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How does formal rule making differ from informal rule making under the U.S. Administrative Procedure Act?
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Administrative law
Cartoon depicting a uniformed Interstate Commerce Commission officer shining a large searchlight on U.S. railroad executive Edward Henry Harriman, who is struggling to carry a large load of packages and toy trains, some labeled “merger.”
Under the U.S. Administrative Procedure Act (APA), the distinction between formal and informal rule making lies primarily in the procedural requirements mandated for federal agencies.1
- Informal Rule Making: This is the more common process. At a minimum, it requires agencies to publish a notice of the proposed rule and provide an opportunity for interested parties to respond, a process known as "notice and comment".1
- Formal Rule Making: This process is quasi-legislative and less frequently utilized. It requires agencies to conduct detailed, trial-like hearings, often referred to as "rule making on the record," to establish the basis for the regulation.1
While these represent the traditional procedural frameworks, the APA has been supplemented by more collaborative methods, such as negotiated rule making, which allows agencies to work directly with affected interest groups to reach a consensus on proposed regulations.1