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The
federal APA and many state acts require that the promulgated rule be accompanied by a
basis and purpose statement. This statement can be analogized, to some extent, with the
requirement of findings of fact and explanation that is required in adjudication. In the federal
system, the adequacy of the basis and purpose statement is frequently at the center in judicial
review of the rule. The basis and purpose statement may be required to demonstrate that the
agency gave meaningful consideration to alternative formulations of the rule. Where there are
fact based elements in the rule, the supporting facts must be identified in the statement. |
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A
fundamental tenet of administrative law is that an agency must follow its own rules in order to
make valid decisions. One of the first things that the party does when a challenge to the agency
is considered is to obtain copies of the agency rules and analyze whether what the agency did
and the way that it did it was in compliance with the rules. |
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Judicial
review of informal legislative rules is less rigorous than judicial review of adjudication.
The major issues in rulemaking will include the adequacy of the notice, whether the rule was
within the statutory delegation of authority given to the agency, whether the basis and purpose
statement is adequate, if one is required, and whether the minimal procedural steps were
followed. |
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Before
an agency promulgates a legislative rule, notice and an informal hearing process may be
required. The notice can later be used to test whether the promulgated rule is within the terms
identified in the notice. If the notice and the final rule diverge too greatly, the rule may be
upset
for failure to follow statutory procedures. The requirement of a hearing is frequently interpreted
to mean that the agency must disclose the basis of the proposed rule with sufficient detail so
that participants in the hearing can address the real concerns of the agency. |
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The
APA might provide that persons can petition the agency for rulemaking. This would be
used where no rules exist or where an amendment to existing rules is sought. The agency has
the discretion not to grant the petition. |
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Rulemaking
activities come in at least three forms. The most common is the promulgation of
rules following the statutory requirements. Related to this is the recision of rules which generally
must follow the same procedures as the promulgation. An agency may begin a rule making
procedure and then decide not to finally promulgate a rule. In this nonpromulgation situation,
the agency is not required to follow any particular procedures. |
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Regulatory
analysis is a general way of describing legislation that requires that various studies
be run prior to the promulgation of a rule, particularly at the federal level. The analysis may
cover such matters as the impact of the rule on small business, the impact of the rule on record
keeping requirements, and similar matters that seek to limit the bureaucratic superstructure that
seems to result from many rules. The statutes often require that elaborate studies be run and
conclusions be reached, but they also usually provide that failures to fully meet the statutory
requirement will not be subject to judicial review. In Oregon, the notice requirements may have
to contain much of this analysis information. |
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Rules
come in various types. Under the federal APA, in rare instances, formal rulemaking may
be required. This requires about the same procedures as would be used in an adjudication.
The more common rulemaking procedure is notice and comment rulemaking, also called
informal rulemaking. In this procedure, notice is followed by an opportunity to comment, which
may or may not involve an oral hearing. Where an oral hearing is held, there is no statutory
requirement for a closed record or for cross examination. Statutes may provide for many
variations off the general theme of notice and comment rulemaking. The variations may relate
to proof of facts or to cross examination. These variations are sometimes referred to as hybrid
rulemaking. While congress can provide for hybrid methods, the courts cannot alter the hearing
requirements that are identified in the statute. Interpretative rulemaking is the issuance of
rules,
often in the form of a handbook, that explain the agency working interpretation of the statute.
Interpretative rules are not binding on courts. The authority to issue interpretative rules is
usually implied in the agency and is not the product of a delegation of authority to the agency.
Usually there are no procedural requirements for the announcement of procedural rules. |
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1. Adjudication, Formal
