Formal Rulemaking

Definition

Formal rulemaking is a process used by federal administrative agencies to establish new rules or regulations that have the force and effect of law. It involves a structured, trial-like procedure that includes public notice, an opportunity for public comment, and the issuance of a final rule that must be supported by substantial evidence in the administrative record.

5 Must Know Facts For Your Next Test

1. Formal rulemaking is required when a federal statute explicitly mandates its use or when the agency's organic statute requires a 'hearing on the record.'
2. The formal rulemaking process is more time-consuming and resource-intensive than informal rulemaking, but it provides more procedural safeguards and opportunities for public participation.
3. Formal rulemaking involves the appointment of an administrative law judge (ALJ) to preside over a trial-like hearing, where evidence is presented, witnesses are examined, and a record is compiled.
4. Agencies must provide public notice of the proposed rule, allow for written comments, and respond to significant comments in the final rule.
5. The final rule issued at the end of the formal rulemaking process must be supported by substantial evidence in the administrative record.

Review Questions

• Explain the key differences between formal rulemaking and informal rulemaking processes used by federal administrative agencies.
  • The primary difference between formal and informal rulemaking is the level of procedural formality involved. Formal rulemaking follows a more structured, trial-like process that includes a public hearing, the presentation of evidence, and the appointment of an administrative law judge to preside over the proceedings. In contrast, informal rulemaking, also known as 'notice-and-comment' rulemaking, is a more streamlined process where the agency publishes a proposed rule, accepts public comments, and then issues a final rule. Formal rulemaking is generally more time-consuming and resource-intensive, but it provides additional procedural safeguards and opportunities for public participation.
• Describe the role of the Administrative Procedure Act (APA) in governing the formal rulemaking process.
  • The Administrative Procedure Act (APA) is the federal law that establishes the framework for both formal and informal rulemaking processes used by federal administrative agencies. With respect to formal rulemaking, the APA outlines the specific requirements that agencies must follow, including providing public notice of the proposed rule, allowing for written comments, appointing an administrative law judge to preside over a trial-like hearing, and ensuring that the final rule is supported by substantial evidence in the administrative record. The APA ensures that the formal rulemaking process is transparent, provides opportunities for public participation, and requires agencies to base their rules on a solid evidentiary foundation.
• Analyze the importance of the 'substantial evidence' standard in the context of formal rulemaking and its impact on the final agency rule.
  • The 'substantial evidence' standard is a critical component of the formal rulemaking process, as it requires agencies to base their final rules on a body of evidence that a reasonable mind would find adequate to support the conclusion. This standard ensures that agency decisions are not arbitrary or capricious, but rather grounded in a robust administrative record. During the formal rulemaking hearing, agencies must present substantial evidence to the administrative law judge, which can include expert testimony, scientific data, and public comments. The final rule issued at the end of the formal rulemaking process must be supported by this substantial evidence, providing an additional layer of scrutiny and accountability for the agency's decision-making. Failure to meet the substantial evidence standard can lead to the rule being overturned by a reviewing court, underscoring the importance of this requirement in the formal rulemaking context.

Related terms

Informal Rulemaking: Also known as 'notice-and-comment' rulemaking, this is a more streamlined process where agencies publish a proposed rule, accept public comments, and then issue a final rule.

Administrative Procedure Act (APA): The federal law that governs the rulemaking process for federal agencies, including both formal and informal rulemaking procedures.

Substantial Evidence: The legal standard that requires agencies to base their final rules on a body of evidence that a reasonable mind would find adequate to support the conclusion.