The Regulatory Process

classified as substantive (legislative), interpretive, or procedural

administrative regulations with the same force of law as statutes enacted by congress. These are federal law

Statements issued by an agency to provide its staff and the public with guidance regarding the interpretation of substantive rule or statute. Exempt from notice and comment requirements of the APA. These however can challenge these rules

Detail agency's structure and describes its method of operation and its internal practices. Written within the enabling statute

FACTS: Clean Air Act as enacted by Congress, requires states with non attainment (dirty air) establish a permit program that regulates sources of air pollution. Under EPA regulations a state could allow a plant with multiple source of pollution to be treated as one. National Resources Defense Council Challenged the EPA bubble rule as it was inconsistent with the Clean Air act. Court of Appeals overturned EPA regulation decision was appealed
RULING: REVERSED because the EPA's use of the concept here is a reasonable policy choice for the agency to make, valid because courts generally defer to the expertise of an agencu

- regulated businesses are required to self report
- direct observation determines if a business is following the law
- Agency subpoena power is used to require a business to produce documents

monitoring of their own behavior, subject to a regulation can be required to report certain information to an agency regularly

where an agencies can acquire information from direct observation. This can include worksite safety inspections by OSHA and testing by the EPA for excessive air pollution emissions

legal instrument that directs the person receiving it to appear at a specified time and place to testify or to produce documents

FACTS: during a Mine Safety and Health Administration (MSHA) inspection for a mine of Black Beauty's the inspector found that there was a pile of coal packed around a transfer spot. The inspector thought it began to burn and he asked them to shut down the belts but the BB rep refused and therefore the inspector issued a citation for "high negligence" MSHA sent an a proposed penalty assessment and ALJ agree and imposed a $70,000 civil penalty as a result. Black Beauty petitioned for review
RULING: Petition DENIED because 1) BB had been cited for several past accumulations violations 2) the burning smell existed for awhile 3) the person in charge should have noted the tail turning in the tail roller 4) employees didn't alert managers about the smell.

follows rules similar to those followed in a trial but are less formal in terms of procedure and evidence

presides over dicatory hearings, civil service employee of the agency usually a staff attorney

appeals that concern the legitimacy of regulations and whether a penalty issued by an agency for a violation was justified

JERRS Jurisdiction, Exhaustion, Reviewability, Ripeness, and Standing

The complaining party may seek judicial review only in courts that have the power to hear the case, Most statutes specify which courts have jurisdiction to hear appeals of agency actions

Gatekeeping device requiring that a party seeking judicial review must have sought relief through all possible agency appeal processes before seeking review by the courts

Appellate court has the ability to reconsider an agency decision to determine whether correction or modification are needed. Ex if it is agency final decision or can a court review it

There can be no judicial review until the agency's decision is final so that the court has the final issues or so it is ripe and ready

A party seeking judicial review must demonstrate that it incurred an injury recognized by law as a result of the agency's action, actually having case or controversy

FACTS: Forest Service Decision Making and Appeals REform Act of 1992 requires the Forest Service to establish notice, comment, and appeals process for proposed actions that concern projects and activities implementing land and resource management plans. After a Forest fire in 2002 the Forest Service approved a salvage sale of burned timber on 238 acres. did not provide a EUS or provide for a the sale. Earth ISland challenged the sale and the district court ordered it stopped. District court ordered the sale to be stopped and the appeals court agreed. Government sought a review of the question whether Earth Island could challenge the Forest Service regulations at issue
RULING: Because the regulations under challenge here neither require nor forbid any action on the part of the respondents, the appeals ruling is REVERSED

abuse of discretion, not found in agency's actions or decisions if the following is true:
- Agency has sufficiently explained the facts and its policy concerns
-Those facts have some basis in the agency's accord
- On the basis of those facts and concerns a reasonable person could reach the same judgements the agency has reached

greater scope of review v. technical and most intense scope of view

FACTS: Lone Mountain a mining firm was cited for regulatory violations and was sent "notices of contest" that it did not respond to. Because of a lack of response MSHA sent delinquency notices. Later Lone Mountain filed motions to reopen the civil penalties that had become final. Agency denied motion because there was no good cause. Lone Mountain appealed
RULING: The agency acted in a arbitrary and capricious manner because they gave no explanation for why they did reopen final orders when there was a long held trend that it may reopen otherwise final orders. Granted Petition for review and remand the order to the commission for reconsideration with this opinion

used by agencies to weigh the costs and benefits of new regulations.

makes most documents held by federal agencies available to the public. Unless document falls within certain exempted categories they must be released upon request of a citizen

Gives citizens input about what information is collected about them and how that information is used. Requires that unless an exception applies notice and prior consent are required before agency can disclose info that concerns and identifies and individual

Limits secret meetings by agencies. public entitled to at least one week's notice of the time place and subject matter of agency meetings