ICF Reg Map Available for Notice and Comment Regulation Process (2/10/20)

Readers of the Federal Tax Procedure Blog will know that I have used some blog entries to discuss administrative law, the APA and the intersection of tax and those subjects.  One of those intersections is found in the regulations process, a process that federal agencies generally share. In a recent posting, Professor Chris Walker alerted readers to the “ICF Reg Map” and linked to it.  See Christopher J. Walker, Release of 2020 Reg Map: A Guide to the Federal Informal Rulemaking Process (Notice and Comment Blog 2/5/20), here.   The direct link to the ICF Reg Map is here.  The Wikipedia description of ICF, originally an initialism (not to be confused with an acronym) for Inner City Fund, is here.

Professor Walker praises the Reg Map as a useful tool for students, clients navigating the rulemaking process, and new lawyers at federal agencies and “on the Hill.”  I, an old lawyer, found it useful as well.

ICF’s Reg Map® provides federal agencies, Congressional committees, law schools, and others in the public and private sector with an overview of how the federal rulemaking process works. Designed to hang on your office wall or door, this complimentary 2’x2’ poster—updated in 2020—contains:

• Practical information on how the U.S. federal informal rulemaking process works and guidance for regulators on required components of procedural tasks and potential challenges along the way;
• Citations to relevant statutes, regulations, and Executive Orders;
• References to authoritative interpretations of important rulemaking concepts; and
• FAQs and a “Frequently Used” terms and abbreviations table that serves as a handy reference for agency program staff, journalists, students, and others interested in understanding the process.

In addition to the hard copy Reg Map to hang on your office wall or door, the Reg Map is also available for download in pdf format.

You will notice from Professor Walker’s title, that the Reg Map is the “informal” rulemaking process.  This informal rulemaking notice and comment process is the one most practitioners are most familiar with (and, for most of us, it seems pretty formal, as evidenced by the ICF Reg Map).  That raises the question – what is the formal rulemaking process.  Here is how I describe the difference in my current working draft for the 2020 editions of my Federal Tax Procedure Book:

Under the APA, agencies may make rules in two process categories–rulemaking (having two subcategories, formal and informal) and agency adjudication (also with formal and informal subcategories).  Treasury does not use the adjudication category, so I focus here on rulemaking. Within the rulemaking category, most agencies, including Treasury, use only the informal rulemaking subcategory via notice and comment regulations. fn Notice and comment Regulations are published in the Federal Register and codified in the Code of Federal Regulations.
fn  The informal rulemaking process is described in 5 U.S.C. § 553, whereas the formal rulemaking process is described in § 556. David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 Yale L.J. 276, 282 (2010) (“The first technique, so-called ‘formal’ rulemaking, involves onerous trial-type hearings and is rarely required unless a specific statute calls for rules to be ‘made on the record after opportunity for an agency hearing.’ Far more common is the second technique, variously known as ‘informal,’ ‘notice-and-comment,’ or ‘section 553' rulemaking.”).  The formal rulemaking process is rarely used in agencies generally.  See Perez v. Mortgage Bankers Assn., 575 U. S. 92, ___-___, 135 S. Ct. 1199 (2015) (Thomas, concurring) (noting that (i) “almost all rulemaking is today accomplished through informal notice and comment,” in contrast to the formal rulemaking process requiring “elaborate trial-like hearings in which proponents of particular rules would introduce evidence and bear the burden of proof in support of those proposed rules,” citing 5 U. S. C. §556; and (ii) “formal rulemaking is the Yeti of administrative law” with “isolated sightings of it in the ratemaking context, but elsewhere it proves elusive.”); Jeffrey S. Lubbers, Please Spare Us the Return of “Formal” Rulemaking (Notice and Comment 12/16/19).  Informal rulemaking is permitted unless the authorizing statute mandates formal rulemaking.  United States v. Florida East Coast R. Co., 410 US 224, 236-238 (1973). 

A useful discussion (with charts) of the progression of these categories of rulemaking (and adjudication) may be found at Aaron L. Nielson, D.C. Circuit Review – Reviewed: 73 Years of APA Evolution (In One Chart) (Notice & Comment 12/6/19), here.

Finally, for those interested in administrative law, I highly recommend the Notice and Comment Blog, here, a blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice.