Part Two: Informal Rulemaking

• Pages: 23-30

The following summarizes the procedural requirements that must

precede the legally effective promulgation, amendment, or repeal

of a rule by a federal agency, as imposed by the APA, other proce-

dural statutes, and judicial decisions. Certain additional requirements

imposed by executive order (primarily E.O. 12,866) are also included.

Such requirements are not judicially enforceable, may be and often are

waived by the relevant executive ofce, and are particularly subject to

change. Economic impact analysis has been required for the last several

presidencies in one form or another, and there is no indication that this

requirement will be rescinded anytime soon.

I. APPLICABILITY

A. Denition of a Rule

A “rule” is an agency statement designed to implement, interpret,

or prescribe law or policy or describing the organization, procedure, or

practice requirements of an agency. Although the denition of rule in

the APA refers to “an agency statement of general or particular applica-

bility,” “rule” is usually understood to refer to a pronouncement that is

intended to address a class of situations, rather than a named individ-

ual. Certain particularized actions, such as rate-setting or the approval

of a corporate reorganization, are explicitly included within the statu-

tory denition. A rule may be prospective, retroactive, or both, but an

agency normally may not issue a retroactive rule that is intended to

have the force of law unless it has express authorization from Congress.

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PART TWO

INFORMAL RULEMAKING

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