More on Direct Final Rulemaking: Streamlining, Not Corner-Cutting

Administrative Law Review, Vol. 51, No. 3, Summer 1999

Posted: 25 Jun 1999

See all articles by Ronald M. Levin

Ronald M. Levin

Washington University in St. Louis - School of Law

Abstract

'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.

Suggested Citation

Levin, Ronald M., More on Direct Final Rulemaking: Streamlining, Not Corner-Cutting. Administrative Law Review, Vol. 51, No. 3, Summer 1999. Available at SSRN: https://ssrn.com/abstract=164990

Ronald M. Levin (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6490 (Phone)
314-935-5356 (Fax)

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