Informal Agency Rulemaking Under the Law

Most administrative agency rules are developed through the process of informal rulemaking. At the federal level, the Administrative Procedure Act (APA) outlines procedures for government agencies to follow in creating new rules and modifying existing rules. State agencies generally follow a similar process, which allows the public to have some input into the process, but which does not usually involve formal hearings or other public proceedings.

Informal Rulemaking Procedure

The informal rulemaking process defined by the APA consists of four main steps. First, Congress must pass legislation that either creates an administrative agency or gives guidance or directives to an existing agency. The legislation forms the basis for the rules, which should be geared towards achieving the goals identified by Congress.

The second step is twofold: the agency must draft a proposed rule and publish notice of the proposed rule.

The third step, known as the comment period, begins when the proposed rule is published and continues for at least 30 days. During this time, members of the public may comment on the proposed rule.

The fourth step, codification of the final rule, takes place once all periods for public comment has passed and the agency has made any final revisions to the rule. Most rules have an “effective date” set far enough into the future to allow affected parties to bring themselves into compliance.

Notice and Comment Rulemaking

This process is sometimes known as “notice and comment rulemaking,” or “553 rulemaking,” after the section of the APA that defines informal rulemaking procedures.

A statute may require an agency to use certain procedures in creating rules that differ from the APA’s informal procedure. If the statute requires hearings on the record, the APA’s provisions for formal rulemaking may apply. In some cases, a statute may require a hybrid form of rulemaking that uses some elements of the formal rulemaking process.

Notice

Notices regarding proposed federal rules are published in the Federal Register, the federal government’s daily periodical. State governments maintain similar publications. An agency might publish a preliminary notice, in which it describes its objective and initial findings, in order to obtain input from interested parties before drafting the proposed rule. Once it has completed the drafting process, the agency publishes the proposed rule itself. If the agency does not seek input from outside parties, the first notice to the public might be the publication of the proposed rule.

Drafting the Proposed Rule

Agency employees typically draft rules for their own agencies. They are not under any general legal obligation to seek outside input in the drafting process, although a statute may direct an agency to identify interested parties to provide input. The agency usually has the final say regarding the text of the rule.

Comment Period

The agency must allow a period of at least 30 days for public comments after the publication of a proposed rule. Federal agencies often allow members of the public to comment on a rule through a web portal. People may also submit comments via email or regular mail.

No Public Hearing Required

Agencies are usually not required to hold public hearings or meetings regarding a proposed rule during informal rulemaking.

Revisions to the Proposed Rule

The APA directs federal agencies to consider any and all relevant comments submitted by the public, but it does not require the agency to take any specific action in response. An agency may make minor changes to the rule without changing its original effective date, or it might start the process over by publishing a new proposed rule in the Federal Register.

Effective Date of Final Rule

Once all periods for public comments have expired, the agency can codify the rule in the Code of Federal Regulations. It might give notice to interested parties or the public, including notice that any affected party has until the effective date to comply with the rule.

Exceptions to Informal Rulemaking Requirement

The APA identifies several exceptions to the notice and comment requirements:

  • Rules relating to “military or foreign affairs function[s]”;
  • Rules relating to “agency management or personnel”;
  • Rules relating to “public property, loans, grants, benefits, or contracts”;
  • Interpretive rules, meaning rules that interpret an existing statute or rule;
  • General policy statements;
  • Internal agency regulations and procedures; and
  • Any rule for which the agency concludes, “for good cause,” that the process would be “impracticable, unnecessary, or contrary to the public interest.”

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