Model Preamble for a Proposed Rule
Here’s a practical example from this model.
MODEL PREAMBLE FOR A PROPOSED RULE [as of May 11, 1998]
[Italicized items in brackets are for information purposes.]
[Use of boldface is optional.]
Subagency name (if any)
[Insert Code of Federal Regulations citation.]
[Insert billing code or docket number]
RIN [Insert regulatory information number from regulatory agenda.]
[Insert subject heading, for example: Permits and Leases, Coal Management, Private Maintenance, etc.]
<strong<agency:< strong=””> [Inset agency name]. </strong<agency:<>
ACTION: Proposed rule.
SUMMARY: The [Insert agency name] proposes to amend its regulations to [Insert a brief summary of what action is being taken.]. We are amending [or revising or adding] the regulations because [Insert a brief summary of why we are taking this action. Do not include citations to statutes or the CFR. If a court action caused the revision, do not use legal citations. The regulations will [Describe the intended effect of the document, not how it affects the CFR. In this discussion, refer to an act of Congress by the popular name of the act. Do not use qualifications, exceptions, or specific details. Be brief.].
Send your comments to reach us on or before (Insert date [Insert number of days] days after publication in the FEDERAL REGISTER.) [We normally allow 60 days for comment.]. We may not consider comments received after the above date in making our decision on the proposed rule.
_[In most cases, you will
include discussion of public hearings in preparing your preamble. Occasionally, in cases involving sensitive, complex, and/or controversial rules, the agency will announce in a proposed rule the schedule and location of public hearings. If so, insert one of the following:]
[If you plan one to four public hearings, insert this:]
We plan to hold public hearings on this proposed rule. The dates of the hearings are: [List the date, time, and place of each hearing on a separate line.]
[If you plan to hold more than four public hearings, insert this:]_
We plan to hold public hearings on this proposed rule. The dates and times of the hearings are in the “SUPPLEMENTARY INFORMATION”“ section under “Public hearings.”
You may mail comments to [Insert mailing address.]. You may also hand-deliver comments to us at [Insert location.]. For information about filing comments electronically, see the “SUPPLEMENTARY INFORMATION” section under “Electronic access and filing address.”
[If you plan to hold one to four public hearings, insert this:]
We will hold public hearings at [Insert location(s) of hearings, including street address. Actual hearing sites will vary from rule to rule, but you should plan to hold hearings close to those potentially affected by the rule.].
[If you plan to hold more than four public hearings, insert this:]
The locations of the public hearings that we are is holding on this proposed rule are in the “SUPPLEMENTARY INFORMATION”“ section under “Public hearings.”
FOR FURTHER INFORMATION CONTACT:
[Insert name and telephone number of person(s) best able to answer questions about the proposed rule.] Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339 between 8:00 a.m. and 4:00 p.m. Eastern time, Monday through Friday, excluding Federal holidays.
- Public Comment Procedures
- Discussion of Proposed Rule
- Procedural Matters
I. Public Comment Procedures
Electronic access and filing address
You may view an electronic version of this proposed rule at [Insert address of Internet page.]. You may also comment via the Internet to: [Insert address if different]. Please also include “Attention: [Insert some code to identify the regulation, usually the OMB RIN]” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, [make sure your system supports this feature] contact us directly at [Insert phone number].
Written comments on the proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason for any change you recommend. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. We may not consider or include in the Administrative Record for the final rule comments which we receive after the close of the comment period (See “DATES” or comments delivered to an address other than those listed above (See “ADDRESSES”).
Comments, including names, street addresses, and other contact information of respondents, will be available for public review at this address during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays. We will also post all comments on the regulation’s Internet page at the end of the comment period. [Your agency may not post proposed rules.] Individual respondents may request confidentiality. If you wish to request that we consider withholding your name, street address, and other contact information (such as Internet address, FAX or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. We will honor requests for confidentiality on a case-by-case basis to the extent allowed by law. We will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.
[If you are planning to hold more than four public hearings, list the dates, times, and addresses of the hearings here:]
We will hold public hearings at the following locations on the dates and times specified:
Any person who wants to participate in a particular hearing should notify the person identified under “FOR FURTHER INFORMATION CONTACT” at least one week prior to the hearing. If no one expresses an interest in participating in a hearing at a given location by that date, we will not hold that hearing. If only one person expresses an interest, we may hold a public meeting rather than a hearing, and we will include the results in the Administrative Record.
If we hold a hearing, we will continue the hearing until everyone who wants to testify has done so. In order to assist the transcriber and to ensure an accurate record, we request that you give the transcriber a copy of your testimony. In order to assist us in preparing appropriate questions, we also ask that if you plan to testify you submit to us at the address previously specified (See “ADDRESSES”) an advance copy of your testimony. This is not required.
The meeting sites are accessible to individuals with disabilities. An individual with a disability who will need an auxiliary aid or service to participate in the hearing, such as interpreting service, assistive listening device, or materials in an alternate format, must notify the person listed under “FOR FURTHER INFORMATION CONTACT” two weeks before the scheduled hearing date. Although we will attempt to meet a request receive after that date, the requested auxiliary aid or service may not be available because of insufficient time to arrange it.
[Use clear language to discuss the historical and present situation necessitating the proposed rule. Include a statement about the statutory authority supporting the rule, any court cases that apply, prior proposed rulemakings on the issue that are still outstanding and how they relate to this proposal.]
III. Discussion of Proposed Rule
_[State what the rule would do and why we are proposing the rule. Include a specific, s
analysis of how the proposed rule impacts our customers and how it changes existing regulatory provisions. For example, if a particular section is being deleted because it duplicates provisions from a statute or another regulation, you should cite the duplicated U.S. Code or Code of Federal Regulations section. You may also want to address the following: why this set of proposed regulations is the best way of addressing the issues; what policy alternatives were considered and why they were rejected; if this is a significant regulatory action to be reviewed by OMB under Executive Order 12866, the costs and benefits of each significant non-statutory requirement; any public participation in the development of the proposed regulations; and coordination that has taken place between our agency and other governmental entities, such as State, local, and tribal governments.]_
IV. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
[If the proposed regulations are a significant regulatory action, insert the following:]
These proposed regulations are a significant regulatory action under section 3(f) of Executive Order 12866 and require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order. [Insert a summary of the initial regulatory impact analysis.] We have placed the full analysis on file in the Administrative Record at the address specified in the “ADDRESSES” section.
[If the proposed regulations are not a significant regulatory action, insert the following:]
These proposed regulations are not a significant regulatory action and are not subject to review by Office of Management and Budget under Executive Order 12866. These proposed regulations will not have an effect of $100 million or more on the economy. They will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. These proposed regulations will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. These proposed regulations do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor do they raise novel legal or policy issues.
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. President Clinton’s Presidential memorandum of June 2, 1998, requires us to write new regulations in plain language. We invite your comments on how to make these proposed regulations easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed regulations clearly stated? (2) Do the proposed regulations contain technical language or jargon that interferes with their clarity? (3) Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity? (4) Would the regulations be easier to understand if they were divided into more (but shorter) sections? (A section appears in bold type and is preceded by the symbol and a numbered heading, for example [Insert a sample section number and heading from the proposed rule].) (5) Is the description of the proposed regulations in the “SUPPLEMENTARY INFORMATION” section of this preamble helpful in understanding the proposed regulations? How could this description be more helpful in making the proposed regulations easier to understand?
Please send any comments you have on the clarity of the regulations to the address specified in the “ADDRESSES” section.
National Environmental Policy Act
[The definitions of major federal action, significantly, human environment, and environmental impact statement are in the Council on Environmental Quality’s (CEQ) regulations at 40 CFR part 1508. CEQ’s total body of regulations explaining the entire process of NEPA compliance begins at 40 CFR part 1500. You must consult these regulations to determine whether or not to prepare an EIS. It is not appropriate simply to make a conclusory judgment that an action lacks the significance to merit preparation of a full EIS.]
[If the proposed regulations would have significant environmental impact, insert the following:]
These proposed regulations constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). We have prepared a draft environmental impact statement (DEIS) which is on file and available to the public in the Administrative Record at the address specified in the “ADDRESSES” section.
[If the proposed regulations would not have significant environmental impact, insert the following:]
We have prepared an environmental assessment (EA) and have found that the proposed rule would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). We have placed the EA and the Finding of No Significant Impact (FONSI) on file in the Administrative Record at the address specified in the “ADDRESSES” section. We invite the public to review these documents and suggest that anyone wishing to submit comments in response to the EA and FONSI do so in accordance with the
[If the proposed regulations are categorically excluded from environmental review, insert the following:]
We have determined that this proposed rule [Summarize the action, linking it to one of the categorical exclusions.]. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of the National Environmental Policy Act. Under Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the Department of the [insert your agency], the term “categorical exclusions” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required.
Regulatory Flexibility Act
[See 13 CFR part 121 for the size standards for affected industries. Business concerns that do not exceed the size standard are considered small. Do not use a different size standard unless you follow the procedure in 13 CFR 121.902.]
[If the proposed regulations would have a significant impact on a substantial number of small entities, insert the following:]
Under the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, we have prepared an initial regulatory flexibility analysis on the expected impact of the proposed rule on small entities and has determined that the proposed regulations will have a significant economic effect on a substantial number of small entities. [Insert a summary of the initial regulatory flexibility analysis.] We have placed the initial regulatory flexibility analysis on file in the Administrative Record at the address specified in the “ADDRESSES” section. We request written public comments on the initial regulatory flexibility analysis.
[If the proposed regulations would not have a significant economic impact on a substantial number of small entities, insert the following certification].
Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. [Insert a description of small entities to which the proposed regulations will apply. Where feasible, include an estimate of the number of entities affected. Provide the factual basis for the finding of no significant impact on a substantial number of small entities.] Therefore, we have determined under the RFA that this proposed rule would not have a significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act
[If the proposed regulations are a significant regulatory action under UMRA, insert the following:]
Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1502 et seq., we must prepare a budgetary impact statement to accompany any proposed rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under the requirements of section 205 of UMRA, we have selected the most cost-effective and least burdensome alternative that achieves the objectives of the rule. Under the requirements of section 203 of UMRA, we have established a plan for informing and advising any small governments that the rule may significantly or uniquely impact. [Include a summary of the required budgetary impact statement.] We have placed the full statement on file in the Administrative Record at the address specified in the “ADDRESSES” section.
[If the proposed regulations are not a significant regulatory action under UMRA, insert the following:]
These proposed regulations do not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor do these proposed regulations have a significant or unique effect on State, local, or tribal governments or the private sector.
Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights (Takings)
[If the proposed regulations pose significant takings implications, insert the following:]
The proposed rule represents a government action capable of interference with constitutionally protected property rights and which may cause us to take private property. Accordingly, we have prepared a takings implications assessment. [Include a summary of the assessment.] We have placed the full assessment on file in the Administrative Record at the address specified in the “ADDRESSES” section. We request written comments on the takings implications assessment.
[If the proposed regulations do not have takings implications, insert the following:]
The proposed rule does not represent a government action capable of interfering with constitutionally protected property rights. Therefore, we have determined that the rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.
Executive Order 12612, Federalism
[If the proposed regulations relate to the structure and role of the States and will have direct, substantial, and significant effects, you must prepare a Federalism assessment. Insert the following:]
The proposed rule would have sufficient federalism implications to warrant preparation of a Federalism assessment. [Include a summary of the assessment.] We have placed the full assessment on file in the Administrative Record at the address specified in the “ADDRESSES” section. Send us your comments on the Federalism assessment.
[If the proposed regulations will have no Federalism implications, insert the following:]
The proposed rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, we have determined that this proposed rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Paperwork Reduction Act
[If the proposed regulations contain new information collection requirements, such as application, reporting, disclosure, or recordkeeping requirements, or information collection requirements for which OMB approval has expired, insert the following:]
Section [Insert section number(s).] contains information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of the proposed regulations to the Office of Management and Budget (OMB) for review. We will not require collection of this information until OMB has given its approval. [Insert the following, combined into two or three paragraphs:
_- The title of the collection of information;
- A summary of the collection of information;
- A description of the likely respondents, that is, those who would have to comply with the information collection requirements, such as individuals, businesses, corporations, and governmental entities;
- The proposed frequency of response;
- An estimate of the total annual reporting and recordkeeping burden that will result from the collection of information. State the burden in terms of the average burden hours per response. Use decimals for fractions of hours; and
- If we have requested OMB to conduct its review on an emergency basis, the time period within which we are requesting OMB to approve or disapprove the collection of information.]_
__ Organizations and individuals desiring to submit comments on the information collection requirements should direct them to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for_ [Insert agency name.].
We consider comments by the public on this proposed collection of information in—
- Evaluating whether the proposed collection of information is necessary for the proper performance of our functions, including whether the information will have practical use;
- Evaluating the accuracy of our estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
- Enhancing the quality, usefulness, and clarity of the information to be collected; and
- Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; such as permitting electronic submittal of responses.
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the FEDERAL REGISTER. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the proposed regulations.
[If the proposed regulations contain information collection requirements that have already been approved by OMB (Check the expiration date of the approval.), insert the following:]
The Office of Management and Budget has approved the information collection requirements in the proposed rule under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., and has assigned clearance number(s) [Insert the clearance number.]. Sections of this proposed rule with information collection requirements are [Cite the specific sections.], and we estimate the public reporting burden of these sections to average, respectively, [Cite the specific burden hours] hours per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Information Collection Clearance Officer, [Insert agency name and mailing address.], and Desk Officer for [Insert agency name.], Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; Attention: [Insert RIN number.]
[If the proposed regulations do not contain any information collection requirements, insert the following:]
These regulations do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
[If the proposed regulations are statutorily exempt from the Paperwork Reduction Act, insert the following:]
The information collection requirements contained in the proposed rule are exempt from the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3518(c)(1). [Some possible exemptions include the collection of information: (1) during a Federal criminal investigation or prosecution; (2) during a civil action to which the United States, or an official or agency of the United States, is a party; (3) and during an agency administrative or investigative action against specific individuals or entities. Provide a specific description of the exemption that applies.]
The principal author of this rule is [Insert name and organizational affiliation of author. You may acknowledge assistance from other people, for example, the attorney assigned to the rule.].
List of Subjects in [Insert appropriate CFR part number.]
[Insert index terms for each part number cited in the heading of this proposed rule. You can get the index terms from the Office of the Federal Register.]