Presentation on theme: "Rulemaking “One of the greatest inventions of modern government” But this depends on the rule and the affected parties Gored ox theory."— Presentation transcript:
Rulemaking “One of the greatest inventions of modern government” But this depends on the rule and the affected parties Gored ox theory
Rulemaking Usually, it is not the process of making the rule, but rather the substance of the rule Depending on the above☺☺☻☻ or not Supreme Court has one rule: deference
Rulemaking Difficult to challenge the substance of an agency rule Two mechanisms to challenge or invalidate: either attack its substantive provisions or the procedure by which it was promulgated If a rule is defective on either ground, it will not be placed into effect
RULEMAKING In the beginning, there were many challenges to rules on procedural grounds Supreme Court made this type of attack difficult Cardinal Rule: If you don’t like the agency action, win on the agency level
BASIC RULEMAKING Triggering of Rulemaking Process How to begin First, the agency many be commanded to act Congress may write interim agency rules Agency may determine it needs rules Sometimes private citizens get into the act Section 553(e) gives “interested person the right to petition for the issuance, amendment or repeal of a rule.”
RULEMAKING The APA emphasizes agencies should engage in rulemaking as the basic process to announce new policy APA defines rule, however, broadly Rulemaking procedures are in 553
The Scope of 553 APA: 551 definition of agency 553(a) exemptions Other exemptions which are generic Notice requirements
Comments and Rulemaking APA hallmark: Solicitation of comments from all interested persons Agency must accept comments Most submissions are in writing Sometimes there are oral hearings
Comments What does an agency do with the comment? What does the APA term “consider” really mean Good faith requirement Agency not bound by comments Agency may invoke its experience
Comments Reviewing Court will be suspicious if agency ignores the comments
Promulgation of Final Rule This step completes the rulemaking process Two important steps: 1. The agency must prepare after consideration of the comments and other matter in the rulemaking record, “a concise general statement of [the] basis and purpose” of the final rule.
Promulgation Step 2: The rule goes into effect no earlier than 30 days after the rule’s publication Exceptions to 553(d) 30-day delay period: a rule that provides an exemption or relieves a restriction a rule that provides an exemption or relieves a restriction Interpretative rules and statements of policy Interpretative rules and statements of policy Finding of good cause Finding of good cause
Federal Register? Contents Federal Register Vol. 72, No. 34 Wednesday, February 21, 2007 -------------------------------------------------------------------------------- Agricultural Marketing Service RULES Nectarines and peaches grown in California Correction, 7821 [07–783] [TEXT] [PDF] Agriculture Department See Agricultural Marketing Service See Forest Service Army Department See Engineers Corps Centers for Disease Control and Prevention NOTICES Meetings: National Center for Environmental Health/Agency for Toxic Substances and Disease Registry— Scientific Counselors Board, 7888 [E7–2885] [TEXT] [PDF] Children and Families Administration
What constitutes notice and hearing? [Federal Register: February 21, 2007 (Volume 72, Number 34)] [Notices] [Page 7906] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr21fe07-66] ======================================================================= ----------------------------------------------------------------------- INTERNATIONAL TRADE COMMISSION [Inv. No. 337-TA-593] In the Matter of Certain Digital Cameras and Component Parts Thereof; Notice of Investigation AGENCY: U.S. International Trade Commission. ACTION: Institution of investigation pursuant to 19 U.S.C. 1337. ----------------------------------------------------------------------- SUMMARY: Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on January 19, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of St. Clair Intellectual Property Consultants, Inc., of Grosse Pointe, Michigan. Letters supplementing the Complaint were filed on February 7 and February 9, 2007. The complaint, as supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain digital cameras and component parts thereof by reason of infringement of claim 16 of U.S. Patent No. 5,138,459; claims 1-3, 8, 10, 12, and 16-18 of U.S. Patent No. 6,094,219; claim 1 of U.S. Patent No. 6,233,010; claims 1-4 of U.S. Patent No. 6,323,899; and claims 5, 6, and 9-12 of U.S. 6,496,222. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337. The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and permanent cease and desist orders.
Automotive Parts & Accessories Association v. Boyd Statement’s purpose: demonstrate to the public AND to the court that the agency has done its job “In a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future.” The statement is one of the few bits of information which courts may use to analyze a rule if validity is challenged.
The APA requires an agency to set forth: “a concise general statement of their basis and purpose.” Automotive Parts sets forth the requirement for a statement of basis and purpose Court cautions against “an overly literal reading of the terms “concise and general.”
Automotive Parts Emphasizes that this requirement must be interpreted so the reviewing court may see what the major issues of policy were and Why the agency reacted to them as it did
Judicial Review Pacific States Box & Basket: National Tire Dealers & Retreaders: what did the agency fail to do? Dismissed a factor with an “unconvincing assertion.”
Motor Vehicle Manufacturers v. State Farm Court reviewed the rescission of a DOT standard DOT, in the original standard, determined car seat belts that required buckle up weren’t very effective Needed passenger safety device that did not require specific action of occupant Department could not make up mind:
State Farm Air bags? Belt restraints? Modified Standard 208: chose one or the other President Regan takes office New Secretary commissions rulemaking to repeal 208 Insurance companies challenge the rescission
State Farm Supreme Court grants certiorari Looks at the entire history: the promulgation and the rescission Concludes: agency has authority to reconsider, BUT here OUT OF CONTROL DOT failed to articulate plausible reasons for its rescission
State Farm What troubled the Supreme Court? Absolutely no change in external circumstances People were still being injured a decade later Why is the earlier rule now unnecessary DOT failed to address this very issue
State Farm But what about the comments? Did the comments differ from when the Modified Standard was promulgated Were there any changes in the agency’s enabling act Had the legislature taken action compelling the rescission?
State Farm—Bottom line Agency rule set aside because --The agency failed to consider an obvious alternative --The agency did not adequately explain--The agency did not adequately explain