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Proposed rule

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What is rulemaking in the context of the administrative state?

Rulemaking is a process by which administrative agencies amend, repeal, or create an administrative regulation. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period. When required by statute, certain agencies must follow the formal rulemaking process, which incorporates a trial-like hearing in place of the informal comment period, or hybrid rulemaking, which blends specified elements of formal rulemaking into the informal rulemaking process. Learn about rulemaking here.

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In the context of administrative rulemaking, a proposed rule, also known as a notice of proposed rulemaking (NPRM), is a preliminary version of a prospective federal agency regulation. If an agency determines that a new regulation is necessary, the agency develops a proposed rule for publication in the Federal Register. After a period of public comment, the agency may determine to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.[1][2]

Background

When a federal agency embarks on a new course for regulatory action, the agency must first publish a proposed rule in the Federal Register and initiate a public comment period to receive written feedback, usually ranging between 30 to 60 days. If the proposed rule is complex, the agency may schedule a longer public comment period. An agency may also choose to hold regulatory hearings, public meetings, or internet webcasts to solicit additional feedback. Moreover, an agency may initiate an optional reply comment period in order to allow interested parties to reply to public comments and facilitate a discussion.[3]

After reviewing public comments, the agency may decide to abandon the proposed rule or make changes based on public feedback, in which case the agency must issue a supplemental proposed rule or a new proposed rule. The agency may also choose to extend the public comment period if it is unsatisfied with the quality of feedback or if commenters have requested additional time to respond. If the agency decides to proceed with the proposed rule, the rule advances to the final rule stage of the rulemaking process.[3]

The Office of Management and Budget (OMB) must review proposed rules that are deemed to be significant rules put forth by agencies other than independent federal agencies.[4]

Exemptions

According to the Office of Information and Regulatory Affairs (OIRA), the following types of rules are exempted from the proposed rule phase of the rulemaking process under the Administrative Procedure Act:[5]

“
  • Rules concerning military or foreign affairs functions
  • Rules concerning agency management or personnel
  • Rules concerning public property, loans, grants, benefits, or contracts
  • Interpretive rules
  • General statements of policy
  • Rules of agency organization, procedure, or practice
  • Nonsignificant rules for which the agency determines that public input is not warranted
  • Rules published on an emergency basis[5][6]
 ”

Structure

Proposed rules follow a general format for publication in the Federal Register. The proposed rule begins with a preamble, which includes several subsections, continues with a statement of authority, and concludes with the full text or narrative description of the proposed measure.[3]

Preamble

The preamble of a proposed rule is made up of the following subsections:[3]

  • Summary
    The summary section provides information about the proposed regulatory action and issues at hand as well as the agency's rationale behind the proposed rule.
  • Dates
    The dates section includes information about the deadline for submitting public comments on the proposed rule.
  • Addresses
    The addresses section details the methods for submitting public comments, including physical delivery via 

the U.S.
 Postal Service or 
private
 courier and electronic submission via 
email or Regulations.gov, 
the 
official 
federal 
website to submit public comments.
  • Contact
    The contact section includes the contact information of agency staff members who are available to provide further information on the proposed rule if necessary.
  • Supplementary information
    According to the Federal Register, the supplementary information section of a proposed rule "discusses 

the
 merits 
of 
the 
proposed
 solution,
 cites
important
 data 
and 
other 
information 
used
 to 
develop 
the 
action, 
and
 details 
its
 choices 
and
 reasoning.

" Occasionally, the statement of authority and text or summary of the proposed rule are included under this subheading rather than broken into separate sections.[3]

Authority

The proposed rule must include a statement of authority identifying the agency's legal authority for issuing the rule.[3]

Text

The proposed rule includes the full regulatory text of the rule. The regulatory text includes either the full text of proposed amendments to the Code of Federal Regulations (CFR) or narrative descriptions of each amendment.[3]

Related rules

Advance notice of proposed rulemaking (ANPRM)

An agency may issue an advance notice of proposed rulemaking (ANPRM) in the Federal Register in order to request information for the development of a proposed rule. An ANPRM may also be called a "notice of inquiry" or a "request for comments." The ANPRM is an optional phase of the rulemaking process that agencies may use to acquire information or test the public reception of a potential regulation. After receiving feedback from an ANPRM, an agency must then issue a proposed rule in order to proceed with the rulemaking process.[5][7]

See also

External links

Footnotes

  1. ↑ Office of Information and Regulatory Affairs, "Regulations and the Rulemaking Process," accessed July 24, 2017
  2. ↑ U.S. Food and Drug Administration, "FDA Rules and Regulations," accessed July 24, 2017
  3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 Federal Register, "A Guide to the Rulemaking Process," accessed July 24, 2017
  4. ↑ Office of Information and Regulatory Affairs, "Reg Map: Step Four," accessed July 27, 2017
  5. ↑ 5.0 5.1 5.2 Office of Information and Regulatory Affairs, "Reg Map: Step Three," accessed July 27, 2017
  6. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  7. ↑ The Regulatory Group, "Regulatory Glossary," accessed July 27, 2017
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