ADMINISTRATIVE LAW:
Informal Rule making: Giving notice, inviting written comments, and justifying the rule in the statement of basis and purpose. 5 USCA § 553
Rulemaking is impacted by:
1. Judicial interpretation of § 553 has imposed additional procedural obligations on agencies.
2. The agency may have to utilize procedures imposed by other sources than the APA.
a. The agency may require an oral hearing or opportunity to cross examine persons submitting information
3. The agency may want special procedures for making rules: like polls: consensus building of interested parties called regulatory negotiation
4. The agency may use an advisory committee in which case the rulemaking is governed Federal Advisory Committee Act (FACA) which regulate that formation and operation of such committees.5 USC App. II
5. The executive branch agencies must comply with executive orders by the president which require agencies to prepare regulatory impact analysis for any significant regulatory action may impose
6. By the nature of the internal procedures, incentives and management methods used by the agency.
Rulemaking Initiation:
Rulemaking can be prompted by a statutory command, in response to staff recommendations, as a result of a rulemaking petition from an interested person, or political pressure form legislature or the executive branches.
The most common source is legislation requiring specific regulations, by a certain time or upon the occurrence of certain events.
Often a statute mandating regulations merely requires an agency to adopt rules generally in the public interest
Rules then begin with staff recommendations: suggest when they identify problems that the agency should address
Or based on scientific research, regulatory developments in other countries, or from privates standard-setting organizations
The staff recs are also to produce info that can be used to determine how well existing regulations are met and what aspects of the regulations are not working or unrealistic. Staff recs are the bottem up approach
the top down is from congress or the white house, when they initiate a rule improval or proposal
Congress can threaten to reduce agency budget or attach appropriation provisions to motivate proposals
The public can be a source for proposed regulations
Lobbyist
The public can file rulemaking petitions
i. The APA provides that “each agency shall give i
hich is a standing group composed of high level representatives of each assistant administrator and the general counsel
Process:
The lead office submits an action request to the steering committee: Purpose is to alert other agency officials to the lead office’s intention to develop a rule and to provide the Steering Committee with an opportunity to discuss, plan for inter-office and cross-media aspects of the rule and to avoid duplication
Workgroup: after Steering Committee approves a start action request, the office convenes a workgroup:
Their final result is the rulemaking package that is composed of the workgroup’s suggested draft of the proposed rule, the draft preliminary regulatory impact analysis and a decision-making memorandum outline the opinions, detailing the pros and cons of each opinion and explaining why and when each was rejected. The package must also estimate the resources required for implementing the rule, including enforcement plans and anticipated regional resource requirements
