Rulemaking

1
Rulemaking

• Part I

2
Administrative Rules

• The Legislature can delegate the power to make
  rules to the agency
• Some agencies do not have rulemaking authority
• Rules cannot exceed the authority in the agency's
  enabling legislation or the Constitution
• Properly promulgated rules have the same effect
  as statutes

3
The Agency as Legislature

• The shift from adjudications to rulemaking
  started in the 1950s
• The courts try to allow an agency to make rules
• Parallels the growth of state and federal agencies

4
How do you make a Rule?

• Publish the proposed rule and what it is based on
  for public comment
• The Federal Register and LA Register are where
  rules are published first
• Review and address public comments and publish
  these along with any modifications in the rule
• Codify the rule after it is effective
• Rules are Codified in Code of Federal Regulation
  and the LA Administrative Code

5
How do Rules Differ from Adjudications?
6
Participation and Generality

• Allow Public Participation
• Adjudications are limited to the parties
• Allow Political input
• Rulemaking is a public process which allows
  politicians input
• Appropriate Procedure
• Adjudications are tied to specific facts and
  parties
• Rules are generally applicable, although they may
  be very specific

7
Prospective v. Retrospective

• Retroactivity
• Adjudications are based on things that have
  already happened
• Adjudications can be treated as treated as
  precedent, but this is not binding
• Adjudications are driven by the available cases
• Rules are prospective
• Not bound by existing facts

8
Uniformity

• Adjudications, like trials, are driven by
  specific facts and can treat similar situations
  differently
• Rules set up a general framework that treats all
  parties uniformly
• Rules are the fairest way to make big regulatory
  changes

9
Adoption of National Standards

• National standards can be adopted through agency
  rules, harmonizing practice across jurisdictions
• National building codes
• CDC guidelines on food sanitation
• Recommendations of the Advisory Committee on
  Immunization Practices
• LA should adopt building codes

10
Agency Efficiency

• While a rulemaking can be expensive and time
  consuming, it can settle issues across a large
  number of adjudications
• Rulemaking can also eliminate many hearings by
  resolving factual questions
• In disability case, rules can be used to
  establish what constitutes a disability, rather
  than making it as case by case determination.

11
Better Guidance for the Public

• Rules are published and codified
• State rules were hard to find, but the Internet
  is making this better
• Agency adjudications, especially at the state
  level, are often not published
• There may be no transcript of the full
  adjudication
• Rules are binding

12
Agency Oversight

• You can control the outcome of rulemaking much
  easier than that of adjudication
• Not Dependant on ALJs
• Why is this especially important in LA?
• More input from across the agency
• Directly controlled by agency policy makers

13
Downside of Rulemaking

• Adjudications can be more flexible in the
  individual cases
• Rules can be so abstract or overbroad that they
  are expensive or difficult to follow
• Adjudications are useful when you are not sure
  what the rule should be and need more info and a
  chance to experiment
• Does not do away with the need for adjudications

14
Rulemaking Ossification

• Rulemaking has gotten so complex and time
  consuming it has lost some of its value
• Rulemaking can go on for years
• What is the legal value of a proposed rule that
  has not been finalized?
• This was the problem for the anti-kickback
  regulations
• Complicated by regulatory conflict and
  incompetent agency practice
• The courts and legislature have increased the
  burden on rulemaking

15
What is a Rule?
16
Definition of a Rule

• APA 551(4)
• (4) 'rule' means the whole or a part of an agency
  statement of general or particular applicability
  and future effect designed to implement,
  interpret, or prescribe law or policy or
  describing the organization, procedure, or
  practice requirements of an agency and includes
  the approval or prescription for the future of
  rates, wages, corporate or financial structures
  or reorganizations thereof, prices, facilities,
  appliances, services or allowances therefor or of
  valuations, costs, or accounting, or practices
  bearing on any of the foregoing
• Not a clear definition
• Things that are not adjudications or licensing

17
Functional Definitions

• Critical term is general applicability
• Remember the standards for a hearing?
• If you do not get a hearing, and there is no
  special exception such as an emergency or
  national security, it is probably a rule

18
LA Definition

• 6) "Rule" means each agency statement, guide, or
  requirement for conduct or action, exclusive of
  those regulating only the internal management of
  the agency and those purporting to adopt,
  increase, or decrease any fees imposed on the
  affairs, actions, or persons regulated by the
  agency, which has general applicability and the
  effect of implementing or interpreting
  substantive law or policy, or which prescribes
  the procedure or practice requirements of the
  agency.
• "Rule" includes, but is not limited to, any
  provision for fines, prices or penalties, the
  attainment or loss of preferential status, and
  the criteria or qualifications for licensure or
  certification by an agency. A rule may be of
  general applicability even though it may not
  apply to the entire state, provided its form is
  general and it is capable of being applied to
  every member of an identifiable class. The term
  includes the amendment or repeal of an existing
  rule but does not include declaratory rulings or
  orders or any fees.

19
Exemptions to Notice and Comment Requirements

• Is notice and comment a constitutional
  requirement?

20
Military and foreign affairs

• Why exempt these?
• Limiting the term of residence for Iranian
  nationals after the hostage incident
• National security issues?
• Extending asylum to persons subject to
  reproductive restrictions in China
• Was this just an individual benefit or part of a
  foreign policy?

21
Agency Procedures

• Like the code of civil procedure
• Does not change the substantive rights of the
  parties
• Does not change the regulated behavior, only the
  process in agency procedures

22
Actions where Secrecy is Important

• Wage and price controls
• Bidding on contracts
• Negotiations on land purchases and sales

23
Emergency Proceedings

• Emergency Rules
• http//www.state.la.us/osr/osr.htm
• Interim Final Rules
• Published and in effect, but will be modified
  after comments are in.
• Calculations and other non-discretionary rules
• Technical corrections
• Can require notice and comment if the correction
  causes a different result