"INFORMAL" RULEMAKING PROCEDURE

Congress, by statute, either authorizes or directs agency to create rule on something

Draft proposed rule developed

Draft proposed rule reviewed at agency

Draft proposed rule reviewed at OMB/OIRA

Notice of proposed rulemaking published in federal register

Public comments collected

Agency responds to comments and develops draft final rule

Internal agency review of final draft

OMB/OIRA reviews draft final rule

Agency publishes final rule in federal register

Rule goes into effect

Legal Challenge - Judicial Review

Possible Congressional Review

Other prompts (although statutory authority still necessary) could be letters from OMB, recommendations of FACA committees, trying to overcome issues that arose in lawsuits/judicial opinions, etc.

5 U.S.C. § 553(b) requires this publication.

Must include:

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Again part of the executive order 12866 scheme.

This comes from executive order 12866 (and subsequent orders building on that scheme).

Note that this only applies to "significant" rulemaking actions and that independent agencies are exempt.

Note certain exceptions in 5 USC § 553(a): military rules, administrative management or personnel rules, public property (though many federal land agencies adhere to APA due to their governing laws or as a policy choice), loans, grants, benefits, contracts.

§ 553(b)(3)(A) and (B) also exempt "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice" and situations when "the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."

5 U.S.C. § 553(c) governs this: "the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation."

Further language in § 553(c): "After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose."

Under executive order 12866, the default/standard comment period is 60 days.

5 U.S.C. § 801-808 (the Congressional Review Act): New rules must be sent over to Congress, and Congress has a period of time to pass a joint resolution disapproving them to prevent the rule from taking effect.

5 U.S.C. § 553(d): final rule has to be published at least 30 days out from when it will take effect

See also § 553(e): "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule" -- this would lead to administrative review.

See 5 U.S.C. § 701 and § 704 on judicial review.