To aid its officers engaged in these functions it has created a Marine Safety Manual. That Manual gives guidance as to what appropriate penalties might be for various types of pollution incidents. The range of penalties is specified in statutes. Legislative rule or prosecution policy? What is the key? Corps of Engineers Example Corps issues a guidance document providing examples of ways to mitigate wetlands damage. One way is to promise to restore 2X as much wet land as you fill. Does this need notice and comment? Why or why not? What if the Corps will only issue permits to people who agree to this? How would you prove this? Setting a Threshold for Prosecution The FDA issues a policy statement that it will not take enforcement actions against candy bars unless they have more than 5 insect parts per bar. There is no statutory standard. You represent Consumers Disgusted by Bug Parts, Inc. What is your argument that this is really a rule? Community Nutrition Institute v. Young, 818 F.2d 943 (D.C. Cir. 1987) This case has been heavily criticized. One reason is that the action level did not stop the agency from prosecuting for lower levels in the future, and that it also did not make higher levels automatically illegal. Thus it was not binding in any real sense. Another criticism was that it encouraged wink and nod statements that made it difficult to know what the agency was thinking. This will get interesting because CNI is a major precedent in the Texas v. US
To aid its officers engaged in these functions it has created a Marine Safety Manual. That Manual gives guidance as to what appropriate penalties might be for various types of pollution incidents. The range of penalties is specified in statutes. Legislative rule or prosecution policy? What is the key? Corps of Engineers Example Corps issues a guidance document providing examples of ways to mitigate wetlands damage. One way is to promise to restore 2X as much wet land as you fill. Does this need notice and comment? Why or why not? What if the Corps will only issue permits to people who agree to this? How would you prove this? Setting a Threshold for Prosecution The FDA issues a policy statement that it will not take enforcement actions against candy bars unless they have more than 5 insect parts per bar. There is no statutory standard. You represent Consumers Disgusted by Bug Parts, Inc. What is your argument that this is really a rule? Community Nutrition Institute v. Young, 818 F.2d 943 (D.C. Cir. 1987) This case has been heavily criticized. One reason is that the action level did not stop the agency from prosecuting for lower levels in the future, and that it also did not make higher levels automatically illegal. Thus it was not binding in any real sense. Another criticism was that it encouraged wink and nod statements that made it difficult to know what the agency was thinking. This will get interesting because CNI is a major precedent in the Texas v. US