Unit 2 Agency Rulemaking and Adjudicating Flashcards
APA
Establishes baseline procedures for agency rulemaking and adjudication, requiring notice and comment for informal rules and fair procedures for formal adjudication
When can agencies make rules?
can issue binding legislative rules that carry the force of law when their enabling statutes give them broad regulatory authority, even if rulemaking is not spelled out, so long as the APA is followed
Agency Rulemaking v Adjudication
Most agencies are allowed to use either rulemaking or adjudication. In these cases, the agency has full discretion in which method to use.
Think of the example of the FCC and broadcasting licenses
Does an agency wanting to make a new rule through adjudication have to follow the rulemaking procedure of the APA?
Yes, this procedure must be followed. Agencies cannot make broad binding rules through adjudication. However, if done on a case by case basis, agencies can use adjudication to introduce new interpretations of rules
Can an agency promulgate internal changes without public notice?
No
What are the APA guidelines for notice of a proposed rule?
Notice must contain either the terms or substance of the proposed rule or a description of the subjects and issues involved.
When is a change in a proposed rule after the comments adequate?
If the changes in the original plan are in character with the original scheme and the final rule is a logical outgrowth of the notice and comments already given
Logical outgrowth
When a proposed rule is changed after comment, the change must be in character with the original scheme and a logical outgrowth of the comments already given
What was the issue in chocolate mfrs
The published notice did not mention sugar in milk, and thus did not provide proper notice that the elimination of flavored milk would be considered in the rulemaking process
When does the court give an agency deference to interpretation of its regulations?
Usually courts give deference to agencies when interpreting the agency’s own regulations, unless the interpretation is erroneous or incompatible with the text
Nova Scotia Food Products
An agency must make public the data it relies on to make a decision and consider all relevant factors in reaching a decision. This is for the consumer but also so thte court will have something to review
The agency must provide some reasoned explanation when presented with significant feedback, like that of commercial infeasibility
Courts will take a hard look at evidence supporting agency decisions, even for informal rulemaking
Ex parte communications
An agency generally must disclose ex parte communications with interested parties about a proposed rule after a notice of proposed rulemaking has been issued if the communications formed the basis of the agency decision
If such communications are not put in the public record, the court will not have all the adequate information to rule on the arbitrariness of the rule
The agency must include in the docket essential information or data upon which a rule is based. Ex parte communications that occur after the comment period and are not relied on in the decisionmaking do not need to be docketed
Do agencies need to docket ex parte communication that occurs after the comment period has close?
No, if the information or data was not relied on in the decisionmaking
What procedures does the court deem necessary in hybrid rulemaking
- document discovery
- interrogatories
- technical advisory committees outside of experts
- funding independent research by intervenors
- detailed annotation of technical reports
When such processes are not followed, the decision is arbitrary and capricious
Can courts impose additional requirements beyond those required by statute or the constitution?
No, only the procedure in the APA
What is the process is required if an agency adopts a new interpretation of an old rule?
A notice and comment period, just like the promulgation of a new rule
Does notice and comment apply to an interpretive agency rule?
No.
An interpretive rule is an agency’s interpretation of its regulation consistent with the regulation’s language and purpose
Are directives interpretive rules?
In national family planning, no, the directive was not an interpretive rule as it was a substantial change in interpretation
Is a rule that is consistent from statute but not directly derrived from it legislative or interpretive?
Think tiger fence - a choice (8ft) among other choices that also would have fit
No, this is an arbitrary decision, and thus a legislative decision
What to look for with rules involving numbers?
Look for arbitrariness, as they are likely to be, and therefore likely to be legislative as opposed to interpretive
What rules are exempt from notice and comment?
Rules of agency organization, procedure, and practice
