An agency has the capacity to act with the force and effect of law. Did the agency have authority to do what it did from a statute? If the statute says that the agency can promulgate rules interpreting the statute (and therefore passes Mead), do we need to evaluate within the statute to determine if Congress precluded some kinds of interpretation (for example, if the statute defines a term, can the agency promulgate a rule refining the meaning of that term?)? There are four types of agency actions: 1. Notice and Comment Rulemaking 2. Formal Adjudication (Court-like Procedures) 3. Informal Adjudication Did not trial (555). – 4. Guidance Documents OIRA If it is an executive agency, and the economic impact is greater than $100M, then OIRA – standards must be met (Ch. 6 Presidential Control of Agency Action). – Notice and Comment Rulemaking Notice of Proposed Rule Governed by 553(b). – Issue Notice in Federal Register Notice contains one or more proposed rules. A – common error is to publish the notice online, which is not enough and not necessary. Statement of the time place, nature of the public rulemaking proceedings. References the legal authority under which the rule is proposed the statute that – gives the agency the authority to make the rule. Contains terms of substance of the proposed rule or descriptions of the subjects/issues involved. Make any studies used as the basis of the rule available. Exceptions to Notice Requirement 553(b) – The notice requirements don’t apply when the agency is making guidance/interpretative rules (b/c they don’t speak with the force and effect of law). General statements of policy (guidance). Press releases (guidance). Rules of agency organization, procedure, practice (intra-agency). If notice and comment procedures be impracticable, unnecessary, or against the public interest. Comment Period Interested persons must have an opportunity to participate in the rule – making through submission of written data, views, or arguments with or without opportunity for oral presentation. Interested Persons individuals, partnerships, corporations, associations, or public – and private organizations and other agencies (inclusive standard).
An agency has the capacity to act with the force and effect of law. Did the agency have authority to do what it did from a statute? If the statute says that the agency can promulgate rules interpreting the statute (and therefore passes Mead), do we need to evaluate within the statute to determine if Congress precluded some kinds of interpretation (for example, if the statute defines a term, can the agency promulgate a rule refining the meaning of that term?)? There are four types of agency actions: 1. Notice and Comment Rulemaking 2. Formal Adjudication (Court-like Procedures) 3. Informal Adjudication – Did not (555). 4. Guidance Documents OIRA – If it is an executive agency, and the economic impact is greater than $100M, then OIRA standards must be met (Ch. 6 – Presidential Control of Agency Action). Notice and Comment Rulemaking Notice of Proposed Rule – Governed by 553(b). Issue Notice in Federal Register – Notice contains one or more proposed rules. A common error is to publish the notice online, which is not enough and not necessary. Statement of the time place, nature of the public rulemaking proceedings. References the legal authority under which the rule is proposed – the statute that gives the agency the authority to make the rule. Contains terms of substance of the proposed rule or descriptions of the subjects/issues involved. Make any studies used as the basis of the rule available. Exceptions to Notice Requirement – 553(b) The notice requirements don’t apply when the agency is making guidance/interpretative rules (b/c they don’t speak with the force and effect of law). General statements of policy (guidance). Press releases (guidance). Rules of agency organization, procedure, practice (intra-agency). If notice and comment procedures be impracticable, unnecessary, or against the public interest. Comment Period – Interested persons must have an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. Interested Persons – individuals, partnerships, corporations, associations, or public and private organizations and other agencies (inclusive standard). trial
bushstatchecklist.docx