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Chapter 6

PADP 6490 Chapter Notes - Chapter 6: Ethyl Corporation, International Standard Book Number, Hbo

Public Administration and Policy
Course Code
PADP 6490

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PADP 6490 Administrative Law
Martinez, Fall 2019
Require Reading 6, Part I!
Werhan, Keith. Principles of Administrative Law. Third Edition. St. Paul, MN: West Academic
Publishing, 2019. ISBN: 9781640201811
Werhan Chp 6, Informal Rule Making Under the APA
Informal Rule Making a written exchange between agency &interested members of the
(1) notice of proposed rule making
(2) period of open comment
(3) agency consideration of comments adjust final rule in response to infusion of
new information & different perspectives
(4) final rule with the statement of basis & purpose (which verifies actual
consideration of comment)
-“the written conversation between the regulators & the regulated will promote reasoned
decision making by agencies when formulation rules with the force of law”
Judicial Hybrid Rule Making
(a) the rise
-Congress enacts a series of enabling acts dramatically increasing the rule making
power of agencies
-increase of administrative power & decease in procedural formality sparked
reaction by reviewing courts that intensified procedural & substantive judicial
review — flexible interpretation of the APA
-courts prod agencies to adopt “hybrid” procedures lying between formal &
informal rule making
-Ethyl Corp. v. Environmental Protection Agency emphasized procedural over
substantive review (aggressive review of agency rule making procedures)
(b) the demise Vermont Yankee
-Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council
Court settled that APA established max procedural requirements imposed
upon agencies . . . at agency discretion to grant additional procedural rights,
but reviewing courts are generally not free to impose them if agencies have
not chosen to grant them
court can overturn agency action if
(1) instances when procedural due process applies
(2) agency’s “totally unjustified departure from well-settled agency
procedures of long standing”
decision reaffirmed the traditional model of administrative law . . . reminded
reviewing courts not to trespass on agency’s domain of deciding how best to
implement its enabling act
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PADP 6490 Administrative Law
Martinez, Fall 2019
Informal Rule Making after Vermont Yankee
(a) Notice of Proposed Rule Making
APA components of notice requirement
-either the terms of substance of the proposed rule or a description of the
subjects & issues involved
-two parts: preamble (describes legal & factual basis & policy purposes) &
text of agency’s proposed rules
functions of notice requirement
-helps improve quality of administrative rule making by exposing agency
proposals to diverse public comment — subjecting findings & assumptions
of officials to public scrutiny will foster rational & informed rule making
-furthers the values of fairness & democratic participation by providing
interested members of the public & opportunity to shape the formulation of
rules that govern their conduct
-facilitates effective judicial review by inviting proponents & opponents of
the rule making to submit evidence supporting their positions for the record
The Logical Outgrowth Rule when does an agency’s modification of a
proposed rule require another notice of proposed rule making inviting additional
public comment?
-is the final rule a “logical outgrowth” of the rule making proposal?
-logical outgrowth: if interested members of the public “should have
anticipated” the change
-Chocolate Manufacturers Association v. Block
-agency must disclose factual material underlying rule making proposals
-disclosures must be “in a form that allows for meaningful comment” (Engine
Manufacturers Association v. Environmental Protection Agency; Federal
Communications Commission v. WNCN Listeners Guild)
-uncertainty about requiring agencies to disclose for public comment relevant
information they acquire after publication of the notice of proposed rule
making (Portland Cement Association v. Ruckelshaus; Building Industry
Association of Superior California v. Norton)
(b) Public Participation & Agency Consideration
APA Section 553(c) requires agencies “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”
APA Section 553(c) obligates agencies to consider the relevant matter presented
(c) Final Rule & Agency’s State of Basis & Purpose
Section 553(c): require that agencies “incorporate in the rules a concise general
statement of their basis and purpose”
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