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Administrative Law
Wayne State University Law School
Hall, Noah Donald

Administrative Law Hall – Fall 2015  
WHAT IS ADMINISTRATIVE LAW?: process by which gov’t makes rules and regulations
APA: defines procedural rights of persons outside gov’t, structures manner in which people within gov’t make decisions
Agency: Almost the fourth branch, authority of the gov’t, whether or not it is within or subject to review by another agency, not including:
l  (A) Congress
l  (B) Courts of the U.S.
l  (C ) govts of the territories or possessions of the U.S.
l  (D) govts of the District of Columbia, or except as to the requirements of 552 –
l  (E) Agencies composed of representatives of parties or reps of orgs of the parties to the disputes determined by them;
l  (F) Court martial and military commissions
l  (G) military authority exercised in the field in time of war or in occupied theory
Definition is broadly inclusive
Massachusetts v. EPA: Departments have the highest status
–       Usually headed by a secretary (all heads used to be called the Cabinet)
–       Executive agencies – Agencies within Departments
–       Headed by a single person
Anything lower than a department: Agencies, services, bureaus (all admin agencies, order within each Dept. doesn’t matter).
Congress designates what admin or agency is responsible for which area of law, and person who is entrusted with the laws of that agency
Gov’t corporations may or may not be agencies – generally, when Congress wants to use the corp to carry out gov’t business, it doesn’t intend the corp to be subject to procedures applicable to agencies!
Franklin v. Massachusetts – President is NOT an agency; not subject to APA
Highest level: Department (of State, Defense, Health and Human Services). Headed by a Secretary, with the exception of Dept of Justice- AG
Lower levels: Agencies, Services, Bureaus, etc.
What do agencies do?
Regulate private conduct, redistribute wealth across economy  – fix imperfections in market by redistributing highs and lows
(1)     Regulate private conduct → regulatory agencies (most important) (can give you $$ to do something, or charge you $$ to do it), Otherwise problems with fairness and equality (employment discrimination, civil rights regulation)
a)       Imposes set of rules, norms, guidelines on free market
b)       42 regulatory laws enacted from 1962-1978, 111 regulatory functions undertaken by state
c)       Why regulate? Private market system can be remedied by gov’t, keeps market fair (otherwise companies could mislead, exploit customers in monopoly), non-economic reasons (to prevent discrimination on basis of racial characteristics, etc)
(2)     Administer entitlements programs – give away resources
a)       Redistributing wealth (Social Security, Medicare/Medicaid, welfare, food stamps), also includes highways, etc. (Tax on infrastructure and gas tax pay align payment with usage of roads)
b)       Ultimately benefits entire public b/c allocation of resources encourages/discourages certain behavior
                                                    b.i)            If gov’t doesn’t want you to buy something, will tax it heavily (cigarettes)
(3)     Everything else (IRS, Immigration, Treasury)
a)       IRS collects taxes, Immigration admits/deports, Treasury clears goods into U.S., Dept. of State issues passports
** Education is an area where the gov’t regulates, but also provides services, so falls under (1) and (2)
Independent agencies: free standing, not part of departments, more independent from president’s influence, bipartisan representation
–       headed by group of 5-7 people, members can only be removed for cause, serve term of years that doesn’t fit within presidential terms, majority can’t come from any one political party
Ex: National Labor Relations Board (NLRB), Securities and Trade Commission, Federal Reserve Board, Social Security Admin, EPA, Federal Energy Regulatory Commission (located in Dept of Energy, but is independent)
–       Pros: LEAST political, in theory can’t be pressured to do something they don’t want to
Executive agencies: appointed by President, serve at his pleasure → directly accountable to elected official
–       not freestanding, but within a department, usually headed by a secretary, almost always all members of President’s political party, serve until resign or are fired
–       Pros: President might run for office just to be able to direct his executive agencies on what to do
State equivalent agencies are headed by elected officials/voters, not officials appointed by the governor, so they are politically accountable
Ex: Secretary of State, Attorney General — at will appointment
MI: direct election → electorate votes for heads of agencies with different agendas than the governor
externality: unintended costs and benefits of an activity that are not taken into account by the actor himself (don’t take into account all impacts of your decision)
Ex; Food safety – if food simply tastes bad, gov’t won’t step in to regulate market, but if it causes death, we want gov’t regulation to come in advance.
Ex: Minimum wage: dumping externality on rest of society – someone will have to pay for person eventually
THREE TYPES OF AGENCY ACTION:Rulemaking, Adjudication, Enforcement
APA: way to define agency’s rights, compromise between holding agencies accountable and allowing gov’t to act without paralysis.
(1)     Defines procedural rights of persons outside the gov’t
a)       Covers everything except Congress, the courts
b)    Most of the law has come about through cases
(1) Rulemaking: 553 Legislative – when Congress passes a general statute.
(b)     must publish notice in Fed. Register, unless persons subject to rule personally served or have actual notice
3(a) Does NOT apply to interpretive rules, general statements of policy, or rules of agency org, procedure or practice, OR
(b) good cause exception making notice impracticable, unnecessary, or contrary to public interest
(c)Must give opportunity to participate in rulemaking through submitting data, arguments (not necessarily oral presentation). Agency must incorporate rule into general statement of basis and purpose, publish it no less than 30 days before effective date.
(e) Agency must give right to petition for issuance, amendment, or repeal of a rule
Applies far beyond a specific actor – don’t usually want it to target just one person or company.
Procedures must be followed UNLESS rule concerns (1) military or foreign affairs, OR (2) agency, personnel mgmt or public property..
Rules have the same effect as if written by Congress.
Limited to what agency has been delegated by Congress (can delegate HOW hazardous waste is cleaned up, but not who does it)
–      Actions that generally have a future effect → PROSPECTIVE (gov’t changes applicable rules of conduct moving forward)
(2) Adjudication: Judicial function/Article 3. → ANY ACTION THAT IS NOT RULEMAKING OR INVESTIGATION. Subject to review!
(Unless gov’t is telling you a new rule moving forward, or enforcing violation of a rule, they’re making an adjudicatory decision!)
Decides whether someone violated rule, or whether they qualify for something.
ANY final agency disposition  – Decision has the same force of law as if made by the court.
Decisions are only quasi-adjudicatory bc limited to boundaries of APA → Can only adjudicate on issues that they are delegated power over
Applying existing statute/rule to a set of facts to determine outcome (see if violation, or person/entity qualifies for entitlement)
Many agencies can’t adjudicate violations of statutes – must bring action into fed ct to enforce regulation
Modern view: agency can issue compliance order (injunction) and penalty order (fine)
Unless Congress or leg. has authorized agency to compel docs or info, agency must rely on parties to provide the info voluntarily. (Leg. can request periodic reports from agency, or authorize inspection of premises to make sure in compliance with regulations)
–       Types of review:
–       De novo – court substitutes its judgment for the agency’s
–       Must agree with the decision in order to uphold it
–       Substantial evidence: court will uphold decision if reasonable
–       Does not need to agree with decision to uphold it
–       Arbitrary and capricious: court will uphold unless abuse of discretion (VERY deferential, but used interchangeably with substantial evidence)
–       Must affirm unless arbitrary
INFORMAL: 554 controls whether informal is used. pp.793 — 3 step process
No procedure mandated!!
When procedure must be followed: (1) When statute requires it, (2) If Due Process clause applies to agency’s action; must have “some type of hearing”
(1)     Publish notice of proposed rule in Federal Register
a)       except for “interpretive rules, general statements of policy, rules of agency org, procedure and practice,” or “good cause”
(2)     Must give interested persons an opportunity to participate in the rulemaking process
a)       Allow written data, may or may not accept oral presentations
(3)   Must provide concise general statement of basis and purpose in the Federal Register
FORMAL: 554: Adjudications (a) controls whether formal is used. IF YES, use procedures from 554, 556, 557
553(c): formal when “rules are required by statute to be made on the record or after opportunity for agency hearing” → magic language  → very few agencies have this type of language!! So most use informal adjudication.
Burden of proof is on agency.
Resembles a trial -crossexamination allowed
Deference does not need to be given to ALJ’s finding, but decision must be made on entire record (557)
(1)     Must give notice of hearing (554b)
a)       time, place, nature
b)       legal authority and jurisdiction
c)       matters of fact and law asserted
(2)     Chance for settlement
a)       also, opportunity for submission/consideration of facts arguments, nature of proceeding
(3)     No ex-parte communication by presiding party
a)       may not consult person or party on fact in issue, unless all parties can participate
b)       can’t supervise employee who is engaged in investigating or prosecuting for the agency
(4)     Hearing must comport with 556 (on hearing) and 557 (on appeal)
a)       556: Hearings, presiding employees, powers and duties, burden of proof, evidence, record as basis of decision: ALJ must be independent, burden of proof on agency, oral and written evidence can be received, allows cross-exam., any decision must be based on entire record including hearing, transcript, doc. evidence
b)       557: Initial decisions, conclusiveness, review by agency, submissions by parties, contents of decisions, record: ALJ can decide case, then staff/parties can appeal decision to agency’s administrator, final decision must be justified in a written opinion on basis of entire record
HYBRID: adds some procedures from 553(c), but doesn’t go as far as 556-7
For new agencies, Congress has added some additional procedures to those required in 553. (Statute tells agency to do something more than is required under APA)
Ex: FTC process for creating trade regulations (informal hearing with oral presentations and cross-examination of witnesses)
Judicial Review: 701 – Not all decisions are subject to judicial review.
No judicial review if: (1) statute precludes it, OR (2) Congress left it to agency’s discretion.
Can only seek review if: (1) final, (2) all admin remedies exhausted, (3) ripe, (4) standing (injury in fact, causation, redressability). Court can review constitutionality of agency action, whether it’s contrary to statute, adequate procedure, and substantive adequacy of decision
(3) Enforcement: Executive branch function of law enforcement.
Can’t regulate anything permitted by Constitution. Subject to judicial review as to not overstep authority.
–       Regulation published in Federal Register – gives notice re proposed/final rules and agency actions
–       If agency doesn’t follow all procedural reqs, regulation is NOT valid!
Legislature can authorize agency to compel release of info through subpoena (most common investigative tool)
Agencies publish in Federal Register, CFR is published annually (lists detail left out by Congress in FR)
RULEMAKING & PROCEDURES (553): Always start with legislation; agencies can’t act without legislative authorization – Act in response to statutes, recommendation, petitions, political pressure
Sources of Proposed Regulations:
(1)     Legislation requiring specific regulation – RARE (what needs to be regulated, deadline to be regulated by)
(2)     General regulation – to protect safety, public interest, necessity (gives agency discretion)
a)       Congress says there’s a problem and charges an agency with handling it
(3)     Staff recommendation – after identifying problems within agency
a)       bottom-up: proposals originate with staff, lobbyists representing public
b)       top-down: proposed by White House or Congress
                                                    b.i)            Congress can cause agency to propose rule in order to avoid investigation prompted by complaints, can also threaten to reduce agency’s budget, limit future agency action, political pressure
                                                  b.ii)            Pres can prescribe ideas to fit within his current policy
                                                 b.iii)            Congress can also (1) Change the law (infrequent), or (2) Hold hearing to show approval/disapproval of what agency is doing, but there is nothing legally effective about this
(4)     Petition from interested person (553e)
a)       Lobbying
b)       Petition process – written doc for best case of why agency MUST (rare) or SHOULD (more often) have new rule
                                                    b.i)            Each agency may have its own specific rules for filing petition
                                                  b.ii)            Often, agencies have rule stating they must consider petition and give prompt notice/reason if denied. Otherwise, can seek judicial review
                                                 b.iii)            Agency inaction/delay 551(13): generally say no decision has been made bc of limited resources — Court can order agency to change its priorities and make decision, BUT it cannot access the priorities of the agency
Initiating agency action:
If action has already been taken:
–       convince them they are harming their own interests (what is primary for you may be secondary to them), lobby at staff level
Read newspaper (How does your proposal fit into admin policies?) Know your audience (Describe which admin goals the policy will accomplish) Read the rules (Know when ex-parte rules apply when you can’t talk to the staff)
Problem 2-1: Lobbying the Agency
Manufacturer needs experimental use permit to test pesticide on small scale (Difficult to get). Risks for bioengineered products are unknown, so agency refuses to broaden rule to exempt small scale field tests for pesticides produced by biotechnology, though they exempt small scale tests for chemical pesticides.
Plan: Begin lobbying – Meet with potential opponents first in hopes that they will want same thing. Even if you are in position to meet with superior, you shouldn’t! Best to go to staff person who actually deals with issue! Plan B: Use pressure. Go to top of EPA, or Congress.
Agency Inaction/Delay: Must give you response in a reasonable time.
551(13): “Agency action” to include “failure to act . . .”the reviewing ct shall compel agency action unlawfully withheld or unreasonably delayed. Is the agency’s delay so egregious as to warrant mandamus? (Filed in order to force agency to do something it is obligated to do).
Telecommunications Research & Action Center v. FCC
FCC hasn’t acted re petition on whether AT&T needs to pay back overages. FCC set 3 deadlines, it’s been 6 yrs.
Factors to consider in determining what is reasonable response to petition: (1) time to make decision is governed by rule of reason, (2) whether Congress has provided timetable for speed it expects of agency, (3) whether harmful to health and welfare, (4) expedite issues of higher or competing priority, (5) nature and extent of prejudiced interests, (6) any impropriety behind the delay
Held: Because FCC said they’re working on it, Ct won’t interfere with agency’s process; only want to review final rule!
Hall: Wait 3 yrs before filing action for unreasonable delay, but you better have really good facts. Facts should be really good by 5-6 yrs. Client is just wasting money challenging the delay within the first 2-3 years
1-3 Yrs = agency has a pass. 3 Yrs = file unreasonable delay IF you have phenomenal arguments. 5-6 Yrs = definitely file
Filing a petition is a way to force some action out of the agency if it is otherwise reluctant.
Refusal to initiate enforcement proceedings is not usually subject to judicial review.
Denial of Petition:If petition not responded to within reasonable time or if agency rejects petition, can seek judicial review (extremely limited and highly deferential).
–       Depends on what laws are applicable and on what basis the agency denied the petition.
–       All the agency needs to do is offer substantive/rational arguments/points in order to successfully deny a petition, and then all the judge has to do is say they defer, although they don’t have to defer – Arkansas
–       The agency can also just say they lack sufficient resources to contemplate it, so denial is ok → Court not in the position to assess the relative priorities of the things agencies do
        (1) Prompt notice of denial in whole or in part of a written application
(2)     Brief statement of grounds of denial
Standard of review: Abuse of discretion
Arkansas Power & Light v. ICC
Wanted ICC to revise rates that they must pay railroad to transfer goods. ICC says regulatory control is inconsistent with Act, nationwide guidelines would be hard to develop, and cannot get data without undue hardship. Instead look at case-by-case basis.
Held: Defer to ICC. Cts rarely compel agencies to institute rulemaking. Just make sure agency adequately explained facts and policy concerns its relied on, and that the facts have some basis in the record.
 Substantial evidence standard – agency can just deny and give substantive rational points to justify their position (but can’t just say no). Judge doesn’t have to agree with them, but will generally defer.
Massachusetts v. EPA
Mass. seeking new standards for CO2 emissions from cars, concern about climate change. EPA allowed to regulate air pollutants from stationary sources, according to leg. authority.
EPA general counsel issued memo saying it was within its authority to regulate this. EPA denies petition 4yrs later, citing lack of legal authority, discretion for when and what to regulate, climate change as an international problem so regulation won’t do any good, that it would be unwise to do, and that science is uncertain. 
Held: Decision is arbitrary and capricious bc EPA didn’t give reasoned explanation for failure to decide whether greenhouse gases contribute to climate change. EPA must ground its reason for action/inaction in the statute.
Hall: agency shouldn’t have even responded, should’ve sat on it for years.
Regulatory decision or enforcement? When agency decision involves both rulemaking and enforcement, the court treats it as rulemaking!! (When in doubt, hold agency accountable in rulemaking).
Enforcement/Investigation = agency has TOTAL discretion                          Rulemaking = agency has to respond and give reason
Current reality: Admin agencies by practice and design systematically avoid most key provisions of APA such that exceptions to the APA or types of agency actions not contemplated by the APA are no longer the exception but the norm
U.S. v. Allegheny – when 553 triggers formal rulemaking
Must have specific language:
“When rules are required by statute to be made on the record after opportunity for an agency hearing.” Hardly ever used; ONLY one way to make agency do it, by using this language. 556 and 557 apply ONLY when required by 553 (when statute requires a hearing)
U.S. v. Florida East Coast Railway Co
Challenged order, arguing there should’ve been hearing. Held: Not formal bc magic language not used – missing term “on the record.”  Party only has right to submit written comments, not entitled to oral testimony or cross-examining opposing witness. More hearing, more procedure don’t promise you a better policy decision!  No special requirements sought of any particular railroad.
Vermont Yankee Nuclear Power Corp. v. NRDC -You only have procedure that is specifically provided.
Sought hearing. Held: Agencies are free to grant additional procedural rights at their discretion, but reviewing courts are not free to impose them if the agencies have chosen not to grant them.
Why not open the door for more process? Everyone will adopt hearing so you will lose the inherent advantage of being able to have a hearing. Also, if decided differently, the next time things came up, agencies would have to allow more and more procedure to make sure they weren’t overturned, and it would turn into a formal proceeding over time. Why doesn’t court want to see this? Waste of court’s time and money. Also, it’s not true that more procedure is results in a more accurate record.
** Before this case, many courts enforced notice req (553) according to purposes perceived to be behind it, not according to its terms***
EXCEPTIONS – 553(a)(1)
Rulemaking doesn’t apply to: (These agencies can engage in rulemaking without seeking your participation)
(1)     Rules involving military and foreign affairs
a)       (possible national security issues – must move fast. But problematic when DoF takes actions affecting citizens’ lives)
(2)     Rules involving Agency/Personnel Management
a)       (Bureaucracy, doesn’t affect public)
(3)     Rules re public lands (forest service), student loans, grants, benefits, or K
Even when agency is exempt, gov’t still must publish rule, or people don’t have to follow the rule! Why? ABA worried about gov’t acting on private persons by restrictions, to ensure that agencies retain latitude in organizing internal operations, when their actions don’t alter rights/interests of parties. Congress has also eliminated the exception for some agencies. All are subject to FOIA though (552)
Many agencies have voluntarily waived these exceptions and subjected themselves to 553. (Dept of HHS, Agriculture)
If agency doesn’t publish rule in Fed. Register, or if people don’t have actual notice of rule, they can’t be adversely affected by it.
EXCEPTIONS FROM NOTICE AND COMMENT: 553(b)(3) & 552(a)(1)(D) Substantive rules of general applicability, policy or interpretation
Is action substantive or procedural?  Look at degree, gravity of substantive effect that makes N&C necessary
Does it include substantive value judgment or put stamp of approval/disapproval on a given type of behavior?
(1)     rules of agency, organization, practice
(2)     interpretive rules
(3)     general statements of policy
(4)     Other rules for which notice and comment are impracticable, unnecessary, or against public interest → GOOD CAUSE exception
                                                    a.i.            Impracticable: agency function would be hindered by public proceedings
                                                  a.ii.            Unnecessary: as far as public is concerned, the amendment is minor/technical
                                                 a.iii.            Public interest: lack of public interest in the rulemaking
(A-C) can be grouped together – when agency is doing something that doesn’t directly affect you, but how it operates within itself, NOT subject to note and comment. BUT, difficult when there’s connection between agency’s action and individuals.
GOOD CAUSE: advance notice defeats objective, urgent to avoid health hazards, inaction would dislocate gov’t programs in marketplace)
In case of emergency which prevents notice and comment under 553(d), APA doesn’t require later notice and comment, and doesn’t limit the time the rule can remain in effect for! Model State APA MAY require later notice and comment within 2 yrs of rule being made. If this is triggered and the agency doesn’t provide notice and comment, the rule goes out of effect in 180 days
Interim final rule: agency adopts rule w/o notice and comment for GOOD CAUSE, but still invites public to comment, may amend the rule 
Direct-final rulemaking: invented by EPA – agency publishes final rule in Federal Register with statement that it will go into effect unless adverse comment is received by a particular date. If adverse comment is received, agency withdraws the rule and then publishes it as a proposed rule under notice and comment procedures. Done where age

s of rule, etc.
b)       Cts look at statements of research, analysis, other info supporting proposed rule
BUT, not uncommon for agency to decide that final rule should differ from proposed rule.
Pro: Want to encourage agency to make positive change, otherwise defeats purpose of comment period
Con: Don’t want to allow fundamental change without opportunity to comment
(4)     Notice must fairly apprise interested persons of the issues (final rule = logical outgrowth)
Ask: Were parties affected by final rule put on notice that THEIR INTERESTS WERE AT STAKE? Was the issue they are interested in on the table; will it be addressed by a final rule?
a)       Notice not required if those subjects of the rule are named, personally served, or have actual notice (rare)
b)       Publication in Register is enough even if affected/interested party is unaware of notice
c)    If agency fails to disclose, ct will remand for a new notice and comment period
Chocolate Manufacturers Association v. Block→ NO ADEQUATE NOTICE
Adequate notice if: changes are “in character with original scheme,” final rule is a “logical outgrowth,” and parties affected were put on notice that their interests were at stake. Inadequate if final rule substantially departs from terms or substance of proposed rule.
Proposed rule for putting cap on sugar content in cereal, but didn’t mention sugar as it relates to milk. Commenters recommended taking flavored milk off list of approved supplemental foods. Dept. deleted flavored milk from list of approved foods. Chocolate manufac. argue they didn’t have adequate notice that Dept would be considering removing flavored milk. Dept argues notice of concern of high sugar content should have apprised all interested parties that they would be seeking to eliminate foods with high sugar content. That flavored milk was included in the proposed rule signified it might be included or excluded from final rule.
The proposed rule and preamble discussed negative effect of high sugar content in general and in relation to cereals and juices, but not in relation to flavored milk.
Only reference to flavored milk was in 2 pg discussion of individual food packages, stating that the rule would allow milk to be flavored or unflavored. Proposed rule specifically stated that flavored or unflavored milk was permitted.
How well does the notice given serve the policies underlying the notice req? Here, substantial departure from what proposed.
Held: NO adequate notice; proposed rule was very detailed and specifically didn’t state flavored milk would be excluded. Was a logical outgrowth, but NOT in character with original scheme
If agency had said, “we love chocolate milk it is staying” then CHOCOLATE should have known that the rule could be completely opposite
Black Letter Law:  An interested party must have been alerted by notice to the possibility of changes eventually adopted from the comments. Although an agency, in its notice of proposed rulemaking, need not identify precisely every potential regulatory change, the notice must be sufficiently descriptive to provide interested parties with a fair opportunity to comment and participate in the rulemaking.
Key issue is not whether you have adequate notice that agency will reach outcome in issue, but whether agency is considering issue at all. Never assume that b/c agency’s proposal is what the client wants, that you don’t need to do anything. It doesn’t matter if the agency is proposing to decide in your favor, you are on notice that they could act otherwise. 
Courts have upheld final rules which differed from proposals in the following ways:
–       Outright reversal of initial position
–       Elimination of compliance options
–       Collapsing, or further subdividing, distinct categories of regulated entities established in proposed rule,
–       Altering the method of calculating/measuring a quantity relevant to a party’s obligation under the rule
Rule will be invalidated if
–       No notice was given of an issue addressed by the final rules.
–       Issue was only addressed in the most general terms in the initial proposal, or
–       Final rule changes a pre-existing agency practice which was only mentioned in an NPR in order to place unrelated changes in the overall regulatory scheme into their proper context.
Existence of comments on issue is evidence of adequacy of original notice, but it can’t be established based on such comments alone.
Problem 2-5: Lack of Notice
USDA’s requirements of dietary standards for school lunches is outdated. USDA proposes rule that limits calories from fat, reduces sodium and cholesterol and increases dietary fiber. VEGI comments seeking requirement of 5 vegetarian meals per month b/c many families don’t comply with dietary standards at home. USDA implements VEGI’s comments.
l  What can beef producers argue?
   That the implementation of vegetarian lunches isn’t a logical outgrowth of USDA’s initial desire to comport with the 1990 guidelines, that the survey evidence is insufficient or not representative of those who partake in the subsidized meal program. Proposed rule is not specific enough! You could cut out the fat by serving smaller serving size of beef to kids, but still keep serving it. → These would be logical outgrowths of the proposed rule.
l  Argument that USDA has complied with 553?
  Mandating vegetarian meals was a radical departure from the norm, so parties should’ve been on notice of possibility of change. VEGI would argue there was notice bc the guidelines were being changed to include healthier meals, which would mean less beef would be served, and USDA is just expanding its requirements
l  If court says the meals were NOT included, the agency could next time:
   Make a rule w/ more specificity (this might lead to cutting off its ability to change the rule though)
  Make a general rule (this could be overly broad and the court could strike it down)
  Add disclaimers saying you can use additions for the comment period
l  What do you get if you win?
  Remand for new notice and comment period. If your application/suit will delay or stay the rule, then it’s worth it. Litigating for delay not always unethical when it comes to admin. If you wait 2 yrs, chance that admin will change.
OPPORTUNITY TO COMMENT – 553(c) “opportunity to participate in rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation”
(1)     Submission of written data, views, or arguments (no req. for oral presentation or hearing)
a)       INFORMAL: ex parte allowed
b)       FORMAL: ex parte prohibited
(2)     Rule must be published 30 days before effective date (this doesn’t mean there’s a 30 day comment period)
a)       most agencies provide for 60+ days for complex, controversial rules
(3)     No specific time period; no req for oral presentation or hearing (most statutes authorize it though)
(4)  Hybrid res – some states specify time for comment; most provide 60+ days for controversial ones
(1) EX PARTE COMMUNICATION: talking to court without involvement of other party, outside proscribed procedure
An agency can adopt prohibitions/limitations on its own
Prohibited where rulemaking involves “conflicting claims to a valuable privilege” 
HBO v. FCC – Outlier.
FCC met with interested parties many times to negotiate loosening of restrictions on cable regulation. Impossible to know how the comm. affected final rule, but appearance of undue influence.
Held: Communications BEFORE formal notice of rulemaking don’t need to be public, but once proposed rulemaking is issued, they do, and officers should refuse to talk to interested party. However, if the comm. before formal notice of rulemaking form basis for agency action, info must be disclosed to the public in some form. 
Proposed rulemaking requires agency to set out its thinking – allows critique and lets public know what the agency’s experts think. Shouldn’t have ex-parte comm, but if you do, must be docketed and disclosed to court. Informal contacts between agencies and public are completely OK, so long as they don’t frustrate judicial review or raise issue of fairness.
Sierra Club v. Costle – Precedent for general rulemaking
(1)EPA accepted comments on rule on coal emissions after deadline, but didn’t let Fed. Reg. or public know it was receiving late comments, reopen the comment period (not prohibited!) (2) Held 9 meetings w/ interested parties. Adopted lenient standard after. Sierra says EPA would’ve adopted stricter standard if it hadn’t succumbed to political pressure.
Held: In general policy rulemaking, agency can listen to comments after notice and comment, just has to put it into the record. Ct refuses to extend HBO to general policy rulemaking.
Ct says the comment period, which lasted 4 months, was sufficient. No sign that documents central to public comment were entered into the record too late.
Problem 2-6: Ex Parte Communications:
Beef producers learns that USDA is writing a preamble justifying its VEGI decision, and wants to show Sec. of Agriculture that this would actually impose additional costs while actually harming children's’ health. Beef contacts senators and congressmen from various states, and finally calls Sec. of Agriculture, asking for an appt to talk about the school lunch program. Sec. also receives invite to talk to members of Congress about this. Sec. would like to meet with everyone.
l  What can and can’t the Sec. do? Depends on whether it’s a judicial action or legislative action.
Key difference between admin rules in MI and federal level:
–       Request for rulemaking, draft rule process is essentially the same
–       BUT Michigan requires regulatory impact statement (RIS) and cost-benefit analysis
–       Under state law, public comment allows changes to final rule.
–       Under federal law, public comment does NOT merit changes to final rule.
–       MI: can make minor, non-substantive changes
–       Federal: can make huge substantive changes → Chocolate Manufacturers case.