alleged deficiencies in the agency, this weighs in favor of pre-existing data, so long as adding the information. no prejudice is shown. (Solite Corp. v. EPA). However, if the information relied upon is prejudicial, then the agency must extend the comment period and add the information to the record. Rulemaking- opportunity § 553© of the APA requires to comment that agency allow submission of written comments, but allows the decision of whether to allow oral presentations at a hearing to agency discretion. The Court has interpreted this as requiring that the agency respond to public comments that are significant, in the basis and purpose tha accompanies the final rule Rulemaking- Statement § 553© of the APA requires Northeast Maryland If a statement does not of basis and purpose that agencies incorporation Waste Disposal expressly incorporate in the rules adopted a Authority v EPA: anything or refer to concise and general Industry petitioners interpreted parties or the statement of their basis and challenged an EPA courts to a specific document purpose. This statement rule for failing to containgin the agency demonstrates whether the articulate a rationale rationale, then the agency agency considered and for its decision. decision will not satisfy responded to comments Court found that the fundamental requirements. received. The statement EPA did not explain However, the court has two must be sufficient to enable its decision at all, and options. The court can either a reviewing court to see was not one word vacate the rule and require what major issues of policy mentioned about the agency to start the were ventilated by the comments made by a process again, or the court proceedings and why the variety of individuals can remand to the agency to agency reacted to them as (NOTE ABOUT do provide a reasoned it did. JUDICIAL REVIEW- statement, but not vacate the some statutes will rule. For example, if it seems require the person to as though the agency can raise the issue in the explain the rule. Moreover, commenting period vacating the rule would be to get judicial review) exceedingly disruptive. Rulemaking- A different The general rule is that an Chocholate Mfrs. The test of whether new rule than the one agency must provide a new Assn v Block notice is required is whether proposed notice and opportunity for the notice that was provided comment if the rule is not a was sufficiently descriptive to logical outgrowth of the provide interested parties
alleged deficiencies in the pre-existing data, so long as no prejudice is shown. (Solite Corp. v. EPA). However, if the information relied upon is prejudicial, then the agency must extend the comment period and add the information to the record. agency, this weighs in favor of adding the information. Rulemaking- opportunity to comment § 553© of the APA requires that agency allow submission of written comments, but allows the decision of whether to allow oral presentations at a hearing to agency discretion. The Court has interpreted this as requiring that the agency respond to public comments that are significant, in the basis and purpose tha accompanies the final rule Rulemaking- Statement of basis and purpose § 553© of the APA requires that agencies incorporation in the rules adopted a concise and general statement of their basis and purpose. This statement demonstrates whether the agency considered and responded to comments received. The statement must be sufficient to enable a reviewing court to see what major issues of policy were ventilated by the proceedings and why the agency reacted to them as it did. Northeast Maryland Waste Disposal Authority v EPA: Industry petitioners challenged an EPA rule for failing to articulate a rationale for its decision. Court found that the EPA did not explain its decision at all, and was not one word mentioned about comments made by a variety of individuals (NOTE ABOUT JUDICIAL REVIEW- some statutes will require the person to raise the issue in the commenting period to get judicial review) If a statement does not expressly incorporate anything or refer to interpreted parties or the courts to a specific document containgin the agency rationale, then the agency decision will not satisfy fundamental requirements. However, the court has two options. The court can either vacate the rule and require the agency to start the process again, or the court can remand to the agency to do provide a reasoned statement, but not vacate the rule. For example, if it seems as though the agency can explain the rule. Moreover, vacating the rule would be exceedingly disruptive. Rulemaking- A different rule than the one proposed The general rule is that an agency must provide a new notice and opportunity for comment if the rule is not a logical outgrowth of the Chocholate Mfrs. Assn v Block The test of whether new notice is required is whether the notice that was provided was sufficiently descriptive to provide interested parties
Administrative%20Law%20-%20Glicksman%20-%20Fall%202010.docx