Policy Formation Flashcards
What are the Legal Constraints on Rulemaking?
1) Due Process
2) APA (553 and 554)
What is the rulemaking procedure seen in APA 553?
Informal or Notice and Comment
What is the rulemaking procedure seen in APA 554?
Formal Rulemaking
What is the procedure for 553 rulemaking?
Notice and Comment Rulemaking requires:
1) Notice;
2) Give interested parties the opportunity to comment;
3) Concise and general statement of the basis and purpose of this rule.
Can Agencies only create rules through 553 and 554?
No. According to SEC v. Cheney, the agency has the discretion to decide whether they want a slow evolution of the rule through the use of adjudication, or quickly by notice and comment rulemaking pursuant to 553.
SEC v. Cheney was the culmination of Excelsior Underwear and NLRB v. Wyman-Gordon. What does the court decide about the ability of agencies to create rules through means other than rulemaking?
The court holds that agencies could not possibly foresee every issue t hat would come up. So the agency has the authority to either make rules through rulemaking procedures or through adjudications.
When an agency creates a rule through adjudication, can it only apply prospectively?
No. These rules can be applied at the time of the decision. They do not have to be prospective.
What is a case of 1st impression? What about a case of 2nd impression?
1st impression: When a statute/ rule has yet to be interpreted and this is the first time the issue is being resolved;
2nd Impression: When a decision has already been made and the statue has been interpreted.
What impact does a case of 1st impression vs 2nd impression have?
If the case is a 1st impression case, the agency can change it by adjudication or by rule making. However, if the case is 2nd impression, then the decision can only be changed by rulemaking, not adjudication.
Who has the ability to determine the allocation of funds for agencies?
The general rule: The head of the agency has the ability to make reasonable rules regarding the allocation of funds. As long as the rules are generally known so it can be consistently applied.
What are the different ways an agency can make rules?
1) Notice and Comment (informal) - 553;
2) Formal - 554;
3) Adjudication:
a) Cannot change longstanding rules;
b) Must be an actual case/controversy;
c) Can be by internal manual as long as it is publicly available.
