Federal Regulations in the United States

Federal Agency Regulatory Review Process

Thomas W. Merrill & Kathryn Tongue Watts, in their paper “Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 470 (2002): “An unarticulated assumption took hold sometime after the 1970s that virtually every agency is free to make policy in any mode it chooses, including legislative rules, interpretive rules, policy statements, or adjudication. . . . [But the recent Supreme Court case of United States v. Mead Corp.] makes clear that agencies act with the force of law only if Congress intended to delegate authority to them to so act.”

The last U.S. Presidents have sought to coordinate and reduce agency rule making by having “significant” regulations reviewed by the Office of Management and Budget, with a large role for a subunit of OMB called the Office of Information and Regulatory Affairs (OIRA).

Connor Raso, in his “Introductory Comment [Symposium: Reflections on Executive Order 13,422], 25 Yale J. on Reg. 77, 77 n.3 (2008), commented:

“Though the controversies over regulatory review began in earnest during the Reagan administration,
the technique began even earlier in different forms. The Ford administration issued the first
executive order requiring benefit-cost analysis of regulations. The order instructed the OMB director
to analyze the inflationary effect of rules. The Carter administration retained this order, helping to
institutionalize the regulatory review.”

The new review process was instituted by President Clinton via an executive order in 1993 (Exec. Order No. 12,866, 3 C.F.R. 638 (1994))

Legal Materials

The formal rules written by U.S. government agencies are generally called Federal regulations. In most cases, an agency first issues “proposed regulations,” which do not have the effect of law, and asks for comments from the public. After considering the comments the agency issues “final regulations” that are legally binding. When time is limited, an agency may issue “emergency regulations” that take effect immediately.

Both proposed and final regulations are published officially in the Federal Register(see “Federal Register”). Final regulations are codified in the Code of Federal Regulations (see “Code of Federal Regulations”).

In addition, regulations are often posted on the issuing agency’s Web site. If you want to find all the proposed regulations available for comment by a particular agency at a given time – or to submit comments electronically – visit Regulations.gov.

Agendas: If you want to see whether a Federal agency plans to issue regulations, look in the agency’s Semiannual Regulatory Agenda, which summarizes the rules and proposed rules that each agency expects to issue during the next six months. Or you can look in the “Unified Agenda of Federal Regulatory and Deregulatory Actions,” which combines all the agency agendas. You can find an agency’s current and recent Agendas on Regulations.gov, in the Federal Register and possibly on the agency web site. The current Unified Agenda is available on RegInfo.gov. Unified Agendas back to 1994 are posted with other “Additional Government Publications” on FDsys.

Comment letters sent to most agencies are now posted on Regulations.gov. Otherwise, try to get them from the agency or the sender. Starting in 1977, the Office of the Federal Register required comment letters to be summarized as part of the final rule as published in the Federal Register.

Securities Comment Letters:Comment letters sent to the Securities and Exchange Commission are available in the Proposed Rules section of the SEC web site; they are searchable on LIVEDGAR. LIVEDGAR also has comment letters sent to securities-related Self-Regulating Organizations (SROs), such as the New York Stock Exchange and FINRA. For more information, see the Rules and Regulations section of the “Securities and Exchange Commission” entry.

Regulatory Histories: A “Regulatory History” is a compilation of the documents that led to the adoption of a regulation. There is no set list of items in a regulatory history, but materials that you may find include: the text of the proposed and final regulation; other drafts of the regulation; public comment letters and responses from the agency; comments from other government agencies, legislators or members of the court system; reports on or studies about the subject of the regulation; news articles concerning the subject; testimony of experts or witnesses at a public hearing concerning the regulation; etc.

There is no official source for Federal regulatory histories, but following are some key places to look.

• The Federal Register will have the text of all proposed and final regulations (see the “Federal Register” entry). As mentioned above, the final regulations should include the agency’s summary of any public comment letters.
• Regulations.gov should have public comment letters for relatively recent regulations.
• If you are lucky, Regulations.gov will have a “docket folder” for your regulation containing regulatory history documents.
• The agency adopting the regulation may have additional materials. Give them a call and see if they can help you out.

See Also

Code of Federal Regulations
Federal Register
Federal Acquisition Regulations (FARs)
Insurance Department Regulations
Internal Revenue Code
IRS Regulations
State Regulations
Administrative Codes

Concept of CFR

CFR is defined as: An abbreviation (see more United States law abbreviations in the legal abbreviations platform of this Project) for the Code of Federal Regulations.