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Administrative Law
University of Wyoming School of Law
Duff, Michael C.

Administrative Law: shortcut

1) Basic principles:
a) Agency Functions
i) Rulemaking
ii) Adjudication
iii) Investigation
b) APA: types of actions
i) Rulemaking v. adjudication
ii) Rule
iii) Order
iv) Adjudication
c) Sources of Law:
i) APA
ii) Substantive statute
iii) Agency rules
iv) Executive orders
2) Rulemaking Process:
a) How does the process start?
i) Agency must have statutory authority to make rules
ii) Agency may be prompted by one or more factors
(1) Statutory mandate, w/ or w/out deadline
(2) Political pressure
(3) Emerging issue
(4) Staff recommendations
(5) Lobbying from the outside actor
(6) Rulemaking petition
b) Rulemaking Petitions:
i) APA § 553(e)
(1) Agencies must give interested person the right to petition for issuance, revision, repeal
(2) Some agencies (not all) will have rules for the form/content of rulemaking petitions
(3) Agencies must decide on the petition (eventually) and explain denial [see § 555(e)] (4) If denied, subject to judicial review b/c this is a final agency action [see § 704] (a) Court must give “adequate explanation” why it didn’t make rule [Arkansas Power & Light Co v. Interstate Commerce Commision] (b) In order to pass § 706(2)(A) “arbitrary and capricious” standard court must
(i) Articulate a satisfactory explanation for its action including a rational connection b/t the facts and the choice made [Northern Spotted Owl v. Hodel (holding agency failed to explain denial of petition to add owl to ESA’s list even though experts said was going extinct)]

c) Congressional Influence over the process
i) Substantive Statutes which dictate that rules need to be made
ii) Procedural statutes might direct agency on what to do
iii) Congress appropriates money for the agency (appropriations committee)
(1) Congress determines how much the agency will spend and what they will spend it on
iv) Appropriations Riders
(1) Appropriations bill must pass every year, thus this is a powerful tool for affecting agency action
v) Congressional oversight: congress looks into how an agency carries out its responsibilities
vi) Confirming appointments
vii) Reviewing Specific Rules
viii) Private and public informal political pressures
ix) Threaten to legislate if not quick action
d) White House Influence on rulemaking
i) Appointments
(1) President appoints heads of cabinet agencies and most of the senior/midlevel positions
(2) President, as a practical matter, can remove those appointments
ii) Executive orders
(1) President can makes laws that apply to agencies, which give agencies generic power to carry out its business in a certain way
iii) Office of Management and Budget (OMB) of proposed actions
(1) As part of the White House, the OMB coordinates agency rulemaking activities and polices these activities to ensure that they are consistent w/ the presidents priority
(2) Budget requests : president sets budget priorities
iv) Policy Directions
v) Informal Influence
e) Judicial Influence
i) Judicial review of agency action
(1) Ensures that decision follow the law, either through enactment or inaction
ii) Hear some enforcement cases
f) Non-Governmental Influence
i) Media
ii) Provide information
iii) Lobby
iv) Comment
v) Other forms of informal persuasion
vi) Non-governmental organizations can get judicial review, go to congress, whitehouse, etc.
g) Key APA §§ re Rulemaking
i) Overview:
(1) Note: “informal rulemaking” is not found in the APA but it refers to the notice and comment section in § 553; “formal rulemaking,” similarly, is not found in the statute and refers to §§ 556, 557
(2) § 551: definitions of “rule,” “rulemaking”
(3) § 553: requirements for informal rulemaking
(4) §556-557: requirements for formal rulemaking
(a) provide for proceedings much like a trial
(b) apply if required by substantive statute
(5) § 701-706: Judicial Review
ii) APA § 551: definitions of
(1) rule
(a) Agency statement [§ 551(4)] (b) May apply to everyone (and usually does)
(i) May just apply to an individual company, for example
(c) Future effect (applies prospectively)
(d) Intended to
(i) Make, interpret or law
(ii) Or describe agency organization, procedure or practice requirements
(2) Rulemaking §551(5)
(a) Includes amendment/ repeal
iii) A

2) Preamble: explains rule, flags issues, gives data
iii) Here, as w/ other aspects of Notice and comment process, statutes, rules, executive orders often require more
iv) Notice must be adequate to let people know interest is on the table
(1) Rulemaking must “fairly apprise interested persons” of the issues in the rulemaking [United Steelworkers v. Marshall] (2) If an agency substantially changes the proposed rule in the final rule, this rule generally will be challenged
(a) Test for when proposed rule is different from final rule
(i) If the final rule substantially departs from the terms or substance of the proposed rule, then the notice is inadequate [Chocolate Manufacturers Ass. v. Block] (ii) Notice is adequate if the changes in the original plan are in character with the original scheme and the final rule is a logical outgrowth of the notice and comments already given
j) Comment Opportunity
i) APA § 553 doesn’t require much
(1) Agency must offer chance to comment in writing
(2) No minimum comment period
ii) But here again, agencies often do much more
(1) Public hearings, esp. if someone requests one
(2) 60 day comment period typical; may be extended
iii) Agencies may accept comment even if it’s not submitted in accordance with proposal
k) Ex parte contacts in Rulemaking
i) APA bars ex parte contacts in formal rulemaking
ii) § 553 [informal rulemaking] has no such prohibition for notice and comment process
iii) courts have differed on ex parte limits for notice and comment [Contrast HBO (restrictive view of rulemaking), Sierra Club (modern, less restrictive view) (113-123)] iv) Current Rule on Ex parte contacts in informal rulemaking:
If ex parte contacts are relevant to decision, then