Policy Formation - Notice and Comment Rulemaking Flashcards
What are the three requirements for notice and comment rulemaking?
1) Adequate Notice;
2) Opportunity to Comment;
3) General and Plain Statement of the Rule.
What is required to fulfill the first requirement of notice and comment rulemaking (notice)?
Notice is adequate if the changes in the final rule are similar to the original proposals and the changes are a logical outgrowth from the original.
Transparency is the biggest reason for this rule.
What is required to fulfill the second requirement of notice and comment rulemaking (opportunity to comment)?
Interested parties must have the ability to comment and voice their concerns with the rules. The Agency must also take time to respond to valid and well-reasoned responses. The comments also must be available to the public and the agency responses must be open to the public.
What is required to fulfill the third requirement of notice and comment rulemaking (General and plain statement of the rule)?
The Agency must be able to justify why they adopted the rule.
The interested parties are entitled to know the reasons the Secretary chose to follow the path that he did. The Secretary must be able to justify his reasoning based on facts and evidence about the policy.
Under HBO v. FCC, is Ex-Parte Communication allowed:
1) Prior to Notice and when Comments are accepted?
2) After Comments are accepted but before Oral Arguments?
3) After Oral Arguments but prior to the Issuance of the Rule?
1) Ex-Parte communication is allowed;
2) Communication must be disclosed and docketed.
3) No ex-parte communication allowed.
Sierra Club v. Costle:
Can an agency accept comments after the comment period has ended?
Yes. The agency can accept comments after the comment period ends, but the comment must be docketed and disclosed.
Sierra Club v. Costle:
What documents must be docketed if they come before the comment period ends? What about meetings that occur?
All ex-parte communications that had a “central influence” on the decision must be docketed.
If meeting occurs that does not have a central influence on the decision, then it does not have to be disclosed. However, if the meeting had a “central influence” on the decision, then it must be docketed and disclosed.
HBO v. FCC (The timeline of when conversations, documents, etc. have to be disclosed) and Sierra Club v. Costle (the “central influence” doctrine) conflict with when documents and meetings must be disclosed. Which holding is the rule?
Sierra Club is the rule. HBO seems to be an outlier. However, HBO has never been overruled.
When can a commissioner be removed during rulemaking according to National Ads v. FTC?
A commissioner can be removed during rulemaking only for “clear and convincing evidence that a commissioner has an unalterable closed mind.”
An expressed opinion, without more, is not enough tot prove an unalterably closed mind.
According to National Ads v. FTC, What are:
1) Adjudications?
2) Rulemaking
1) Evaluating the past actions and conduct of a group/individual to determine if violations occurred.
2) Rulemaking: Plans for the future and sets up standards that must be followed.
What are the exceptions to when rulemaking is required?
“Except when notice or hearing is required by statute, this subsection does not apply”
1) To interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice;
2) When the agency, for good cause, finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest.”
What is the definition of:
Interpretive Rule:
Legislative/Substantive Rules:
Interpretive Rule: Clarifying a statutory term, agency rule reminding parties of an existing statutory duty, explaining and tracking a statute, confirming the rules existence, etc.
Legislative/Substantive Rule: One that does more than simply clarify or explain a regulatory term or confirm a regulatory requirement or maintain agency policy.
The USDA passed a rule by notice and comment stating that all dangerous animals must be enclosed, but did not specify what was “adequate.” They then stated that an adequate fence was 8 feet tall, without notice and comment. Is this allowed?
No. The court states that requiring an individual to contain their dangerous animals adequately is different than requiring them to do so with an 8 foot fence. The Agency must do a notice and comment rulemaking to change it to an 8 foot fence.
What are guidance documents and are they binding?
Guidance documents are used by agencies to elaborate policy. They are far less costly and time consuming.
They are not technically binding, but they can only be challenged by violating them. So usually a party will abide by them because its easier and less expensive.
Under 553, does an agency have to do a notice and comment rulemaking session to set their allocation of resources?
No. The reallocation of resources is covered under the discretion of the agency.
