1 / 20

The Procedural Requirements- 553

The Procedural Requirements- 553. The publication of a proposed rule What might happen to a rule if the agency fails either to provide public notice or An opportunity to comment. A rule can be remanded The rule can be invalidated The agency can be further ordered. The Challenge.

lowri
Télécharger la présentation

The Procedural Requirements- 553

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. The Procedural Requirements-553 The publication of a proposed rule What might happen to a rule if the agency fails either to provide public notice or An opportunity to comment

  2. A rule can be remanded • The rule can be invalidated • The agency can be further ordered

  3. The Challenge • Structure the rulemaking process • Proposal should be significantly informative • But further comment not a waste of time • How might an agency solicit information?

  4. Gathering Comments • Hold public meetings • Convene advisory committee(s) • Publish advance NPRM—sometimes required by statute • Publish regulatory agendas and RIA’s • Make rulemaking dockets available for public review

  5. Gathering Comments (more) • Fund public participation • Use outside consultants

  6. Representative Cases • United Steelworkers v. Marshall • Unsuccessful challenge to OSHA’s rulemaking on airborne lead • Involved allegations OSHA’s use of consultants violated a ban on ex parte contacts • Court treated consultants as de facto staff during post-comment period

  7. United States v. Nova Scotia Food • US sought to enjoin processing of smoked whitefish that violated previously adopted FDA rule • Rule’s objective was to minimize potentially fatal bacterial growth in processed fish • Processor’s defense for injunction: This rule is unlawful

  8. Nova Scotia (cont’d) • FDA wished to address the objective by requiring the heating of the fish at high temperatures • The time and temp of the processing could vary with the salinity of the solution in which the fish was brined • FDA adopted its challenged rule through informal rulemaking

  9. Nova Scotia (cont’d) • National Fisheries Institute and Bureau of Commercial Fisheries were not happy with the outcome • Both objected—wanted a species by species approach • FDA rejected the request—thought information not available • FDA thought immediate need to protect public • Thought standard the safest to combat botulism

  10. Nova Scotia • So FDA IGNORES the scientific possibilities that may have worked • FDA (also) fails to discuss the merits of the claims as to commercial feasibility • Defendant challenged the rulemaking as procedurally inadequate

  11. Nova Scotia (still continued) • Record to skimpy, • FDA failed to disclose its sources of factual information AND • Agency’s statement of basis and purpose was inadequate • What guidance is provided in the APA?

  12. 701(a) • Did this confer the authority to issue regulations? • Did the FDA have the authority to make binding rules under 701(a)?

  13. Hearings in Informal Rulemaking • Does the reviewing court have the power to order an agency to adopt hybrid rulemaking procedures?

  14. Vermont Yankee • In the absence of “constitutional constraints or extremely compelling circumstances” a court MAY NOT impose rulemaking procedures on an agency beyond those set out in Section 553 of the APA

  15. Vermont Yankee • Remember Florida East Coast? • It is up to Congress or the agencies to require more than notice and comment procedures • To the extent that an agency gives more process, it is within the agency’s discretion to do so, not the Court’s • Message to the D.C. Circuit freewheeling court: Stop this!!!!!

  16. Vermont Yankee • Any exceptions? The extremely compelling circumstances exception • But isn’t nuclear safety the epitome of an “extremely compelling circumstance?” • NRC adopts a grid approach

  17. What does the NRC do? • Held hearings, but not of the formal, on-the-record variety • Allowed public inspection of agency data • Allowed opportunities to present opposing position • Allowed representation by counsel • Incorporation of public comments into a reviewable record • And public inspection of the hearing transcript and • An opportunity to file post hearing comments

  18. Disallowed • Cross-examination and • Discovery among the participants

  19. Supreme Court says: • NRC had complied fully with all explicitly mandated APA procedures, and thus; • A court could not overturn its informal rule for procedural inadequacy • APA, per Vermont Yankee, mandates the minimum procedures required of agencies, and, at the same time, the maximum that courts may mandate.

More Related