A Guide to Federal Agency Rulemaking

Front Cover
American Bar Association, 2006 - 702 pages
" ... brings the essential Guide to Federal Agency Rulemaking, formerly published by the Administrative Conference of the United States (ACUS), completely up to date. A concise but thorough resource, the Guide provides a time-saving reference for the latest case law, and the most recent legislation affecting rulemaking."--The publisher's website.
 

What people are saying - Write a review

We haven't found any reviews in the usual places.

Contents

The Administrative Procedure Acts Rulemaking Provisions
49
B Formal Rulemaking under the APA
58
C Informal Rulemaking under Section 553 of the APA
60
D Rules Exempt from Section 553s Requirements
61
1 Rules Exempt from All of Section 553
62
b Agency management or personnel
65
C Military or foreign affairs
66
2 Rules of Agency Organization Procedure or Practice
68
4 Agency Oral Hearing Procedures
311
The Rulemaking Record
315
B The Importance of the Rulemaking Record in Informal Rulemaking
320
2 The Rulemaking Record as the Basis for the Agencys Rulemaking Decisions
321
3 The Rulemaking Record as the Basis for Judicial Review
323
4 Treatment of Confidential Comments
331
OfftheRecord or Ex Parte Communications in Rulemaking
335
B Agency Practices for Handling Ex Parte Communications
339

3 Interpretive Rules and Policy Statements
73
a Substantial impact
76
b The agencys label
77
c Distinguishing between legislative rules and interpretive rules
78
d Distinguishing between legislative rules and policy statements
94
e Summary of the law on nonlegislative rules
102
f Postpromulgation comment period
104
4 Good Cause Exemptions
105
a Emergency health or safety standards
109
b Congressional deadlines
111
c Interimfinal rules
114
d Directfinal rulemaking
115
e Remedies for violations of the good cause provision
118
f Suspension of effective dates
119
5 Exemptions from Delayed Effective Date Requirement
122
E Publication Requirements of Section 552 of the APA
124
Use of Rulemaking or Adjudication for the Setting of Policy A Comparison
127
A Legal Constraints on Choosing Rulemaking or Adjudication
129
2 Statutory Authority
130
3 Judicial Constraints
133
B Practical Considerations in Choosing Rulemaking or Adjudication
139
2 Advantages of Adjudication
142
3 Summary
145
Other Procedural Statutes Affecting Rulemaking
147
B The National Environmental Policy Act
149
C The Regulatory Flexibility Act
151
D The Paperwork Reduction Act
158
1 The OMB Clearance Requirements
160
2 Clearance Procedure
162
3 Standard of Review
166
4 The Small Business Paperwork Relief Act
168
F The Negotiated Rulemaking Act
171
G The Unfunded Mandates Reform Act
175
H The Information Quality Act
179
I The EGovernment Act of 2002
185
J Congressional Review of Rules
186
K Miscellaneous Other Statutes Affecting Rulemaking
192
2 The National Technology Transfer and Advancement Act
193
3 Assessment of Federal Regulations and Policies on Families
194
INFORMAL RULEMAKING IN PRACTICE
195
Beginning the Process
197
A External Considerations
198
2 Public Petitions for Rulemaking
199
3 Agency PrioritySetting
202
4 Other Influences on an Agencys Decision to Begin Rulemaking
205
B Procedural Decisions
210
2 Negotiated Rulemaking
212
C Electronic Rulemaking
217
1 Potential Benefits
221
2 Legal and Technical Issues
223
a Questions about the informational goal
227
b Questions concerning the participatory goal
234
3 The Impact of ERulemaking on the Rulemaking Process
236
Regulatory Analysis and Review
241
A Executive Order 12866
242
1 Rules Covered by Executive Order 12866 Review
243
2 Content of the Regulatory Analysis
246
3 OIRA Review
251
B The Paperwork Reduction Act
253
1 Coverage
254
3 OIRA Review
255
2 Content of the Analysis
256
3 Review by the Small Business Administration
258
2 Content of the Analysis
259
3 Review of the Analyses
260
E OMB Peer Review Bulletin
261
F Assessment of Federal Regulations and Policies on Families
265
G Other Executive Orders
266
H Coordination of Analysis Requirements
272
The Notice of Proposed Rulemaking
275
B Contents of the Notice of Proposed Rulemaking
277
C Federal Register Requirements
280
D Adequacy of the Notice
282
E A Second Cycle of Notice and Comment
284
Public Participation
295
1 Minimum Time
296
2 Agency Disclosure of Important Data or Information
298
B Special Consultation Requirements
303
C Oral Hearings in APA Rulemakings
304
1 The Administrative Procedure Act
305
2 Hearing Requirements in Hybrid Rulemaking Statutes
308
3 The Position of the Administrative Conference on Hearings in Rulemaking
309
2 The Administrative Conferences Recommendation
340
3 Agency Practice
341
C Executive Branch Communications in Rulemaking
343
2 The Transparency of OMBs Review of Agency Rules
345
3 The Judicial Perspective
347
D Congressional Communications in Rulemaking
349
E Intraagency Communications in Rulemaking
351
F Communications with Consultants
354
The Final Rule
357
2 Interagency Coordination and Review
359
3 International Harmonization
361
4 The Final Regulatory Analysis and OMB Review
364
5 Legal and Jurisdictional Issues
365
6 Determining the Effective Date and Compliance Date for the Final Rule
366
b Congressional review
368
c Retroactivity concerns
370
7 Disqualification of Decisionmakers
372
B The Statement of Basis and Purpose
376
2 Discussion of Alternatives
381
3 Response to Comments
382
C Publication of the Final Rule
385
1 Section 552 Requirements
386
2 Federal Register Requirements
387
3 Plain Language Requirements
392
4 Issuance and Promulgation of the Final Rule
394
Review of Existing Rules
395
JUDICIAL REVIEW OF AGENCY RULEMAKING
403
Availability of Judicial Review
405
B Who Has Standing to Obtain Judicial Review?
410
2 Organizational Standing
412
3 The InjuryinFact Test
414
4 Causation Traceability and Redressability
421
5 Prudential Principles Governing Standing
424
a Avoiding abstract and generalized questions
425
Court of Appeals or District Court?
432
2 Nonstatutory Review
436
D The Venue Location of Review
437
E The Appropriate Timing for Judicial Review
440
2 Exhaustion
446
3 Ripeness
448
a Ripeness and preenforcement review
449
b When is the rule issued for timelimits purposes?
462
c Timelimits and challenges to nonlegislative rules
464
d Ripeness and finality issues in challenges to agency inaction or delay in rulemaking
466
The Scope of Judicial Review
469
agency action unlawfully withheld or unreasonably delayed
471
arbitrary capricious an abuse of discretion or otherwise not in accordance with law
472
a Significant Supreme Court decisions applying the arbitrary and capricious test
476
b The hard look doctrine
480
contrary to constitutional right power privilege or immunity
489
in excess of statutory jurisdiction authority or limitations or short of statutory right
490
a The Chevron decision
492
b Step one of Chevron
494
c Step Two of Chevron
498
d When does Chevron apply?
503
e When Chevron does not apply what does Skidmore deference mean?
518
f Judicial deference to agency interpretations of their own regulations
521
without observance of procedure required by law
524
a The APA
525
c The agencys procedural regulations
526
d Procedural requirements imposed by courts
527
unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing p...
530
unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court
532
B Record on Review
533
C Judicial Remedies
534
Judicial Review of Agency Failure to Act
541
B Types of Agency Inaction
544
1 Failure to Initiate a Rulemaking
545
2 Delay in a Rulemaking Proceeding
549
3 Termination of Rule making
553
C Summary
555
Selected Federal Statutes Affecting Rulemaking
557
2 Administrative Procedure Act Selected sections
568
3 Negotiated Rulemaking Act
585
4 Regulatory Flexibility Act
594
5 Congressional Review of Agency Rulemaking
608
Executive Order No 12866 Regulatory Planning and Review
617
ACUS Recommendation 934 Improving the Environment for Agency Rulemaking
635
TABLE OF CASES
651
INDEX
689
Copyright

Other editions - View all

Common terms and phrases

Bibliographic information