• Video

Agency Rulemaking - Formal and Informal

Administrative agencies pass regulations through rulemaking. Under the Administrative Procedure Act, there are two main rulemaking processes which are formal and informal. Professor Susan Dudley outlines when each of these is utilized and what steps go into each type of process. https://youtube.com/watch?v=5R9srsr1vf0


Regulatory agencies have several tools at their disposal. Under the Administrative Procedure Act that defines formal and informal rule-making. Let me start with what the formal rule-making process is. That is a more adjudicatory approach where agencies go through. They'll actually hold hearings and the formal hearings are where different parties will come in and present their case almost as if before a judge. That tends to be used on a narrow set of regulations usually only when Congress prescribes that regulations shall be done through formal rule-making procedures. It's most valuable for things where there actually are two distinct sides that can present their best case before the regulatory agency, as opposed to the more typical type of regulation that will have many different groups that might be interested in it. Setting aside the formal rule-making, the main way agencies issue regulations is through notice and comment rule-making, also called informal. That requires them to develop a regulatory base, a docket that explains what their problem is, the analysis they have, how they propose to go forward to address it. They publish that in the federal register and seek comment. That comment period is usually open for at least 30 days but for bigger rules 60 days. Sometimes more. Sometimes agencies will extend that comment period. I think the longest comment period I've ever seen on a regulation was 120 days. At the end of that public comment period the agency will evaluate all those comments, evaluate how that affects that record that they've developed, and then issue a final regulation. This is all pursuant, these are all procedures required by the APA. That final regulation when it's finished again, it'll go into the federal register and 30 days or more after it's published in the federal register as a rule it can become effective. Some regulations will be published in the federal register and the compliance date is years in the future. For example, automobile safety or emissions standards. They're issued years in advance because the auto companies need time to develop that model year car to comply with the standards so they tend to be done three, four years out. Others will be in effect soon after the regulation is issued. Also after a regulation is issued in final form, parties may sue and so the courts may get involved. The executive branch agencies go through all these steps to develop the regulation but once its finished both Congress and the judiciary have an opportunity to overturn that regulation and send it back to the agency. Through the court review, courts will sometimes just send it back in its entirety and not allow the agency to enforce against it while the agency is reconsidering it. Other times they will remand certain parts and allow the agency to continue operating under the regulation while they reconsider it.

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