Agency initiatives for rulemaking originate from such things as:
- Agency priorities and plans
- New scientific data
- New technologies
- Accidents
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Recommendations from Other Agencies/External Groups/States/Federal Advisory Committees |
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Under the Administrative Procedure Act provisions that are included as part of the Freedom of Information Act at 5 U.S.C. 552, agencies are required to publish in the Federal Register:
- Substantive rules of general applicability
- Interpretive rules
- Statements of general policy
- Rules of procedure
- Information about forms
- Information concerning agency organization and methods of operation
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A notice of proposed rulemaking proposes to add, change, or delete regulatory text and contains a request for public comments.
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Under the Administrative Procedure Act provisions at 5 U.S.C. 553, rules may be established only after proposed rulemaking procedures (steps three through six) have been followed, unless an exemption applies. The following are exempted:
- 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
Note: Even if an exemption applies under the Administrative Procedure Act provisions, other statutory authority or agency policy may require that proposed rulemaking procedures be followed.
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An advance notice of proposed rulemaking requests information needed for developing a proposed rule.
Negotiated rulemaking is a mechanism under the Negotiated Rulemaking Act (5 U.S.C. 561-570) for bringing together representatives of an agency and the various interests to negotiate the text of a proposed rule.
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OMB reviews only those rulemaking actions determined to be "significant."
Independent agencies are exempt from OMB review.
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The Administrative Procedure Act provisions at 5 U.S.C. 553 require proposed rules to be published in the Federal Register.
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Under the Administrative Procedure Act provisions of 5 U.S.C. 553, an agency must provide the public the opportunity to submit written comments for consideration by the agency.
As required by Public Law No. 107-347, agencies must provide for submission of comments by electronic means and must make available online the comments and other materials included in the rulemaking docket under 5 U.S.C. 553 (c).
Executive Order 12866 established 60 days as the standard for the comment period.
The holding of a public hearing is discretionary unless required by statute or agency policy.
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A final rule adds, changes, deletes, or affirms regulatory text.
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An interim final rule adds, changes, or deletes regulatory text and contains a request for comments. The subsequent final rule may make changes to the text of the interim final rule.
A direct final rule adds, changes, or deletes regulatory text at a specified future time, with a duty to withdraw the rule if the agency receives adverse comments within the period specified by the agency.
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OMB reviews only those rulemaking actions determined to be "significant."
Independent agencies are exempt from OMB review.
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An agency must submit most final rules, interim final rules, and direct final rules, along with supporting information, to both houses of Congress and the General Accounting Office before they can take effect.
Major rules are subject to a delayed effective date (with certain exceptions).
Action by Congress and the President could have an impact on the rule.
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Under the Administrative Procedure Act provisions that are included as part of the Freedom of Information Act at 5 U.S.C. 552, agencies are required to publish final rules, interim final rules, and direct final rules in the Federal Register.
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The Federal Register Act at 44 U.S.C. 1510 (implemented at 1 CFR 8.1) requires rules that have general applicability and legal effect to be published in the Code of Federal Regulations.
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