Rulemaking: The Ultimate Guide to How Government Rules Are Made

LEGAL DISCLAIMER: This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.

Imagine Congress passes a law called the “Safe Skies Act,” which simply says, “Airlines must operate safely.” That's a great goal, but it’s just the big idea. It doesn't say how often a jet engine needs to be inspected, how many hours a pilot can fly without a break, or what emergency equipment must be on board. Congress doesn't have the time or technical expertise to decide these critical details. So, they delegate that authority to an expert agency, like the federal_aviation_administration (FAA). The process the FAA uses to turn the general goal of “airline safety” into specific, legally binding requirements—like “jet engines must be fully inspected every 3,000 flight hours”—is rulemaking. It's the engine room of the U.S. government, where the broad strokes of a statute passed by Congress are translated into the detailed regulations that shape our daily lives, from the purity of our drinking water to the safety features in our cars and the privacy of our online data. It’s a process that is often invisible, but its impact is everywhere.

• Key Takeaways At-a-Glance:
  • What it is: Rulemaking is the process that executive branch agencies, like the environmental_protection_agency or the food_and_drug_administration, use to create detailed, legally enforceable regulations (or “rules”) based on the authority given to them by laws passed by congress.
  • How it affects you: This process determines the specific standards for everything from workplace safety and environmental pollution to food labeling and financial products. The rules created through rulemaking have the full force and effect of law.
  • Your role: The most common form of rulemaking includes a mandatory public comment period, giving you, your business, or your community a direct opportunity to influence the final shape of a new federal regulation.

The concept of rulemaking isn't new, but its modern form is a product of the 20th century. In the late 1800s, as America industrialized, Congress realized it couldn't micromanage the increasingly complex railroad industry. In 1887, it created the first major regulatory agency, the interstate_commerce_commission (ICC), giving it power to set “just and reasonable” shipping rates. This was a major shift in American governance, a “delegation” of legislative power to experts. The real explosion in rulemaking came during the Great Depression and President Franklin D. Roosevelt's new_deal. To combat the economic crisis, Congress created a host of “alphabet soup” agencies (SEC, FCC, NLRB) with broad mandates to regulate banking, communications, and labor. This rapid growth led to fears that these powerful, unelected agencies were creating laws without accountability or public input. The government felt chaotic and secretive. In response to these concerns, Congress passed the landmark administrative_procedure_act (APA) of 1946. The APA was a grand compromise. It legitimized the power of agencies to make rules, but it also established a transparent, predictable, and participatory framework for how they must do it. It created the “notice-and-comment” process that remains the gold standard for federal rulemaking today, ensuring that the government must listen before it legislates through regulation.

The entire universe of federal rulemaking is governed by a few key legal documents.

• The U.S. Constitution: While it doesn't mention rulemaking directly, the Constitution's separation_of_powers is the starting point. Congress has “all legislative Powers,” but the supreme_court has long held that Congress can delegate some of that power to executive agencies to “fill up the details” of a statute, as long as it provides an “intelligible principle” to guide the agency.
• Enabling Statutes: No agency can make a rule out of thin air. It must be empowered by a specific law passed by Congress, known as an enabling statute. For example, the clean_air_act is an enabling statute that gives the environmental_protection_agency (EPA) the authority to create rules setting limits on air pollutants.
• The administrative_procedure_act (APA): This is the master playbook. Section 553 of the APA is the most critical part for most rules. It states that an agency must:

> “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments…”

• *In plain English, this means the agency has to publish its proposed rule, give the public a chance to comment on it, consider those comments, and then publish a final rule with a clear explanation of its reasoning. The APA is the law that guarantees your right to be heard. * The code_of_federal_regulations (CFR): Once a rule is finalized, it is published in this massive, multi-volume collection. The CFR is the official record of all the rules and regulations of the executive branch. If a statute from Congress is the “law,” a regulation in the CFR is the “rule” that has the same legal force. ==== A Nation of Contrasts: Jurisdictional Differences ==== While the federal APA governs federal agencies, each state has its own version of an administrative procedure act to govern its state-level agencies. These processes are broadly similar but have important differences. ^ Feature ^ Federal (U.S. APA) ^ California (CA APA) ^ Texas (TX APA) ^ New York (NY SAPA) ^ | Primary Publication | federal_register | California Regulatory Notice Register | Texas Register | New York State Register | | Minimum Comment Period | Generally 30-60 days; not specified in APA. | 45 days. | 30 days. | 60 days for most rules. | | Public Hearing Requirement | Not required for informal rulemaking unless the enabling statute demands it. | Required if requested by any interested person within 15 days of notice. | Required if requested by 25 people, a government agency, or an association with 25+ members. | Required for most rules, scheduled at the time of the proposal. | | Legislative Review | Congress can overturn rules via the congressional_review_act. | The Office of Administrative Law (OAL), an executive body, reviews for necessity, clarity, and authority. | The legislature does not have a formal veto power over rules. | The legislature can comment, but formal review is limited. | What this means for you: If you are a small business owner, the process for challenging a new state environmental regulation in California (with its mandatory hearing option and OAL review) is very different from the process in Texas. Understanding your state's specific APA is just as important as knowing the federal one. ===== Part 2: Deconstructing the Core Elements ===== ==== The Anatomy of Rulemaking: Key Components Explained ==== Rulemaking isn't a single event but a structured process. The APA outlines several types, but one is overwhelmingly the most common and important. === Element: Informal “Notice-and-Comment” Rulemaking === This is the workhorse of the federal government, used for 99% of all regulations. It's a three-act play: - Act 1: The Notice of Proposed Rulemaking (NPRM). The agency publishes its proposed rule in the federal_register. This isn't just the rule text; it's a detailed document that must include: * The legal authority (the enabling statute) for the rule. * A preamble explaining the problem the rule is trying to solve and the agency's justification for its chosen solution. * The specific text of the proposed regulation. * Instructions on how and when the public can submit comments. - Act 2: The Public Comment Period. This is the heart of public participation. For a set period (usually 60 days, but it can be longer for complex rules), any person or organization can submit feedback. You don't need to be a lawyer or a lobbyist. A small business owner can explain how the rule would affect their operations. A scientist can submit data. A citizen can share a personal story. Agencies are legally required to read and consider all “substantive” comments. - Act 3: The Final Rule. After the comment period closes, the agency analyzes the feedback. It may decide to change the rule, withdraw it, or keep it as is. It then publishes the Final Rule in the federal_register. This document includes the final regulatory text and, critically, a “Statement of Basis and Purpose.” This is where the agency responds to the major arguments raised in the public comments, explaining why it made the choices it did. The final rule is then codified in the code_of_federal_regulations (CFR) and has the force of law. === Element: Formal “Trial-Type” Rulemaking === This is much rarer and is only required when the enabling statute explicitly calls for a rule to be made “on the record after an opportunity for an agency hearing.” This process looks more like a court case. It involves a formal hearing before an administrative_law_judge, where parties can present evidence, cross-examine witnesses, and create an official transcript. It is slow, expensive, and generally used for setting rates or prices in specific industries. === Element: Exemptions and “Good Cause” === The APA exempts certain types of rules from the notice-and-comment process. These include rules related to military or foreign affairs functions, and matters relating to agency management or personnel. Additionally, an agency can skip notice-and-comment if it has “good cause,” meaning the process would be “impracticable, unnecessary, or contrary to the public interest.” This is often used for emergency situations, like an immediate public health threat, but its use is scrutinized by courts to ensure agencies don't abuse the exception. ==== The Players on the Field: Who's Who in the Rulemaking Process ==== * Congress: The Delegator. Congress starts the whole process by passing a broad law and delegating the details to an agency. * The Agency: The Rule-Writer. This is the expert body (e.g., securities_and_exchange_commission, department_of_labor) that does the research, drafts the rule, and manages the public comment process. * The White House (OIRA): The Gatekeeper. The Office of Information and Regulatory Affairs, part of the Office of Management and Budget, reviews all “significant” proposed and final rules from executive agencies. OIRA checks for consistency with the President's priorities and analyzes the rule's costs and benefits. It can delay or demand changes to a rule before it's published. * The Public: The Voice of Experience. This includes individuals, consumer advocacy groups, industry associations, labor unions, and academic experts. Their comments provide real-world data and perspectives that agencies must consider. * The Courts: The Referee. After a rule is finalized, parties who believe they are harmed by it can sue the agency. This is called judicial_review. A federal court will then review the rule to determine if the agency acted within its authority, followed the proper APA procedures, and made a decision that was not “arbitrary_and_capricious.” ===== Part 3: Your Practical Playbook ===== ==== Step-by-Step: How to Make Your Voice Heard in Rulemaking ==== You have a legal right to participate. Here is a clear, chronological guide to making your comment count. === Step 1: Find a Proposed Rule That Matters to You === You can't comment if you don't know a rule is being proposed. The best place to look is Regulations.gov, the U.S. government's central, searchable database for all federal rulemaking. You can search by keyword (e.g., “small business,” “student loans,” “clean water”) or by agency (e.g., “Department of Education”). You can also sign up for email alerts on topics you care about. The official, but less user-friendly, source is the daily federal_register. === Step 2: Understand the Proposal === Read the NPRM (Notice of Proposed Rulemaking). Don't just read the dense rule text. Focus on the preamble. This is where the agency explains, in relatively plain language, what it's trying to do and why. Ask yourself: * What problem is the agency trying to solve? * How will this rule affect me, my family, my business, or my community? * Does the agency's reasoning make sense? Have they considered all the consequences? === Step 3: Craft an Effective Comment === A one-sentence comment like “I support this rule” is counted, but it has little influence. A strong, substantive comment is persuasive. * Be Specific: Don't just say a rule is “bad for business.” Explain *how*. “The proposed reporting requirement in Section 4.A will cost my small business of 10 employees an estimated 20 hours of administrative work per month, which will force me to raise prices or reduce staff.” * Provide Data or Evidence: If you have facts, figures, or studies that support your position, include them. * Share Your Expertise or Personal Story: You are an expert on your own life and business. Explain the rule's real-world impact. A personal story can be more powerful than abstract data. * Propose an Alternative: If you disagree with the agency's approach, suggest a better one. “Instead of a complete ban, the agency should consider a labeling requirement, which would achieve the goal of informing consumers without…” * Be Professional: Stick to the facts and maintain a respectful tone, even if you strongly disagree. === Step 4: Submit Your Comment === The easiest way is through Regulations.gov. Find the proposed rule (the “docket”) and use the “Comment” button. You can type your comment directly or upload a PDF file. Make sure you submit before the deadline. === Step 5: Follow the Process === After the comment period closes, the agency will review the feedback and eventually publish a Final Rule. On Regulations.gov, you can see the Final Rule in the same docket. The preamble will often summarize the comments received and explain how the agency responded to them, sometimes even mentioning specific arguments that were raised. ==== Essential Paperwork: Key Documents in the Process ==== * Notice of Proposed Rulemaking (NPRM): This is the document that kicks off the process. Purpose: To inform the public of a potential new rule and solicit feedback. Where to Find It: Regulations.gov and the federal_register. Tip: Pay close attention to the “SUMMARY” and “DATES” sections at the beginning to quickly grasp the rule's purpose and the comment deadline. * The Public Comment: This is your contribution. Purpose: To provide data, views, and arguments to the agency. Where to Find It: All submitted comments are publicly available for viewing on Regulations.gov within the rule's docket. Tip: Reading other comments can help you understand different perspectives and strengthen your own argument. * The Final Rule: This is the finished product. Purpose: To announce the official, legally binding regulation and explain the agency's reasoning, including its response to public comments. Where to Find It: Regulations.gov and the federal_register. It is then added to the code_of_federal_regulations. ===== Part 4: Landmark Cases That Shaped Today's Law ===== === Case Study: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) === * The Backstory: The EPA, under the new Reagan administration, issued a rule reinterpreting the term “stationary source” in the clean_air_act. The new interpretation was more business-friendly, allowing factories to treat an entire plant as a single “bubble” for pollution purposes, making it easier to modify equipment without triggering strict new environmental reviews. An environmental group sued. * The Legal Question: When a law passed by Congress is ambiguous or silent on a specific issue, how much respect should a court give to the expert agency's interpretation of that law? * The Holding: The Supreme Court created a powerful two-step test known as chevron_deference. 1. Has Congress spoken directly to the precise question at issue? If the law's text is clear, the court and the agency must follow it. 2. If the law is silent or ambiguous, is the agency's interpretation a “permissible construction of the statute?” If the agency's interpretation is reasonable, a court must uphold it, even if the court would have interpreted the law differently. * Impact on You Today: *Chevron* dramatically empowered federal agencies. For decades, it has meant that as long as an agency's rule is based on a reasonable reading of a vague law, it is likely to survive a court challenge. This gives agencies flexibility to adapt to new technologies and scientific understandings, but critics argue it gives unelected bureaucrats too much lawmaking power. === Case Study: Motor Vehicle Mfrs. Ass'n v. State Farm (1983) === * The Backstory: After years of study, the National Highway Traffic Safety Administration (NHTSA) issued a rule requiring passive restraints (either airbags or automatic seatbelts) in new cars. A few years later, a new administration came in and abruptly rescinded the rule, arguing it was no longer cost-effective. * The Legal Question: What is the standard for a court to strike down an agency's action as “arbitrary and capricious” under the APA? * The Holding: The Supreme Court ruled against the agency. It held that an agency must provide a reasoned explanation for its actions. An agency action is arbitrary_and_capricious if it has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” * Impact on You Today: This case established the “hard look” doctrine. It means that while courts give agencies deference, they won't just rubber-stamp their decisions. Agencies must show their work. They can change their minds, but they can't do it on a whim; they must provide a detailed and rational justification based on the evidence. This protects the rulemaking process from purely political reversals. ===== Part 5: The Future of Rulemaking ===== ==== Today's Battlegrounds: Current Controversies and Debates ==== The world of rulemaking is at the center of a fierce debate about the size and scope of government. * The War on chevron_deference: For years, a growing conservative legal movement has argued that *Chevron* gives far too much power to the “administrative state.” They contend that it encourages Congress to write vague laws and allows agencies, not courts, to say what the law means. The Supreme Court has recently taken up cases that could significantly narrow or even overturn *Chevron*, which would be the biggest change to administrative law in 40 years. * The Major Questions Doctrine: This is a newer, related idea. The Supreme Court has stated that in “extraordinary cases” involving issues of “vast economic and political significance,” an agency cannot rely on a vague or minor provision of an old law to enact a sweeping new regulation. Instead, the agency must have clear and specific authorization from Congress. This doctrine was used in 2022 to strike down the EPA's Clean Power Plan. The debate rages over what constitutes a “major question” and whether this doctrine is a necessary check on agency power or a judicial invention designed to hamstring regulation. ==== On the Horizon: How Technology and Society are Changing the Law ==== * Artificial Intelligence (AI) in Rulemaking: Agencies are beginning to explore using AI to analyze the millions of public comments they receive on major rules, a task that is currently overwhelming for humans. Could AI also help draft more effective and clearer rules? This raises questions of transparency and bias. If an AI helps write a rule, how can the public and courts understand its reasoning? * “Regulation by Algorithm”: As government agencies increasingly use complex algorithms to make decisions about everything from criminal justice to loan approvals, a new question arises: Is the creation of one of these high-impact algorithms a form of rulemaking? Critics argue that these systems are essentially “rules” and should be subject to a public notice-and-comment process before they are deployed, to ensure fairness and accountability. * Mass-Comment Campaigns and Disinformation: The public comment process is being flooded by automated, often fake or duplicative, comments generated by bots. This “astroturfing” makes it difficult for agencies to distinguish genuine public sentiment from manufactured campaigns, posing a threat to the integrity of the process. ===== Glossary of Related Terms ===== * administrative_law: The body of law governing the activities of government administrative agencies. * administrative_procedure_act: The 1946 federal law that establishes the procedures for agency rulemaking and adjudication. * arbitrary_and_capricious: The legal standard of review used by courts to strike down agency actions that are irrational or lack a reasoned basis. * chevron_deference: The legal doctrine requiring courts to defer to an agency's reasonable interpretation of an ambiguous statute it administers. * code_of_federal_regulations: The official compilation of all permanent rules and regulations published by the federal government. * congressional_review_act: A law that gives Congress a short window of time to overturn a new federal regulation with a simple majority vote. * delegation_of_power: The practice of Congress granting some of its legislative authority to an executive branch agency. * enabling_statute: A law passed by Congress that creates an administrative agency or gives an existing agency the authority to act. * federal_register: The official daily journal of the U.S. government that publishes proposed rules, final rules, and other agency notices. * final_rule: The last stage of the rulemaking process, which has the force and effect of law. * judicial_review: The power of a court to review and potentially invalidate laws or agency actions that are unconstitutional or unlawful. * notice_of_proposed_rulemaking: The official notice published by an agency announcing its intent to create or change a rule. * public_comment_period:** The designated time during which the public can submit feedback on a proposed rule.

• administrative_law
• separation_of_powers
• chevron_deference
• federal_register
• code_of_federal_regulations
• administrative_procedure_act
• judicial_review