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Rulemaking
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agency process for formulating, amending, or repealing a rule
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Rule
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defined as an agency statement of general applicability and future effect designed to implement, interpret or prescribe law or policy
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Rulemaking in general
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like statutes that apply prospectively to multiple people and entities
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Adjudication
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Agency process for formulation of an order
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Order
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Defined as the whole or part of a final disposition of an agency in a matter other than rulemaking but includes licensing
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Adjudications in general
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are specific laws that apply retroactively to parties.
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Types of Rules
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Substantive rules, interpretive rules, general statements of policy
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Substantive rules
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administrative rulings based on statutory authority granted an agency by Congress; the rules have the same legal force as statutes passed by Congress.
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interpretive rules
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Administrative agency rules that simply declare policies or explain the agency's positions and do not establish any legal rights or obligations
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General statements of policy
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Rule that do not have legislative effect and thereby are not required to go through notice & comment
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Formal Rulemaking Process
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Rulemaking-on-record (public hearing):
1) May be required by enabling legislation
2) Publish in Federal Register
3) More formal hearing for comment process
-civil trial like procedure
1) May be required by enabling legislation
2) Publish in Federal Register
3) More formal hearing for comment process
-civil trial like procedure
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Informal Rulemaking Requirements
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APA § 553 requires 1) notice, 2) opportunity to comment, 3) statement of reasons, and 4) publication (rule published in Federal Register 30 days before effective.)
Notice: "sufficient to fairly appraise interested persons of issues involved so that they may present responsive data or argument.
-Final rule should be a logical outgrowth of the proposed rule meaning that the final rule does not materially alter issues involved in formal rulemaking
Notice: "sufficient to fairly appraise interested persons of issues involved so that they may present responsive data or argument.
-Final rule should be a logical outgrowth of the proposed rule meaning that the final rule does not materially alter issues involved in formal rulemaking
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Formal v. informal rulemaking
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APA requires formal rulemaking when rules are required by statute to be made on the record after opportunity for an agency hearing (Section 553(c)).
Formal Rulemaking only when enabling statute requires both a hearing and that hearing be on the record
Formal Rulemaking only when enabling statute requires both a hearing and that hearing be on the record
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US v. Florida East Coast Railway (Justice Reinquist)
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F: Deals with interestate commerce act authorizes commission after hearing to establish compensation to be paid by railroad for use of cars.
Issue: Was escape clause of section 556 properly invoked?
Rule: APA makes clear that specific statutory mandate that proceedings take place on record after hearing may be satisfied.
Takeaway: Since FECR no statute not containing magic words "one the record" have been found to require formal rulemaking.
Issue: Was escape clause of section 556 properly invoked?
Rule: APA makes clear that specific statutory mandate that proceedings take place on record after hearing may be satisfied.
Takeaway: Since FECR no statute not containing magic words "one the record" have been found to require formal rulemaking.
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City of West Chicago v. NRC
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Mining Facility submitted emergency request to demolish buildings filled with contaminated waste. Focus of suit was Amendment 3 challenging the NRC order that allowed demolition of 6 additional buildings on site in a non-emergency situation Takeaway:
1) three words not necessary
2) legislative hisotry there was no evidence that hearing=on the record
3) Past practices of Atomic Energy Act
Presumption of informal adjudication or rulemaking under 554(a)
1) three words not necessary
2) legislative hisotry there was no evidence that hearing=on the record
3) Past practices of Atomic Energy Act
Presumption of informal adjudication or rulemaking under 554(a)
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Seacoast Anti-Pollution League v. Costle
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Public Service Co. filed application with EPA for permission to discharge heated water into estuary. Also applied to be exempt from new EPA standards. Takeaway: when looking at triggering provisions, presumption is formal rulemaking or adjudication
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Chemical Waste Management v. Hunt
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Congress enacted Resource Conservation Act to establish comprehensive program for regulation of hazardous waste treatment, storage, or disposal facilities to obtain a permit, but facilities in existence could continue to operate pending agency applications. Takeaway: There are three tests of on the record for retriggering provisions.
This court applied Chevron
1) Presumption of informal adjudication or rulemaking (City of West Chicago)
2) Presumption of formal adjudication/rulemaking (Seacoast)
3) Deference to agency interpretation (Chevron)
This court applied Chevron
1) Presumption of informal adjudication or rulemaking (City of West Chicago)
2) Presumption of formal adjudication/rulemaking (Seacoast)
3) Deference to agency interpretation (Chevron)
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Vermont Yankee Nuclear Power Corp. v. NRDC
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Takeaway: Admin agencies are free to fashion their own procedure and pursue methods when looking to APA. Stop activisits courts and excess procedures
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Conneticut Light and Power Co v. NRC
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Takeaway: require technical guidelines and reports to be included
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American Radio Relay League
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Takeaway: Technical studies and data must be revealed for public evaluation in which agency relies in its rulemaking. Degree of disclosure of information for adequate notice; aggrieved party must show prejudice (lack of notice) info has led to relevant chanaging course of cases.
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When to use formal v. informal adjudication
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Court will look to language of enabling statute and agency interpretation of that language. Court will apply Chevron two step: 1) Was congress clear as to which type of hearing was required 2) agency interpretation of the language was reasonabe.
Assume that unless Congress includes language from APA Section 554(a) in enabling statutute "on the record after opportunity for agency hearing" an agency's decision to use informal adjucation procedures was valid.
Assume that unless Congress includes language from APA Section 554(a) in enabling statutute "on the record after opportunity for agency hearing" an agency's decision to use informal adjucation procedures was valid.
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Formal Adjudication
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1) Notice: "persons entitled to notice of an agency hearing of where and when the hearing will occur" Give opportunity for interested parties to submit facts, arguements, and offers of settlement so long as time and public interests permit.
Complete when sufficiently apprises interested parties of agency action that will affect interests.
-Right to appear in person or in an agency proceeding by or with cousnel or antoher duly qualified rep.
2) Hearing: Parties in formal adjudications have a right to present their cases personally and to present rebuttal evidence and conduct cross examination if necessary. ALJ presides but is member of agency and furthers agency mission (must remain impartial)
-As a result of formal proceeding a record is compiled and an exclusive record is made which includes transcript of testimony and exhibits together with all papers and requests filed in proceeding.
-Apply a de novo standard to review questions of law and fact.
Complete when sufficiently apprises interested parties of agency action that will affect interests.
-Right to appear in person or in an agency proceeding by or with cousnel or antoher duly qualified rep.
2) Hearing: Parties in formal adjudications have a right to present their cases personally and to present rebuttal evidence and conduct cross examination if necessary. ALJ presides but is member of agency and furthers agency mission (must remain impartial)
-As a result of formal proceeding a record is compiled and an exclusive record is made which includes transcript of testimony and exhibits together with all papers and requests filed in proceeding.
-Apply a de novo standard to review questions of law and fact.
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Informal Adjudication
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Means either: 1) Congress has not created any procedural requirements or 2) Congress requires a few procedures. Even when not specified, constitutional due process must be provided.
-often no hearing is offered. Can be as simple as agency administrator approving individual application for a license or permit.
-often no hearing is offered. Can be as simple as agency administrator approving individual application for a license or permit.
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