Download this Paper Open PDF in Browser

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

82 Pages Posted: 14 Jan 2007  

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

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.

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

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: https://ssrn.com/abstract=955929

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)

Paper statistics

Downloads
537
Rank
42,014
Abstract Views
3,229