Formal rulemaking v.

formal adjudication
- Formal rulemaking: §556 and §557
o An agency must simply follow a three-step process to engage
in formal rulemaking:
 An agency is first required to publish a notice of the
proposed rule in the Federal Register.
 Exceptions:
o (1) interpretive rules, general statements of
policy, or rules of agency organization,
procedure, practice and when (2) an agency
has: good cause” for bypassing the notice.
 Second, an agency must give “interested persons the
opportunity to participate in the rulemaking through
submission of written data, views, or arguments with or
without opportunity for oral presentation.” Thus, the
agency has the option to permit oral presentation.
 Last, the agency must “incorporate in the rules adopted a
concise general statement of their basis and
 Formal rulemaking is prospective (future/potential)
- Formal adjudication: §554(a)
o Under the APA, formal adjudication must resemble a trial, while
informal adjudication does not require any procedures.
o Under §554(a), whether an agency is required to engage in
formal adjudication depends on what Congress has required by
statute. Thus, if the agency’s organic statute requires the agency
to make adjudicatory decisions “on the record after opportunity
of hearing,” (§554(a)) - that agency must engage in formal
adjudication under the procedures set forth in §554, 556, and
o These procedures resemble those used in trial – for instance, the
requirement of notice to the parties of the hearing (§554(b)), the
opportunity to reach a settlement (§554(b) & §554(c)(1)), the
person in charge of the hearing is prohibited from receiving ex
parte contacts or communications from the parties (this includes
employees of the agency). The formal adjudication hearing is
further controlled by the guidelines set forth in §556 and §557.
o Adjudication is retroactive (taking effect from a date in the past).

Chevron v. Auer
- Chevron
o 2 step:
 Has congress clearly spoken? No?
 Then move on to decide if the agencies interpretation is

o An agency pronouncement that advises the public of the agency’s view on an issue but is not legally binding on third parties – thus. o Agencies are given a very high deference because this is their job and what they work in. as opposed to other kinds of rulemaking or adjudication?  Don’t have to go through notice and comment based on §553  An agency can make a nonlegislative rule “effective” almost immediately. In other words. . no delay period of when it takes effect  §553(d)  Agency can just decide this is our new policy and don’t have to deal with other people’s comments or delay the effectiveness of the policy. . Why would an agency want to issue a nonlegislative rule. o If a statute is ambiguous – use the Chevron test to determine whether formal or informal adjudication is required. they are still going to fight it.  If regulated community does not see it your way.e. Outer limit that applies when the agency is interpreting a regulation that merely parrots the statute. nonlegislative rules are exempt from the requirement of notice and comment and an agency does not need the express authority from Congress to enact them. Courts are willing to defer to agency interpretation because agencies are experts. what “public hearing” means) rather than determining what the language meant for itself in light of Chevron.Interpretive rules o A statement issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers. It is not about what they think it should have meant. The courts don’t know enough about these things to make decisions. it’s about what Congress intended it to mean. the court will defer to the agency interpretation of a statute (i. Auer o Auer deference applies when an agency is interpreting its own ambiguous regulation. What is a "nonlegislative" rule? How does it differ from a "legislative" rule?  Nonlegislative rule  not binding so different from others o Differs because it is exempt from the notice and comment requirement and does not require approval from Congress to enact them. What kinds of nonlegislative rules are there? How are each defined by the courts? .

 Compliance within the agency. prospectively. o An agency can enforce interpretive rules ONLY through (1) adjudication or (2) rulemaking.  Advise the public. about agency’s intention. Clarifies whatever is in the regulation and does not impose new legal binding o Purpose. General statements of policy o A statement issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power. o Clarifies regulatory language. . Must an agency use notice and comment procedures when amending a nonlegislative rule? Is the public protected when it relies on a nonlegislative rule? Do courts defer to agency's nonlegislative rules? .