Professor Peter Woll's

Politics 117a, Administrative Law

Spring 2013

Class Assignments Part II

Class Assignments Part III :Judicial Review-Standing and Scope

Class Assignments Part I

Midterm Examination Oct. 22

Oct. 27-29

Procedural Frameworks for Administrative Action

Nov. 3-10

The Procedural Categories in Action: Formal Adjudication

Informal Rule-Making

Interpreting Statutory Hearing Requirements

Nov. 9

Agency Discretion in Determining Procedure

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    Oct. 27-29

    CHAPTER III Procedural Frameworks for Administrative Action 238


    1. The Fundamental Procedural Categories of Administrative Action: Adjudication and Rulemaking 238

    a. The Constitution 238

    Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado 241

    Notes on Londoner-Bi-Metallic 243

    Notes on Procedures' Ends and Means 247


    1. The Fundamental Procedural Categories of Administrative Action:

    Adjudication and Rulemaking-Continued

    . b. The Fundamental Statute 252

    Administration Procedure Act of 1946 252

    Notes 252

    Wong Yang Sung v. McGrath 254

    Notes 261

    Dickinson, Acting Commissioner of Patents and Trademarks v. Mary E. Zurko et al. 264

    Notes 268

    Notes on Changing Approaches to the APA Over the Years 271

    c. Additional Sources of Procedural Constraint 275

    2. Proceedings Outside the Fundamental Procedural Categories-

    Information Gathering 276

    A Note on Information as Regulation-EPA's Toxic Resources Inventory 277

    a. Choices of Government Regulatory Style in Inspecting 281

    Notes on the Choices of Style and Their Constraints 282
    Making Do With Less-Notes on a Return to. "Cooperation" and Voluntarism 288

    b. Required Forms and Reports 291

    c. Rights to Refuse Cooperation with Information Demands 294

    Marshall v. Barlow's, Inc 295

    Notes on the Cases Before Barlow's 301

    Notes on the Closely Regulated Industry Exception 302

    Notes on Practical Impact and Other Issues 308

    Braswell v. United States 313


    Roger C. Cramton, "A Comment on Trial-Type Hearings in Nuclear Power Plant Siting," p. 247.

    Peter L. Strauss, "Revisiting Overton Park: Political and Judicial Controls Over Administrative Actions Affecting the Community," p. 244.

    Ralph F. Fuchs, "Procedure in Administrative Rule-Making," p. 249.

    The Administrative Procedure Act of 1946 , pp.252-254


    Wong Yang Sung v. McGrath (1950), p. 254.

    Marcello v. Bonds, 349 U.S. 302 (1955)

    Court Syllabus:

    After a hearing pursuant to 242 (b) of the Immigration and Nationality Act of 1952, petitioner, an alien who had been convicted in 1938 of violation of the Marihuana Tax Act, was ordered deported. Section 241 (a) (11) of the 1952 Act makes such conviction at any time ground for deportation, and 241 (d) provides that the deportation provisions of 241 (a) shall apply even though the facts giving rise to the alien's deportability occurred prior to the date of enactment of the 1952 Act. The validity of the deportation order was challenged by petitioner in a habeas corpus proceeding. Held:

    1. The Immigration and Nationality Act of 1952 expressly supersedes the hearing provisions of the Administrative Procedure Act. Pp. 305-310.

    2. The fact that the special inquiry officer was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions did not so strip the hearing of fairness and impartiality as to make the procedure violative of the Due Process Clause of the Fifth Amendment. P. 311.

    3. Petitioner failed to support his claim that, within the meaning of this Court's decisions in the Accardi cases, his case was prejudged by the Board of Immigration Appeals and by the special inquiry officer. Pp. 311-314.

    4. The prohibition of the ex post facto clause of the Constitution does not apply to deportation of aliens. Galvan v. Press, 347 U.S. 522 ; Harisiades v. Shaughnessy, 342 U.S. 580 . P. 314

    Dickinson, Acting Commissioner of Patents and Trademarks v. Mary E. Zurko et al, p. 264

    Vermont Yankee v. Natural Resources Defense Council (1978), p. 498-510.

    United States v. Florida East Coast Railway Co. (1973), p. 487.

    Compare Florida East Coast with Vermont Yankee. Justice Rehnquist rendered both opinions that interpreted textually the APA #553 informal rulemaking requirements. Note the statutory requirement in the Interstate Commerce Act authorizing the ICC to act only "after [a] hearing." Contrast Justice Rehnquist's statutory interpretation with that of the district court.

    Rehnquist essentially used the Londoner/Bi-Metallic paradigm in stating at :<

    What Congress intended when inserting the "after hearing" requirement for ICC rate-making is not clear; however, "What is that the term was used in granting authority to the Commission to make rules and regulations of a prospective nature." (p. 344 9th ed.) Since the statute, interpreted from its context, does not require formal hearings the APA #553 controls agency action.

    The following portion of Justice Rehnquists's opinion summarizes his views:

    III. "HEARING" REQUIREMENT OF 1 (14) (a) OF THE INTERSTATE COMMERCE ACT Inextricably intertwined with the hearing requirement of the Administrative Procedure Act in this case is the meaning to be given to the language "after hearing" in 1 (14) (a) of the Interstate Commerce Act. Appellees, both here and in the court below, contend that the Commission procedure here fell short of that mandated by the "hearing" requirement of 1 (14) (a), even though it may have satisfied 553 of the Administrative Procedure Act. The Administrative Procedure Act states that none of its provisions "limit or repeal additional requirements imposed by statute or otherwise recognized by law." 5 U.S.C. 559. Thus, even though the Commission was not required to comply with 556 and 557 of that Act, it was required to accord the "hearing" specified in 1 (14) (a) of the Interstate Commerce Act. Though the District Court did not pass on this contention, it is so closely related to the claim based on the Administrative Procedure Act that we proceed to decide it now. [410 U.S. 224, 239] If we were to agree with the reasoning of the District Court for the Eastern District of New York with respect to the type of hearing required by the Interstate Commerce Act, the Commission's action might well violate those requirements, even though it was consistent with the requirements of the Administrative Procedure Act. The term "hearing" in its legal context undoubtedly has a host of meanings.7 Its meaning undoubtedly will vary, depending on whether it is used in the context of a rulemaking-type proceeding or in the context of a proceeding devoted to the adjudication of particular disputed facts. It is by no means apparent what the drafters of the Esch Car Service Act of 1917, 40 Stat. 101, which became the first part of 1 (14) (a) of the Interstate Commerce Act, meant by the term. Such an intent would surely be an ephemeral one if, indeed, Congress in 1917 had in mind anything more specific than the language it actually used, for none of the parties refer to any legislative history that would shed light on the intended meaning of the words "after hearing." What is apparent, though, is that the term was used in granting authority to the Commission to make rules and regulations of a prospective nature. Appellees Under these circumstances, confronted with a grant of substantive authority made after the Administrative Procedure Act was enacted,8 we think that reference to that Act, in which Congress devoted itself exclusively to questions such as the nature and scope of hearings, is a satisfactory basis for determining what is meant by the term "hearing" used in another statute. Turning to that Act, we are convinced that the term "hearing" as used therein does not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency's decisionmaker. Section 553 excepts from its requirements rulemaking devoted to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice," and rulemaking "when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." This exception does not apply, however, "when notice or hearing is required by statute"; in those cases, even though interpretative rulemaking be involved, the requirements of 553 apply. But since these requirements [410 U.S. 224, 241] themselves do not mandate any oral presentation, see Allegheny-Ludlum, supra, it cannot be doubted that a statute that requires a "hearing" prior to rulemaking may in some circumstances be satisfied by procedures that meet only the standards of 553. The Court's opinion in FPC v. Texaco Inc., 377 U.S. 33 (1964), supports such a broad definition of the term "hearing." Similarly, even where the statute requires that the rulemaking procedure take place "on the record after opportunity for an agency hearing," thus triggering the applicability of 556, subsection (d) provides that the agency may proceed by the submission of all or part of the evidence in written form if a party will not be "prejudiced thereby." Again, the Act makes it plain that a specific statutory mandate that the proceedings take place on the record after hearing may be satisfied in some circumstances by evidentiary submission in written form only. We think this treatment of the term "hearing" in the Administrative Procedure Act affords a sufficient basis for concluding that the requirement of a "hearing" contained in 1 (14) (a), in a situation where the Commission was acting under the 1966 statutory rulemaking authority that Congress had conferred upon it, did not by its own force require the Commission either to hear oral testimony, to permit cross-examination of Commission witnesses, or to hear oral argument. Here, the Commission promulgated a tentative draft of an order, and accorded all interested parties 60 days in which to file statements of position, submissions of evidence, and other relevant observations. The parties had fair notice of exactly what the Commission proposed to do, and were given an opportunity to comment, to object, or to make some other form of written submission. The final order of the Commission indicates that it gave consideration to the statements of the two appellees here. [410 U.S. 224, 242] Given the "open-ended" nature of the proceedings, and the Commission's announced willingness to consider proposals for modification after operating experience had been acquired, we think the hearing requirement of 1 (14) (a) of the Act was met. Appellee railroads cite a number of our previous decisions dealing in some manner with the right to a hearing in an administrative proceeding. Although appellees have asserted no claim of constitutional deprivation in this proceeding, some of the cases they rely upon expressly speak in constitutional terms, while others are less than clear as to whether they depend upon the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution, or upon generalized principles of administrative law formulated prior to the adoption of the Administrative Procedure Act. Morgan v. United States, 304 U.S. 1 (1938), is cited in support of appellees' contention that the Commission's proceedings were fatally deficient. That opinion describes the proceedings there involved as "quasi-judicial," id., at 14, and thus presumably distinct from a rulemaking proceeding such as that engaged in by the Commission here. But since the order of the Secretary of Agriculture there challenged did involve a form of ratemaking, the case bears enough resemblance to the facts of this case to warrant further examination of appellees' contention. The administrative procedure in Morgan was held to be defective primarily because the persons who were to be affected by the Secretary's order were found not to have been adequately apprised of what the Secretary proposed to do prior to the time that he actually did it. Illustrative of the Court's reasoning is the following passage from the opinion:
    "The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party [410 U.S. 224, 243] and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command." Id., at 18-19.9
    The proceedings before the Secretary of Agriculture had been initiated by a notice of inquiry into the reasonableness of the rates in question, and the individuals being regulated suffered throughout the proceeding from its essential formlessness. The Court concluded that this formlessness denied the individuals subject to regulation the "full hearing" that the statute had provided.

    Assuming, arguendo, that the statutory term "full hearing" does not differ significantly from the hearing requirement of 1 (14) (a), we do not believe that the proceedings of the Interstate Commerce Commission before us suffer from the defect found to be fatal in Morgan. Though the initial notice of the proceeding by no means set out in detail what the Commission proposed to do, its tentative conclusions and order of December 1969, could scarcely have been more explicit or detailed. All interested parties were given 60 days following the issuance of these tentative findings and order in which to make appropriate objections. Appellees were "fairly advised" of exactly what the Commission proposed to do sufficiently in advance of the entry of the final order to give them adequate time to [410 U.S. 224, 244] formulate and to present objections to the Commission's proposal. Morgan, therefore, does not aid appellees. ICC v. Louisville & Nashville R. Co., 227 U.S. 88 (1913), involved what the Court there described as a "quasi-judicial" proceeding of a quite different nature from the one we review here. The provisions of the Interstate Commerce Act, 24 Stat. 379, as amended, and of the Hepburn Act, 34 Stat. 584, in effect at the time that case was decided, left to the railroad carriers the "primary right to make rates," 227 U.S., at 92, but granted to the Commission the authority to set them aside, if after hearing, they were shown to be unreasonable. The proceeding before the Commission in that case had been instituted by the New Orleans Board of Trade complaint that certain class and commodity rates charged by the Louisville & Nashville Railroad from New Orleans to other points were unfair, unreasonable, and discriminatory. 227 U.S., at 90. The type of proceeding there, in which the Commission adjudicated a complaint by a shipper that specified rates set by a carrier were unreasonable, was sufficiently different from the nationwide incentive payments ordered to be made by all railroads in this proceeding so as to make the Louisville & Nashville opinion inapplicable in the case presently before us. The basic distinction between rulemaking and adjudication is illustrated by this Court's treatment of two related cases under the Due Process Clause of the Fourteenth Amendment. In Londoner v. Denver, cited in oral argument by appellees, 210 U.S. 373 (1908), the Court held that due process had not been accorded a landowner who objected to the amount assessed against his land as its share of the benefit resulting from the paving of a street. Local procedure had accorded him the right to file a written complaint and objection, but not to be heard orally. This Court held that due process [410 U.S. 224, 245] of law required that he "have the right to support his allegations by argument however brief, and, if need be, by proof, however informal." Id., at 386. But in the later case of Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915), the Court held that no hearing at all was constitutionally required prior to a decision by state tax officers in Colorado to increase the valuation of all taxable property in Denver by a substantial percentage. The Court distinguished Londoner by stating that there a small number of persons "were exceptionally affected, in each case upon individual grounds." Id., at 446. Later decisions have continued to observe the distinction adverted to in Bi-Metallic Investment Co., supra. In Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 304-305 (1937), the Court noted the fact that the administrative proceeding there involved was designed to require the utility to refund previously collected rate charges. The Court held that in such a proceeding the agency could not, consistently with due process, act on the basis of undisclosed evidence that was never made a part of the record before the agency. The case is thus more akin to Louisville & Nashville R. Co., supra, than it is to this case. FCC v. WJR, 337 U.S. 265 (1949), established that there was no across-the-board constitutional right to oral argument in every administrative proceeding regardless of its nature. While the line dividing them may not always be a bright one, these decisions represent a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other. Notes on Vermont Yankee and Its Impact, pp. 507-509.


    Antonin Scalia, "Vermont Yankee: The APA, The D.C. Circuit, and then Supreme Court," p.700.

    Clark Byse, "Vermont Yankee and the Evolution of Administrative Procedure: A Somewhat Different View," p. 509.

    Nov. 3-10

    Formal Adjudication

    CHAPTER IV The Procedural Categories in Action: Adjudication 322


    1.Initial Hearings in Formal Adjudication 324

    Seacoast Anti-Pollution League v. Costle 325

    Notes 332

    a. Who is Entitled to Participate? 334

    Office of Communication of the United Church of Christ v. Federal Communications Commission 334

    Note 338

    Envirocare of Utah, Inc. v. Nuclear Regulatory Commission 339

    Notes on Intervention 342

    Notes on Public Interest Representation 345

    b. Evidentiary Issues 351

    Castillo- Villagra v. Immigration and Naturalization Service 353

    Notes 360

    Notes on Judicial and Administrative Approaches to Evidence 363

    Notes on the Limited Application of the Hearsay Rule to Administrative Proceedings 366

    c. The Requirement of Findings 369

    Armstrong v. Commodity Futures Trading Commission 369

    Notes 372

    d. The Presiding Officer 374

    (i)An Impartial Hearer 378


    1. Initial Hearings in Formal Adjudication-Continued

    Central Platte Natural Resources Dist. v. Wyoming 378

    Notes 381

    (ii) Managerial Controls 384

    Nash v. Bowen ; 385

    Notes 388

    2. Formal Adjudication at the Agency Level-Issues of Role 393

    a. The Obligations of Notice and Hearing 394

    Morgan v. United States 394

    Morgan v. United States 397

    Notes 400

    b. The Impact of Multiple Roles 407

    Federal Trade Commission v. Cement Institute 408

    Notes 412

    Withrow v. Larkin 414

    Notes 417

    c. Obstacles to Integrity Arising From Contacts With Others 423

    Professional Air Traffic Controllers Organization v. FLRA 423

    Organizational Note 433

    (i) General Counsel Gordon: Interested Agency Staff 434

    American Telephone & Telegraph Co. 435

    Notes 439

    (ii) Secretary Lewis--Pressure from Other Parts of Government 443

    Portland Audubon Society v. The Endangered Species Committee 444

    Note 449

    Pillsbury Co. v. FTC 450

    Notes 453

    (iii) Albert Shanker-Relations With the Regulated and the Public 455

    Idaho Historic Preservation Council, Inc. v. City Council of the City of Boise 456

    Notes on Inappropriate Relationships 459

    Notes on the Revolving Door 462

    3. Informal Adjudication 470

    5 U.S.C. § 555 470

    Note 471

    Pension Benefit Guaranty Corporation v. LTV Corporation 472

    Notes 474

    4. Alternative Dispute Resolution 478

    Department of Transportation, "Statement of Policy on Alternative Dispute Resolution" 480

    Note 482


    FTC v. Cement Institute (1948), p. 408.

    The Court disposed of the bias charge against the FTC as follows:

    Marquette introduced numerous exhibits intended to support its charges. In the main these exhibits were copies of the Commission's reports made to Congress or to the President, as required by 6 of the Trade Commission Act. 15 U.S.C. 46, 15 U.S.C.A. 46. These reports, as well as the testimony given by members of the Commission before congressional committees, make it clear that long before the filing of this complaint the members of the Commission at that time, or at least some of them, were of the opinion that the operation of the multiple basing point system as they had studied it was the equivalent of a price fixing restraint of trade in violation of the Sherman Act. We therefore decide this contention, as did the Circuit Court of Appeals, on the assumption that such an opinion had been formed by the entire membership of the Commission as a result of its prior official investigations. But we also agree with that court's holding that this belief did not disqualify the Commission. [333 U.S. 683 , 701] In the first place, the fact that the Commission had entertained such views as the result of its prior ex parte investigations did not necessarily mean that the minds of its members were irrevocably closed on the subject of the respondents' basing point practices. Here, in contrast to the Commission's investigations, members of the cement industry were legally authorized participants in the hearings. They produced evidence- volumes of it. They were free to point out to the Commission by testimony, by cross-examination of witnesses, and by arguments, conditions of the trade practices under attack which they thought kept these practices within the range of legally permissible business activities.

    Moreover, Marquette's position, if sustained, would to a large extent defeat the congressional purposes which prompted passage of the Trade Commission Act. Had the entire membership of the Commission disqualified in the proceedings against these e spondents, this complaint could not have been acted upon by the Commission or by any other government agency. Congress has provided for no such contingency. It has not directed that the Commission disqualify itself under any circumstances, has not provided for substitute commissioners should any of its members disqualify, and has not authorized any other government agency to hold hearings, make findings, and issue cease and desist orders in proceedings against unfair trade practices. 11 Yet if Marquette is right, the Commission, by making studies and filing reports in obedience to congressional command, completely immunized the practices investigated, even though they are 'unfair,' from any cease and desist order by the Commission or any other governmental agency. [333 U.S. 683 , 702] There is no warrant in the Act for reaching a conclusion which would thus frustrate its purposes. If the Commission's opinions expressed in congressionally required reports would bar its members from acting in unfair trade proceedings, it would appear that opinions expressed in the first basing point unfair trade proceeding would similarly disqualify them from ever passing on another. See Morgan v. United States, 313 U.S. 409, 421, 1004. Thus experience acquired from their work as commissioners would be a handicap instead of an advantage. Such was not the intendment of Congress. For Congress acted on a committee report stating: 'It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience.' Report of Committee on Interstate Commerce, No. 597, June 13, 1914, 63d Cong., 2d Sess. 10-11.

    Marquette also seems to argue that it was a denial of due process for the Commission to act in these proceedings after having expressed the view that industry-wide use of the basing point system was illegal. A number of cases are cited as giving support to this contention. Tumey v. Ohio, 273 U.S. 510, 50 A.L.R. 1243, is among them. But it provides no support for the contention. In that case Tumey had been convicted of a criminal offense, fined, and committed to jail by a judge who had a direct, personal, substantial, pecuniary interest in reaching his conclusion to convict. A criminal conviction by such a tribunal was held to violate procedural due process. But the Court there pointed out that most matters relating to judicial disqualification did not rise to a constitutional level. Id., at page 523 of 273 U.S., at page 441 of L.Ed. 749, 50 A.L.R. 1243. > Neither the Tumey decision nor any other decision of this Court would require us to hold that it would be a violation of procedural due process for a judge to sit in [333 U.S. 683 , 703] a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law. In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involved questions both of law and fact. Certainly, the Federal Trade Commission cannot possibly be under stronger constitutional compulsions in this respect than a court. 12

    The Commission properly refused to disqualify itself. We thus need notr eview the additional holding of the Circuit Court of Appeals that Marquette's objection on the ground of the alleged bias of the Commission was filed too late in the proceedings before that agency to warrant consideration.


    James M. Landis, The Administrative Process, pp. 412-414.

    Withrow v. Larkin (1975)

    Castillo-Villagra v. INS (1992), p. 353.

    Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio (1937), p. 360.

    Justice Cardozo bluntly put the Court's conclusion to be:

    First. The fundamentals of a trial were denied to the appellant when rates previously collected were ordered to be refunded upon the strength of evidential facts not spread upon the record. The Commission had given notice that the value of the property would be fixed as of a date certain. Evidence directed to the value at that time had been laid before the triers of the facts in thousands of printed pages. To make the picture more complete, evidence had been given as to the value at cost of additions and retirements. Without warning or even the hint of warning that the case would be considered or determined upon any other basis than the evidence submitted, the Commission cut down the values for the years after the date certain upon the strength of information secretly collected and never yet disclosed. The company protested. It asked disclosure of the documents indicative of price trends, and an opportunity to examine them, to analyze them, to explain and to rebut them. The response was a curt refusal. Upon the strength of these unknown documents refunds have been ordered for sums mounting into millions, the Commission reporting its conclusion, but not the underlying proofs. The putative debtor does not know the proofs today. This is not the fair hearing essential to due process. It is condemnation without trial.
    Director, Office of Workers' Compensation Programs v. Greenwich Collieries (1994), p. 269.

    Armstrong v. CFTC (1993), p. 369.

    The agency did not prove on the record that Armstrong controlled the actions of his corporations when they violated the law. The agency accepted the ALJ's conclusions, not based on the evidence, that Armstrong had violated the law knowingly. Note here the rigid requirements of formal adjudication and the burden of proof requirements.

    Informal Rule Making

    CHAPTER V The Procedural Categories in Action: Rulemaking 483


    1. The Statutory Forms of Rulemaking and the Problem of Authority 484

    5 U.S.C. § 553 484

    Notes 485

    2. Tip of the Iceberg-The Visible Rulemaking Procedures of § 553 493

    a. Procedures That Must Be Used? 493

    Sugar Cane Growers Cooperative of Florida v. Ann M. Veneman 493

    Note 497

    b. No More Than § 553 Requires? 498

    Vermont Yankee Nuclear Power Cory. v. Natural Resources Defense Council, Inc. 498

    Notes on Vermont Yankee and Its Impact 507

    Notes on the Problems of Finding Contested "General" Fact 510

    (i) "The notice shall include... (3) Either the terms or substance of the proposed rule or a description of the

    subjects and issues involved" 519

    Natural Resources Defense Council v. United States Environmental Protection Agency 519

    Notes 522

    (ii) "After notice required by this section, the agency shall give interested persons an opportunity to participate

    in the rule making through submission of written data, views, or arguments with or without opportunity for

    oral presentation" 524

    United States v. Nova Scotia Food Products Corp. 524

    Notes 532 . Notes on the Nature of a Rulemaking Record ' 536

    (iii) "After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise

    general statement of their basis and purpose" 540

    Independent U.S. Tanker Owners Committee v. Dole 540

    Notes " 546

    (iv) And now, the WorldWideWeb 550

    (v) "This subsection does not apply. ..(B) When the agency for good cause finds (and incorporates the finding and

    a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable,

    unnecessary, or contrary to the public interest" 552

    Utility Solid Waste Activities Group v. Environmental Protection Agency 552

    Note 555

    3. What Lies Beneath the Surface-The Course of Contemporary Rulemaking 556

    a. "Choosing" a Mode for Policymaking 556

    Securities & Exchange Commission v. Chenery Cory. 556

    An Organizational Note 566

    (i)The Self-Conscious Use of Adjudication for Policy-Making 566

    Bell Aerospace Co. v. National Labor Relations Board 567

    National Labor Relations Board v. Bell Aerospace Co. 569

    Notes 571

    (ii) Might the Retrospectivity Resulting From Adjudication Make this Choice "Unfair"? 574

    Epilepsy Foundation of Northeast Ohio v. National Labor Relations Board 574

    Notes 576


    3. What Lies Beneath the Surface-The Course of Contemporary Rulemaking-Continued

    (iii) Forewarned is not Enough-Limitations on Retrospective Rulemaking 578

    Bowen v. Georgetown University Hospital 578

    Notes 583

    (iv) Limits on the Use of Rulemaking to Eliminate Issues Otherwise Requiring Adjudicatory Hearing 586

    Bert M. Yetman et al. v. Jane Garvey, Administrator, FAA 587

    Notes 592

    b. Getting Rulemaking Started 596

    (i) Public Initiation of Rulemaking 596

    Professional Pilots Federation v. Federal Aviation Administration 596

    Notes 602

    (ii) The Decision to Initiate Rulemaking 609

    Executive Order 12866 611

    Small Business Regulatory Enforcement Fairness Act 614

    Notes 614

    Presidential Management of the Regulatory State 616

    Notes 619

    (iii) Regulatory Negotiation 627

    Notes 630

    (iv) Impact Analysis 638

    Executive Order 12866 638

    Presidential Management of the Regulatory State 639

    A Historical Note 639

    Notes on the Mechanics of E.O. 12866 642

    Notes on the Extent of Presidential Authority 658

    c. After the Comments are in-The Decision Process in Rulemaking 663

    Home Box Office, Inc. v. Federal Communications Commission 666

    Notes 669

    (i) An Open-Minded Decisionmaker7 673

    C & W Fish Company, Inc. v. Fox 673

    Notes 676

    (ii) The Contributions of Agency Staff 678

    United Steelworkers of America, AFL-CIO-CLC v. Marshall 678

    Notes 683

    (iii) Pressure From External Government Actors 684

    Sierra Club v. Costle 684

    Notes 692

    (iv) What Future Shape(s) for Notice-and-Comment Rulemaking? 698

    4. The Publication Alternative to Notice-and-Comment Rulemaking 705

    Air Transport Association of America, Inc. v. Federal Aviation Administration 706

    Notes 710

    General Electric Company v. Environmental Protection Agency 719

    Notes 726


    Alan Morrison, "The Administrative Procedure Act," p. 491.


    American Medical Assoc. v. United States (1989), p. 296, 9th ed.

    National Black Media Coalition v. FCC (1986), p. 299, 9th ed.

    FCC v. National Citizens Committee for Broadcasting (1978), p. 309, 9th ed.

    The Court's syllabus describes the case and the opinion:

    After a lengthy rulemaking proceeding, the Federal Communications Commission (FCC) adopted regulations prospectively barring the initial licensing or the transfer of newspaper-broadcast combinations where there is common ownership of a radio or television broadcast station and a daily newspaper located in the same community ("co-located" combinations). Divestiture of existing co-located combinations was not required except in 16 "egregious cases," where the combination involves the sole daily newspaper published in a community and either the sole broadcast station or the sole television station providing that entire community with a clear signal. Absent waiver, divestiture must be accomplished in those 16 cases by January 1, 1980. On petitions for review of the regulations, the Court of Appeals affirmed the FCC's prospective ban but ordered adoption of regulations requiring dissolution of all existing combinations that did not qualify for waivers. The court held that the limited divestiture requirement was arbitrary and capricious within the meaning of 10 (e) of the Administrative Procedure Act. Held: The challenged regulations are valid in their entirety. Pp. 793-815.

    (a) The regulations, which are designed to promote diversification of the mass media as a whole, are based on public-interest goals that the FCC is authorized to pursue. As long as the regulations are not an unreasonable means for seeking to achieve those goals, they fall within the FCC's general rulemaking authority recognized in United States v. Storer [436 U.S. 775, 776] Broadcasting Co., 351 U.S. 192, and National Broadcasting Co. v. United States, 319 U.S. 190. Pp. 793-796.

    (b) Although it is contended that the rulemaking record did not conclusively establish that the prospective ban would fulfill the stated purpose, "[d]iversity and its effects are . . . elusive concepts, not easily defined let alone measured without making quality judgments objectionable on both policy and First Amendment grounds," and evidence of specific abuses by common owners is difficult to compile. In light of these considerations, the FCC clearly did not take an irrational view of the public interest when it decided to impose the prospective ban, and was entitled to rely on its judgment, based on experience, that "it is unrealistic to expect true diversity from a commonly owned station-newspaper combination." In view of changed circumstances in the broadcasting industry, moreover, the FCC was warranted in departing from its earlier licensing decisions that allowed co-located combinations. Pp. 796-797.

    (c) The contention that the First Amendment rights of newspaper owners are violated by the regulations ignores the fundamental proposition that there is no "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388. In view of the limited broadcast spectrum, allocation and regulation of frequencies are essential. Nothing in the First Amendment prevents such allocation as will promote the "public interest" in diversification of the mass communications media. A newspaper owner need not forfeit his right to publish in order to acquire a station in another community; nor is he "singled out" for more stringent treatment than other owners of mass media under already existing multiple-ownership rules. Far from seeking to limit the flow of information, the FCC has acted "to enhance the diversity of information heard by the public without on-going government surveillance of the content of speech." The regulations are a reasonable means of promoting the public interest in diversified mass communications, and thus they do not violate the First Amendment rights of those who will be denied broadcasting licenses pursuant to them. Pp. 798-802.

    (d) The limited divestiture requirement reflects a rational weighing of competing policies. The FCC rationally concluded that forced dissolution solution of all existing co-located combinations, though fostering diversity, would disrupt the industry and cause individual hardship and would or might harm the public interest in several respects, specifically identified by the FCC. In the past, the FCC has consistently acted on the theory that preserving continuity of meritorious service furthers the [436 U.S. 775, 777] public interest. And in the instant proceeding the FCC specifically noted that the existing newspaper-broadcast combinations had a "long record of service" in the public interest and concluded that their replacement by new owners would not guarantee the same level of service, would cause serious disruption during the transition period, and would probably result in a decline of local ownership. Pp. 803-809.

    (e) The function of weighing policies under the public-interest standard has been delegated by Congress to the FCC in th

    e first instance, and there is no basis for a "presumption" that existing newspaper-broadcast combinations "do not serve the public interest." Such a presumption would not comport with the FCC's longstanding and judicially approved practice of giving controlling weight in some circumstances to its goal of achieving "the best practicable service to the public." There is no statutory or other obligation that diversification should be given controlling weight in all circumstances. The FCC has made clear that diversification of ownership is a less significant factor when the renewal of an existing license as compared with an initial licensing application is being considered, and the policy of evaluating existing licensees on a somewhat different basis from new applicants appears to have been approved by Congress. Since the decision to "grandfather" most existing combinations was based on judgments and predictions by the FCC, complete factual support in the record was not required; "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency," FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 2

    9. Nor was it arbitrary for the FCC to order divestiture in only the 16 "egregious cases," since the FCC made a rational judgment in concluding that the need for diversification was especially great in cases of local monopoly. Pp. 809-815.

    The D.C. Circuit Court Debate

    Judge Bazelon v. Judge Leventhal, Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir., 1976), pp. 512-514.


    NRDC v. EPA, 279 F. 3 1180 ( Court of Appeals, 9th Cir., 2002), p. 519.

    United States v. Nova Scotia Food Products Corp. (1977), p. 524.

    Independent U.S. Tanker Owners Committee v. Dole (1987), p. 540.

    Nov. 1

    Interpreting Statutory Hearing Requirements-- Adjudication versus Rule Making


    Seacoast Anti-Pollution League v. Costle (1978), p. 325.

    Chemical Waste Management, Inc. v. EPA (1989), p. 332.

    Independent U.S. Tanker Owners Committee v. Lewis (1982), p. 476.

    Pacific Gas & Electric Co. V. FPC (1974), p. 719.

    Nov. 3

    Agency discretion in determining procedure


    SEC v. Chenery Corp. (1947), p. 556.

    Bell Aerospace Co. v. NLRB (1973), p. 567.

    NLRB v. Bell Aerospace Co. (1974), p. 569.

    Issues of Retroactivity and Prospectivity

    Bowen v. Georgetown University Hospital (1988), p. 578.

    Clark--Cowlitz Joint Operating Age cy v. FERC (1987), p. 576.

    Bert M. Yetman et al. v. Jane Garvey, Administrator, FAA, 261 F.3d 664 (2001), p. 587.

    The Impact of Statutory Rights to an Individualized Hearing

    Heckler v. Campbell (1983), p. 592.

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