Rulemaking

Question 1

Do rules have a future or retroactive effect?

Answer 1

Rules have a future effect, unless an agency’s organic statute explicitly authorizes a retroactive effect.

Question 2

True or False:

Agencies have discretion to make rules to avoid adjudication if they have to power to do both

Answer 2

True. The decision whether to make policy by rulemaking or adjudication is a decision to be made by the agency in its informed discretion (Chenery)

Question 3

What is the difference between Legislative and Non-Legislative rules?

Do agencies need statutory authorization to make either of these?

Answer 3

• *Legislative** rules affect legal rights, theres rule are “law” becuase they have binding legal effect.
• Statutory authorization is requred to issue legislative rules
• *Non-Legislative** rules are not “law,” it is much easier to issue these, they play a weaker legal role, more like precedents
• Statutory authorization not required to issue non-legislative rules

Question 4

What are the two types of Legislative rules?

Are they subject to §553?

Answer 4

Substantive: majority of the rules we look at, are subject to §553

Procedural: not subject to §553

Question 5

What are the two types of Non-Legislative rules?

Are they subject to §553?

Answer 5

Interpretive: not subject to §553

Policy statements: not subject to §553

Question 6

Does PDP apply to general law making?

Why or why not?

What is the exception?

Answer 6

PDP simply DOES NOT APPLY to general lawmaking.

The political process and the APA are enough of a safegaurd (Bi-Metallic)

Exception: PDP is required only when the proceeding is functionally equivalent to an adjudication, when small number of people are effected, not a general law of general applicability (Londoner)

Question 7

Formal Rulemaking is triggered by what language?

Where is this found in the APA?

Answer 7

“hearing on the record”

(Florida East Coast)

Triggering language to implicate FR under §556 and §557 is found in §553(c)

Question 8

What three stages of procedure are required under formal rulemaking?

Answer 8

1. Planning stage with notice
2. Trial stage with oral testimony and documentary evidence, cross examination and trial
3. Decision stage

Question 9

What two APA statutes govern FR?

Answer 9

§556 & §557

Question 10

What is main difference between FR and IR?

Answer 10

IR requires only §553, which requres just four steps for the adoption of legislative rules:

1. Notice published
2. Opportunity to participate(w/ or w/out oral presentation)
3. Statement of angency’s basis and purpose
4. Publishing of the rule

Informal rulemaking requires no hearing in the sense of oral presentation or live testimony, does not require that material be submitted in testimonial form or under oath, no opportunity for cross-examination or rebuttal is mandated

Question 11

What are the benefits of FR?

Answer 11

Trial type hearings are said to facilitate the full development of information necessary to the formulation of reasonable regulatory policies

Only trial type hearings give people a genuine opportunity to question the agency’s factual premises

Question 12

What are the three basic requirements of Informal Rulemaking?

Answer 12

1. Published notice of the proposed rulemaking
2. Opportunity for public comment
3. After consideration of the comments, publication of the final rule toghether with a concise general statement of the rule’s basis and purpose

Question 13

The holding from Motor Vehicles v. State Farm requires what out of an agency’s statute?

Answer 13

Requires a rational connection between the facts and the conclusion

Question 14

Rulemaking - Procedural Requirements of §553

1. Notice and Opportnity for comment

What are the three requirements this requirement?

Answer 14

1. Agency must adequately respond to the comments
2. Agency must disclose the evidence upon which the rule relies on (doesnt have to disclose the stuff that it doesnt rely on)
3. Rule must be a logical outgrowth of the proposed rule

Question 15

§553 only applies to (blank) rules

Answer 15

Substantive legislative rules

Question 16

§553 Does Not Apply to:

Answer 16

1. Military and foreign affairs
2. Matters involving agency management or personnel, public property, loans, grants, benefits, and contracts
3. Procedural legislative rules, interprestive nonlegislative rules, or policy statement nonlegislative rules
4. Rules when the agency finds for good cause that notice and comment are impractcable, unnecessary, or contrary to the public interest