In informal rulemaking, which statement about the rulemaking record is true?

In informal rulemaking, which statement about the rulemaking record is true?

• A. The agency must provide discovery and cross-examination.
• B. The agency must create a formal on-the-record proceeding.
• C. The absence of discovery or cross-examination is permissible.
• D. The agency must publish the record before promulgation.

Answer: (C)

In informal rulemaking, the process relies on notice-and-comment rather than a trial-like hearing. The rulemaking record is built from the agency’s consideration of the public comments, data, and other information submitted, not from any formal discovery or cross-examination. That’s why the absence of discovery or cross-examination is permissible and typical in this setting—the procedure isn’t designed to be a speculative, adversarial, on-the-record process. The other statements don’t fit informal rulemaking. A formal on-the-record proceeding with discovery and cross-examination happens only in formal rulemaking, not the informal kind. And while agencies publish the final rule and provide a basis and purpose, there isn’t a requirement to publish the entire rulemaking record before promulgation.

In informal rulemaking, the process relies on notice-and-comment rather than a trial-like hearing. The rulemaking record is built from the agency’s consideration of the public comments, data, and other information submitted, not from any formal discovery or cross-examination. That’s why the absence of discovery or cross-examination is permissible and typical in this setting—the procedure isn’t designed to be a speculative, adversarial, on-the-record process.

The other statements don’t fit informal rulemaking. A formal on-the-record proceeding with discovery and cross-examination happens only in formal rulemaking, not the informal kind. And while agencies publish the final rule and provide a basis and purpose, there isn’t a requirement to publish the entire rulemaking record before promulgation.