Memo
From Professor Gregory Ogden, Reporter,
To the committee advisors, and observers
For the telephone conference call on Friday 5.23.2008, 2 pm EDT.
Consent docket (5.23.2008)
The following are items that are proposed to be treated as consent docket items. If a member of the committee wants to discuss any of the items on the consent docket, then that item can be taken off the consent docket, and added to the regular agenda. Changes recommended in consent docket items, will be included in the draft of the act that is submitted for the 2008 annual conference.
1. Section 102
Definitions
[A] In ¶ (15), “law” is defined to include “an
executive order.” This led to criticism
at the August 2007 plenary session on the basis that executive orders are not,
as a class, binding. (Transcript 26
(Winkelman)). I suggest changing the
language to “executive order that rests on statutory or constitutional
authorization.” See Kevin M. Stack, “The
Statutory President,” 90
[B] In ¶ (16) (“licenses”),
insert “and” before “issued.”
[C] In ¶ (19), “order” is defined as “an agency
adjudication of particular applicability that determines the legal rights,
duties, privileges or immunities, or other legal interests of one or more
specific persons.” I would change
“adjudication” to “decision” to avoid circularity (“adjudication” is defined as
an “order” in ¶ (1)). I would also
delete the words “of particular applicability,” because that idea is implicit
in the statement that the decision determines the rights of specific persons.
[D] In ¶ (22) (“presiding
officer”), change “the individual” to “an individual,” because a case can have
more than one presiding officer. See §
402(b).
2. Section 203 Declaratory Order
[A] Under ¶ (c), within 60 days the agency “shall
decline to issue a declaratory order, issue the requested declaratory order, or
schedule the matter for hearing.” The
agency might choose to issue a declaratory order other than the one the
petitioner requested, and it might do this on briefs without the need for a
“hearing.” Thus, I suggest: “. . . shall issue a declaratory
order in response to the petition, decline to issue a declaratory order, or
schedule the matter for further consideration.”
[B] Since ¶ (a) uses the word “petitioner,” ¶ (d)
can do likewise, instead of the more awkward “person who filed the petition.”
3. SECTION 302.
AGENCY RECORD IN RULEMAKING PROCEEDINGS.
[A] Paragraph (b)(5) defines the rulemaking record to include
all written or electronic petitions, requests, submissions, and comments received by the agency and all other written or electronic materials or records whether or not relied upon by the agency in connection with the proceeding upon which the rule is based;
The latter clause has no
outer limits in terms of relevance. I
would suggest drawing on the
4. SECTION 303.
Advance Notice of Proposed Rulemaking:
NEGOTIATED RULEMAKING.
[A] The
federal term for the solicitation described in ¶ (a) is an “advance notice of
proposed rulemaking.” If that term were
borrowed, this rather wordy paragraph could be made more concise: “An agency
may gather information relevant to the subject matter of possible rulemaking
and may solicit comments and recommendations from the public about that
possibility by publishing an advance notice of proposed rulemaking in the
[administrative bulletin] and indicating where, when, and how persons may
comment.”
5. SECTION 309. EMERGENCY RULEMAKING; EXPEDITED RULEMAKING.
[A] Paragraph (a) provides that, in order to issue an emergency rule, the agency must make a finding of imminent peril, but it does not say that the agency must have good cause for making its finding, as does 1981 MSAPA § 3-108(a), as well as the federal APA, 5 U.S.C. § 553(b)(B). Presumably the Committee intends for the finding to be reviewable, so the good cause language should be added. Numerous federal and state cases hold that “good cause” should be narrowly construed, and these cases could be referenced in a comment. In addition, “loss of federal funding” should be changed to “imminent loss of federal funding.”
[B] I do not
think an expedited rule should have to be accompanied by a statement of
“reasons for using expedited rulemaking,” other than a simple statement that
the agency does not expect the rule to be controversial. ACUS did not recommend that the agency must
explain why it expects no controversy.
It is hard to prove a negative; and anyway, the rule will not survive
the expedited rulemaking process unless nobody objects to it, in which case the
agency’s prediction would of course be confirmed.
[C] The last sentence of ¶
(b) should say that, upon receiving an objection to the rule, the agency “may”
proceed with the normal rulemaking process on the same rule, not that it
“shall” do so. It is entirely possible
that the objection(s) will persuade the agency that the rule should be revised,
or abandoned altogether.
7. SECTION 312. CONCISE EXPLANATORY STATEMENT.
[B] Under ¶ (a)(2), the statement must contain “the
reasons for any change between the text of the proposed rule contained in the
published notice of the proposed adoption or amendment of the rule and the text
of the rule as finally adopted or amended.”
I would change “any change” to “any substantial change.”
8. SECTION 316. EFFECTIVE DATE OF RULES.
[B] If the
“repeal” language is not removed from this section, the language of the section
should be made more precise. A repealed
rule cannot have an effective date; rather, the repeal of the rule does.
[C] I do not agree with the expedited effective
date for an expedited rule (¶ (e)). Just
because a rule is noncontroversial doesn’t mean that affected persons need less
than the usual amount of time to prepare to come into compliance with it.
[D] According to ¶ (f), “A
guidance document becomes effective immediately upon adoption or at a later
date established by the agency.” I would
delete this paragraph, because a guidance document lacks the force of law and
thus has, properly speaking, no effective date. The guidance document can, for
example, serve to memorialize an interpretation or policy that the
agency has long followed but has not previously committed to writing. Moreover, courts and agencies frequently
apply interpretive rules retroactively.
This practice is not illegitimate, because theoretically an interpretive
rule merely construes preexisting law, but it belies the idea that the rule has
an “effective date.” On the other hand,
if ¶ (f) is eliminated, the reason for the omission of an effective-date provision
for guidance documents could be spelled out in the accompanying comment.
9. SECTION 317. PETITION FOR ADOPTION OF RULE.
The last sentence of this
rule provides: “Not later than [60] days after submission of a petition, the agency
shall: (1) deny the petition in a record and state its reasons for the denial;
(2) initiate rulemaking proceedings in accordance with this [act]; or (3)
adopt, amend, or repeal the rule.” It
seems to me that clauses (1) and (2) are sufficient, and clause (3) is
unnecessary. In general, an agency
should not be able to adopt the rule outright, without inviting input from
persons other than the petitioner, and § 317 should not suggest otherwise. To be sure, the agency could take immediate
action in cases of emergency or expedited rulemaking, but clause (2) seems
broad enough to cover the agency’s use of those devices when they are otherwise
appropriate.