Nature of rule making
it is quasi - legislative. it is the agency equivalent of what congress does when it makes laws applicable to all citizens or a class of citizens.
formal proceedings
evidentiary IN PERSON hearing conducted in accordance w/ APA 556 - 557
proc'd of formal proceedings
- hearing
- hearing officer (ALJ)
- rules for presenting evidence
- procs governing hearing
- not like a civil / crime trial
informal rule making
notice and comment proceedings conducted in a accordance with APA 553 - generally NOT done in person
Process of informal - notice and comment
agency releases:
1) NPRM - notice of proposed rule making
2) parties submit comments
3) agency sues final rule addressing the comments
what distinguishes formal and informal rule making?
notice + comment = statement with basis and purpose
US v. Nova Scotia foods - notice and comment
FDA failed in failing to share with parties data decisions relied on + did not provide adequate statement of basis and purpose for rule.
typical notice and comment process
1) NPRM - there is a trigger for rule making. An agency decision itself, leg. requires in statute, executive demands it, petition
2) party comments
3) final rule
what is the default rule for choosing between formal and informal rule making? what is the exception?
agency has the choice of whether to conduct formal or informally.
they MUST conduct a FORMAL rulemaking when rules are required by statute to be made on the record after opportunity for an agency hearing .
enabling statute only required a HEARING. so the formal rule making was not required. hearing did not equal formal rule making.
rule: formal rule making only required if enabling statute requires agency decision be made "on the record" after "hearing"
Adjudication
agency process for the formulation of an order.
it is the agency enforcement of a specific statutory rule or agency regulation v. a specific party OR some other agency action that applies to specific individuals or other regulated entities.
- it is QUASI JUDICIAL. (agency equivalent of what courts do when they issue orders in prosecutions or other actions)
procedural due process - what is deprivation?
- covers privileges not just rights.
- welfare, gov't work (w/ expectation of continued employment), social disability benefits
two key approaches to ID'ing what counts as property for purposes of due process
1) inherent significance of benefit (welfare benefits are crucial to survival)
2) entitlement by source OUTSIDE the constitution (state law, contract, institutional rules)
what process is due?
minimum = notice and opportunity to be hears
beyond minimum = what has to be provided by the agency when providing opportunity to be heard (like in a hearing or review)
Matthew v. Eldridge - test for beyond the minimum due process
- use balancing test to determine what process is due
1) private interest - affected by official action
2) risk of erroneous deprivation of such interest (vs. the value of add'l proc's)
3) gov't interest (including v. burdens of add'l procs)
factor #2 in test for what process is due
compare 2 procedures:
1) status quo - what agency currently offers
with
2) what plaintiff CLAIMS they should be offering
** how likely is the current procedure to result in error? How much would the add'l procedures requested reduce the error?
In Matthews what was the erroneous deprivation the plaintiff was claiming? (other example)
1) post termination v.
2) claiming he should get a PRE termination hearing.
ex:
1) hearing w/o protections v.
2) cross ex, discovery
choice between rule making and adjudication?
- it generally gets to choose how it makes policy.
- unless congress statute requires rule making or adjudication that constrains the agency
Cheney II and Bell Aerospace - general principle
the choice made between proceeding by a general rule or by individual rule, ad hoc lies primarily in the informed discretion of the administrative agency
NLRB v. Bell Aerospace
when agency use of adjudication imposes unfair surprise by betraying reliance on a long standing rule or imposing a penalty - they may be bound to using rulemaking.
Do both rule making and adjudication create new policy? both with legal effect?
- rm does so by creation of a new rule
- adj does so even though order applies ONLY TO THE PARTY BEFORE IT bc it is PRECEDENT for other parties cases (more flexible)
APA 533 - informal agency actions EXCEPTIONS to N&C. 2 exceptions?
- except when req'd by statute it doesn't apply to:
1) interpretive rules, general statements of policy, rules of agency policy, proc'd or practice
2) when agency for GOOD CAUSE finds (and incorporates into issued rule) that notice and public proc'd are impracticable, unnecessary, or contrary to public interest.
American Hospital v. Bowen - agency flexibility
it is an attempt to preserve agency flexibility in dealing with limited situations where SUBSTANTIVE RIGHTS ARE NOT AT STAKE.
- it accommodates the policy of public participation vs. effectiveness, efficiency, expenses
interpretative rules and general statements of policy are
non legislative rules, that dont create new legal obligations (like legislative rules do)
legislative rules are
created by the agency through notice and comment or formal rule making
Interpretative rules
backward looking. they dont create new binding law. they interpret ALREADY EXISTING legal obligations.
how to distinguish interpretative rule from legislative rule - factors?
American mining congress factors:
1) adequate basis for enforcement without interpretative rule?
2) CFR? published in the cfr
3) invoked leg. authority>
4) amendment rather than interpretation?
what creates an amendment?
- if the new rule is INCONSISTENT w/ the rule it is said to interpret = amendment.
- this would be a NEW POLICY because it would be creating a new legal standard
what makes a rule interpretative?
rule must derive from rule it purports to interpret.
USDA v. Hoctor - fence requirement 8 foot
- USDA claims the fence req was interpretation of requirement that it be "structurally sound"
- there is no reason that 8 foot or 9 foot would derive from the words "structurally sound'
= AMENDMENT = subject to notice and comment
does the agency have to use N/C to change a long standing interpretive rule?
NO - its just an interpretive rule. they can change the interpretation of an existing rule w/o going through notice and comment.
general statements of policy
forward looking. they do not create new binding law, but they signal how agency intends to and might exercise its power in the future.
distinguish general statement of policy from a legislative rule (that creates new binding legal obligations instead go just signally what the agency PLANS to do)
community nutrition institute test
Community nutrition institute test factors - to distinguish between general policy statement and legislative rule
1) lacks binding effect (no new right is created)
2) leaves policy makers with discretion
how does the court tell if the two factors in community nutrition are satisfied?
1) LANGUAGE of policy statement. Does it seem mandatory or allow flexibility? is it presenting itself as a binding rule?
2) PRACTICE of the agency? does it seem to leave officials with discretion - if not, then perhaps it is because it doesn't leave flexibility.
GE v. EPA - language of policy statement (triggering leg rule or gen policy stmt)
language:
- doc imposed reqs for risk assessment. (4.0 toxicity)
- even though the guidance document allows for non standard or unique methods of estimating risk, it does NOT undermine the binding force fo the guidance document.
RULE.
practice:
- treated the framework in the guidance document as binding.
- didn't accept apps that used any other method than what was said in the document.
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