Introduction
According to the Administrative Procedure Act, "rulemaking" is the agency process for formulating, amending, or repealing a rule. A rule "means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing."
There are three major types of rulemaking:
1. Informal Rulemaking (also called "Notice and Comment' or "Section 553" rulemaking)
Under § 553, the agency is required to provide the public with adequate notice of the proposed rule. Typically this is achieved by publishing notice of the proposal in the Federal Register. Once published, the agency must provide the public a meaningful opportunity to comment on the proposal. After the comment period ends, the agency issues a statement of the purpose and justification of the rule and a response to the public comments submitted.
2. Formal (found in § 556 and 557)
Occasionally, a rule may be subjected to a more formal rulemaking process. This is a trial-like process where the agency must present their case and be subjected to cross-examination. These proceedings are usually presided over by a administrative law judge or official who has the power to issues subpoenas and administer oaths. Agencies are only required to submit to this formalized process when Congress explicitly requires that the rulemaking process proceed "on the record".
3. Hybrid
As the term suggests, this is a "hybrid" between formal and informal. Hybrid rulemaking statutes require additional procedural by the agency (compared with the informal process) but fall short of formal rulemaking. This process, much like formal rulemaking, is only conducted when explicitly directed by Congress.
Resources on Rulemaking
- The Federal Rulemaking Process - An OverviewProvides overview of the rulemaking process that Federal agencies are required to follow in writing regulations, including a brief discussion of the major laws and Executive orders that prescribe the procedures agencies are to apply when promulgating regulations.
- Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal RegisterAnalyzes different ways to measure Federal rulemaking activity. Explains how agencies issue rules, identifying the most significant statutory requirements, executive orders, and guidance documents that comprise the rulemaking process. Provides data on, and analysis of, total number of rules issued each year; and describes other types of rules, such as "major" rules, "significant" rules, "economically significant" rules, and rules issued without notice and comment under "good cause." Discusses number of pages and documents in the Federal Register each year, and analyzes Federal Register content. Includes tables and a graph.
- A Brief Overview of Rulemaking and Judicial ReviewProvides overview of various procedures by which Federal agencies may promulgate rules under the Administrative Procedure Act (APA). Covers procedures governing formal rulemaking, informal rulemaking, hybrid rulemaking, direct final rulemaking, and negotiated rulemaking. Addresses exceptions to APA informal rulemaking requirements, and examines standards that reviewing courts will use to discern whether agency rules have been validly promulgated.
