Rulemaking Flashcards
What is a rule as defined by the APA?
1 A state agency statement of
2 general applicability that
3 implements interprets or prescribes law or policy; or
4 describes the procedure or practice requirements of a state agency
What are the two kinds of agencies can adopt?
Procedural
Substantive
Is a rule generally applicable if in effect it only impacts certain people?
Yes. What matters is who the rule explicitly applies to.
Is an agency rule of internal management a rule for purposes of the APA?
No
When might an internal memo count as a rule for purposes of the APA?
If the memo spells out a policy that has actually been applied to specific cases.
What are the two ways rules are created?
Rulemaking process
Ad hoc rulemaking contested cases
How much notice is the public entitled to before an agency can formally adopt a rule?
30 days—UNLESS emergency rulemaking
What does a rulemaking notice have to contain?
Certify that the rule has been vetted by legal counsel and is within the agency’s authority
Fiscal note
Public benefits
What say does the public have in an agency’s rulemaking process?
The public has a right to comment at a public hearing.
Can an agency ignore public comments?
No the agency must consider all comments. When adopting the rule the agency give a reasoned justification for the rule:
summary of comments received
summary of the factual basis for the rule as adopted
reasons why the agency disagrees with party submissions and proposals
What if a member of the public doesn’t like the rule? Can they challenge it?
Yes through a DecJ—but ONLY if the rule actually affects the person’s rights. They can’t just think the rule is dumb.
If I’m seeking a liquor license can I challenge the rule being applied to me to draw out my application process?
No the application is unaffected by the rule challenge.
If a court agrees that an agency’s rule is invalid what’s the court’s response? Can the court strike down the rule?
Remand back to the agency. Can only strike if good cause.
What’s the SOL for challenging an agency rule?
2 years from the effective date of the rule
Where should I file a challenge to an agency rule?
Travis County District Court
When can an agency use ad hoc rulemaking?
Only in exceptional circumstances—
Construing a new rule
Insufficient experience with the issue to justify a rule i.e. a novel issue
The issue cannot be captured within the bounds of a general rule i.e. isolated or specialized issue
**The rule must be necessary to the resolution of the case.
On what grounds can an agency change a finding of fact or conclusion of law made by an ALJ?
The ALJ did not properly interpret or apply the law procedure or prior admin decisions
A prior admin decision relied upon is incorrect or should be changed
A technical error should be changed
SOAH procedure: do all parties have a right to respond at the hearing?
Yes
What are the APA procedural requirements for adopting a rule?
Begin process on agency's own initiative or by petition by interested person Local impact analysis 30 day notice Public comment Final order
What must be included in the final order adopting a rule?
A “reasoned justification”:
Summary of public comments
Summary of factual basis and rationale for the rule
Agency’s response to public comments
What if the rule is a major environmental rule?
Subject to addl requirements
When does the rule become effective?
20 days after filing with SOS
