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Administrative Law
University of Mississippi School of Law
Green, Christopher

Administrative Law
Spring 2010
  I.      A WALK THRU THE APA(Administrative Procedures Act)
A.      Overview
§ Rulemaking
§  An agency's “quasi-legislative” role- creating law to govern future conduct
§ Adjudication
§  An agency's “quasi-judicial” role- applying existing rules to make decisions regarding past conduct
§  Issue orders, compel compliance by regulating entities
§ Judicial Review
§  How may review of rulemaking and adjudicatory action be obtained?
B.      Rulemaking
§ 5 U.S.C.  §551(5)- “rule making” means agency process formulating, amending, or repealing a rule
§ 5 U.S.C.  §551(4)- “rule” means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of the agency…
C.      Adjudication
§ 5 U.S.C. §551(7)- “adjudication” means agency process for the formulation of an order
§ 5 U.S.C. §551(6)- “order” means the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing
D.      Informal Rulemaking – Three-Step Process in 5 U.S.C. §553:
§ 1) Notice- 5 U.S.C. §553(b)
§  General notice of proposed rulemaking shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.
§  [Review 5 U.S.C. 553(b)(1)-(3) for requirements regarding the content of t he notice requirement] §  Exceptions to Requirements§553(b)(3)
§  Unless notice or hearing is required by statute, this subsection does not apply-
§ (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
§ (B) when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
§ 2) Comment- 5 U.S.C. §553(c)
§  After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.
§ 3) Publication-
§  5 U.S.C. §553(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date
§  5 U.S.C. § 553(c) – After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose
§  [Both the final rule and statement of basis and purpose appear in the Federal Register] E.       Formal Rulemaking
§ 5 U.S.C. 553(c)- When rules are required by statue to be made on record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
§ [For formal rulemaking, the detailed requirements of §§ 556 and 557 replace the comment and publication portions of the informal rulemaking process in § 553] F.       Hybrid Rulemaking
§ Congress can, and often does, impose specific rulemaking procedures within specific statutory schemes
§ These rulemaking procedures may be more detailed than the informal rulemaking procedures of 553 but less detailed than the formal rulemaking procedures of 556 and 557
G.     Formal Adjudication
§ 5 U.S.C. § 554(a) – This section applies … in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing….
§ [Review 5 U.S.C. §§ 554(b)-(e), 556 and 557 for specific procedures that govern formal adjudication] H.      Informal Adjudication
§ Not recognized by the APA; not mentioned
§ If formal adjudication under § 554(a) – “adjudication required by statute to be determined on the record after opportunity for agency hearing” – is not required, informal adjudication (not governed by the APA) may nonetheless be necessary if:
§ statute authorizing agency action requires use of some hearing procedures, or
§ constitutional principles of due process obligate the agency to follow some type of hearing process
I.        Judicial Review
§ 5 U.S.C. § 701 – [Judicial review] chapter [of APA] applies … except to the extent that–
§  (1) statutes preclude judicial review; or
§  (2) agency action is committed to agency discretion by law
§ 5 U.S.C. § 702 – A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
§  [This provision can provide constitutional “standing” (i.e., a legal right to review) if another statute does not provide such a right to review of agency action.] § General catchall that would give you the ability to have judicial review over a statute if the statute itself does not grant you the possibility for judicial review
J.        Scope of Judicial Review
§ 5 U.S.C. §706- The reviewing court shall-
§  (1) compel agency action unlawfully withheld or unreasonably delayed; and
§  (2) hold unlawful and

EPA delegated authority  to promulgate national ambient air quality standards (NAAQS)
§  D.C. Circuit: Delegation contravened Constitution b/c EPA had interpreted the statute to provide no “intelligible principle”  to guide the agency's exercise of authority.
§ Have to look to the statute to determine if we have a delegation problem
§ USSC.: D.C. Cir. got it wrong.  Section  109(b(1) of the CAA, which is interpreted as requiring the EPA to set air quality standards at the level that is “requisite”, not lower or higher than is necessary- to protect the public health w/ an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent
F.       Key to a Non-Delegation Doctrine Problem
§ Spotting and resolving the issue of a proper standard – an “intelligible principle” to guide and constrain agency discretion – is a matter of searching the enabling act in question for words that set out a standard
§ I/O/W, the issue of non-delegation is one that must be decided by examining the language of the enabling statute itself
§  Courts have not struck down an agency's interpretation based on Non-delegation grounds since the 1930s
§  Scalia: -Anytime you give decision-making authority to any group, you have to allow them space to make some decisions.  Can't require Congress to do more
G.      The Benzene Case
§ Issue – OSHA § 3(8) – “The term ‘occupational safety and health standard’ means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”
§ Industrial Union Dept. v. American Petroleum Institute (U.S. 1980) – a plurality of the Supreme Court interpreted § 3(8) of the Occupational Safety and Health Act to require OSHA to find, as a threshold requirement to regulating under § 3(8), that a toxic substance poses a “significant health risk in the workplace.”
§ Avoided voiding the statute due to non-delegation principles