Term
| HOW DO YOU INSTIGATE RULEMAKEING? |
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Definition
2 WAYS:
1. The first is the bottom up process- technical staff consuts the literature, data , experts, and what other govts are doing, and makes recommendations
2. The second is the TOP DOEN PROCESS- political reasons for making a new rule come frm the head of the agency, reflecting the political priorities of the agency
-If all else fails, individuals can always petions for rulemaking |
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Term
| WHO CAN PETTION FOR RULEMAKING? |
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Definition
Any interested pary can petition an agency to initiate rulemaking
1.The agency must promptly respond (§555(b)) and, if the petition is denied, give an explanation (§ 555€). |
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Term
| CAN TIME LIMITS BE IMPOSED ON AGENCIES FORR RULEMAKING? |
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Definition
| 7. Congress ay direct an agency to promulgate rules on a certain subject. It may provide a time limit for the rulemaking, though courts do not always enforce these strongly unless the statute provides explicit penalties for failure to meet the deadline. |
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Term
| 1. A person who petitions for rulemaking and is denied by the agency can seek review of the decision in an Article III court |
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Definition
| The court willl review the agency decsion under the deferential “arbitrary and capricious” standard |
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Term
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Definition
| (1) whther the agency gave a satisfactory explanation for its action, and (2) whether that explanation reflected a rational connection b/w the agency’s decision and the facts in the administrative record |
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Term
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Definition
| The remedy is generally a remand for a proper explantion; the Article III court wont itself grant a petition. |
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Term
| DO NON-LEGISLATIVE RULES HAVE TO GO THROUGH N&C? |
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Definition
| 4. NON-Legislative Rules: Interpetive rules and polciy statements are exempt form § 553’s notice and comment requirments; policy statemtnes are slso exempt from the publication requremnts; |
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Term
| Procedural rules are exempt from notice and comment |
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Definition
| Most courts just try to determin fthe extent to which the rules affects the “primary conduct” of the regulated entity as opposed to merley affetcig how the entity presents ts conduct. |
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Term
| HOW DO COURTS DISTINGUISH PROCEDUAL RULES FROM SUBTANTIVE RULES? |
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Definition
| The more that the (primary) condcut is affected, the more likely the rule is to be considered substantive. |
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Term
| WHAT IS THE GOOD CAUSE EXCEPTION FORM N&C? |
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Definition
| The agency for good cause finds notice, comment, and publication to be “impracitbel, unnecesary, or contray to the public interest’ are potentiallys exempt as well. |
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Term
| HOW DO YOU KNOW IF THE AGENCY HAS TO MAKE RULES ON THE RECORD? |
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Definition
| If a statute directs the agency to make rules “on the record after opportunitu for an agency hearing.” |
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Term
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Definition
| If the statute specifies other specific procedutes, hybrid rulemaking will be used. |
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Term
| WHAT DID THE COURTS SAY IN VERMONT YANKEE? |
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Definition
courts should not add more mandatory agency procedures “absemt consitutional restraints or extermely compelling circumtsanes.”
therefore, the procedrues mandated by the agency ‘s own statute will usually be the limit. |
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Term
| APA RULEMAKING REQUIRMENTS FOR BOTH FORMAL AND INFORMAL |
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Definition
notice must include a notice pf proposed rule-making (NPRM) in the Federal Register which contains notice of the statutory basis for the rulemaking; the time, place, nature, etc.. of any publuc proceedings
Either the gist of the PROPOSAL
data and methodology underlying the proposal (CASE LAW NOT APA) |
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Term
| 4. The main conflict over notice occurs when a rule so much between the porodes version and the final version that an interested pary effectively had no notice |
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Definition
| “logical outgrowth” test to determkine whether nOtice is inadequate: |
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Term
| HOW SHOULD U ADDRESS NOTICE ISSUES FOR RULEMAKING? |
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Definition
should the party have known that its interests were implicated by the impending rule?
othet parties’ comments on an issue can be good evidence that a particular issue was on the table.. |
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Term
| WHEN DO NOTICE PROBLEMS TYPICALLY ARISE DURING RULEMAKING? |
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Definition
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Term
| HOW DOES THE APA ADDRESS EX PARTE COMM DURING FORMAL RULEMAKING? |
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Definition
| does not allow for ex parte communicatiins (which we will discuss more in chotr 3), but thE APA places not explicit restrictions on exparte communications in informal rulemaking (IRM). |
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Term
| EX PARTE IRM: : What contacts can take place? |
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Definition
ex parte contacts themselves are generally legal
One exception is that the Constitution (via the Dues Process Clause ) restricts ex parte contacts in those rare IRM cases that involve parties competing adversarial for a limited privilege (e.g., a single TV license |
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Term
| EX PARTE IRM: :Which contacts must be formally disclosed? |
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Definition
| Some courts have required disclosure of exparte communications in IRM. While the more restrictive of such case law is suspect under VERMONT YANKEE, many agencies (and occasionally some courts) follow these restrictive rules anyway. |
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Term
| IN PRACTICE, WHEN FOES EPC BECOME AN ISSUE IN IRM? |
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Definition
| Where they actuallt shaped the substantive decsion reached by the agency |
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Term
| WHATIS THE REMEDY FOR EPC THAT SHAPED THE SUBSTANTIVE DECISION REACHED BY AN AGENCY? |
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Definition
| Courts want the record to include the grounds (the data and other technical bases) for the decsion. That said, if technical info like this comes n through ex parte communications, the most that courts will require of the agency is to disclose those communications and possibly give others an opportunY to comment |
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Term
| E.O.12866 (cost -benefit analysis and centralized review |
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Definition
| (cost -benefit analysis and centralized review if it impacts a certain amount of people |
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Term
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Definition
| It establishes when courts reviewing agency rulemaking should defer to the way the agency interpreted the statute in its informal rule. Such agency interpretations are initally subject to de novo review, but CHEVRON potentially adds significant deference to that. |
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Term
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Definition
0. whether the statutes is this agency’s to interpret IF YES,
1. IS THE STATUTE AMBITIOUS OR DOES IT CONTAIN A GAP TO BE FILLED? YES/ NO- STAT CAN ONLY HAVE 1 MEANING
2.Whether the agency’s interpretation of the statute is reasonable
MOST AGENCYS DONT LOSE AT STEP 2 |
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Term
| STANDARD USED For informal rulemaking (and for informal adjudication) |
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Definition
| arbitrary and capricious” standards’ formal rulemaking (or formal adjudication, which we will cover in Chptr3), we use the “substantial evidence” standard |
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Term
| WHART IS SUBSTANTIVE REVIEW? |
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Definition
| 3. In so-called “substantive review”—NOT questions of law /Chevron, but rather questions of fact regarding the actual outcome of the rule—the court will look to see (among other things) if the agency gave an “adequate explanation” |
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Term
| WHART IS SUBSTANTIVE REVIEW? |
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Definition
| 3. In so-called “substantive review”—NOT questions of law /Chevron, but rather questions of fact regarding the actual outcome of the rule—the court will look to see (among other things) if the agency gave an “adequate explanation” |
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Term
| WHEN WILL A COURT DETERMINE IF A&C |
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Definition
A) relied on factors that Congress did not want considered;
B) left out crucial issue, either one that Congress wanted addressed or that logic suggests should be considered
; (C) offered an inadequate explanation, meaning that it either does not adequately treat the data on both sides, or that the explanation just doesn’t add up; |
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