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Regulation Without Rulemaking: The Force and Authority of Informal Agency Action

Charles A. Breer, Scot W. Anderson, Proceedings of 47th Annual Rocky Mountain Mineral Law Institute (2001)

Executive agencies routinely provide direction to the regulated community concerning how that community should act. This direction sometimes comes in the form of published rules promulgated through notice and comment rulemaking under the Administrative Procedure Act (APA). Agencies also provide [5-3] further guidance to regulated parties through means far less formal than APA rulemaking. Employees of the agencies answer questions over the telephone. Agencies may issue handbooks to their employees designed to guide them in the application of the agencies' regulations. Agencies issue opinion letters and policy statements. Agencies sometimes issue guidance documents that are far more detailed than the original published regulations.

This paper explores the scope and legal consequences of such informal actions of executive agencies.