Class 9: Hybrid Rulemaking, Guidance, and White House Oversight
Read before class on Thursday, September 26
Class 9 Supplemental Reading:
In Class 9, we wrap up our discussion of the rulemaking process with a hodgepodge of topics related to rulemaking:
How to evaluate hybrid rulemaking procedures. We consider three things in our analysis of hybrid requirements: 1) what triggers the requirements, 2) what the agency is required to do, and 3) whether compliance with the hybrid requirement is subject to judicial review, and if so, what relief can be granted to plaintiffs.
The form and function of Executive Orders and the role of the Office of Information and Regulatory Affairs (OIRA), the entity responsible for reviewing draft rules to ensure that agencies comply with the Paperwork Reduction Act, the Information Quality Act, and assess the benefits and costs of "significant" agency actions.
Differentiating between legislative and nonlegislative rules. Until now, we've been discussing legislative rules, or rules that have a binding legal effect and follow an APA-approved rulemaking process. But agencies also create a lot of requirements and suggestions that are not legislative/binding. Nonlegislative rules are often referred to as "guidance." These nonbinding writings are meant to interpret regulations and guide regulated entities on how best to comply with legislative rules/regulations or clarify how a legislative rule will be enforced. Sometimes, it is hard to tell whether an agency has created legislative or nonlegislative rules. Many administrative law experts see nonlegislative rules as agency declarations that sidestep notice and comment requirements. The Congressional Research Service drafted an in-depth overview and report on guidance that gives a great, concise overview of nonlegislative rules and how courts assess the impact of nonlegislative rules on regulated entities.