Rulemaking is one of the functions of administrative agencies. This function is delegated to administrative agencies by the legislature sometimes when the subject of a statute is complex and requires experience or expertise.
According to the federal Administrative Procedure Act (APA), agencies have to follow certain mandatory procedures like the notice and comment procedure while making rules. The notice and comment procedure means that when an agency intends to adopt a rule, public notice regarding the rule should be provided and the public can give comments on the proposed rule. Administrative agencies draft the final rule taking into consideration those comments from the public which are not against the government policy.
However, the rulemaking procedure laid down by the APA need not be followed by certain agencies in creating rules relating to agency management of personnel, or public property, loans, grants, benefits, or contracts.[i] Personnel and property liberty is not to be restricted with procedures more than necessary to assure fairness and accuracy. Rules relating to agency management or personnel or public property, loans, grants, benefits or contracts are exempt from the notice-and-comment requirements of the APA as well.[ii] When the rulemaking is clearly and directly concerning public lands, rulemaking requirements of APA does not apply.[iii]
[i] Tunik v. MSPB, 407 F.3d 1326 (Fed. Cir. 2005)
[ii] Good Samaritan Hospital, Corvallis v. Mathews, 609 F.2d 949 (9th Cir. Or. 1979)
[iii] Intl Union, Sec., Police, & Fire Prof’ls of Am. v. United States Marshal’s Serv., 350 F. Supp. 2d 522 (S.D.N.Y. 2004)