More on Direct Final Rulemaking: Streamlining, Not Corner-Cutting
Administrative Law Review, Vol. 51, No. 3, Summer 1999
Posted: 25 Jun 1999
'Direct final rulemaking' allows an administrative agency to expedite its issuance of noncontroversial regulations. To use this technique, the agency publishes a rule and invites members of the public to object to it. If no one files a significant adverse comment, the rule can become law without further effort on the agency's part.
A recent article by Professor Lars Noah (summarized in issue #15 of this abstracts series) criticizes this technique as unlawful and undesirable. The present paper is a rebuttal to Noah's critique. It suggests that agencies may need to improve their implementation of direct final rulemaking, but they need not abandon the technique itself.
Indeed, a properly handled direct final rulemaking can honor all of the values underlying the rulemaking provisions of the Administrative Procedure Act (APA). For this reason, the doctrine of substantial compliance supports the legality of the device. Moreover, the "good cause" exemption of the APA provides additional legal support. The paper concludes that, at a time when agencies are under pressure to streamline their operations, due in part to the "ossification" of the rulemaking process, agencies should continue to take advantage of direct final rulemaking.
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