Agency Rules and Regulations

PurposeThe 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

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.

Rule vs. DecisionRule – synonymous with a regulation. Legislative function in an agency; they enforce legislative goals

Decision – An adjudicatory function of an agency; they resolve disputes

Rule vs. DecisionRule

Implements lawsDirected toward future

Applicable to large group

An agency legislative function

DecisionSolves conflictResolves past problem

Applicable to specific persons

An agency judicial function

Requirements of Rulemaking

Federal RulemakingFound in Administrative Procedures Act at 5 USC §553Section (a) lists the exceptions to rulemakingSection (b) explains the notice requiredSection (c) relates to participation requirementsSection (d) states the publication neededSection (e) allows petition rights

Pros & Cons of APAPros

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

ConsTime consumingMay be subject to Court challenge.

Tennessee RulemakingTenn. Code Ann. Title 4, Chapter 5, Part 2

Notice made to secretary of stateStatement of time, place hearing to be heldRules have to be approved by the attorney

general Rules become effective 90 days after being filed

Legislative GuidelinesBecause 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 rulesSubstantive InterpretiveProcedural

Substantive RulesSometimes called legislative rulesCarry 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

Substantive RulesFDA 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

Interpreter RulesExplains 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.

Interpreter RulesNat’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.

Interpreter RulesNat’l Family Planning and Reproductive Health Assoc. Inc. v. Sullivan (1992)Court analyzed difference between an

interpretive and substantive ruleCourt 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.

Procedural RulesGovern 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

Hybrid RulesThe 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.

Rulemaking Procedures

Informal rulemakingMost 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 processNotice of the proposed rule published,Participation by interested parties, andA statement of the basis and purpose in the final

rule

Informal Rulemaking ProcessesNotice

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

Formal RulemakingDemands 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-likePublication of notice of the hearing date,Conduct of a trial-type hearing, andPublication of a final rule with “findings and

conclusions”

Formal Rulemaking ProcessesNotice – 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

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.

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)

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.”

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.

Policy StatementsExplain the objectives of agency actionsUsed to encourage uniformity, clarify conflicting situations

May be subject to judicial review, if too far from past practices