Federal Procedure for Adoption of Rules

According to the Federal Administrative Procedure Act, the rules promulgated by administrative agencies must undergo certain procedures.  There are certain criteria/steps to be followed by an administrative agency before the adoption of rules.  They are:

  • Notice;
  • Comment and hearing;
  • Adoption of new rule;
  • Publication of new rule.

The first and foremost step to be followed by an agency is the issuance of notice.  A notice of proposed rulemaking must contain some elements such as statement of the time, place, and nature of public rule making proceedings and reference to the legal authority under which the rule is proposed.[i] Any failure to publish a notice of the proposed rulemaking in the Federal Register will automatically invalidate the ensuing rule.[ii]

Secondly, an agency is required to provide a meaningful opportunity for comments.[iii] However, the public do not possess any opportunity to comment on every bit of information that influences the decision of an agency.[iv] It is to be noted that, to give everyone a chance of hearing in rulemaking is highly impractical.  In rulemaking, a trial form of hearing is not required.[v]

Third step is the adoption of new rule.  A new rule promulgated by an administrative agency must contain adequate statement of the basis and purpose of the rule.  Under the Federal Administrative Procedure Act, a rule can be made invalidated by a reviewing court if an agency fails to explain the rule satisfactorily.  The statement must prove that the rules are based on the relevant factors, and not arbitrary.

The final stage is the publication of new rule.  Legislative rules must to be published in the Federal Register as per the Federal Administrative Procedure Act.  It is the duty of the government to inform the public by publishing the matters that can adversely affect a member of the public.[vi] Generally, the publication of a legislative rule must be made thirty days prior to its effective date in order to assist affected persons by giving them enough time to prepare for the effects of the rule.

[i] 5 USCS § 553

[ii] Clever Idea Co. v. Consumer Product Safety Com., 385 F. Supp. 688 (E.D.N.Y. 1974)

[iii] Hill v. Gould, 555 F.3d 1003 (D.C. Cir. 2009)

[iv] Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d 313 (5th Cir. 2001)

[v] Sima Products Corp. v. McLucas, 460 F. Supp. 128 (N.D. Ill. 1978)

[vi] Nolan v. United States, 44 Fed. Cl. 49 (Fed. Cl. 1999)


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