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Rulemaking

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... this with court imposed hybrid rulemaking as in Vermont Yankee ... Coercion: Chamber of Commerce v. U.S. Dept. of Labor, 174 F.3d 206 (D.C. Cir. 1999) ... – PowerPoint PPT presentation

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Title: Rulemaking


1
Rulemaking
  • Part II

2
Non-APA Requirements
  • APA is only the default if there is no other
    statutory guidance
  • National Environmental Policy Act imposes
    requirements if the rule affects the environment
  • Regulatory Flexibility Act - small business
  • Executive Order 12866 - more 100M impact
  • The book calls these hybrid rulemaking, do no
    confuse this with court imposed hybrid rulemaking
    as in Vermont Yankee

3
Beginning Rule Making
  • Why was the court willing to order the agency to
    make a rule in the Regulators?
  • Why do agencies often fail to follow
    congressional direction to make rules?
  • What is a request for a rulemaking and what does
    it force the agency to do?

4
Jargon Alert
  • Legislative rule (regulation)
  • Has the effect of law
  • Generally just called a rule or regulation
  • Non-Legislative rule
  • Has no legal effect, but shows what the agency
    thinks the law is
  • Many names - interpretive rule, guidelines,
    guidance document, anything but rule or regulation

5
553(b) - Exceptions to Notice Requirements
  • 1) Interpretative rules, general statements of
    policy, and rules of agency organization,
    procedure, and practice and
  • 2) Rules when the agency finds for good cause
    that notice and public procedure are
    impracticable, unnecessary, or contrary to the
    public interest.
  • No notice means no comment under 553(c)

6
Exception 1 - Interpretative Rules
  • It is only explaining the law or providing
    guidance for action
  • Prosecution guidelines
  • IRS audit guidelines
  • Since they do not change the law, they have no
    legal effect
  • Does that mean you can ignore them?

7
How do you know if it an Interpretive Rule or a
Legislative Rule?
  • Why would an agency want to use an interpretive
    rule rather than a legislative rule?
  • What is the risk to the agency if they do and the
    court disagrees?
  • What is the benefit to the regulated parties of
    interpretive rules?
  • What if the agency is prevented from providing
    guidance documents?

8
The Nature of the Enabling Act
  • Very general laws
  • Little effective guidance in the statute
  • Makes any interpretative rule more likely to been
    seen as a legislative rule
  • Very specific laws - like the ADA
  • No room for legislative rules
  • Everything is guideline

9
EPA Example - Wetlands
  • EPA makes a rule that states that the term
    waters of the United States (which defines the
    jurisdiction of EPA under the Clean Water Act)
    includes wetlands that potentially provide
    habitat to migratory birds.
  • Is this an interpretative rule or a legislative
    rule?
  • Can we tell just looking at the rule?

10
What Do We Need to Know?
  • Will the agency say that the rule is binding?
  • The substantial impact test
  • How might this rule affect the buyers of
    wetlands?
  • Is this a substantial impact?
  • What is the agency's defense?
  • Is the substantial impact test circular?

11
The Legally Binding or Force of Law Test
  • What is the enforcement test?
  • What do we need to know to tell whether the
    agency can enforce the law without this rule?
  • Is the agency required to define wetlands?
  • Was the agency doing enforcement before this
    rule?
  • Under this test, is this an interpretative rule?
  • What if statute allows the agency to define toxic
    substances that cannot be dumped into lakes?
  • Would a list of these substances be legislative?

12
General Policy or Specific Requirements?
  • Remember, 553(b) does not require notice and
    comment for general policy statements
  • Assume the statute says that in licensing
    actions, a physician must reply to agency request
    for information in a reasonable time.
  • Would a requirement that this be in 7 days be a
    policy statement or a rule?
  • Why does the inclusion of specific factual
    information undermine the claim that it is a
    general policy statement?

13
How High do I Build the Fence?Hoctor v. USDA, 82
F.3d 165 (7th Cir. 1996)
  • Statute requires the agency to adopt rules for
    the safe housing of dangerous animals
  • Agency use notice and comment to promulgate a
    rule requiring that reasonable precautions be
    taken to prevent the escape of the animals
  • Agency then issues guidance saying that a
    reasonable precaution would be an 8 foot fence
  • Interpretation or legislation?
  • How could the agency enforce the provision
    without the height rule?

14
Junk in the Park United States v. Picciotto, 875
F.2d 345 (D.C. Cir. 1989)
  • Can the agency use notice and comment to
    promulgate a legislative rule that says that the
    agency can add other requirements in specific
    situations without notice and comment?
  • Why or why not?
  • What if the rule just says that nothing can be
    brought to the park that would be disruptive or
    impede public access?

15
Consistency, the Hobgoblin of Interpretative Rules
  • What is the result if an interpretative rule is
    inconsistent with a legislative rule?
  • Using an interpretative rule to change a
    calculation established by a rule
  • Some courts also find that an interpretative rule
    cannot be changed with a subsequent
    interpretative rule, but can only be modified by
    a legislative rule
  • Why is logically inconsistent?
  • This is not widespread in the courts

16
Other Factors
  • Publication in the FR
  • Must interpretative rules be published in the FR?
  • What does failure to publish indicate?
  • Does this make sense?
  • Is it important that the agency clearly label the
    rule as interpretative?

17
Federal Mine Safety and Health Act Example
  • Secretary has the statutory right to sue both the
    mine owner and the mine operator for violations
    of the Act.
  • Secretary publishes a policy statement explaining
    that the agency can and will sue both of them for
    infractions, depending on the nature of the
    infraction.
  • Does this require notice and comment?
  • Why?

18
Corps of Engineers Example
  • Corps issues a guidance document saying that one
    way to qualify for a wet lands development
    certificate is to promise to restore 2X as much
    wet land as you fill
  • Does this need notice and comment?
  • Why?
  • What if the Corps will only issue permits to
    people who agree to this?

19
Coercion Chamber of Commerce v. U.S. Dept. of
Labor, 174 F.3d 206 (D.C. Cir. 1999)
  • DOL made a policy statement that it would reduce
    inspections of workplaces that adopted an OSHA
    suggested safety plan that exceeded federal
    minimums
  • Is this really voluntary?
  • Does this coercion make this a binding rule?
  • What about DOJ guidance that a corporate
    compliance plan will count as mitigation under
    the Sentencing Guidelines?

20
How does the Agency Treat the Rules?
  • Assume the agency says the statement is only an
    enforcement guideline
  • What if the employees doing the enforcement
    always follow the guideline?
  • Does this change its legal status?
  • What position do these decision on guidance put
    the agency in when the regulated parties or the
    public asks what the guidelines mean?

21
Can Interpretative Guidance be Retroactive?
  • Why does the ban on retroactive rules not apply
    to interpretive rules?
  • How is this like the court system when a judge
    finds a new tort cause of action?
  • Could congress create an exception to the APA and
    allow a retrospective rule?

22
Procedural Rules
  • Procedural rules are exempt from notice and
    comment
  • The form of an application for benefits is
    procedural
  • The facts that the claimant has to establish to
    get the benefits are substantive
  • A procedural rule can become substantive if the
    change in procedure has a substantial impact on
    the regulated parties.
  • Procedural change for submitting bills by home
    health providers imposed a huge logistic and
    financial cost.

23
OSHA Guidance for Targeting and Carrying out
Inspections
  • Being inspected does have a substantial impact on
    the employer
  • Does this guidance document require notice and
    comment?
  • Does it change the legal rights of the employers?

24
When Notice and Comment Procedures Are
Impracticable, Unnecessary, or Contrary to the
Public Interest
  • What is an interim final rules?
  • What is a direct final rule
  • When are these allowed?
  • What are some examples?
  • Did we see these after Katrina?
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