Rulemaking is the administrative equivalent of the legislative process of enacting statutes. Agencies are not subject to stricter constitutional requirements in the rulemaking process than are legislatures in enacting statutes. Because legislatures are not constitutionally required to conduct hearings or provide notice of proposed legislation, neither are agencies.

The process that must be followed by federal agencies when making rules is proscribed by the APA. An appreciation for the APA’s historical context aids in understanding why Congress chose to regulate rulemaking in the way it did. The APA establishes three procedural forms of rulemaking: formal, informal, and exempted. Federal law also provides for negotiated rulemaking. Remember that each state has its own rulemaking requirements and they often differ significantly from the federal formal versus informal model.

Formal rulemaking is the most time-consuming, expensive, and procedurally involved method of rulemaking for agencies. Formal rulemaking is required only when mandated by Congress in a separate statute. The APA alone never mandates formal rulemaking. Under the APA, informal rulemaking exists by default. If a statute does not require formal rulemaking and an exemption does not apply, then informal rulemaking may be used.