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A TABLE OF REQUIREMENTS FOR FEDERAL ADMINISTRATIVE RULEMAKING



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A TABLE OF REQUIREMENTS FOR FEDERAL ADMINISTRATIVE RULEMAKING MARK SEIDENFELD I I NTRODUCTION 533 II TABLE OF REQUIREMENTS FOR FEDERAL ADMINISTRATIVE RULEMAKING 536 A Authorities 538 B Notes 539 I I NTRODUCTION The following table of requirements that an agency must consider when adopting a rule was prompted by the concern of the ABA Rulemaking Committee Section of Administrative Law and Regulatory Practice over the protracted nature of the current rulemaking process When Congress adopted the Administrative Procedure Act APA the notice and comment requirement for rulemaking was viewed as a variant on the legislative process that would allow agencies to adopt and amend rules quickly in response to changing circumstances 1 The early 1970s an era that introduced statutorily mandated review of agency action to ensure adequate assessment of environmental impacts together with judicial demands for adequately reasoned decisions 2 began a transformation of the notice and comment process into one requiring extensive documentation of the information on which the agency relies and detailed explanation of the choices the agency made in deciding to adopt a rule 3 The late 1970s through the 1980s marked the White House s commenc ement of its own demands for rigorous regulatory impact analyses potentially mammoth studies that attempt not only to identify but also to quantify the costs Professor of Law Florida State University College of Law B A Reed College 1975 M A Brandeis University 1979 J D Stanford University 1983 I owe the idea for this table to Peter Strauss who as the chair of the ABA Rulemaking Committee Section of Administrative Law and Regulatory Practice had the insight to suggest that someone prepare a chart of requirements that agencies must consider when adopting rules I am also indebted to Neil R Eisner who as Assistant General Counsel for Regulation and Enforcement U S Department of Transportation prepared an internal memorandum describing many of the rulemaking



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