What are the other reasons why the agency might be following the guideline? What do the and cases tell us about how to argue the Hoctor Picciotto distinction between legislative and interpretive rules? General policy statements How is a general policy statement different from an interpretative rule? What is prosecutorial discretion and how does it fit in this analysis? The Marine Safety Manual gives guidance as to penalties for pollution incidents. Legislative rule or prosecution guideline? If it is a prosecution guideline, why it require notice and comment? doesn’t What about the mine safety case on announcing the policy that both mine owners and operators would be prosecuted for violations? Can a non-legislative rule modify a legislative rule? What is the result if they conflict? What are the limits on providing incentives to comply with non-legislative rules? Why did the court in 174 F.3d 206 Chamber of Commerce v. U.S. Dept. of Labor, (D.C. Cir. 1999) find that promising to reduce OSHA inspections for complying firms was improper? Could the agency have required compliance if it had promulgated the rule as a legislative rule? Does Publication Matter in Deciding if a Rule is a Legislative Rule? Documents that have and legal be published in ‘‘general applicability effect’’ must the FR. Must interpretative rules be published in the FR? What does failure to publish indicate? What if the rule is published online, but not put in the FR? How would you argue that 553 makes this effective notice as to anyone trying to sue for failure to give notice? Given the legal status of interpretive rules, does it matter if the notice is ineffective?
What are the other reasons why the agency might be following the guideline? What do the Hoctor and Picciotto cases tell us about how to argue the distinction between legislative and interpretive rules? General policy statements How is a general policy statement different from an interpretative rule? What is prosecutorial discretion and how does it fit in this analysis? The Marine Safety Manual gives guidance as to penalties for pollution incidents. Legislative rule or prosecution guideline? If it is a prosecution guideline, why doesn’t it require notice and comment? What about the mine safety case on announcing the policy that both mine owners and operators would be prosecuted for violations? Can a non-legislative rule modify a legislative rule? What is the result if they conflict? What are the limits on providing incentives to comply with non-legislative rules? Why did the court in Chamber of Commerce v. U.S. Dept. of Labor, 174 F.3d 206 (D.C. Cir. 1999) find that promising to reduce OSHA inspections for complying firms was improper? Could the agency have required compliance if it had promulgated the rule as a legislative rule? Does Publication Matter in Deciding if a Rule is a Legislative Rule? Documents that have ‘‘general applicability and legal effect’’ must be published in the FR. Must interpretative rules be published in the FR? What does failure to publish indicate? What if the rule is published online, but not put in the FR? How would you argue that 553 makes this effective notice as to anyone trying to sue for failure to give notice? Given the legal status of interpretive rules, does it matter if the notice is ineffective?
adlaw-2018f-Chapter-5.docx