PI Midterm

1) was the time the agencies took to make its decision governed by the rule of reason
2) Did congress provide specific timetable or other time related language regarding the speed it expects the agency proceed with
3) was the delay reasonable (economic regulation not as big of an issue) or unreasonable (health and welfare protection) in the context
4) will expediting one action impact competing interests
5)what are the nature and extent of the interests prejudiced by delay

The court will issue a writ of mandamus.

Court order telling the agency to properly fulfill their duties. Used only under extraordinary circumstances.

Panna filed petition with the EPA to revoke Chlorpyrofos tolerances.

EPA continued to fail to act and over a decade later still nothing.

Writ of mandamus was issued because agency action delay was so egregious.

FCC claimed they would resolve the issue quickly, but the court retained jurisdiction due to FCC failure to act in the past. Established TRAC factors to determine if agency failure is so egregious to warrant a writ of mandamus.

When an agency adopts a final rule that is different from the proposed rule and a party complains that that there was not adequate notice given.

Notice is adequate if the changes are in character with the original scheme and the final rule is a logical outgrowth of the notice and the comments.

Otherwise the final rule does not serve the policy underlying the notice requirement.

Initial proposal authorized flavored milk and the final rule eliminated flavored milk completely. USDA must reopen the comment period based on the new proposed rule.

APA 556 and 557 are triggered ONLY when congresses puts in a statue that "rule must be made on the record" ---statutes perscribes explicitly that it is on the record.

The word hearing in the enabling statute is not enough to trigger formal rulemaking and does not mean that presenting evidence orally is required and the opportunity to cross examine.

No formal rulemaking will not be triggered.

No-reviewing courts are generally not allowed to impose additional procedural requirements on administrative agencies rulemaking processes.

Absent constitutional constraints or extremely compelling circumstances.

1. Inconsistency and uncertainty-if courts can decide then agencies will not know what is required

2. Congress did not intend for courts to make decisions post hoc

3. More procedures do not lead to better agency records

Courts ruled that courts cannot impose additional procedural requirements on administrative agency rulemaking process.

1) interpretative rules, general statements of policy, or rules of agency organization, procedure or practice

2) when the agency finds for good cause that notice and public procedure are impracticable, unnecessary, and contrary to public interest

1) case by case basis

2) when delay would would do real harm

3) agency must explain its basis for taking emergency action without waiting for public participation

There was a good cause to regulate special operating procedures for helicopter air tours after the FAA disclosed numerous accidents

Congress imposed a new and tight schedule for achieving air quality standards and EPA skipped notice and comment in order to meet the deadline and then hosted a post hoc public comment. However, congress imposing a deadline does not allow for agency to skip notice and comment, nor is it enough that they did comments after.

A rule will be non-binding when:

1) the statement does not have a present, binding effect

AND

2) the statement does not leave the agency and its decision makers free to exercise discretion

True

Animal welfare act was created by congress and the US dept of Agriculture promulgated a regulation based on animal welfare act that fences housing certina animals needed to be a certain strength.

The agency then issued a memo that required fences to be 8 feet tall.

The court HELD that this was a binding because the memo was arbitrary and presented a binding effect.

Memo granted DHS employees discretion in processing DAPA applications and judge felt it gave DHS to much freedom to exercise discretion.

1) What is the trigger or what must happen for additional requirements to be needed? What does the congressional statute say?

2) What are the additional procedures that must be added to the rule making process?

3. Is the compliance subject to judicial review where if an agency fails to comply they can face court?

1) trigger: when activities may have significant effect on human environment

2) additional procedure: environmental impact statement is required there is a significant effect on human environment

3) Yes the EPA is subject to judicial review based on congressional statute.

Balance public and private interests when disclosing records. Purpose is to open agency action to the light of public scrutiny rather than dig up dirt on public citizens.