Rulemaking

Question 1

What rights do people have to petition under § 553(e)?

Answer 1

Each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule.

Question 2

What does APA require re denial of a petition?

Answer 2

1. Prompt notice of denial
2. Brief statement of the grounds for denial.

Question 3

Is denial of a rulemaking petition reviewable?

Answer 3

Yes.

Question 4

Where/what is the definition of “agency action”?

Answer 4

§ 551(12):
1. The whole or part of an agency rule, order, license, sanction, relief, or the equivalent; or
2. The denial thereof; or
3. Failure to act.*

Question 5

Where/what is the first part of APA’s scope of judicial review?

Answer 5

§ 706(1):
Compel agency action unlawfully withheld or unreasonably delayed.

Question 6

Where/what are the APA’s standards of review?

Answer 6

§ 706(2):
(A) Arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege, or immunity;
(C) In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence in cases subject to §§ 556, 557 or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

Question 7

How does a court decide whether an agency action is unreasonably delayed?

Answer 7

TRAC factors (TRAC v. FCC):
1) Is the time it takes the agency to respond governed by a “rule of reason”?
2) Has Congress has provided a timetable or other indication of speed it expects from the agency in the enabling statute? (may supply content for this rule of reason)
3) Does the action involve human health/welfare or economics?
4) What are the nature and extent of the interests prejudiced by delay?
5) Other agency priorities.
6) The court need not find impropriety in the agency’s “lassitude” to find unreasonable delay.

Question 8

Is an agency’s refusal to initiate enforcement proceedings subject to judicial review?

Answer 8

Ordinarily, no. Heckler.

Question 9

What is in § 553?

Answer 9

“Notice and Comment”/informal rulemaking procedures.

Question 10

What sections govern formal rulemaking?

Answer 10

§§ 556 + 557

Question 11

What are the exceptions to § 553 procedures?

Answer 11

§ 553(a) Rules involving:
1) Military or foreign affairs functions.
2) Agency management or personnel.
3) Public property, loans, grants, benefits, or contracts.

AND

§ 553(b) Except when notice or hearing is required by statute:
(A) Interpretive rules, general statements of policy, or rules of agency organization procedure, or practice; or
(B) When the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
- “Narrowly construed and only reluctantly countenanced.”

Question 12

Which rules are exempted from § 553 but still must be published in the FR?

Answer 12

Substantive rules of general applicability adopted as authorized by law.
Also, some policy statements, though it’s notoriously difficult to tell which ones, apparently.

Question 13

Can agencies waive their § 553 exemption?

Answer 13

Yes, but once it agrees to comply with 553, it must comply until it revokes its previous commitment.

Question 14

What are the tests for substantive v. procedural rules?

Answer 14

Does it alter the rights or interests of parties, or impose any substantive burdens on parties? AHA v. Bowen

Does it encode a value judgment?
ATAA v. Dep’t of Trans.

Question 15

What is an interim final rule?

Answer 15

When an agency adopts a rule without notice and comment, invoking a good cause exception, but invites the public to make comments on the rule. Sometimes Congressionally authorized. Otherwise, doubtful.

Question 16

What is a direct final rule?

Answer 16

When an agency publishes a final rule in the FR with a statement that the rule will become effective on a particular date unless an adverse comment is received. In that case, the agency goes through notice and comment. Courts fine with this.

Question 17

When must an agency go through formal rulemaking/§§ 556, 557?

Answer 17

Where the agency statute:
1) Provides for a hearing; and
2) Explicitly prescribes that it be on the record.
U.S. v. Allegheny Ludlum Steel

Question 18

What is a “hearing” for purposes of formal rulemaking?

Answer 18

Trial-like procedures used to adjudicate a set of disputed facts. Florida East Coast Railway.

Question 19

What was the holding of Vermont Yankee?

Answer 19

Absent constitutional constraints or extremely compelling circumstances, courts cannot add procedures to either rulemaking or adjudication because the court thinks its a good idea. Judicially-imposed procedures that pre-date Vermont Yankee are still good law.

Question 20

What notice is required for informal rulemaking?

Answer 20

§ 553 only requires general notice of proposed rulemaking be published in the Federal Register. Agencies rarely provide “actual notice” by serving parties. Publishing in the FR is deemed to give constructive notice.

Question 21

What must be included in a Notice of Proposed Rulemaking?

Answer 21

1. Time, place, and nature of public proceedings.
2. The legal authority under which the rule is proposed.
3. The terms or substance of the proposed rule, or a description of the subjects and issues involved.

Today, they usually contain more that required [preamble, text of rule, data underlying decisions]

Pre-Vermont Yankee judicially imposed requirement: Some courts require the NPRM to identify the data and methodology of any scientific evidence relied on.

Question 22

Describe the case law on adequacy of notice.

Answer 22

1. Courts have consistently held that the NPRM must “fairly apprise interested persons” of the issues in the rulemaking. United Steelworkers v. Marshall.
2. Interested persons are fairly apprised if the final rule is a “logical outgrowth” of the rulemaking proceeding. AMA v. United States. Also characterized as whether the rule is “in character” with the proceedings; does not substantially depart. Hypo factor: Is the final rule much more specific than the proposed rule? (chocolate milk)

Other issues
a. Does the fact that certain parties commented on the rule establish that notice was sufficient as to other parties? Courts are split.

Question 23

What does APA require re comments in informal rulemaking?

Answer 23

1. Requires agency provide interested persons an opportunity to comment “through submission of written data, views or arguments.”
2. After the comment period, the agency must issue a concise general statement of the basis and purpose for the final rule. § 553(c).

Does not require:
a. Opportunity for oral presentation/hearing.
b. Mandate a specific time period for commenting.
c. Mandate that agency respond to comments.

Question 24

When are ex parte contacts prohibited?

Answer 24

APA: Formal rulemaking.

Sangamon Valley Television Corp.: Due process prohibits ex parte contacts in informal rulemaking when it involves “conflicting claims to a valuable privilege.”

Sierra Club v. Costle: Agencies only have to docket post-comment period ex parte contacts if the rule is based “in whole or in part” on the contacts. Agencies have discretion to make the call. Further, intra-executive contacts, esp. between the President and agency head, don’t need to be docketed.

Question 25

What are the statutory rulemaking requirements under NEPA?

Answer 25

Trigger: Any proposed agency action that may have a significant effect on the human environment.

Req. Analysis: EA/EIS

Judicial review/relief: Yes, for compliance with procedural requirements.

Question 26

Regulatory Flexibility Act

Answer 26

Trigger: Any rule that may have a significant economic impact on a substantial number of small businesses, organizations, or governments. Agency head can certify that it won’t. Economic effect must be on entities subject to the rule.
Analysis: Initial and final Reg-Flex Analysis of impact of rule. Justification, effects and alternatives. Response to comments and justification for not choosing alternative.
Judicial review: Yes. (not for IRFA, tho).

Question 27

Paperwork Reduction Act

Answer 27

Trigger: Any reporting or recordkeeping requirement imposed on ten or more persons.
Req. Analysis: Agency must review whether the requirement is necessary, duplicative, clear etc. Agency must also send proposed requirements to OIRA.
Judicial Review: Maybe if an agency tries to enforce a requirement that lacks an OIRA-issued control number.

Question 27

Unfunded Mandates Reform Act

Answer 27

Trigger: Any proposed or final regulation that would include a “mandate” resulting in costs over $100 million annually on state, local, or tribal gov’ts, or the private sector.
Req. Analysis: Agency must prepare a statement assessing the effect of the regulation prior to promulgating the proposed or final rule, and include a summary of the statement in the proposed and final rule. Agency must also identify alternatives and select the least-burdensome alternative that satisfies the proposed rule.
Judicial review: Yes, for compliance with some of the requirements. Courts can’t enjoin an agency rule if it violates the requirements, however. It can only order the agency to comply post hoc.

Question 28

Data Quality Act

Answer 28

Trigger: Any agency dissemination of information?
Req. Analysis: Agency must allow affected persons to comment on and correct information issued by the agency. The agency must document these complaints and present them to OMB. Scientific data must be independently peer reviewed.
Judicial review: IDK. Probably not.

Question 29

EO 12866 Trigger

Answer 29

Significant Regulations:
1) Annual effect on the economy of $100M.
2) Creates a serious inconsistency or otherwise interferes with another agency’s action.
3) Materially alters the budgetary impact of entitlement programs, grants, user fees, or loan programs, or the rights and obligations of recipients thereof.
4) Raises novel legal or policy issues arising out of legal mandates, President’s priorities, or principles set forth in 12866.
5) OIRA says so.

Question 30

EO 12866 Requirements

Answer 30

Significant regs:
1) all significant regulations (either under subcategory or because OIRA says so) go to OIRA before they can be published either as proposed or final rules; can be delayed by OIRA. “Centralized review is what is so important.”
2) Requires for significant regulations a cost-benefit assessment and for the significant-significant regulations (100M) it gets a full blown cost-benefit analysis with the analysis provided for OIRA.