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Bench Book - 2.11.2 Rulemaking Powers

Of the powers of the Commission, none is more unique and all encompassing than its rulemaking authority. The rules promulgated by the Commission have the force and effect of statutory law within member states and therefore must be given full effect by all state agencies and courts. See Art. IX § A. See Scott v. Commonwealth of Virginia, 676 S.E.2d 343, 346 (Va. App. 2009) (“The Interstate Commission for Supervision of Adult Offenders, ‘the Commission or ‘ICAOS’ was established by the Compact and has promulgated rules governing the transfer of supervision from a sending state to a receiving state as well as the return to or retaking by a sending state. The ICAOS Rules are binding in the Compacting states and have the force and effect of law in Virginia and Ohio.”) Id. at 346. See also Johnson v. State, 957 N.E.2d 660, 663 (Ind. App. 2011). As the ICAOS has congressional consent, both the Compact and its rules have the force and effect of federal law and are arguably binding on the states under both a Supremacy Clause analysis and a Contract Clause analysis, no state being able to impair the obligations of contracts including those entered into by the state itself. See Doe v. Pennsylvania Board of Probation and Parole, 513 F.3d 95, 103 (2008)(“[A]pplying the factors set forth in Cuyler v. Adams, 449 U.S. 433, 442 (1981)” the Court held that the Compact, “as a congressionally-sanctioned interstate Compact is federal law.”) Id. at 103; See also, ICAOS v. Tennessee Bd. of Probation and Parole, No. 04-526 KSF (E.D. Ky. 2005). In adopting rules, the Commission is required to substantially comply with the “Government in Sunshine Act,” 5 U.S.C. § 552(b). However, the Commission’s rulemaking process must only substantially comply with the noted provision and is not bound by the specific terms and conditions of 5 U.S.C. § 552(b), et seq. The Commission’s rulemaking authority is also limited by Article VIII, which provides that, if a majority of state legislatures rejects a Commission rule by enacting a statute to that effect, the rule has no force or effect in any member state. A single state may not unilaterally reject a rule even if it adopts legislation to that effect. In addition, insofar as a provision of the Compact (not the rules promulgated by the Commission) exceeds the constitutional limits imposed on a state legislature, the obligations, duties, powers or jurisdiction conferred on the Commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the Compacting state.

The ICAOS specifically provides a mechanism by which a rule adopted by the Commission can be challenged. Under Article VIII, no later than sixty days after the promulgation of a rule, any interested party may file a petition in the United States District Court for the District of Columbia or the United States District Court in which the Commission has its principal offices (currently the United States District Court for the Eastern District of Kentucky) challenging the rule. The court can set aside a Commission rule if it is not supported by substantial evidence in the rulemaking record as defined by the Administrative Procedures Act, 5 U.S.C. § 551, et seq. (2004).

PRACTICE NOTE: In promulgating a rule, the Interstate Commission is only required substantially to comply with the requirements of the Administrative Procedures Act. The rule would only be set aside upon failing substantially to comply with the Act. Failure to fully comply with all aspects of the Administrative Procedures Act does not justify setting aside a duly promulgated rule of the Interstate Commission.



Click terms below to reveal definitions used in this rule.

Rules – means acts of the Interstate Commission, which have the force and effect of law in the compacting states, and are promulgated under the Interstate Compact for Adult Offender Supervision, and substantially affect interested parties in addition to the Interstate Commission.