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Monday, January 31, 2011

A Brief Overview of Rulemaking and Judicial Review

Vanessa K. Burrows
Legislative Attorney

Todd Garvey
Legislative Attorney

The Administrative Procedure Act (APA), which applies to all agencies, provides the general procedures for various types of rulemaking. The APA details the rarely used procedures for formal rules as well as the requirements for informal rulemaking, under which the vast majority of agency rules are issued. This report provides a brief legal overview of the various methods by which agencies may promulgate rules, which include formal rulemaking, informal (notice-andcomment or § 553) rulemaking, hybrid rulemaking, direct final rulemaking, and negotiated rulemaking.

There is substantial case law regarding APA procedures and agency rulemakings. This report concisely mentions the standards that reviewing courts will use to discern whether agency rules have been validly promulgated. Additionally, inquiries regarding the APA often concern agency actions that involve exceptions to APA requirements or additional steps that agencies voluntarily have taken or imposed upon themselves that are not required by the APA. For example, adversely affected parties may contest agency uses of the “good cause” exceptions to the APA procedural requirements to promulgate an interim final rule. Another frequent topic of inquiry is whether an agency guidance document should have been issued as a legislative rule under APA notice-andcomment procedures.

This report does not address the requirements of presidential review of agency rulemaking under Executive Order 12866 or other statutes that may impact particular agency rulemakings, such as the Regulatory Flexibility Act, the National Environmental Policy Act, the Congressional Review Act, or the Unfunded Mandates Reform Act. Additionally, issues of standing, ripeness, finality of agency action, or exhaustion of administrative remedies may arise. As this brief report does not address these potentially applicable statutes or legal issues in depth, the authors may assist with legal questions regarding such requirements or agency-specific rules.

Date of Report: January 4, 2011
Number of Pages: 14
Order Number: R41465
Price: $29.95

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