Dont forget about Gonzlez and the Tobacco case

Requirements of 553
If not hearing on the record language then informal notice and comment rule making applies 1) Notice of proposed rulemaking 2) Opp to participte 3) Statement of Basis and Purpose Notice 1) 2) 3) 4) o

Notice Publish in Federal register Reference to legal authority for the rule Description of the subj/rule Logical Outgrowth Must renotice when orig notice did not adequately frame the subject for discussion and final rue was not a logical outgrowth of the original o Rule must be sufficient so that opponent get adequate opp to comment on rule 5) New Information o Agency makes grave error if does not release tech basis for rule in time for comment. If receive new information during comment, that agency relies on and is not supplementary, it must renotice/comment- Conn Power o If get new info in Comments, but law remains log outgrowth- no re-notice necc unless new info not merely supplementary and would prejudice interested parties

Opp to participate o Must schedule comment period for comment under 553, VT Yankee states ct may impose nothing above the requirements of 553 and the organic statute State of Bas and Purp o Under 553 Agency must issue a statement that 1) sufficiently indicates the agency RS so that a reviewing court need not rummage through the record and 2) adequately respond to comments which, if true, would require a change in the proposed rule o Possily under Arb/Cp standard o Remember to look at reasoning and tie to lang of Org stat

Arb/Cap Standard
Applies to findings of Fact in informal proceedings and Substantive agency Judgement Findings of Fact o Just like the Jury Standard, ct will only overturn when no RS person could have reached the same conclusion - Rig safety issue and danger of deep drilling- look at ev used for each side

Substantive Agency Judgement o Careful ID by agency of why chose on course over another, or where no factual certainty exists or are incomplete, ID what considerations it found persuasive o Agency must apply reasononed analysis and: 1) Examine relevant data & factors 2) Articulate a satisfactory explanation 3) Show rational connection between factors and decision o Agency commits clear error when 1) Rely on factors Cong hadnt intended them to 2) Entirely failed to consider an important aspect of the problem 3) Offered explanation runs counter to the evidence 4) Decision was so implausible it cant be result of difference in view or agency expertise

Appointment and Removal

A. Appointment o Cong may vest apt of inferior officers in the exec, courts of law, dept head, or o A court of law qualifies if it exercises judicial authority to the exclusion of any another function and is independent from the Exec and Leg. o Agency Head is generally a PO o Free Ent: if has supervisor who has: 1) power to remove at will (No cause req) 2) oversight Authority (approves rules/regs first) o Morrison Independent officer test says officer is an IO when: 1) Subject to removal from a higher exec officer(not pres) 2) Empowered to preform limited duties (invest & Pros- no rule/adjud) 3) Is Limited in JX (only invest single case) 4) Limited in Tenure (Length of case/invest) o Dont forget about issue of requirements/qualifications reqd by cong above confirmation by senate B. Removal o Restriction is Const under Humphries depending on nature of position- if quasi jud/quasi leg work, then can req for Cause provision. If completely exec, Exec should have complete control o Tempered by Morrison- if restriction impeded presidents ability to perform constitutional duty faithfully, then it is unconst - This can still restrict PO but very hard o Free Ent says no double for Cause req- pres must have some control

Exceptions to 553
1) Procedural 2) Policy Statement 3) Interpretative rule 4) Good Cause

Procedural IF the rule regulate primary conduct, then it is substantive not procedural Policy Statement A policy statement is a statement that is not binding on the agency or regulated party and imposes no new rights or obligations on reg parties- just an opinion on Policy Look at intent of Agency, How they have used it, & if used boilerplate Discretion Lang Interpretave Rule Interp rules are binding, but cant impose a new obligation, just interp existing rule- question is a Good Cause To estab good cause, theremust be 1) an emergency 2) rule must be narrow and generally only interim. Also must give facts/basis for emergency Use Adjud to avoid rulemaking Chenery- Agency can create rule through adjud Be sure to state RS for action/decision so court can review and may not be applied in current case. Be sure Org stat allows for informal adjud!!

Due Process
Due process applies to adjudication only 1) Was there a deprivation of Life/lib/prop? a) Have prop interest if have legit claim of entitle that is not a unilateral expectation of a benefit- often Tenure/for cause type lang b) Have Lib interest if engaged in a common occupation of life + Prison Case 2) What procedures are required? Baseline req of pre-dep notice w/ opp to respond and post-dep explanation or hearing Mathews maw req addtl proceedings: 1. Private interest that will be affected 2. Risk of erroneous deprivations & benefit of addtl procedures 3. Govt interest- Fiscal and Admin burden 4. If there is a credibility issue, and oral arg may be reqd

Exceptions to adjud (safe harbor) Most often are licenses(adjud) unless are so broad as to qual as a rule If applies to an entire class of people and prospective then likely it is a rule and reqs rule procedures- Compare to Fox v. FCC If not an adjud, must be an exception to the rule and find way to fit into a 553 exception

Judicial Review Legal conclusions o Chevron- When making rule with the force of law(notice/coment or formal adjud) then ct wil look at 1) Whether Cong spoke directly on this precise issue (ambig) - Determine using trad tools of stat interp- Dict or leg hist 2) If yes, was Agency RS, ie is a permissible construction of the statute and did the agency make detailed and reasoned decision o Skidmore- When decision doesnt carry force of law, the Agency is entitled to respect if the reasoning is persuasive. Persuasiveness based on: 1) Thoroughness of evidence in consideration 2) Validity of the reasoning 3) Consistency with past announcements 4) Do these factors give power to persuade? o Auer- When agency is interp its own ambiguous reg, chevron step two RS test 553 Notice and Comment rulemaking 554 Formal Adjud 1) Notice -Time place and nature of hearing 2) Matters of fact and law asserted 555- Informa Adjud Doesnt req any procedures, but court req showing of RS for decision to allow for review Formal Rulemaking & Adjud 556 1) Party is entitled to present case by oral or doc evidence 2) To submit rebuttal evidence 3) To conduct cross examination as required for full and true disclosure of the facts 557- Agency decision must be based on the record
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