Category Archives: Rulemaking

Forthcoming Publication: The Preparedness Piñata

Forthcoming Publication: The Preparedness Piñata

The South Texas Law Review has selected The Preparedness Piñata for inclusion in its Spring 2018 publication cycle.

The South Texas College of Law’s South Texas Law Review has selected our Editor-in-Cheif’s work “The Preparedness Piñata: Knocking the Problems out of Texas’ Emergency Management Legal Framework to Enhance Performance at the Local Level” for inclusion in the Spring 2018 edition.

The Preparedness Piñata takes an in depth look at the Texas Division of Emergency Management’ informal guidance for Emergency Management and whether they violate the Texas Administrative Procedures Act as “ad hoc rulemaking.” The article concludes with a discussion on the potential issues and methods for rectifying the issues that could stem from illegal ad hoc rulemaking.

For more information on subscriptions to receive the article once complete, contact us on the contact tab or by reaching out to the South Texas Law Review directly.

CBP & ICE Statement on Hurricane Harvey

CBP & ICE Statement on Hurricane Harvey

The U.S. Immigration and Customs Enforcement (“ICE”) & U.S. Customs and Border Protection (“CBP”) will not be conducting routine non-criminal immigration enforcement operations at evacuations sites or assistance centers such as food banks or shelters. The intent is to ensure everyone is focused on the safety and security during the response efforts. However, the agencies will remain vigilant to any criminal activity that seeks to take advantage of the disruption caused by Hurricane Harvey.

Read the full statement from CBP & ICE by clicking here.

Ad Hoc Rulemaking: What is it and why does it matter?

Ad Hoc Rulemaking: What is it and why does it matter?

A lot of people think the Administrative Procedures Act (how state and federal agencies make rules) is a hurdle to be avoided, but avoiding it can have consequences. In Texas, the consequence is called ad hoc rulemaking.

There’s always discussion about rulemaking. Rulemaking is an essential part of what an agency does at the state or federal level. It helps the essentially carryout what the legislature has charged them to do. In Texas, we have an issue called “ad hoc” rulemaking. This is where the state agency has created a rule that doesn’t quite live up to the expectations of the Texas Administrative Procedures Act’s formalities (even though they are essentially the informal rulemaking process at the federal level). In Texas, state agencies are essentially required to give public notice of a proposed rule, receive comments on the proposed rule, and respond to public comments. This is commonly known as the notice and comment rulemaking process.

Before we get much further, we want to make sure you understand the difference between a “rule” and a “regulation” promulgated from a Texas agency. The difference is that there isn’t one. The term “rule” and “regulation” are often used interchangeably. Here, we’re going to use the term “rule” since it is a legal term of art.

Ad hoc rulemaking happens when an agency creates a rule or practice that meets the definition of a rule under the Texas Administrative Procedures Act, but hasn’t gone through the formal promulgation process–the notice and comment process. A rule under the Texas APA has three major components:

#1: State agency statement of general applicability that either (i) implements, interprets, or prescribes law or policy or (ii) describes the procedure or practice requirements of a state agency;

#2: Includes the amendment or repeal of a prior rule; and

#3: does not include a statement regarding only the internal management or organization of a state agency and does not affect private rights or procedures.

So how does this usually shake out in real life? At the state agency, this is why the attorneys are generally hesitant to let you send out letters that are dictating how claims or the like are processed (i.e. timelines, reporting, and forms) in ways that haven’t been detailed in the Texas Administrative Code. Sometimes though, it’s accidental. Such as when there is guides and interpretraory material issued by a state agency that inadvertently creates a new policy of the agency. Often, the agency didn’t maliciously intend to violate the rule, it was merely accidental.

So what’s the upshot? Essentially, it’s don’t avoid the APA. If you need to go through the APA, do it. It’s painful at first, but after a while it becomes easy. When you get public input, often you get a better rule than what you started with. We’re all on the same team.

Federal Rulemaking Map

Federal Rulemaking Map

The Office of Information and Regulatory Affairs of the Office of Management and Budget has published a great tool to understanding the Federal Rulemaking Process.

The White House’s Office of Management and Budget’s Office of Information and Regulatory Affairs has published what they call a “Reg Map.” This map helps illustrate how the federal informal rulemaking process happens from start to finish. There are two major avenues for rulemaking at the federal level, informal and formal. By far, informal is used more often than formal. Informal rulemaking is often referred to as “notice and comment rulemaking” since it simply requires that a proposed new regulation/rule be published for public comment before being enacted.

Take a look at the map and let us know what you think!

Visit the OIRA’s page by clicking here.

You can even order a paper copy of the Reg Map by clicking here.