Rulemaking Part I Introduction to NonLegislative Rules Jargon

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Rulemaking Part I – Introduction to Non-Legislative Rules

Rulemaking Part I – Introduction to Non-Legislative Rules

Jargon Alert n n Rule, legislative rule, or regulation n They all mean the

Jargon Alert n n Rule, legislative rule, or regulation n They all mean the same thing n Has the same effect as a statute passed by the legislature Non-Legislative rule n Has no legal effect, but shows what the agency thinks the law is n Many names - interpretive rule, guidelines, guidance document, anything but rule or regulation 2

The Agency as Legislature n n The modern rulemaking process got started in the

The Agency as Legislature n n The modern rulemaking process got started in the 1950 s and really accelerated in the 1970 s n Parallels the growth of federal agencies In theory, the federal courts encourage agency rulemaking. n It reduces litigation and simplifies the litigation that ensues. 3

The Power to Make Rules n n The power to make rules must be

The Power to Make Rules n n The power to make rules must be delegated by the legislature. n If the enabling legislation (the legislation creating an agency) is silent, the agency cannot make rules The delegation may be broad, allowing the agency great discretion, or very narrow. n We will look at the standards for reviewing this delegation later in the 4

Notice-and-Comment Rulemaking n n n APA Procedures http: //biotech. law. lsu. edu/Courses/study _aids/adlaw/553. htm

Notice-and-Comment Rulemaking n n n APA Procedures http: //biotech. law. lsu. edu/Courses/study _aids/adlaw/553. htm The Register n The Federal Register n LA Register Electronic Notice http: //www. regulations. gov

Why Have Public Participation? n n n Public participation has great political benefit in

Why Have Public Participation? n n n Public participation has great political benefit in broadening the acceptability of the rules. Public comments can identify technical and legal problems with the rules Publication of proposed rules allows politicians to become involved to protect the interests of their constituents Public participation limits executive power and makes it more palatable to the courts to have agencies making laws While the agency may take comments at public hearings, it is usually done in writing. 6

Attacking Rulemaking n n Once a rule has been properly promulgated through notice and

Attacking Rulemaking n n Once a rule has been properly promulgated through notice and comment, it can only be attacked by attacking the published basis for the rule, and that must be done relatively soon after promulgation. We will see in the movie how the opponents of the rule work to get their changes made before the rule is finished. 7

Rulemaking Part I Introduction to NonLegislative Rules RuleRulemaking Part I Introduction to NonLegislative Rules Rule
Rulemaking Part II Negotiated Rulemaking Negotiated Rulemaking nRulemaking Part II Negotiated Rulemaking Negotiated Rulemaking n
Congresss Nonlegislative Powers CHAPTER 11 SECTION 4 NonlegislativeCongresss Nonlegislative Powers CHAPTER 11 SECTION 4 Nonlegislative
Rulemaking Introduction to The Regulators Jargon Alert nRulemaking Introduction to The Regulators Jargon Alert n
Rulemaking Introduction to The Regulators Jargon Alert nRulemaking Introduction to The Regulators Jargon Alert n
Rulemaking Introduction to The Regulators Jargon Alert nRulemaking Introduction to The Regulators Jargon Alert n