Chapter 5.agency rules and regulations(1)

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Agency Rules & Regulations

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Chapter 5.agency rules and regulations(1)

  1. 1. Agency Rules and Regulations
  2. 2. Purpose The rules of the agency are the details the agency establishes to implement the enabling statute of the agency and the laws of the legislature. Used to solve problems of public concern Implement a policy or requirement of the agency Rules and regulations of federal government are complied in the Code of Federal Regulations (CFR) Rules and regulations of Tennessee kept with Secretary of State
  3. 3. What is Rulemaking? Following of established procedures such as publication of notice of proposed rules and also publication of a final rule. Types Informal – Interested parties are allowed to make comments (oral/mail) Formal – Interested parties may present evidence and cross examine witnesses at hearings.
  4. 4. Rule vs. Decision Rule – synonymous with a regulation. Legislative function in an agency; they enforce legislative goals Decision – An adjudicatory function of an agency; they resolve disputes
  5. 5. Rule vs. Decision Rule Implements laws Directed toward future Applicable to large group An agency legislative function Decision Solves conflict Resolves past problem Applicable to specific persons An agency judicial function
  6. 6. Requirements of Rulemaking
  7. 7. Federal Rulemaking Found in Administrative Procedures Act at 5 USC §553 Section (a) lists the exceptions to rulemaking Section (b) explains the notice required Section (c) relates to participation requirements Section (d) states the publication needed Section (e) allows petition rights
  8. 8. Pros & Cons of APA Pros Reasonableness - requires the purpose for a rule/reg. to be stated, along with basis and authority Waiting period – allows agency to prepare for rule Provides standardized enforcement of rules Opportunity for public participation Cons Time consuming May be subject to Court challenge.
  9. 9. Tennessee Rulemaking Tenn. Code Ann. Title 4, Chapter 5, Part 2 Notice made to secretary of state Statement of time, place hearing to be held Rules have to be approved by the attorney general Rules become effective 90 days after being filed
  10. 10. Legislative Guidelines Because the legislature enacts the statute that creates the agency and gives it the power to make rules, the legislature is the guiding force in rulemaking. Three types of agency rules Substantive Interpretive Procedural
  11. 11. Substantive Rules Sometimes called legislative rules Carry out the intent of the legislative statute in a detailed manner Binding for two reasons; They have been established through a formal, legislative type process – rulemaking – and have usually changed an existing situation They are carrying out the intent of a statute
  12. 12. Substantive Rules FDA v. Brown & Williamson Tobacco Corp. (2000) FDA created rule to reduce tobacco consumption among children and adolescents. Felt they had authority because they regulate the sale and distribution of tobacco products. Also felt rule necessary for providing reasonable assurance of safety Court ruled this was not a power Congress granted – FDA did not have right to regulate tobacco products
  13. 13. Interpreter Rules Explains an agency’s action in implementing a statute and also explain the statute itself. These rules are practical explanations of an agency’s actions by providing guidelines to the public These rules are usually respected by courts because of agency’s expertise.
  14. 14. Interpreter Rules Nat’l Family Planning and Reproductive Health Assoc. Inc. v. Sullivan (1992) Deals with 1988 Department of Health and Human Services regulation that prohibited all health care providers from providing abortion counseling and referrals. Amid political uproar HHS decided to “interpret” rule to allow doctors to provide counseling, as rule was not intended to interfere with doctor-patient relationship. Challengers brought action alleging that the directive established a new substantive rule.
  15. 15. Interpreter Rules Nat’l Family Planning and Reproductive Health Assoc. Inc. v. Sullivan (1992) Court analyzed difference between an interpretive and substantive rule Court held that the directive did not simply explain or clarify the 1988 regulation, but it is substantially amending and even repudiating the original legislation. Therefore, the agency must adhere to the notice and comment requirements of the APA.
  16. 16. Procedural Rules Govern the proceedings and practices within the agency Establish procedures necessary for an agency to function, such as rules of conduct for informal hearings Can be used to protect the rights of the client
  17. 17. Hybrid Rules The combining of a legislative and judicial function in rulemaking Example: Cross-examination of a witness in a proceeding to gather information to make a new rule is a judicial function within the legislative function of rule-making.
  18. 18. Rulemaking Procedures
  19. 19. Informal rulemaking Most common type of rulemaking, and its purpose is to inform the agency of the various views and comments of interested participants, some of whom may be experts Three process Notice of the proposed rule published, Participation by interested parties, and A statement of the basis and purpose in the final rule
  20. 20. Informal Rulemaking Processes Notice  Must be published in the Federal Register; and  Must cite the proper statute and legal authority Participation  May include oral or written comments  Participants should be given time, place, and address to make comments Statement of Purpose  Issues should be presented in a concise and specific manner  Publication must occur 30 days before law becomes effective
  21. 21. Formal Rulemaking Demands that rules must be made “on the record after the opportunity for an agency hearing.” Only the legislature has power to order Hearings must follow judicial procedures and be trial-like Publication of notice of the hearing date, Conduct of a trial-type hearing, and Publication of a final rule with “findings and conclusions”
  22. 22. Formal Rulemaking Processes Notice – same as informal (date/legal authority) Hearing  Requires production of evidence and cross- examination of witnesses  Not as stringent at court hearing Final rule publication  After hearing, hearing officer submits “findings and conclusions, and the reasons or basis thereof, on all material issues of fact, law, or discretion presented on the record.”  Published 30 days before becoming effective
  23. 23. Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council (1978) Decided the question of informal rulemaking procedures by upholding the procedural requirements of the APA (notice, comment, and publication) Vermont Yankee received a permit to build a nuclear power plant, but they were not granted an operating license. They alleged that procedures used by the agency were inadequate because cross-examination and discovery (a hearing) was not available to them.
  24. 24. Fundamental policy questions with respect to development of nuclear energy are appropriately resolved in Congress and the state legislatures and are not subject to examination in federal courts under the guise of judicial review of agency action. Bottom line – agencies have the right to decide their own rules of procedure, as long, as the procedures follow the minimum standards of the APA and the enabling act of the creating agency. Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council (1978)
  25. 25. United States v. Florida East Coast Railway (1973) Two railroad companies brought action to set aside the incentive per diem rates established by the ICC. The incentives were created to relieve freight car shortages across the nation Railroads petitioned against the informal rulemaking procedures, claiming that the ICC statute demand formal rulemaking procedures “after hearing.”
  26. 26. United States v. Florida East Coast Railway (1973) Court ruled that “after hearing” does not equal the APAs “on the record after opportunity for an agency hearing.” Bottom line – Informal rulemaking satisfied the ICC and the APA statutes.
  27. 27. Policy Statements Explain the objectives of agency actions Used to encourage uniformity, clarify conflicting situations May be subject to judicial review, if too far from past practices

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