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1 1 (March 19, 2021)

handle is hein.crs/govecst0001 and id is 1 raw text is: $ hr I o rnTh~ h Iecgi~Iafv dab e irncs 14 Updated March 19, 2021 An Overview of Federal Regulations and the Rulemaking Process Overview of Rulemaking What Is Federal Rulemaking? Congress often grants rulemaking authority to federal agencies to implement statutory programs. The regulations is suedpursuant to this authority carry the force and effect oflaw and can have substantialimplications forpolicy implementation. When issuing theseregulations, agencies are required to follow a certain set of procedures prescribed in law and executive order. These procedures collectively comprise the federal rulemaking process. A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law. National Latino Media Coalition v. Federal Communications Commission, 816 F.2d 785, 788 (D.C. Cir. 1987). Why Does Congress Delegate Rulemaking Authority? Congress delegates rulemaking authority to agencies for a number of reasons. Perhaps most importantly, agencies have a significant amount ofexpertise and canfill in technical details of programs that Congress created in statute. This can be useful for Congress, which is responsible for establishing policy in a wide range of issue areas and does notnecessarily have the s ame depth of expertise that agencies may have. In addition, even after delegating rulemaking authority to agencies, Congress retains its general legislative power, which gives it the ability to conduct oversight, modify or repeal regulations, and amend agencies' underlying statutory authority. As such, delegating authority to agencies canenable Congress to focus on big picture issues rather than spending its time and resources debating all the technical details required to fully implement a complex public policy. Finally, by creating the federal rulemaking process, Congress instituted a number ofprocedural controls on agencies, such as ensuring that thepublic would have an opportunity for participation through the public comment process required by the Administrative Procedure Act (APA). There are also a numberofreasons why Congress may not want to delegate rulemaking authority, however, or reasons for which Congress may want to do so with caution. One commonly cited reason is that, unlike Members of Congress, agency personnel and officials who write regulations are not directly accountable to the electorate. In addition, Congress faces the possibility that agencies will is sue rules in a manner that Congress views as inconsistent with congressional intent. Generally speaking, the more precise statutory directives are, the less discretion an agency has to independently develop policy objectives. The Rulemaking Process Introduction. By delegating authority to administrative agencies to write and enforce regulations thathave the force and effect of law, Congress provides federal agencies with considerable power. Therefore, to control the process by which agencies create these rules, Congress has enacted proceduralstatutes, such as theAPA, thatdictate what procedures an agency must follow to establish a final, legally binding rule. The rulemaking process, including the requirements of the APA, is summarized in Figure 1. Source: Graphic created by CRS. APA: Notice and Comment Rulemaking. Unless an agency's authorizing statute provides for different procedures, the APA provides the default practice that all agencies must follow to promulgaterules. These procedures apply whenever an agency creates, amends, orrepeals a rule. Section 553 of the APA requires that an agency generally must first provide notice that it intends to promulgate a rule. An agency does this by publishing a notice of proposed rulemaking in the Federal Register. The notice must provide (1) the time, place, and nature of the rulemaking ittps://crs reports.congress.gov

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