The agency considers the comments and then promulgates a final rule. Commenting on a proposed rule is one of the most direct ways in which businesses can have a voice in formulating new rules. Unfortunately, an agency is not required to heed comments received. Because the agency is not required to follow any of the comments received, an affected party may try to argue that what the agency is doing is not rulemaking at all, but instead is adjudication. Under some circumstances, a new rule may be made only after the agency follows detailed procedures known as formal rulemaking.
Adjudication is a procedure very much like a civil court trial.
Court rules and agency rules are not identical, but agency adjudication allows for direct examination of witnesses, testimony under oath before an administrative law judge and the development of a substantial written record upon which the agency's decision must be based. Informal agency action is a very broad category in which the procedures vary considerably. Parties to informal agency action often have minimal procedural protection. For example, an agency might be required only to give the reason for taking a particular action. It need not allow for public comments or other input into the process.