Figure 1. The Rulemaking Process
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 Does Congress Delegate Rulemaking Authority?
Congress delegates rulemaking authority to agencies for a
number of reasons. Perhaps most importantly, agencies
have a significant amount of expertise and can “fill in”
technical details of programs that Congress created in
statute. This can be useful for Congress, which is
responsible for establishing policy in a wide range of issue
areas and does not necessarily have the same depth of
expertise that agencies may have. In addition, even after
delegating rulemaking authority to agencies, Congress
retains its general legislative power, which gives it the
ability to conduct oversight, modify or repeal regulations,
and amend agencies’ underlying statutory authority. As
such, delegating authority to agencies can enable Congress
to focus on “big picture” issues rather than spending its
time and resources debating all the technical details
required to fully implement a complex public policy.
Finally, by creating the federal rulemaking process,
Congress instituted a number of procedural controls on

agencies, such as ensuring that the public would have an
Source: Graphic created by CRS.
opportunity for participation through the public comment
APA: Notice and Comment Rulemaking. Unless an
process required by the Administrative Procedure Act
agency’s authorizing statute provides for different
(APA).
procedures, the APA provides the default practice that all
agencies must follow to promulgate rules. These procedures
There are also a number of reasons why Congress may not
apply whenever an agency creates, amends, or repeals a
want to delegate rulemaking authority, however, or reasons
rule.
for which Congress may want to do so with caution. One
commonly cited reason is that, unlike Members of
Section 553 of the APA requires that an agency generally
Congress, agency personnel and officials who write
must first provide notice that it intends to promulgate a rule.
regulations are not directly accountable to the electorate. In
An agency does this by publishing a notice of proposed
addition, Congress faces the possibility that agencies will
rulemaking in the Federal Register. The notice must
issue rules in a manner that Congress views as inconsistent
provide (1) the time, place, and nature of the rulemaking
https://crsreports.congress.gov

An Overview of Federal Regulations and the Rulemaking Process
proceedings; (2) a reference to the legal authority under
Other Forms of Congressional Oversight. Beyond
which the rule is proposed; and (3) either the terms or
Congress’s power to legislate, Congress may also use the
subject of the proposed rule.
traditional tools of congressional oversight to direct agency
priorities. Such congressional actions might include holding
The agency must then allow “interested persons an
committee hearings or gathering information on an
opportunity” to comment on the proposed rule. Typically,
agency’s rulemaking activities.
an agency will provide at least 30 days for public comment.
The agency is required to review the public comments and
Appropriations. Congress may use the “power of the
respond to “significant” comments received, and it may
purse” to require agencies to act in certain ways. If
make changes to the proposal based on those comments.
Congress does not want an agency to undertake a certain
rulemaking proceeding, it may prohibit the agency from
Once this process is complete, the agency may publish the
using any appropriated funds to develop or finalize the rule.
final rule in the Federal Register along with a “concise
general statement” of the rule’s “basis and purpose.” The
Judicial Review of Agency Action
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 of agency action. The
statute provides judicial recourse for a person aggrieved by
An agency need not follow notice and comment procedures
final agency action unless a statute precludes judicial
when promulgating certain rules such as interpretive rules,
review or if a decision is left to agency discretion by law.
general statements of policy, and rules affecting only
agency management or personnel. Also, if it is
Scope of Judicial Review. Under the APA, a court may
“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. A court may vacate an agency rule if
the agency acted (1) arbitrarily or capriciously, (2) in excess
The Role of the President in Rulemaking. In 1981,
of statutory authority, (3) contrary to a constitutional right,
President Ronald Reagan issued Executive Order (E.O.)
or (4) in violation of procedures required by statute.
12291, which established centralized review of most
agencies’ rules through the Office of Management and
Helpful Resources
Budget’s Office of Information and Regulatory Affairs
For more information, see the following CRS reports:
(OIRA). In 1993, President Bill Clinton issued E.O. 12866,
which replaced President Reagan’s order but left much of
 CRS Report RL32240, The Federal Rulemaking
the centralized review process intact. Under President
Process: An Overview
Clinton’s order, which still remains in effect, agencies
 CRS Report R43056, Counting Regulations: An
(other than independent regulatory agencies) submit their
Overview of Rulemaking, Types of Federal Regulations,
“significant” proposed and final rules to OIRA for review
and Pages in the Federal Register
prior to publication. In addition, covered agencies must
 CRS Report R41974, Cost-Benefit and Other Analysis
determine whether a rule is “economically significant” and,
Requirements in the Rulemaking Process
if it is, conduct a cost-benefit analysis of the rule, ensuring
 CRS Report R41546, A Brief Overview of Rulemaking
that the benefits justify the costs of the rule. OIRA is then
and Judicial Review
to review the content of the rule and the quality of the cost-
 CRS Report R44699, An Introduction to Judicial
benefit analysis to ensure that the rule is consistent with the
Review of Federal Agency Action
President’s policy preferences.
 CRS Report R43992, The Congressional Review Act
(CRA): Frequently Asked Questions
President Donald Trump added to these underlying
The list below provides a number of websites and online
requirements in 2017 when he instituted a “one-in, two-out”
resources that can be useful for tracking regulations. CRS is
requirement whereby agencies were required to offset the
available to provide assistance with using these resources.
costs of new rules by eliminating equivalent costs
associated with at least two previously issued rules.
 https://www.federalregister.gov (search through current
However, President Joe Biden issued an E.O. repealing this
and past issues of the Federal Register)
requirement on his first day in office.
 https://www.regulations.gov (submit comments on rules
Congressional Oversight
and track other comments)
 https://www.reginfo.gov (search proposed and final
Statutory Control over Agency Action. Congress
rules under review at OIRA; search the Unified Agenda,
maintains ultimate control over federal agencies’ actions.
which lists upcoming proposed and final rules by
Congress can pass statutes that expand or contract agency
agency)
authority, repeal existing rules, or compel an agency to
 https://www.gao.gov/legal/other-legal-work/
issue certain rules. Congress typically seeks to draft
congressional-review-act (search for “major” rules and
legislation precisely to ensure that the agency acts as
rules submitted to the Government Accountability
Congress intends. Congress can also change the procedures
Office under the CRA)
agencies must follow in order to promulgate a valid
regulation. Finally, Congress can use the Congressional
Maeve P. Carey, Specialist in Government Organization
Review Act (CRA) to overturn rules through enactment of a
and Management
joint resolution of disapproval.
https://crsreports.congress.gov

An Overview of Federal Regulations and the Rulemaking Process

IF10003

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permissio n of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF10003 · VERSION 5 · UPDATED