rulemaking
Rulemaking is the process by which an administrative agency formulates, amends, or repeals a rule. The Administrative Procedure Act (APA) defines rulemaking in 5 U.S.C. § 551(5). Under 5 U.S.C. § 551(4), a rule is an agency statement that has future effect and is intended to implement, interpret, or prescribe law or policy, or to describe the agency's organization, procedure, or practice. Rulemaking differs from adjudication, which generally resolves a matter through an agency order.
A federal agency may issue a rule only within authority delegated by statute. For many legislative (or substantive) rules, APA § 553 requires notice-and-comment rulemaking. The agency publishes a notice of proposed rulemaking in the Federal Register. The notice identifies the legal authority for the proposed rule, explains the rulemaking proceeding, and describes the proposed rule or the issues under consideration. Interested persons may submit written data, views, or arguments, often through the public docket on Regulations.gov.
After considering relevant material submitted during the comment period, the agency may issue a final rule with a concise general statement of its basis and purpose. The final rule is generally published in the Federal Register, and rules of general and permanent applicability are generally codified in the Code of Federal Regulations (CFR). A substantive rule ordinarily may not take effect until at least 30 days after publication, subject to statutory exceptions; however, § 553(d) of the APA contains several exceptions.
Not every agency rule must use ordinary notice-and-comment procedures. Unless another statute requires otherwise, § 553 generally exempts interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice. An agency may also bypass notice and public procedure for good cause when it finds those procedures impracticable, unnecessary, or contrary to the public interest and incorporates a brief statement of reasons in the rule. If a governing statute requires rules to be made on the record after an opportunity for an agency hearing, the hearing and decision procedures in 5 U.S.C. § 556 and § 557 apply in place of the ordinary participation procedures in § 553(c). This comparatively rare procedure is commonly known as formal rulemaking.
The APA also gives interested persons the right to petition an agency to issue, amend, or repeal a rule. Final agency rules are generally subject to judicial review to determine, among other things, whether the agency acted within its statutory authority, complied with required procedures, and avoided arbitrary or capricious decision-making. State administrative agencies typically follow comparable procedures established by state administrative procedure acts.
[Last reviewed in August of 2026 by the Wex Definitions Team]
Keywords
Wex