§ 6.1.1 Good Cause Exemptions - 323
We have talked about these good cause exceptions in the context of emergency
rule making. There are other situations where rules are made without public
Notes and Questions - 324
1 - Unnecessary Rulemaking
What are the three situations where public comment would not assist in the
2 - Direct Final Rules
What is the procedure for a direct final rule and when is it used?
3 - Urgent Rules
When might the government want a rule to go into immediate effect with no
4 - Interim-final rules
What is an interim-final rule?
§ 6.1.2 Exempted Subject Matter - 324
These are issues that are exempt from notice and comment by specific statute,
and do not have to meet the standards for urgent rules.
Notes and Questions - 329
1 - What are the proprietary matters that are excluded and why is this exclusion
What is excluded that some members of the public object to?
4 - What is the Agency management and procedure exception?
What limit does the Joseph v. US Civil Service case put on this exception?
5 - Military and foreign affairs functions are also exempted.
Most rules that have significant impact on the public are published, unless
there are national security reasons for not doing so.
§ 6.1.3 Procedural rules - 332
These are exempted from publication by 553(b)(A).
United States Department of Labor v. Kast Metals Corp. - 332
How is this case like the food stamp case?
What was the change?
When does the Brown case (334) tell us about when even procedural rules have
to go through notice and comment?
Why was that test not satisfied in this case or the food stamp case?
Notes and Questions - 335
2 - Substance v. procedure
What is the example of a rule that would need to be published?
§ 6.1.4 Nonlegislative Rules (guidance documents) - 336
§ 6.1.4a Legislative and nonlegislative rules - 336
Properly promulgated rules have the same legal effect as statutes
Rules are different from statutes in that you can argue whether the rules
were properly promulgated, which you cannot with statutes
How are nonlegislative rules different in legal effect?
How is this shown in the food stamp and Kast cases?
Which APA sections govern publications of non-legislative rules?
§ 6.1.4b Policy statements - 338
Think about the powers the IRS has through policy statements
Mada-Luna v. Fitzpatrick - 338
What are the facts?
What is the key question?
Does the APA define "general statements of policy"?
Where did the court find a definition?
What other purposes do guidelines serve?
What is the critical factor?
Why is discretion critical?
What is the court's two part test?
What is the plaintiff's claim of substantial impact?
Where is the court looking for substantial impact?
What in the directive indicated that it was not a binding norm?
What about the 1981 guideline?
What happens to Plaintiff?
Notes and Questions - 341
1 - What is the policy criticism of informal guidelines?
2 - Why are they useful?
What is the impact of Ca banning them
3 - Policy Statements
Why does prospective change in agency behavior matter in the two part test?
6 - Self-binding - Why was the FDA action on aflatoxin not a guideline?
7 - Supreme Court perspective
Why was there no requirement of notice and comment in Lincoln v. Vigil?
§ 6.1.4c Interpretive rules - 347
Hoctor v. United States Department of Agriculture - 347
What is being regulated?
What guidence does the statute provide?
Is the USDA rule OK?
What does the guidence memo say?
What are plaintiff's pets and how tall is the fence?
Why does plaintiff say the rule cannot be enforced against him?
What do you think about the rule?
What is the key issue?
What does the court focus on?
Why is this a problem?
Does the statute have a limit?
What if he kept snakes?
Large, vicious birds?
How does the court say the agency might have used the number?
What did the court do?
What if they use a number after notice and comment?
Is it OK then?
What if the agency does away with the rule and just says you have to stand
outside the fence and they put a hungry cat on the inside?
Notes and Questions - 352
1 - What if the agency does not have rule making authority over a given matter?
3 - How is interpretation different from arbitrary choice and what must the
4 - Can interpretations be used to change the meaning of a statute or regulation?
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