The scope of review of denial of a rulemaking petition is very narrowunder the APA
such review is limited to determining whether theagency adequately explained the facts and policy concerns it reliedupon, and that those facts have some basis in the record.
(SIDE NOTE): An agency’s refusal to bring an ENFORCEMENT action is
not generally subject to judicial review.
Refusals to promulgate rules are susceptible to judicial review, thoughsuch review is extremely limited and highly deferential.
Although deferential, the agency’s action or inaction must still
conform to the authorizing statute.
The agency must offer a reasoned explanation, not a meredenial.
If it offers a mere denial, the agency is action in a manner that is
“arbitrary, capricious, … or not otherwise in accordance withlaw.”
Under the “arbitrary and capricious” standard of review:
The agency is obligated to “examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choicemade.’”
An order to institute rulemaking proceedings is rarely an appropriateremedy
typically the court merely remands to the agency toreconsider and determine if circumstances have changed andrulemaking is now appropriate.-
Procedures in Rulemaking
EXCEPTIONS TO REQUIRED PROCEDURES:
The typical requirements are notice and opportunity to comment §553. The first
step is to determine whether or not these “requirements” are required.
§553 does not, by its terms, apply to: military or foreign affairs functions, or
matters “relating to agency management or personnel or to public property,loans, grants, benefits, or contracts.”
The focus of the APA is on protecting individual rights and for protection forstatutory rights.
Agencies who are otherwise immune from the requirements of notice andcomment have voluntarily subjected themselves to the requirements.
Other statutes may cause otherwise exempt agencies to be subject to therequirements.
Even when NOT subject to §553, agencies are still subject to §552 (FOIA) andmust publish in the Federal Register changes being made
may also giveaffected persons actual notice if they choose not to publish in the Red. Reg.