A Primer on the Informal Rulemaking Process

In a series of posts over the next few weeks, I’ll explore the process federal agencies use to create most federal “rules” or “regulations” (these terms are synonymous) that have the force and effect of law.  See 5 U.S.C. § 551(4) & (5) (defining “rule” and “rule making,” respectively).  Today’s post begins with an overview of this process, which is generally referred to as the “informal” or “notice-and-comment” rulemaking process. 

A provision of the Administrative Procedure Act (APA), 5 U.S.C. § 553, establishes the minimum procedural requirements that agencies must observe in informal rulemaking.  This law requires that an agency:

  1. Publish a notice of proposed rulemaking (NPRM or NOPR) in the Federal Register, to provide the public with essential information about the proceeding, including where and when it will occur, see 5 U.S.C. § 553(b)(1), the legal authority under the which the agency proposes to act, see 5 U.S.C. § 553(b)(2), and a description of the issues involved or the text of the proposed rule, see 5 U.S.C. § 553(b)(3);
  2. Give the public an opportunity to comment on the proposal “through submission of written data, views, or arguments with or without the opportunity for oral presentation,” see 5 U.S.C. § 553(c); and
  3. After considering public comments, publish the final rule in the Federal Registeralong with a concise statement explaining the rule’s basis and purpose, see 5 U.S.C. § 553(c).

The courts have fleshed out these statutory minimum requirements over the years.  Beyond these minimum requirements, however, agencies have wide discretion to tailor their own rulemaking procedures.  See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).

Section 553 exempts certain kinds of rules from notice-and-comment requirements.  One of the exemptions allows agencies to adopt “interpretative rules, general statements of policy, or rules or agency organization, procedure or practice,” 5 U.S.C. § 553(b)(A), without publishing an NPRM and providing an opportunity for public comment.  Another exemption applies “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  5 U.S.C. § 553(b)(B).

In my next post, I’ll discuss some of the Administrative Conference’s previous recommendations related to informal rulemaking procedures, with a special emphasis on Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60 Fed. Reg. 43,108 (Aug. 18, 1995).

In the meantime, further information about federal informal rulemaking under the APA is available in the following resources (listed in reverse chronological order):

Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking (5th ed., ABA 2012).

Curtis W. Copeland, Congressional Research Service, RL32240, The Federal Rulemaking Process: An Overview (Feb. 22, 2011).

Vanessa K. Burrows & Todd Garvey, Congressional Research Service, R41546, A Brief Overview of Rulemaking and Judicial Review (Jan. 4, 2011).

ICF International, The Reg Map (2003).

ABA Section on Admin. L. & Reg. Practice, A Blackletter Statement of Federal Administrative Law, 54 Admin. L. Rev. 1, 30-36 (2002) (Part Two: Informal Rulemaking).

Mark Seidenfeld, A Table of Requirements for Federal Administrative Rulemaking, 27 Fla. St. L. Rev. 533 (2000).

Tom C. Clark, Attorney General’s Manual on the Administrative Procedure Act, Section 4—Rule Making (1947).