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Administrative Law
University of Kansas School of Law
Levy, Richard E.

Administrative Law – Review Outline
 
I. Introduction
 
II. Rulemaking
            A. Initiating Rulemaking
1. Top-Down Approach:
a. Congress lobbying Member of Congress to advocate for rulemaking. Congress is an effective advocate b/c:
                        i. Congress appropriates money for agencies
ii. Congress holds oversight hearings
                        iii. Congress can reduce power of agency
b. Who to Approach
                        i. Various Committees that supervise Agency
                        ii. Appropriations Committees
                        iii. Representatives from affected areas
                        iv. Representatives hostile toward the Agency
            c. Might want to hire a lobbyist
2. Bottoms-Up Approach
            a. Start w/staff members
            b. Convince Agency that clients interest coincide w/Agency’s interests
            c. Skills to have
                        i. Understand Agency’s problem
                        ii. Have a firm grip on legislative process
                        iii. Be able to deal w/political environment that AG finds itself in
                        iv. Understand basic policy tools. 
3. Petition for Rulemaking
a. APA §553(e): “each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule”
i. Advantages: filing a petition creates a record, allowing judicial review and possibly compelling agency action. So you may set yourself up to get judicial compulsion to get an answer.
ii. Disadvantages: may get a better response if giving the agency a chance to respond before trying to force its hand through a petition for rulemaking
            b. Agency Inaction
i. § 551(13): definition of agency action includes “failure to act”, and thus
ii. § 706(1): a claimant can bring an action for “agency action unlawfully or unreasonably delayed.” 
c. Factors Governing Judicial Review of Agency Inaction on Petitions for Rulemaking – TRAC
i. The presence or absence of a statutory timetable or other indication of the speed with which Congress expects the agency to act
1. APA doesn’t contain any deadline
2. Courts tend to be reluctant to compel action even in the face of a violation of a statutory timetable – courts are hesitant to tell an agency how to set its priorities because courts don’t have the expertise (mandating a response would be telling an agency to divert its resources from what may be higher priorities; this might result in a serious misallocation of agency resources)
3. If the agency has set its own priorities and published them, this factor is going to be less important
ii. The subject matter of the requested action is relevant; if it relates to human health or welfare, the court is more inclined to find unreasonable delay than if it relates to economic regulation
iii. The effect of expediting action on other, higher priority matters before the agency. The answer depends on who decides what the priorities are, and generally this is the agency. Judges are likely to defer to agency priorities.
iv. The nature and extent of the interests prejudiced by the delay
v. Whether there is “lurking impropriety” in the agency’s failure to respond to the action requested
                                    d. Remedies for Unreasonable Delay
                                                i. Court may issue a decision
                                                ii. Court may set a deadline (though often reluctant to do so)
iii. Most likely, court will ask AG to establish a timetable and will retain jurisdiction in case agency violates its own timetable.
                        4. Denial of a Petition
                                    a. Prompt Notice required to interested party – 555(e) 
                                    b. Judicial Review available under § 706(2): standard (all are still good law)
                                                i. Arkansas Power & Light Co. v. ICC
1. whether the agency has adequately explained the facts and policy on which it has relied; and
2. The facts have some basis in the record
                                                ii. Northern Spotted Owl v. Hodel
1. the Agency failed to articulate a “satisfactory” explanation, including a rational connection between the facts found and the choice made. 
2. What is relevant – what the statute states are relevant (i.e. in this case, Congress told the FWS to consider scientific and technical)
3. The agency engaged in a substantial inquiry into the facts that was searching and careful. 
iii. Massachusetts v. EPA
1. Refusals to promulgate rules are susceptible to judicial review, though such review is “extremely limited” and “highly deferential”, but
2. relief is available if the agency offers “no reasoned explanation” for its denial
            B. APA Rulemaking Exceptions:
1. General Exceptions: Rulemaking Procedures do not apply to (§ 553(a)) 
                                    a. Military or foreign affairs functions of the U.S. OR
b. A matter relating to agency management or personnel or to public property, loans, grants, benefits, or Ks
                        2. Notice Exceptions: general requirement for notice of proposed rule making to:
a. Practice & Procedure Exception: To interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice: To decide whether s

is a “logical outgrowth” of the notice and comments already given
iii. The question is whether the final rules altered the issues raised by the proposal and substantially departed from the terms of the proposal
                                    b. American Medical Ass’n
i. The crucial issue is whether parties affected by the final rule were put on notice that their interests were at stake: did they know that an issue in which they were interested was “on the table.”
3. Courts have upheld final rules that differed from proposals in the following significant respects (SEE NOTE 1):
a. Outright reversal of the agency’s initial position
b. Elimination of compliance options contained in a notice of proposed rulemaking
c. Collapsing, or further subdividing, distinct categories of regulated entities established in proposed rule
d. Exempting certain entities from the coverage of final rules
e. Altering the method of calculating or measuring a quantity relevant to a party’s obligation under the rule
4. Courts have invalidated final rules where:
a. No notice was given of an issue addressed by the final rules
b. An issue was only addressed in the most general terms in the initial proposal
c. Final rule changed a pre-existing agency practice that was only mentioned in a notice of proposed rulemaking to place unrelated changes in the overall regulatory scheme into their proper context
5. Scope of Review: ct states that its strict in reviewing agency compliance w/procedural requirements, but deferential in substantive matters.
            E. Opportunity for Comment
                        1. Ex Parte Communications
a. Definition (§ 551(14): an oral or written communication not on the public record w/respect to which reasonable prior notice to all parties is not given but it shall not include requests for status reports on any matter or proceeding covered by this subchapter
b. Informal Rulemaking: Ex Parte Communications not explicitly prohibited, though Congress can sometimes prohibit them in organic statute
c. Formal Rulemaking § 557(d): places specific prohibitions on Ex Parte communications
d. Legal Constraints on Ex Parte Communications