Rulemaking and Adjudication Essay

Paper Type:  Research paper
Pages:  5
Wordcount:  1296 Words
Date:  2022-03-29


The rulemaking process is used by the administrative agencies to proclaim regulations or create regulations. The rulemaking procedure promulgates the rules in line with general or particular applicability as well as the future effect. Legislatures can note areas where it Is impractical for the lawmakers to engage a level of expertise or detail required in the constitution of complete standards. In such a case, the legislatures delegate the function of rulemaking to the administrative agencies. Detailed regulations are created by the agencies through rulemaking (Hickman & Pierce, 2016). The aim of rulemaking is to implement details, add scientific expertise, and industrial expertise. The rules made by the agencies are tailored to be flexible since new ideas and technology that might influence the set rules to emerge frequently.

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The adjudication process entails the exercising of judicial powers by the agencies with administrative responsibilities. The powers exercised by the administrative agency are delegated by a legislative body (Elickson, 2016). The adjudication can be formal or informal. Formal adjudication is carried out in the form of a trial-like hearing with testimonies from witnesses, written records, and a final decision. In the informal adjudication, the decisions take into consideration the conferences, inspections, and negotiations.

Reasoned analysis, conclusions of law and written findings make the bedrock of the decision made by the administrative law judge. The decision reached is subject to an appeal through a higher administrative authority in the agency's ranks. Unless supported by substantial evidence, the administrative facts on the courts are binding (Garvey & urrows, 2011).

Types of Rules

There are three types of rules in line with APA's spectrum, the procedural rules, interpretive rules and legislative rules. The legislative rules need specific statutory authority; the make substantive law in line with the agency's delegated powers from the legislature.

The procedural rules set the requirements as well as setting the nature of informal and formal procedures. The set procedures have to be in line with agency's duties to the extent of direct impact on available procedures and rights to the public (Garden 2014). An example of a procedural rule is contested cases before individual agencies.

The interpretative rules are not explicitly expressed in the APA. They are utilized in case law appearance. They are used in specifying the enforced law and the law enforced by an agency (Garden, 2014). For instance, interpretative rules help in specifying the acts that an agency deems a violation of the set laws. These rules have to be adopted in under the APA.

Rulemaking Procedure

The rules made by the respective agencies undergo a regimented process of rulemaking. The stipulated processes are put in place to ensure the public participates in the process, and they can have an input in the whole process. The procedures in rulemaking include informal rulemaking; formal rulemaking; exempted rulemaking; negotiated rulemaking; and beyond APA (Hybrid rulemaking).

Formal Rulemaking Procedure

The formal rulemaking process is stipulated authorizing statute on a new rule. In line with the United States v. Florida East Coast Ry. Co. (1973), the Supreme Court stated that formal proceedings are expected in instances when the statute states that the process has to be 'on the record' (Elickson, 2016).

The agency has to publish a notice of hearing at the start. The notice is made in the Federal Register detailing the upcoming rulemaking. The notice is also put in other appropriate publications when deemed necessary. The persons and legal entities that are directly affected by the proposed rule may be given direct invitations.

The notice of hearing stipulates the place and time of the proceedings. The notice has to describe the subject to be reviewed. The referenced statute has to be stated as well as other legal authority that is in line with the proposed rule.

After the notice, a hearing takes place. The hearing process takes place in a similar manner as the hearing in a court of law. The agency representatives or an ALJ presides over the session. The oaths and affirmations are administered by an employee of the agency. The employee can further issue summonses for the witnesses and the proof, rule on practical matters and on evidentiary, order the involved persons to submit to other dispute resolve measures, hold settlement meetings, and make concluding decisions in line with the presented rule. The decisions of the agency employee or ALJ become a rule; the rule is then codified in the code of Federal Regulations (Garvey & Burrows 2011).

Informal Rulemaking Procedure

The informal rulemaking process entails four stages that are stipulated in the APA. The first stage is the passing of the legislation in the Congress that gives guidance on the existing agency. The second stage involves both drafting of the proposal and the publishing of the notice concerning the proposed rule (Garvey & Burrows, 2011).

The third step, the comment period, run for thirty days. The published rule is presented to the public to have their comments on the proposed rule. The last stage is the codification of the rule. The codification takes place after the agency has revised all submissions from the public.

Negotiated Rulemaking

The negotiated process increases administrative efficiency since it reduces the opposition to the proposed rule. It engages the outside groups in the rulemaking process. The first stage is the publishing a notice in the Federal Register after the formation of a committee. The notice details the committee members as well as the duties of the committee. The committee will be made up of 25 members at most and a representative from the agency (Garvey & Burrows, 2011). Once the committee has reached a consensus, a report showing the proposed rule is issued. The committee findings are not binding. The notice and comments procedure follows once the committee has presented the findings.

Hybrid Rulemaking

In the hybrid rulemaking process, the agency has additional procedural requirements during the rulemaking process. The agency might be in the adjudicative context but lacking the mandate thus the need to engage the public in the formal process stipulated in the AP's process. There is flexibility in the rulemaking process than the 556 and 557 rulemaking procedures as well as increased public participation (Garvey & Burrows 2011). The agency hold hearings, it allows oral testimonies from interested persons, cross-examination by the participants.


Ratemaking determines the rates that can e imposed by the insurance companies. The rate-making ensures fairness in the setting of prices in the insurance companies. Ratemaking takes two stages to compile. The first stage is the determination of the revenue requirement. Determining the revenue requirement will take note of the company's operating costs; the rate base; plant depreciation rate; and the possible profits that the firm can earn (Garden, 2014). The second stage is setting the rates that are bound to collect the revenue requirements.

Taxation and Revenues

The receipt budget includes tax revenues as part of the annual financial statement. Taxes from indirect tax as well as the direct tax make up the tax revenue (Hickman & Pierce, 2016). The revenue procedure details the duties and rights of members of the public in line with the Internal Revenue Code as well as other related statutes.


The rulemaking and adjudication are solely entrusted with the respective agencies. The agencies carry out the laid down rulemaking procedures in the constitution. The rulemaking involves the public in the final process thus time-consuming but inclusive. However, the negotiated process tries to bypass the need for public consultations during the rulemaking process.


Ellickson, R. C. (2016). When civil society uses an iron fist: The roles of private associations in rulemaking and adjudication. American Law and Economics Review, 18(2), 235-271.

Garden, C. (2014). Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication. Emory LJ, 64, 1469.

Garvey, T. & Burrows, V. (2011). A brief overview of rulemaking and judicial review. Congress Research Service.

Hickman, K. E., & Pierce, R. J. (2016). Administrative Law Treatise. Wolters Kluwer.

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