4 aspects of government addressed by APA:
* Administrative adjudication
* Administrative rulemaking
* Judicial review of agency action
* Openness of government operations
“an agency statement of general or particular applicability and future effect”
* Congress passes law directing an agency to make rules and sets timeline
* Agency considers legal responsibilities and determines rulemaking goals
* Agencies publish a Regulatory Plan in the fall and a Regulatory Agenda in the fall and spring. Combined = Unified Agenda
* Office of the Federal Register publishes the Code of Federal Regulation (effective rules) and the Federal Register (rules filed)
* Summary of the issue
* Why the rule is needed
* How and when to comment
* Text of proposed rule
* Not satisfied that it has sufficient high quality comments
* Public comments convince agency that more time is needed
reasoned decision
* Must conclude that proposed solution will help solve goals
* Must also consider if other alternatives would be more effective or economical
Usually effective within 30 days of publication in Federal Register * May be sooner if good cause
* Certain rules – significant or major (defined by Small Business Regulatory Enforcement Fairness Act) – are effective 60 days later
* With good cause, an agency may publish an interim rule without first publishing a proposed rule
* Effective immediately upon publication
* Typically will alter interim rule if public comments warrant it
* April 17, 2009 – HHS issues guidance & RFI
* August 24, 2009 – Interim Final Rule published, effective September 23, 2009
* January 25, 2013 – Final Rule
Federal System
* State Administrative Procedure Act
* Louisiana F.S. 49:950 et seq.
* Terms/subject of intended action
* Fiscal impact statement (or that there will be none)
* Where, when, and how interested persons can comment
* Enabling legislation citation
Interested persons may comment
* Agency shall consider fully all written and oral comments respecting the proposed rule
* Agency must issue response to comments
* 1) Imminent peril to the public health, safety, or welfare, or,
* 2) necessary to avoid penalties from the US, or avoid a budget deficit in medical assistance programs, or to secure federal funding for medical assistance programs
Agency may not adopt, amend, or repeal rule if fiscal statement indicates that the change would result in an increased expenditure of state funds
Unless: 1) Emergency rule, or 2) Legislature has appropriated needed funds
* Rulemaking isn’t limited to agencies
* Interested person may petition agency requesting adoption, amendment, or repeal of a rule
* Agency establishes forms and procedures for petitions
* Agency has 90 days after petition submitted to deny or initiate rule making proceedings
* Prior to changing a rule, agency must submit report about proposed action to the appropriate legislative committees and the presiding officers of the legislature.
* Chairman of committee appoints an oversight committee which may conduct hearings
Be Informed
* Plan ahead – give yourself time to read the proposed rule, collect any information and documentation, draft comments, edit comments and submit
* Focus your comments – provide constructive explicit comments using data as needed
* Be solution oriented
* Pay attention to tone; comments will be public record
* Understand what the agency can and can’t do
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