Rules and Rulemaking

Requires:
1. Notice
2. Opportunity to Participate
3. Publication

per the APA, a rule means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency

The agency process for the formulation of an order

per the APA: Order means the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in any matter other than rule making but including licensing

Unless interpretations contradict congress (enabling statute) a lot of deference is shown to agency
HOWEVER, a regulation cannot be arbitrary, capricious, or in violation of the enabling statute

a legislative rule is the product of an exercise of delegated legislative power to make law through rules, legislative rules do have the force of law

Agencies have inherent authority to promulgate housekeeping or interpretive rules which or non-legislative in nature
- involves explaining an existing law, not promulgation of a new law
- or (include something for housekeeping)

Nope, a regulation is binding on everyone with legal notice - or meaning once they are published in the federal registry, (failure to publish renders a regulation unenforceable?)
-Cannot rewrite federal regulations for fairness

can petition an agency to give advance ruling on whether your client's course of conduct/actions will be lawful or unlawful
- carries legal weight as an adjudication
- when an agency issue a declaratory order then client's proposed course of conduct is lawful, and they can rely on it without being prosecuted (form of res judicata not estoppel) (can appeal if declaratory order issued)
Limitations:
- Agencies have discretion of declaratory order

Must include:
1. Time, Place, and nature of proceedings;
2. References to legal authority under which rule proposed; and
3. the terms or substance of the proposed rule, or a description of the subjects and issues involved

does not apply when an agency is interpreting an already promulgated rule;
making a general statement of policy, or rules of agency organization, procedure, or practice; or
when the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest (however, if statute says notice, then NOTICE!)

after notice agencies shall giver interested persons an opportunity to participate in the rule making with or without opportunity for oral presentation,

the required publication or service of a substantive rule shall be made not less than 30 days before its effective date except when:
1. a substantive rule which grants or recognizes an exemption or relieves a restriction
2. interpretive rules and statements of policy; or
3. as otherwise provided by the agency for good cause found and published with the rule

Not permissible, absent constitutional constraint or extremely compelling circumstances, the courts have no power to force more procedure on agencies than already required by the APA, the two exceptions are:
1. when an agency id making a determination which a very small number if persons are exceptionally affected; and
2. there is a totally unjustifiable departure from well settled agency procedures of long standing

not sufficient to trigger adjudicatory or formal rulemaking, needs to be "on the record after opportunity for a hearing" or something substantially similar

Courts cannot impose more rulemaking procedures on an agency than what is already required by 553 of the APA or an enabling statute, the only exception to this rule is where:
1. a very small number of persons are exceptionally affected, in each case upon individual grounds there may be additional procedures required
2. where there is a totally unjustifiable departure from well settled agency procedures of long standing

Always look to see if enabling statute requires more than just 553 standards or if a more stringent standard is to be followed

Permissible up until the point Rulemaking is announced

an agency member may be disqualified from rulemaking procedures only when there is:
a CLEAR and CONVINCING showing that they possess an UNALTERABLY CLOSED MIND on matters CRITICAAL to the disposition of the rulemaking

not permissible, in adjudication an agency may only adopt rules that apply only to the entities in the proceeding before it, while such rules may have precedential value on future adjudicatory proceedings, they cannot function as rules of general applicability because they don't comply with the notice and comment participation requirements