Administrative Procedures Act
What is the publication requirement for rules?
"The final rule, along with the general statement must be published in the Federal Register not less than 30 days before the rule's effective date. The APA does, however, create three exceptions to the 30-day advanced publication requirement. 5 U.S.C. § 553(d)1-3. If a final rule that is subject to the 30-day requirement is not published in the Federal Register , a person may not be adversely affected by the unpublished rule unless the person has "actual and timely notice" of the rule's terms. 5 U.S.C. § 552(a)(1)
What is the standard for the agency in explaining its decision?
"The general statement of basis and purpose should "enable the public to obtain a general idea of the purpose of, and a statement of the basic justification for, the rules." . In practice such statements tend to be lengthy preambles to the final rules, which agencies use "to advise interested persons how the rule will be applied, to respond to questions raised by comments received during the rulemaking, and as a 'legislative history' that can be referred to in future applications of the rule," as well as by reviewing courts. Requirements of rule must be "ascertainably clear" for enforcement purposes. The order also creates a procedural record for judicial appeal.
Name the exceptions to the Notice and Comment requirement for rulemakings.
(1) Interpretative rules and non binding statements of policy, Sec. 553(b)(3)(A).; (2) rules of agency organization, procedure or practice, or (3) good cause. Sec. 553(b)(3)(B).
On what grounds can a rulemaking be challenged in court?
(1) Unconstitutional (2) Exceeds statutory authority (3) Arbitrary and capricious under the APA
What is meant by 'ex parte'?
After comment deadline, further input may be provided through ex parte presentations. Whether ex parte's will be permitted is agency and proceeding specific.
Once an agency has promulgated a rule, can it subsequently change the rule?
Agencies are of course free to revise their rules and policies. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) ("An initial agency interpretation is not instantly carved in stone."). Such a change, however, must provide a reasoned analysis for departing from prior precedent. Fox v FCC, Docket No 06-1760-ag, slip 21-23 (2nd Cir. June 4, 2007)
"All comments are on the record." Discuss
All comments filed in a rulemaking proceeding are on the record and publicly available. Agencies are now required to accept comments online, and make available online all of the comments for everyone to read. Any comments filed or any documents provided to an agency may also be subject to a FOIA request.
What does the Congressional Review Act require?
All final rules must be submitted to Congress and GAO. 5 USC 801 et seq
What is the significant of the Sunshine Act for comments and ex parte presentations during a rulemaking?
During the "Sunshine period," all public presentations to the agency are prohibited.
What constitutes sufficient notice of a rulemaking?
Generally speaking, the notice requirement of § 553 is satisfied when the agency "affords interested persons a reasonable and meaningful opportunity to participate in the rulemaking process. The APA requires that the notice of proposed rulemaking (NPRM) include (1) the time, place, and nature of public rulemaking proceedings (when comments are due, how comments can be submitted, and whether there will be hearings); (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." 5 U.S.C. § 553(b)1-3. "Since the public is generally entitled to submit their views and relevant data on any proposals, the notice must be sufficient to fairly apprise interested parties of the issues involved, but it need not specify every precise proposal which [the agency] may ultimately adopt as a rule." Action for Children's Television v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977)
What is the "Chevron Doctrine"?
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Supreme Court held that courts should defer to agency interpretations of statutes unless that interpretation is unreasonable. This means that proper agency interpretation and implementation of a statute can only be overturned pursuant to the APA if it is "arbitrary or capricious."
What is the most common process agencies follow for promulgating rules?
Informal rulemaking, Sec. 553.
What does "arbitrary and capricious" mean?
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) "[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
If the agency simply has to articulate a reason for its decision making, can it do so after the fact during a court challenge?
No. A court's "evaluation of the agency's reasons for its change in policy is confined to the reasons articlated by the agency itself." See State Farm, 463 U.S. at 50 ("[C]ourts may not accept appellate counsel's post hoc rationalizations for agency action. It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." (internal citation omitted)); Yale-New Haven Hosp., 470 F.3d at 81 ("Generally speaking, after-the-fact rationalization for agency action is disfavored."). -- Fox v FCC, Docket No 06-1760-ag, slip p. 23 (2nd Cir. June 4, 2007).
Under the APA, what is the difference between a rulemaking and an adjudication?
Rulemaking: Agency acting in its legislative capacity to create a rule of general or particular applicability and future effect, designed to implement its statutory authority. 5 USC s 551(4), (5). Adjudication: Agency disposing of an agency matter other than a rule making, generally as applied to an individual or particular circumstance. 5 USC s 551(6). The distinction between a rulemaking and an adjudication is a strong gray area.
What is the purpose of the APA?
The Administrative Procedure Act may be said to have four basic purposes: 1. To require agencies to keep the public currently informed of their organization, procedures and rules (sec. 3). 2. To provide for public participation in the rule making process (sec. 4). 3. To prescribe uniform standards for the conduct of formal rule making (sec. 4 (b)) and adjudicatory proceedings (sec. 5), i.e., proceedings which are required by statute to be made on the record after opportunity for an agency hearing (secs. 7 and 8). 4. To restate the law of judicial review
Notices of proposed rulemakings are published in what government publication?
The Federal Register. Notice of rulemakings may also be provided on regulations.gov and the agency website.
If a party does not like a rulemaking, what other recourse does the party have other than challenging it in court?
The party can file a petition for reconsideration before the agency. The party can also lobby the legislature to change the statutory authority behind the regulation.
"Only those persons with 'standing' may comment during a rulemaking proceeding." Discuss
This statement is incorrect. Anyone can comment and all comments must be considered. A party will need to have 'standing' in order to challenge the rule in court.
"Comments filed before an agency must comply with the format described in the Code of Federal Regulations." Discuss
This statement is untrue. In informal rulemakings, comments can be very informal. How to file comments is usually set forth in the notice of the rulemaking. Agencies frequently have online forms parties can fill out or invite comments to be sent to an email address. Comments can be as informal as an email and can contain any argument (there is no evidence requirement like there is in a court of law).
"The Administrative Procedures Act is derived from the Due Process Clause of the U.S. Constitution." Discuss
This statement is untrue. The APA is statutory authority, creating more process opportunities for citizens than required by the Constitution. The APA was enacted during the FDR administration in response to concern about the growth of the decision making power of the central government.
