533A TABLE OF REQUIREMENTS FOR FEDERALADMINISTRATIVE RULEMAKINGMARK SEIDENFELD*I. INTRODUCTION ................................................................................................ 533II. TABLE OF REQUIREMENTS FOR FEDERAL ADMINISTRATIVE RULEMAKING ............. 536A. Authorities................................................................................................ 538B. Notes........................................................................................................ 539I. INTRODUCTIONThe following table of requirements that an agency must consider whenadopting a rule was prompted by the concern of the ABA Rulemaking Com-mittee, Section of Administrative Law and Regulatory Practice, over the pro-tracted nature of the current rulemaking process. When Congress adopted theAdministrative Procedure Act (APA), the notice and comment requirement forrulemaking was viewed as a variant on the legislative process that would allowagencies to adopt and amend rules quickly in response to changing circum-stances.1 The early 1970s, an era that introduced statutorily mandated review ofagency action to ensure adequate assessment of environmental impacts, togetherwith judicial demands for adequately reasoned decisions,2 began a transforma-tion of the notice and comment process into one requiring extensive documen-tation of the information on which the agency relies and detailed explanation ofthe choices the agency made in deciding to adopt a rule.3The late 1970s through the 1980s marked the White House’s commence-ment of its own demands for rigorous regulatory impact analyses—potentiallymammoth 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 RegulatoryPractice, had the insight to suggest that someone prepare a chart of requirements that agencies must con-sider when adopting rules. I am also indebted to Neil R. Eisner, who as Assistant General Counsel forRegulation and Enforcement, U.S. Department of Transportation, prepared an internal memorandum de-scribing many of the rulemaking requirements identified and summarized in this table.1. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189,1265 (1986) (noting that the rulemaking provisions of the APA, which was passed in 1946, were basedupon a legislative conception of rulemaking and are “notable primarily for the absence of constraint [thatthey place] on agency officials”).2. See id. at 1297-1309 (describing the creation of the “hard look” doctrine and the FederalCourts’ increasing insistence upon detailed rationales for agency action in the public interest era).3. See MARTIN SHAPIRO , WHO GUARDS THE GUARDIANS? JUDICIAL CONTROL OFADMINISTRATION 41-54 (Richard B. Russell Lecture Series No. 6, 1988) (describing how courts height-ened review of the procedure and substance of agency rulemaking by imposing procedural requirementssuch as the “dialogue,” the “hard look,” and the creation of a rulemaking record of all public commentsand agency responses).534 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:533and benefits of a rule.4 Not to be outdone, Congress increased the statutory de-mands on agencies’ promulgation of rules, requiring analyses of impacts onsuch entities as small businesses and state, local and tribal governments. Andthe President continues to impose yet additional considerations by executive or-ders.5This trend towards analysis has alarmed many scholars of the regulatoryprocess.6 They have expressed fear that the regulatory apparatus of the federalgovernment will suffer “paralysis by analysis.”7 Even if one believes that analy-sis of regulatory impacts is salutary, the patchwork of statutes and executive or-ders by which these analysis requirements have been imposed and the interrela-tions between these various statutes and executive orders have created a con-fusing labyrinth through which agencies seeking to adopt rules must grope.Thus, the Chair of the Section’s Committee on Rulemaking suggested that a 4. This method of Executive oversight, by formal request for an analysis of the costs and benefitsof the regulation, traces its history to the Nixon White House’s attempts to rein in the newly formed En-vironmental Protection Agency. See Robert V. Percival, Checks Without Balance: Executive OfficeOversight of the Environmental Protection Agency, LAW & CONTEMP . PROBS., Autumn 1991, at 127,133. The breadth of the demands on agencies for such analyses, and the willingness of the executivebranch to rely on them to second-guess agency decisions, however, increased under Presidents Ford andCarter, and reached a zenith under Presidents Reagan and Bush, whose actual aims were to reduce regu-lation. See id. at 139-55. Although the Clinton administration has used regulatory impact analyses forless controversial ends than did the Reagan and Bush administrations, President Clinton has continued torequire cost-benefit analyses for “major” rules. See Mark Seidenfeld, A Big Picture Approach to Presi-dential Influence on Agency Policy-Making, 80 IOWA L. REV. 1, 41-47 (1994) (analyzing the impact ofPresident Clinton’s Executive Order 12,866).5. Sidney Shapiro has suggested that the increased propensity to micromanage agencies resultsfrom competition between Congress and the President for influence over agency rulemaking. See SidneyA. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1, 15-16(1994).6. See, e.g., Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41Duke L.J. 1385, 1385-86 (1992) (expressing concern with “increasingly rigid and burdensome” proce-dures for informal rulemaking); Richard J. Pierce, Jr., The Unintended Effects of Judicial Review ofAgency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 ADMIN.L. REV. 7, 26-27 (1991) (suggesting that courts increased the likelihood of electricity shortage in theUnited States by applying overly exacting standards of judicial review and insisting that the Federal En-ergy Regulatory Commission provide more elaborate justification for its rulemakings).7. See Thomas O.