AL - RULE MAKING

Question 1

INFORMAL RULEMAKING

Answer 1

The APA requires that in order to PROMULGATE a rule the agency (1) provides NOTICE of the proposed rule by publishing it in the Federal Register or by actual notice, (2) provide INTERESTED PERSONS an OPPORTUNITY FOR COMMENT, and (3) include in the final rule a CONCISE GENERAL STATMENT of the rule’s basis and purpose.
The GENERAL CONCISE STATEMENT must cover all substantial issues raised in comment period and state conclusions on major issues.
Effective 30 days after adoption to give agencies time to comply.

Question 2

Logical Outgrowth Test

Answer 2

Notice is deemed adequate if the final rule is a logical outgrowth of the notice and comments given and does not materially alter the issues involved or substantially depart from the character of original scheme.

Question 3

Unalterably Closed Mind

Answer 3

An adjudicator who presides over an agency rule making procedure may be disqualified by a showing of an “unalterably closed mind.” Can only be removed by a showing of clear and convincing evidence

Question 4

Disclosure of underlying data

Answer 4

Some courts imply a duty for the agency to review the underlying scientific data to make the comment period more productive.

Question 5

FORMAL RULEMAKING

Answer 5

The APA states that formal rulemaking is only REQUIRED where rules are REQUIRED BY STATUTE to be made ON THE RECORD after a hearing. Courts say only when statute wording contains “on the record” and “hearing.”

Question 6

Formal Rulemaking Procedures

Answer 6

1. ALJ or agency head presides
2. Witnesses under oath
3. Oral presentations w/ cross examination
4. preparation of transcript & decisions ON THE RECORD
5. limited EXTERNAL ex parte contacts

Question 7

Intelligible Principal Test

Answer 7

Courts require only a minimally intelligible principal for a statute to survive an attack that Congress has delegated too much legislative discretion to the executive branch.