§ 5.3 Initiating Rulemaking Proceedings - 235
Chocolate Manufacturers Ass'n v. Block - 235
What did Congress tell the agency to do that resulted in these regs?
What did the proposed rule address?
What about fruit juice?
How was the final rule different from the proposed rule?
What was the CMA's claim?
What was the agency defense?
Does the rule have to be the same?
Why have notice and comment then?
What is the logical outgrowth test?
How would you use it in this case?
What did the court order in this case?
What will the CMA do?
Notes and Questions - 238
1 - What steps do agencies sometimes take to get input before a rule is promulgated?
2 - What is a reasonable notice period?
How do you decide if the notice period is adequate?
What about emergencies?
What about California wanting to short circuit its power plant approval process?
3 - Does the entire text of the rule have to be published?
Why might an agency not publish a reg?
How does the Internet affect this?
4 - How is United Steelworkers different from CMA?
5 - Who has to tell - can comments constitute notice?
7 - Information under the rule
What did the court require in Portland Cement v. Ruckelshaus, 486 F2d 375
What about Connecticut Light and Power v. NRC, 673 F2d 525 (1982)?
Why is this a big deal in environmental regs?
What are the potential downsides of this policy?
8 - Subsequent additions to the record
What did Rybachek v EPA say about adding supporting information to the final
What did Idaho Farm say?
§ 5.4 Public Participation - 244
Feds have formal rulemaking - discussed later - and informal - notice and
States only have informal.
Congress can and does create hybrid processes in specific laws.
§ 5.4.1 Informal Rulemaking - 245
Notes and Questions - 245
1 - Must the agency allow oral testimony?
Why do agencies sometimes have hearings to allow oral comment?
What about those without resources?
§ 5.4.2 Formal Rulemaking - 247
What APA sections govern formal rulemaking?
What do those sections require?
When is formal rulemaking required?
United States v. Florida East Coast railway Co. - 247
What are facts and what is the railroads' claim?
What did the lower court rule?
What statutory language did the railroads claim supported their right to a
Did the court agree?
How did it interpret this language?
How did the agency give the railroads a chance to be heard?
What about revising the rule?
Notes and Questions - 250
1 - What does this decision tell us about the court's view of the importance
of formal rulemaking?
4 - Why avoid formal rulemaking?
What happened in the peanut hearings?
What was the concern in Shell Oil v. FPC?
Why does just getting the right to be heard at a formal hearing benefit parties
that oppose a rule?
§ 5.4.3 Hybrid Rulemaking and
the Limits on Judicial Supervision of Administrative Procedure - 253
A lot of this arose from the environmental activism that lead to the first
and subsequent Earth Days.
Congress wanted to allow citizens and communities to participate in significant
regulatory issues that were seen as public policy debates.
In many cases this was a problem because the agency was given a law that had
specific technical requirements that did not include public policy issues.
Courts then began debating their role in reviewing these proceedings
Was it strictly procedural, with deference to the agency?
Should they do a substantive review?
What happened in Ethyl Corp. v. Environmental Protection Agency, 541 F.2d
Vermont Yankee v. NRDC, 435 US 519 (1978) - 254
What is the procedure for getting a permit?
What is the mechanism for public participation?
What was at issue in this case?
How did the agency plan to resolve this and why?
What did the agency say should be done with the waste?
What did the AEC rely on it making this rule?
What did plaintiffs want to do with Dr. Pittman?
Was this allowed?
What did the DC Cir. say?
Was Judge Bazelon being a hypocrite?
What is the APA section that established notice and comment rulemaking and
why is it important in this case?
Does it limit the procedure agencies can allow?
What was the basis of the appeals court's remand of the rulemaking?
Did the agency fail to follow 553?
How did the appeals court justify the remand?
Does the SC accept this review?
Why would allowing courts modify agency procedures undermine the function
Why would full hearings be a problem?
Would more procedure make a better record?
Does a better hearing record matter in informal rule making?
What did the SC do?
Notes and Questions - 258
1 - How have the courts followed Vermont Yankee?
2 - How effective is hybrid rulemaking?
What did the judge find who looked at cases where litigants won the right
to cross-examine witnesses?
What good did it do them to challenge the proceeding?
4 - Substantive review
What did the DC Circuit do on remand of Vermont Yankee?
What standard did they say it violated?
Did the United States Supreme Court agree?
5 - Adjudications
How has Vermont Yankee been applied to adjudications?
§ 5.5 Procedural Regularity in Rulemaking - 262
§ 5.5.1 Role of Agency Heads - 262
Morgan I found that agency heads to have some familiarity with adjudications
they sign off on
Should this apply to rulemakings?
What if the staff distort the record?
FDA chief signs a zillion new regs within a week of taking office
Can you challenge them because he could not have know about them?
How would you have to prove it?
What do you have to show to get the deposition?
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