This document provides an overview of administrative rulemaking procedures in the United States. It begins by defining what constitutes a rule and the different types of rules. It then describes the key rulemaking procedures established by the Administrative Procedure Act (APA), including informal notice-and-comment rulemaking, formal rulemaking, and hybrid rulemaking. The document outlines the steps involved in both informal and formal rulemaking and discusses key Supreme Court cases that have shaped administrative rulemaking, such as Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council. It concludes by covering negotiated rulemaking as an alternative procedure to notice-and-comment rulemaking established by the Negotiated Rulemaking Act of 1990.

1. Administrative Law
Ambiguities in
Rulemaking Procedures

2. Introduction
 Rules affect almost every part of our lives:
 Antitrust regulations
 Banking
 Securities
 Environmental regulations
 Foods
 Drugs
 Immigration
 Speed limits
 Health information
 TV and Radio
 Car emissions
 Rules get authority from:
 Constitution
 Congress
 Other acts:
 Administrative Procedures Act (APA)

3. What is a rule?
 § 551 of the Administrative Procedures Act
 Rule – 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.
 Types of rules:
 Substantive (implement law or policy) – rules relating to the
substance of matters, as distinct from procedural rules.
 Procedural (describe and agencies procedures) – rules that govern
the practices and procedures of an administrative agency.
 Exempt from APA rulemaking requirements.
 Agencies are not required to adopt procedural rules, but must
publish them in the Federal Register if they do.
 Interpretive (explanatory statements) – administrative rules that
interpret or clarify an agency’s position as to its duties or
responsibilities based on a controlling statute or promulgated
legislative rule.
 Exempt from APA rulemaking requirements.

4. What is a rule?
 Why is rulemaking needed?
 Create rules
 Amend rules
 Scrap old rules
 Key values in rulemaking:
 Information
 Accountability
 Participation
 Reasoned decision making
 We are concerned with these values because we want to ensure
that when agencies create rules:
 They don’t violate their guiding statute.
 They don’t exceed the agency’s authority.

5. Types of Rulemaking Procedures
 Informal Rulemaking
 Governed by §553 of the APA
 Also called Notice and Comment Rulemaking
 Formal Rulemaking
 Guided by sections §556 & 557 of the APA
 Same sections that guide adjudication.
 The guiding statute of the agency will stipulate if and when formal rulemaking
is required.
 Hybrid Rulemaking
 Evolved process
 Process is to elaborate on informal rulemaking to prevent arbitrary rules
 Develops rulemaking record
 Judicial review
 Peer review
 Legislative oversight
 Public information
 Reconsideration/archival

6. Notice and Comment Rulemaking
Procedure
 Steps in the Process:
 Regulatory analysis and executive pre-clearance and various impact assessments
 Policy analysis
 Compare with state programs of the same sort
 Regulatory Flexibility Analysis
 Small Business Act of 1953
 Created the Small Business Administration
 Regulatory Flexibility Act of 1980
 Minimize the effects of regulations on small businesses and non-profit organizations.
 Regulatory flexibility analysis – seeks to minimize the effects of regulations on small
businesses, but also considers any flexible measures that could be incorporated to assist
small businesses in compliance and reporting requirements.
 OMB clearance
 Notice of Proposed Rulemaking (NPR)
 Published in the Federal Register
 Includes:
 A statement of the time, place, nature of the public rulemaking proceedings.
 Reference to the legal authority under which the rule is proposed
 Either the terms or substance of the proposed rule or a description of the subjects and
issues involved.
 Many agencies just include the full text of the proposed rule.
 This stage applies to both formal and informal rulemaking.

7. Notice and Comment Rulemaking
Procedure
 Comment period
 Agency must provide interested persons an opportunity to
participate.
 Participation includes:
 Submission of written data, views, or arguments.
 Sometimes opportunity for oral presentation.
 Minimum of 30 days for comments from the public
 Hearings
 This is not required in Notice and Comment rulemaking,
but agencies may include this if they so choose.
 Publication of the Final Rule
 Minimum of 30 days after published in the Federal Register
 Rule summary and final rule are codified in the Code of
Federal Regulations and the Federal Register

8. The Code of Federal Regulations
 The Code of Federal
Regulations (CFR) is a
codification of the
general and
permanent rules
published in the
Federal Register by
federal government
agencies.
 50 Titles divided by
subject area and
subdivided into
chapters

9. Formal Rulemaking Procedure
 The APA states that “when rules are required by statute to be
made on the record after opportunity for an agency hearing,”
rulemaking must follow the provisions for formal adjudication.
 Agencies may also choose to engage in formal rulemaking.
 Steps:
 Notice of Proposed Rulemaking
 Agency conducts a trial-type hearing instead of comment period.
 Presided over by an administrative law judge (ALJ)
 ALJ makes finding of fact and conclusions of law and issues a preliminary opinion
that is forwarded to the administrative commission.
 Rules of evidence are relaxed compared to a formal judicial proceeding.
 Hearing creates a rulemaking record that is useful to the agency if
judicial review occurs.
 Administrative commission makes a final decision.
 Final Rule is published in the Federal Register and the Code of Federal
Regulations.

10. Hybrid Rulemaking
 In the 1960’s many critics argued that notice and comment
rulemaking did not satisfy due process requirements.
 Critics also argued about the complexity of formal rulemaking.
 As a result, federal appellate courts began compelling
agencies to provide procedures that were neither required by
the APA nor mandated by Congress.
 Example:
 Requirement to disclose data upon which proposed rules were based.
 Falls between informal and formal rulemaking.
 Vermont Yankee Nuclear Power v. Natural Resources Defense
Council
 Ruled that courts may not impose such requirements on
agencies.
 The choice was now up to the agency as to whether to include
such extra requirements.

11. United States v. Florida
East Coast Railway, Inc.,
410 U.S. 224 (1973)

12. Discussion
 Sangamon Valley Television Corp. v. United States
 Home Box Office, Inc. v. FCC (D.C. Circuit Court)
 Political Debate:
 “How much authority should administrative
‘experts’ have over policymaking in a
democratic society?”
 “How shall we hold agencies accountable for
their decisions?”
 “To what extent do formal and informal
procedures for agency rulemaking insure that
participation by interested parties, such as
public interest groups, is meaningful?”

13. Natural Resources
Defense Council v.
Vermont Yankee Nuclear
Power Corp., 547 F.2D 633

14. Vermont Yankee Nuclear
Power Corp. v. Natural
Resources Defense
Council, 435 U.S. 519
(1978)

15. Discussion
 “How much authority should administrative
‘experts’ have over policymaking in a
democratic society?”
 “How shall we hold agencies accountable for
their decisions?”
 “To what extent do formal and informal
procedures for agency rulemaking insure that
participation by interested parties, such as
public interest groups, is meaningful?”

16. Negotiated Rulemaking
 Negotiated Rulemaking (neg reg – negotiated regulation)
 Substitute for notice and comment rulemaking.
 Established procedure under the Negotiated Rulemaking Act (NRMA) of 1990
 Covered by sections 561 – 570 of the Administrative Procedure Act.
 Purpose was to help reduce legal challenges to administrative rules (consensus building).
 Procedure:
 Notice of negotiated rulemaking is published in the Federal Register.
 Announces the establishment of a negotiated rulemaking committee.
 Invites persons to apply for and nominate others for committee membership.
 There is no proposed rule included.
 Applications for membership and comments on membership.
 Minimum 30 day period for comments.
 Must determine if committee can represent all interests.
 Invitations
 Avoid litigation by including power players
 *Failed Committee Formulation*
 If agency decides not to establish a negotiated rulemaking committee, they must provide the reasons why in the
Federal Register.
 Hold negotiations
 Behind closed doors
 Length of time varies
 Players may dropout
 Want to establish a proposed rule
 Careful who you invite
 Mediator presides over the meeting.
 Achieve consensus behind an actual proposed rule.
 Proposed rule is published in the Federal Register.
 Notice and Comment procedure then applies.

17. Negotiated Rulemaking
 Additional Comments:
 Everyone who signs onto the final rule is prohibited by law (Negotiated
Rulemaking Act of 1990) from suing the agency over the particular rule.
 If you drop out of the negotiated rulemaking, your comments are not
admissible in court (not published).
 Participants can be called as witnesses if agency is challenged by
another party.
 So the participants provide support to the agency in exchange for
having a greater say in the development of a rule.
 There are certain participation rights, you can legally challenge or
participate, but you can’t do both.
 This has been deemed constitutional
 This may seem like a good tool on the surface, but many times
negotiations fail and the purpose of the procedure is lost.

 As a result, this tool has not been used very often by agencies.

18. Motor Vehicle
Manufacturers Association
v. State Farm Mutual
Automobile Insurance
Company, 463 U.S. 29
(1983)