Rulemaking Flashcards
What rights do people have to petition under § 553(e)?
Each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule.
What does APA require re denial of a petition?
- Prompt notice of denial
- Brief statement of the grounds for denial.
Is denial of a rulemaking petition reviewable?
Yes.
Where/what is the definition of “agency action”?
§ 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.*
Where/what is the first part of APA’s scope of judicial review?
§ 706(1):
Compel agency action unlawfully withheld or unreasonably delayed.
Where/what are the APA’s standards of review?
§ 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.
How does a court decide whether an agency action is unreasonably delayed?
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.
Is an agency’s refusal to initiate enforcement proceedings subject to judicial review?
Ordinarily, no. Heckler.
What is in § 553?
“Notice and Comment”/informal rulemaking procedures.
What sections govern formal rulemaking?
§§ 556 + 557
What are the exceptions to § 553 procedures?
§ 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.”
Which rules are exempted from § 553 but still must be published in the FR?
Substantive rules of general applicability adopted as authorized by law.
Also, some policy statements, though it’s notoriously difficult to tell which ones, apparently.
Can agencies waive their § 553 exemption?
Yes, but once it agrees to comply with 553, it must comply until it revokes its previous commitment.
What are the tests for substantive v. procedural rules?
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.
What is an interim final rule?
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.
