APA Formal Rulemaking Hearings (5 U.S.C. §§ 556–557)
Govern formal (on-the-record) rulemaking and adjudication proceedings when an enabling act requires a hearing “on the record.”
When Triggered
United States v. Florida East Coast Railway (1973): Formal rulemaking applies only when an enabling act requires the rule to be made “on the record after opportunity for an agency hearing.” The phrase “after hearing” alone does not trigger §§ 556–557.
§ 556 — Hearings; Presiding Employees; Powers and Duties
- Hearings must be presided over by the agency head, a member of the governing body, or an administrative law judge (ALJ)
- Parties may present their cases through oral or documentary evidence
- ALJ must exclude irrelevant, immaterial, or unduly repetitious evidence
- Burden of proof rests on the proponent of the rule or order
- Substantial evidence on the record as a whole must support findings of fact
- Parties entitled to submit proposed findings and conclusions; agency must state reasons for rejecting them
§ 557 — Initial Decisions; Conclusiveness; Agency Review
- ALJ issues an initial decision (or recommended decision if agency head presides)
- If agency does not review the initial decision, it becomes the agency’s final decision
- Agency may review de novo or deferentially
- The record is the exclusive basis for the agency’s decision
- Ex parte communications from interested parties outside the record are prohibited