Effecting less people makes it more adjudicative more More “legislative” indicates “rule-like” Matthews v. Eldridge Private interest effected Risk of erroneous deprivation Value of additional safeguards, and government interest in including administrative burdens of additional safeguards Policy Is suing over a future entitlement? Π Are we depriving of a current right? Π Can this be solved through adjudication/order procedure? Has done something in reliance of current law? Δ Apply Matthews! Informal Rulemaking Generally §553(b) General notice of proposed rule – §553(b)(3) Either the of the proposed rule or a terms or substance – involved description of the subjects and issues §553(b)(3)(B) Except when agency for good cause finds notice and public – procedure impracticable, unnecessary, or contrary to the public interest §553(c) After agency considers notice and opportunity to submit comment, – relevant factors and incorporates in the rules adopted a concise general statement of their basis and purpose. Terms or Substance Substance and Issues Involved – Analysis Agency during notice and comment: must disclose Key study/data relied upon for rulemaking (Nova Scotia) Non-obvious public info (Chamber of Commerce) Agency do a new round of notice and comment if does not have to Agency generates new studies in response to comments (Rybachek) Agency makes a rule in response to comments that is not necessarily the precise rule suggested by the commenter (BASF) Was notice and comment adequate? Comments are meaningful and on point? Sufficient record to provide judicial review? Is the final rule a of the proposed rule? (Chocolate logical outgrowth Manufacturers) Rule that would require fish processing that would destroy the fish Nova Scotia – Rule Agency must disclose a study relied upon for rulemaking – Pesticide categories collapse into 1 rather than make more as suggested BASF – by comments Proposed rule on sugary cereal, final rule band Chocolate Manufacturers – chocolate milk from subsidy program thing Logical Outgrowth Test
Effecting less people makes it more adjudicative More “legislative” indicates more “rule-like” Matthews v. Eldridge Private interest effected Risk of erroneous deprivation Value of additional safeguards, and government interest in including administrative burdens of additional safeguards Policy Is Π suing over a future entitlement? Are we depriving Π of a current right? Can this be solved through adjudication/order procedure? Has Δ done something in reliance of current law? Apply Matthews! Informal Rulemaking Generally §553(b) – General notice of proposed rule §553(b)(3) – Either the terms or substance of the proposed rule or a description of the subjects and issues involved §553(b)(3)(B) – Except when agency for good cause finds notice and public procedure impracticable, unnecessary, or contrary to the public interest §553(c) – After notice and opportunity to submit comment, agency considers relevant factors and incorporates in the rules adopted a concise general statement of their basis and purpose. Terms or Substance – Substance and Issues Involved Analysis Agency must disclose during notice and comment: Key study/data relied upon for rulemaking (Nova Scotia) Non-obvious public info (Chamber of Commerce) Agency does not have to do a new round of notice and comment if Agency generates new studies in response to comments (Rybachek) Agency makes a rule in response to comments that is not necessarily the precise rule suggested by the commenter (BASF) Was notice and comment adequate? Comments are meaningful and on point? Sufficient record to provide judicial review? Is the final rule a logical outgrowth of the proposed rule? (Chocolate Manufacturers) Nova Scotia – Rule that would require fish processing that would destroy the fish Rule – Agency must disclose a study relied upon for rulemaking BASF – Pesticide categories collapse into 1 rather than make more as suggested by comments Chocolate Manufacturers – Proposed rule on sugary cereal, final rule band chocolate milk from subsidy program thing Logical Outgrowth Test