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Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance With Administrative Procedure Act Rulemaking Requirements


Kristin E. Hickman


University of Minnesota - Twin Cities - School of Law


Notre Dame Law Review, Vol. 82, 2007
Minnesota Legal Studies Research Paper No. 07-01

Abstract:     
The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Treasury regulations are exempt from the APA's public notice and comment requirements. Nevertheless, Treasury purports to utilize those same procedures anyway in promulgating most Treasury regulations.

This Article documents a study of 232 separate Treasury regulation projects for which Treasury published Treasury Decisions and notices of proposed rulemaking in the Federal Register between January 1, 2003, and December 31, 2005. In connection with this study, this Article compares Treasury's actual practices and exemption claims with current doctrinal trends in courts evaluating compliance with APA requirements across administrative agencies.

The Article documents the study's finding that, in 40.9% of the projects studied, Treasury failed to follow APA notice and comment requirements. The Article also concludes that, as interpreted by the courts, established exceptions from those requirements generally do not apply to excuse this noncompliance. Consequently, among other implications, many Treasury regulations, including some of Treasury's most complex and controversial rulemaking efforts, are susceptible to legal challenge for failure to adhere to APA rulemaking requirements.

Number of Pages in PDF File: 82

Keywords: rulemaking, regulations, Administrative Procedure Act, APA, Treasury regulations, empirical, interpretative rules, good cause exception, Treasury, Internal Revenue Service

JEL Classification: H10, H11, H20, K10, K20, K23, K30, K34, K40

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Date posted: January 14, 2007  

Suggested Citation

Hickman, Kristin E., Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance With Administrative Procedure Act Rulemaking Requirements. Notre Dame Law Review, Vol. 82, 2007; Minnesota Legal Studies Research Paper No. 07-01. Available at SSRN: http://ssrn.com/abstract=955929

Contact Information

Kristin E. Hickman (Contact Author)
University of Minnesota - Twin Cities - School of Law ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)
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