1. Rulemaking
Part I

2. Administrative Rules
The Legislature can delegate the power to make rules to the agency
Some agencies do not have rulemaking authority
Rules cannot exceed the authority in the agency's enabling legislation or the Constitution
Properly promulgated rules have the same effect as statutes

3. The Agency as Legislature
The shift from adjudications to rulemaking started in the 1950s
The courts try to allow an agency to make rules
Parallels the growth of state and federal agencies

4. How do you make a Rule?
Publish the proposed rule and what it is based on for public comment
The Federal Register and LA Register are where rules are published first
Review and address public comments and publish these along with any modifications in the rule
Codify the rule after it is effective
Rules are Codified in Code of Federal Regulation and the LA Administrative Code

5. How do Rules Differ from Adjudications?

6. Participation and Generality
Allow Public Participation
Adjudications are limited to the parties
Allow Political input
Rulemaking is a public process which allows politicians input
Appropriate Procedure
Adjudications are tied to specific facts and parties
Rules are generally applicable, although they may be very specific

7. Prospective v. Retrospective
Retroactivity
Adjudications are based on things that have already happened
Adjudications can be treated as treated as precedent, but this is not binding
Adjudications are driven by the available cases
Rules are prospective
Not bound by existing facts

8. Uniformity
Adjudications, like trials, are driven by specific facts and can treat similar situations differently
Rules set up a general framework that treats all parties uniformly
Rules are the fairest way to make big regulatory changes

9. Adoption of National Standards
National standards can be adopted through agency rules, harmonizing practice across jurisdictions
National building codes
CDC guidelines on food sanitation
Recommendations of the Advisory Committee on Immunization Practices
LA should adopt building codes

10. Agency Efficiency
While a rulemaking can be expensive and time consuming, it can settle issues across a large number of adjudications
Rulemaking can also eliminate many hearings by resolving factual questions
In disability case, rules can be used to establish what constitutes a disability, rather than making it as case by case determination.

11. Better Guidance for the Public
Rules are published and codified
State rules were hard to find, but the Internet is making this better
Agency adjudications, especially at the state level, are often not published
There may be no transcript of the full adjudication
Rules are binding

12. Agency Oversight
You can control the outcome of rulemaking much easier than that of adjudication
Not Dependant on ALJs
Why is this especially important in LA?
More input from across the agency
Directly controlled by agency policy makers

13. Downside of Rulemaking
Adjudications can be more flexible in the individual cases
Rules can be so abstract or overbroad that they are expensive or difficult to follow
Adjudications are useful when you are not sure what the rule should be and need more info and a chance to experiment
Does not do away with the need for adjudications

14. Rulemaking Ossification
Rulemaking has gotten so complex and time consuming it has lost some of its value
Rulemaking can go on for years
What is the legal value of a proposed rule that has not been finalized?
This was the problem for the anti-kickback regulations
Complicated by regulatory conflict and incompetent agency practice
The courts and legislature have increased the burden on rulemaking

15. What is a Rule?

16. Definition of a Rule APA 551(4) Not a clear definition
(4) 'rule' means the whole or a 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 and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;
Not a clear definition
Things that are not adjudications or licensing

17. Functional Definitions
Critical term is general applicability
Remember the standards for a hearing?
If you do not get a hearing, and there is no special exception such as an emergency or national security, it is probably a rule

18. LA Definition
6) "Rule" means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency.
"Rule" includes, but is not limited to, any provision for fines, prices or penalties, the attainment or loss of preferential status, and the criteria or qualifications for licensure or certification by an agency. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and it is capable of being applied to every member of an identifiable class. The term includes the amendment or repeal of an existing rule but does not include declaratory rulings or orders or any fees.

19. Exemptions to Notice and Comment Requirements
Is notice and comment a constitutional requirement?

20. Military and foreign affairs
Why exempt these?
Limiting the term of residence for Iranian nationals after the hostage incident
National security issues?
Extending asylum to persons subject to reproductive restrictions in China
Was this just an individual benefit or part of a foreign policy?

21. Agency Procedures Like the code of civil procedure
Does not change the substantive rights of the parties
Does not change the regulated behavior, only the process in agency procedures

22. Actions where Secrecy is Important
Wage and price controls
Bidding on contracts
Negotiations on land purchases and sales

23. Emergency Proceedings
Emergency Rules
Interim Final Rules
Published and in effect, but will be modified after comments are in.
Calculations and other non-discretionary rules
Technical corrections
Can require notice and comment if the correction causes a different result