General Rulemaking Process Under the APA

 

Here is the general order of the rulemaking process under the Administrative Procedure Act (APA). There can be variations, but this is the general process.

  1. Agency conceives of or begins working on a regulatory change.
      
  2. Agency reports the change it’s working on, with a summary and a projected date of completion, so that it appears in the current Unified Agenda of Federal Regulatory and Deregulatory Actions, which comes out every Spring and Fall. Find the current regulatory agenda here: http://www.reginfo.gov/public/do/eAgendaMain. Not all rule changes are added to the agency's unified agenda, however.
      
  3. Agency completes the proposed or final rule it’s been working on, after any required internal and external review.
      
  4. Agency submits the proposed or final rule to the Office of Management and Budget (OMB) for review. You can find which rules or proposed rules have been submitted to OMB for review here: http://www.reginfo.gov/public/do/eoPackageMain.
      
  5. OMB generally has up to 90 days to review the agency’s submission, but sometimes can take a longer or shorter amount of time. After OMB completes its review, it returns the rule or proposed rule to the agency, which will then publish it in the Federal Register. That is the first time the actual text of the rule or proposed rule can be viewed by the public. An advance copy of what will be published is made available for public inspection the day before it is published. The daily Federal Register will then contain the proposed or final rule on the day it is published. You can access both the public inspection versions and the published versions of proposed and final rules at: https://www.federalregister.gov.
      
  6. If the agency publishes a proposed rule, it will give the public a fixed amount of time (usually 30, 45, 60, or 90 days) to submit comments. After the comment deadline, the agency must review all comments received, which may impact the eventual wording of the final rule. After comments have been analyzed and the proposed rule amended (if at all), the agency will publish the rule as a final rule.
      
  7. If the agency publishes a final rule, the notice will contain an effective date, usually at least 30 days in the future. It is not until the effective date that the change becomes law.
      
  8. An agency is generally bound by the APA requirement to accept and consider public comment. The APA provides a number of important exceptions to the public notice and comment provision, however, including the following circumstances:
    • if the rule involves a military or foreign affairs function of the United States;
    • if the rule relates to a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts;
    • if the rule is an interpretative rule, general statement of policy, or rule of agency organization, procedure, or practice; or
    • when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
     

Some additional background on regulations

A regulation is a law promulgated by a federal agency on a matter within the scope of its authority, in accordance with the public notice and comment provisions of the Administrative Procedure Act (APA). A regulation is also sometimes called a "rule," or "final rule."