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Federal Internet Law & Policy
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Administrative Procedures Act :: Rulemaking Dont be a FOOL; The Law is Not DIY
- Notes
- APA
- - Rulemaking
- - Notice
- - Comment
- - Rule
- - Recourse
- FCC 101
- Congress 101
- Law

In a Democracy, The People Get the Government They Deserve.
- Hunter S. Thompson

"APA is the principal law governing how agencies make rules. The law prescribes uniform standards for rulemaking, requires agencies to inform the public about their rules, and provides opportunities for public participation in the rulemaking process. Most federal rules are promulgated using the APA-established informal rulemaking process, also known as "notice and comment" rulemaking. APA outlines a multistep process to initiate and develop rules and includes provisions for parties to challenge them, which [an agency] must follow. Many steps require agencies to provide public notice of proposed or final actions as well as provide a period for interested parties to comment on the notices-hence the "notice and comment" label. APA does not generally address time frames for informal rulemaking actions, limits on contacts between agency officials and stakeholders, or requirements for "closing" dockets." - FCC Should Take Steps to Ensure Equal Access to Rulemaking Information, GAO-07-1046, p. 8 (Sept. 2007)

"The Administrative Procedure Act (APA) applies to all executive branch agencies, including so-called independent regulatory agencies. [5 U.S.C. § 551(a)] The APA prescribes procedures for agency actions such as rulemaking, as well as standards for judicial review of agency actions. [5 U.S.C. §§ 551(a), 701-06] Rulemaking is the “agency process for formulating, amending, or repealing a rule,” [5 U.S.C. § 551(5)] where a rule is defined as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” [5 U.S.C. § 551(4)]" - CRS 2011, p. 1.

Individual agencies may have promulgated regulations implementing their own procedural rules. For example, see FCC: 47 CFR Part 1.

Purpose

"a. Basic Purposes of the Administrative Procedure Act

The Administrative Procedure Act may be said to have four basic purposes:

1. To require agencies to keep the public currently informed of their organization, procedures and rules (sec. 3).

2. To provide for public participation in the rule making process (sec. 4).

3. To prescribe uniform standards for the conduct of formal rule making (sec. 4 (b)) and adjudicatory proceedings (sec. 5), i.e., proceedings which are required by statute to be made on the record after opportunity for an agency hearing (secs. 7 and 8).

4. To restate the law of judicial review (sec. 10)." Attorney General's Manual on the APA, 1947.

Two Different Regulatory Functions: Legislative (rules) and judicial (orders)

Derived From: Attorney General's Manual on the APA, 1947.

"Rule" and "rule making", and "order" and "adjudication" are defined in section 2 as follows:

(c) Rule and rule making. "Rule" means the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of any agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, cost, or accounting, or practices bearing upon any of the foregoing. "Rule making" means agency process for the formulation, amendment, or repeal of a rule. 5 USC s 551(4), (5).

(d) Order and adjudication. "Order" means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing. "Adjudication" means agency process for the formulation of an order. 5 USC s 551(6).

(e) License and licensing. "License" includes the whole or part of any agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission. "Licensing" includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license. Sec. 551(9).

Since the definition of adjudication is largely a residual one, i.e., "other than rule making but including licensing", it is logical to determine first the scope of rule making. The definition of rule is not limited to substantive rules, but embraces interpretative, organizational and procedural rules as well.(5)

Of particular importance is the fact that "rule" includes agency statements not only of general applicability but also those of particular applicability applying either to a class or to a single person. In either case, they must be of future effect, implementing or prescribing future law. Accordingly, the approval of a corporate reorganization by the Securities and Exchange Commission, the prescription of future rates for a single named utility by the Federal Power Commission, and similar agency actions, although applicable only to named persons, constitute rule making. H.R. Rep. p. 49, fn. 1 (Sen. Doc. p. 283).

Note that while the APA deals with process, it is not seem by the courts as derived from the Due Process Clause of the Constitution. See [Bressman p. 1755] Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 444–46 (1915). The APA is statutory authority, creating more process opportunities for citizens than required by the Constitution. The APA is a ceiling of procedure requirements (the courts cannot require additional process). Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. 435 U.S. 519, 548 (1978).

The information below concerns APA rulemakings.

Rulemaking

Federal agencies derive their authority from the legislature (Congress). Congress enacts laws that directs agencies to take certain actions. Generally laws are broad authority, leaving it to the discretion of the agency to hammer out the details. The agency will then promulgate regulations, implementing the legislation. These regulations once promulgated, have the force of law. The law are found in the United States Code (USC) while the regulations are found in the Code of Federal Regulations (CFR). [Citizens Guide, p. 3]

The APA is designed to guarantee to the public the opportunity to participate in the rulemaking process.

When a citizen seeks to have input , it is important to know what authority they seek to have input on. Agencies derive their authority from legislation, and they cannot change or amend that legislation. If a citizen seeks to have input on the law, they need to talk to the legislature. Conversely, if the issue is with the regulation, the citizen needs to talk to the agency. It is also important to identify the correct agency, as several agencies may have similar-appearing functions.

An administrative proceeding may be initiated as the result of one of the following:

Types of Rulemaking "Federal agencies may promulgate rules through various methods.

The method by which an agency issues a rule may have significant consequences for both the procedures the agency is required to undertake and the deference with which a reviewing court will accord the rule. In addition, the APA contains whole or partial exceptions to the statute’s otherwise applicable rulemaking requirements. " - CRS 2011, p. 1. [See also Citizens Guide, p. 3]

Exceptions to Notice and Comment requirement: 5 U.S.C. § 553(b)(A); CRS 2011, p. 6.

Informal Rulemakings (Notice & Comment)

"Generally, when an agency promulgates legislative rules, or rules made pursuant to congressionally delegated authority, the exercise of that authority is governed by the informal rulemaking procedures outlined in 5 U.S.C. § 553. In an effort to ensure public participation in the informal rulemaking process, agencies are required to provide the public with adequate notice of a proposed rule followed by a meaningful opportunity to comment on the rule’s content. [5 U.S.C. § 553 (b)-(c)] Although the APA sets the minimum degree of public participation the agency must permit, “[matters] of great importance, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures.” [Administrative Procedure Act: Legislative History, S. Doc. No. 248, at 259 (1946); CHARLES H. KOCH J R ., 1 ADMINISTRATIVE L AW AND P RACTICE 329-30 (2010 ed.). ]"-  CRS 2011, p. 1. See also Attorney General's Manual on the APA, Sec. III 1947.

Proceedings

Tracking regulatory notices can be tedious. While eGovernment strategies have made the easier, another solution is to follow like-minded organizations. There are trade associations, non-profits organizations, news media and others that track issues of importance and provide notice to their membership or followers when issues emerge.

Many Washington, D.C. lawyers specialize in administrative law and specific agencies. They can assist both with tracking regulatory proposals as well as preparing persuasive comments. How to find a lawyer. Citizens Guide, p. 20

Notice

"The requirement under § 553 to provide the public with adequate notice of a proposed rule is generally achieved through the publication of a notice of proposed rulemaking in the Federal Register.Leaving CT 5 U.S.C. § 553(b). Notice may also be provided on the agency website and through regulations.gov. Agencies may also announce proceedings through press releases, blogs, or social media. E-Government Act, 44 U.S.C. §§ 3501–3521 (2006)

Generally speaking, the notice requirement of § 553 is satisfied when the agency “affords interested persons a reasonable and meaningful opportunity to participate in the rulemaking process.” See, e.g. , Forester v. Consumer Product Safety Commission, 559 F.2d 774, 787 (D.C. Cir. 1977). " [CRS 2011, p. 2]. Publication, however, is not strictly required where interested parties are identified and have “actual notice.” 5 U.S.C. § 553(b). Other exceptions to the publication requirement include an agency’s use of the “good cause” exception, and if the rule is an “interpretive rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice.” Id.

"The APA requires that the notice of proposed rulemaking (NPRM) include

(1) the time, place, and nature of public rulemaking proceedings (when comments are due, how comments can be submitted, and whether there will be hearings);
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.”

5 U.S.C. § 553(b)1-3. [See also Citizens Guide, p. 5] [Attorney General's Manual on the APA, Sec. III 1947] “Since the public is generally entitled to submit their views and relevant data on any proposals, the notice must be sufficient to fairly apprise interested parties of the issues involved, but it need not specify every precise proposal which [the agency] may ultimately adopt as a rule.” [Action for Children’s Television v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977)]

"Under the APA, an NPRM must “provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully.” Honeywell International, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (internal quotation marks omitted). The final rule, however, “need not be the one proposed in the NPRM.” Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013). Instead, it “need only be a ‘logical outgrowth’ of its notice.” Covad Communications Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006). An NPRM satisfies the logical outgrowth test if it “expressly ask[s] for comments on a particular issue or otherwise ma[kes] clear that the agency [is] contemplating a particular change.” CSX Transportation, Inc. v. Surface Transportation Board, 584 F.3d 1076, 1081 (D.C. Cir. 2009)." [USTA v. FCC Slip 29-30 DC Cir. 2015 (holding that FCC gave adequate notice of decision to classify Internet broadband as a Title II service]

Comment Style Guide: Comments need not follow any particular format. You should be able to see previous comments online for samples.
  • Be succinct
  • Be polite and courteous
  • Answer the question asked - that is the scope of the proceeding
  • Provide an executive summary
  • Assume the reader is unfamiliar with what you are talking about
  • Provide as much support (evidence) as possible, but unsupported statements, allegations, innuendos, accusations, and pontifications are all permissible
  • State the action or relief you are asking for
  • The proceeding is an open record.  Everyone can see what you say; you can see what everyone else says. Subject to the Freedom of Information Act
  • Consider visiting the agency in person or contacting it by telephone
  • Attempt to get others to sign on to or support your views - approaching the agency with a consensus view can be very powerful.

Citizens Guide, p. 12

Comment

"Once adequate notice is provided, the agency must provide interested persons with a meaningful opportunity to comment on the proposed rule through the submission of written “data, views, or arguments.” [5 U.S.C. § 553(c)] The comment period may result in a vast rulemaking record as persons are permitted to submit nearly any piece of information for consideration by the agency. While there is no minimum period of time for which the agency is required to accept comments, in reviewing an agency rulemaking, courts have focused on whether the agency provided an “adequate” opportunity to comment—of which the length of the comment period represents only one factor for consideration. JEFFREY S. LUBBERS, AUIDE TO FEDERAL AGENCY RULEMAKING 296 (4th ed. 2006) (citing Fla. Power & Light Co. v. U.S., 846 F.2d 765, 772 (D.C. Cir. 1988))." - CRS 2011, p. 2.

There is generally no specified format for comments ~ agencies rules may address format. Agencies' online comment forms may structure and format the comment for you. Generally, reviewing comments from major stakeholders, comments conform to the following general format. Staff attorneys will read 100s of comments, summarizing them and boiling them down to comment summaries. Comments are also public record and should be available online.


Before the
[NAME OF FORUM]

In the matter of

[NAME OF PROCEEDING]

|
|
|
|
|



[DOCKET NUMBER or PROCEEDING IDENTIFIER]


[TYPE OF SUBMISSION: Comment, Reply, Ex Parte, Other]





[DATE]

[NAME OF SUBMITTER]

[CONTACT INFORMATION]


Table of Contents

    • Executive Summary

      [this may be the only part of the comments that many will read]

    • Body

      Introduction

        [What is commentors primary message]

        [Who is the submitter? Why should the submitter be listened to?]

      • Argument

        [Standard of review; Relevant Legal Authority]

        [Headings provide short terse statements of argument]

        [References or citations to data and evidence]

      • Argument

       

    • Conclusion

      [statement of relief commentor is seeking]

    • Attachments

[body of argument]

[SIGNATURE]


Ex Parte: After comment deadline, further input may be provided through ex parte presentations.  Whether ex parte's will be permitted is agency and proceeding specific. Home Box Office, Inc. v. FCC, 567 F.2d 9, 56 (D.C. Cir. 1977); Action for Children’s Television v. FCC, 564 F.2d 458, 475 (D.C. Cir. 1977). FCC: 47 CFR 1.1200. FCC's Ex parte Rules

Sunshine Act: During the "Sunshine period," all public presentations to the agency are prohibited. "The Government in the Sunshine Act, 5 USC 552b, generally requires multi-member federal agencies (e.g., FCC, SEC) to hold their meetings in public and to give advance public notice of their meetings.  The goal of the Sunshine Act is to promote public access to information about the decision-making processes of the federal government and to improve those processes by exposing them to public view. A longstanding criticism of the Act has been that, despite its laudable goals, its actual effect is to discourage collaborative deliberations at multi-member agencies, because agency members are reluctant to discuss tentative views in public.  Rather than deliberate in public, agencies resort to escape devices, such as holding discussions among groups of fewer than a quorum of the agency’s membership (which are not covered by the Act), communicating through staff, exchanging written messages, or deciding matters by “notation voting” (i.e., circulating a proposal and having members vote in writing)." - Administrative Conference of the United States

On the Record: Comments are on the record and are a part of the public record. Documents related to a proceeding are subject to FOIA. New eGovernment rules require comments to be accessible online

Adoption of Rules

"Once the comment period has closed, the APA directs the agency to consider the “relevant matter presented” and incorporate into the adopted rule a “concise general statement” of the “basis and purpose” of the final rule. 5 U.S.C. § 553(c). See also Attorney General's Manual on the APA, Sec. III 1947.

All comments read (they may be read by junior staff that then summarizes all of the comments)

Agency's final decision must reflect consideration of these comments

Agency must give a rational response to all arguments

(Agency's love consensus)

If there is a substantial change between the proposed rule in the notice and the final rule, the question is whether the public had sufficient notice of the final rule. If not, the agency may be required to have another round of notice and comments based on the new proposed rule.

"The general statement of basis and purpose should “enable the public to obtain a general idea of the purpose of, and a statement of the basic justification for, the rules.” Administrative Procedure Act: Legislative History, S. Doc. No. 248, at 225 (1946). In practice such statements tend to be lengthy preambles to the final rules, which agencies use “to advise interested persons how the rule will be applied, to respond to questions raised by comments received during the rulemaking, and as a ‘legislative history’ that can be referred to in future applications of the rule,” as well as by reviewing courts. LUBBERS, at 376.

Requirements of rule must be "ascertainably clear" for enforcement purposes. FCC v. Fox, S.Ct. (2012) (lack of fair notice; risk of discriminatory enforcement); Christopher v. SmithKline Beechem, S.Ct. (2012) regulatory interpretation in a brief does not constitute fair notice

Publication of Rule: "The final rule, along with the general statement must be published in the Federal RegisterLeaving CT not less than 30 days before the rule’s effective date. The APA does, however, create three exceptions (discussed infra) to the 30-day advanced publication requirement. 5 U.S.C. § 553(d)1-3. If a final rule that is subject to the 30-day requirement is not published in the Federal Register , a person may not be adversely affected by the unpublished rule unless the person has “actual and timely notice” of the rule’s terms. 5 U.S.C. § 552(a)(1)" - CRS 2011, p. 2, 9. See also Attorney General's Manual on the APA, Sec. III 1947.

Formal Rules

"Although rules are typically promulgated through the informal rulemaking process, in limited circumstances, federal agencies must follow formal rulemaking requirements. Under the APA, “when rules are required by statute to be made on the record after opportunity for an agency hearing” the formal rulemaking requirements of § 556 and § 557 apply. 5 U.S.C. § 553(c) The Supreme Court has interpreted this language very narrowly, determining that formal rulemaking requirements are only triggered when Congress explicitly requires that the rulemaking proceed “on the record.” United States v. Florida East Coast Railway, 10 U.S. 224 (1973)

"When formal rulemaking is required, the agency must engage in trial-like procedures. The agency, therefore, must provide a party with the opportunity to present his case through oral or documentary evidence and “conduct such cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d) Formal rulemaking proceedings must be presided over by an agency official or Administrative Law Judge who traditionally has the authority to administer oaths, issue subpoenas, and exclude “irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(c)-(d). Formal rulemaking procedures also prohibit ex parte communications between interested persons outside the agency and agency officials involved in the rulemaking process. 5 U.S.C. § 557(d)(1). The agency or proponent of the rule has the burden of proof, and such rules must be issued “on consideration of the whole record ... and supported by ... substantial evidence.” 5 U.S.C. § 556(d).  " CRS 2011, p. 3.

Hybrid

"In providing rulemaking authority to an agency, Congress may direct the agency to follow specific procedural requirements in addition to those required by the informal rulemaking procedures of the APA. 22 Hybrid rulemaking statutes typically place additional procedural rulemaking requirements on agencies that may be found in the adjudicative context, but fall short of mandating that an agency engage in the APA’s formal rulemaking process. 23 These statutes generally create a rulemaking process with more flexibility than the §§ 556 and 557 formal rulemaking procedures and more public participation than informal rulemaking procedures under § 553. Hybrid rulemaking statutes may require that the agency: hold hearings; allow interested " persons to submit oral testimony; and grant participants opportunities for cross examination or questioning. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2605. Hybrid rulemaking is only required where expressly directed by Congress, and such statutes were frequently enacted in the 1970s. LUBBERS, at 308-09." -  CRS 2011, p. 3.

22. Federal courts have no authority to impose procedural requirements beyond what Congress has provided for in the APA. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 546 (1978) (“In short, all of this leaves little doubt that Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.”).

23 See, e.g., Magnuson-Moss Warranty – Federal Trade Commission (FTC) Improvement Act, 15 U.S.C. § 57a. For example, under Magnuson-Moss, before the FTC may issue a notice of proposed rulemaking (NPRM), the agency must publish an advance notice of proposed rulemaking (ANPRM) in the Federal Register that contains particular information and invites comments and alternative suggestions. The FTC must submit its ANPRM to certain Senate and House committees. Additionally, the agency must “make a determination that unfair or deceptive acts or practices are prevalent,” and the FTC can only make that determination under either of two specified conditions: (1) “it has issued cease and desist orders regarding such acts or practices” or (2) “any other information available to the FTC indicates a widespread pattern of unfair or deceptive acts or practices.” Finally, 30 days before the FTC publishes its NPRM, the agency must submit the NPRM to the same congressional committees. 15 U.S.C. § 57a(b).

Direct Final

"Federal agencies have developed a process known as direct-final rulemaking in order to quickly and efficiently finalize rules that the agency views as “routine or noncontroversial.” [LUBBERS, at 115 (noting that direct final rulemaking was first developed by the Environmental Protection Agency “to speed up the process for approving revisions to state implementation plans under the Clean Air Act.”). ] Under direct-final rulemaking, the agency publishes a proposed rule in the Federal Register . In contrast to informal rulemaking, however, the notice will include language providing that the rule will become effective as a final rule on a specific date unless an adverse comment is received by the agency. [ Administrative Conference of the United States Recommendation (ACUS) 95-4. ] If even a single adverse comment is received, the proposed rule is withdrawn, and the agency may issue its proposed rule under the APA’s informal notice-and-comment requirements. [Id.] In this manner, the agency can efficiently finalize unobjectionable rules while avoiding many of the procedural delays of the traditional notice-and-comment rulemaking requirements. Although there is no express statutory authorization for direct-final rulemaking, this type of rulemaking has been justified under the “unnecessary” portion of the APA “good cause” exception, discussed infra, as well as the informal notice-and-comment rulemaking procedures. [LUBBERS, at 116; ACUS Recommendation 95-4]" -  CRS 2011, p. 4.

Negotiated

"Negotiated rulemaking represents an alternative to traditional informal rulemaking procedures that allows agencies to consult with interested persons and interest groups at the developmental stages of the rulemaking process. 30 The goal of the negotiated rulemaking process is to increase administrative efficiency and decrease subsequent opposition to a promulgated rule by engaging the participation of outside groups with significant interest in the subject matter of the rule. 31 In principle, negotiated rulemaking allows the agency and other involved interests to reach consensus in the early rulemaking stages so as to produce a final rule that is more likely to be acceptable to all parties. 32

"Under the Negotiated Rulemaking Act (the Act), 33 the head of an agency is authorized to “establish a negotiated rulemaking committee to negotiate and develop a proposed rule if ... the use of the negotiated rulemaking procedure is in the public interest.” 34 The Act lays out a number of mandatory considerations for determining whether a negotiated rule would be in the public interest. 35 Once an agency has made the decision to establish a negotiated rulemaking committee, the agency must follow the Federal Advisory Committee Act with regard to the committee and must publish a notice in the Federal Register detailing the duties of the committee and the committee’s proposed membership. 36 The negotiated rulemaking committee generally consists of a maximum of 25 members, with at least one agency representative. 37 The public must have an opportunity to comment on the proposal to create the committee and the proposed membership. 38 

"If the committee achieves consensus on a proposed rule, the committee will issue a report outlining the proposed rule. 39 If the committee does not achieve a consensus, the committee may issue a report with any negotiated positions on which it did reach consensus. 40 The report and the committee’s conclusions are not binding on the agency. 41 Indeed, any proposed rule that arises as a result of the deliberations of a negotiated rulemaking committee must subsequently “be finalized through ordinary notice-and-comment procedures ...” 42" -  CRS 2011, p. 4.

30 LUBBERS, supra note 12, at 172.

31 Compare Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking , 9 N.Y.U. L.J.

32 (2000), with Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter , 9 N.Y.U. L.J. 386 (2001). 32 See 5 U.S.C. § 566.

33 5 U.S.C. §§ 561-70.

34 5 U.S.C. § 563(a).

35 Id .

36 5 U.S.C. §§ 564, 565.

37 5 U.S.C. § 565(b). (“The agency shall limit membership on a negotiated rulemaking committee to 25 members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership.”).

38 5 U.S.C. § 564(c).

39 5 U.S.C. § 566(f).

40 Id.

41 See LUBBERS , supra note 12, at 172 (citing USA Group Loan Servs. v. Riley, 82 F.3d 708 (7th Cir. 1996)).

42 See KOCH , supra note 7 at 295; see also CRS Report RL32452, Negotiated Rulemaking , by Curtis W. Copeland. 

Recourse

It happens on an occasion that a party is displeased with an agency decision (that's a joke - someone is always displeased). And on this rare occasion, the displeased party can challenge the decision as follows:

Before the Agency: Petition for Reconsideration

47 USC 405(a) Petition for reconsideration; procedure; disposition; time of filing; additional evidence; time for disposition of petition for reconsideration of order concluding hearing or investigation; appeal of order

47 CFR 1.429 Petition for Reconsideration of Final Orders in Rulemaking Proceedings

In Court

Before the Legislature (change or amend the authorizing statute)

Judicial Review

5 USC s 706: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

In court, generally, a party can challenge the decision on the following grounds: 5 U.S.C. § 706(2)(A). [Nuvio Slip at 7, Sec. II] Attorney General's Manual on the APA, Sec. IX, 1947.

Part of the purpose of the APA is to create a record for judicial review.

APA: "arbitrary and capricious" standard (the rule must be rational)

See also other administrative laws like the Paperwork Reduction Act, or the National Environmental Protection Act

See Chevron Doctrine

Legal

Agency must have statutory authority for its decision / action

For example, Congress instructed an Agency to do X, the Agency did X+1, and the party challenges that the Agency exceeded the authority given to it by Congress.

“It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).

Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 151 (2000).

United States v. Mead Corp., 533 U.S. 218, 226-27(2001)

Agency's decision / action must also be consistent with its own previously promulgated rules and regulations

Constitutional: the regulatory initiative must not violate the Constitution

Note that unlike the APA Notice and Comment part of this dance, in the court room, the party must have standing. That means the party has to more than simply dislike the decision of the agency; the party must actually be injured by the decision.

"We lack jurisdiction to entertain this argument. Under the Communications Act, for a party to challenge an order based “on questions of fact or law upon which the Commission . . . has been afforded no opportunity to pass,” a party must “petition for reconsideration.” 47 U.S.C. § 405(a). Because the Commission included its Final Regulatory Flexibility Analysis in the Order, US Telecom had to file a petition for reconsideration if it wished to object to the analysis. US Telecom failed to do so." [USTA v. FCC Slip 31 DC Cir. 2016]

Finding of Facts

“we must uphold the Commission’s factual determinations if on the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion.” Secretary of Labor, MSHA v. Federal Mine Safety & Health Review Comm’n, 111 F.3d 913, 918 (D.C. Cir. 1997) (internal quotation marks omitted); see 5 U.S.C. § 706(2)(E).

Chevron Doctrine

Agency is considered expert, entitled to deference

Two-Step Analysis

Is the statute ambiguous?

Is the agency's interpretation reasonable?

[USTA v. FCC Slip 32 DC Cir. 2016]

Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. At the first step, we ask whether the statute’s plain terms “directly addres[s] the precise question at issue.” 467 U. S., at 843. If the statute is ambiguous on the point, we defer at step two to the agency’s interpretation so long as the construction is “a reasonable policy choice for the agency to make.” Id., at 845. The Commission’s interpretation is permissible at both steps. -- NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 14-15 (S.Ct. June 27, 2005)

"First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter..." "If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984)

Normally, when we review an agency's interpretation of the statute it is charged with administering, we apply the two step formula set forth by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The reviewing court must look first to the language of the statute: "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. If the statute is silent or ambiguous, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. Where the agency's interpretation of the statute is reasonable, the court must defer. Id. -- BrandX v FCC, Sec. II, 9th Cir 10/6/2003 reversed

Step One: Ambiguous

See also Classification of Broadband Internet Access Service is Ambiguous.


"At Chevron step one, we ask “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. Where “the intent of Congress is clear, that is the end of the matter; for [we], as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43. But if “the statute is silent or ambiguous with respect to the specific issue,” we proceed to Chevron step two, where “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843."[USTA v. FCC Slip 33 DC Cir. 2016]


In Chevron, this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts. 467 U. S., at 865– 866. If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation. Id., at 843–844, and n. 11. -- NCTA v. BrandX, No. 04-277, 545 U.S. 8, Slip at (S.Ct. June 27, 2005)

Congressional Intent: Agencies will work it out

"Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996). Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. See Iowa Utilities Bd., 525 U. S., at 397. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 5 (2013)

Congress Precluding Agency Jursidiction

"FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). In that case, the Court held that “Congress ha[d] clearly precluded the FDA from asserting jurisdiction to regulate tobacco products.” Id. at 126. The Court emphasized that the FDA had disclaimed any authority to regulate tobacco products for more than eighty years and that Congress had repeatedly legislated against this background. Id. at 143–59. Furthermore, the Court observed, if the FDA did have authority to regulate the tobacco industry, given its statutory obligations and its factual findings regarding the harmful effects of tobacco, the FDA would have had to ban tobacco products, a result clearly contrary to congressional intent. See id. at 135–43. If Congress sought to “delegate a decision of such economic and political significance” to the agency, the Court noted, it would have done so clearly. Id. at 160. Relying on Brown & Williamson, TechFreedom urges us to exercise “judicial skepticism of the [Commission’s] power grab.” TechFreedom Intervenor Br. 18. TechFreedom ignores Brand X. As explained above, the Supreme Court expressly recognized that Congress, by leaving a statutory ambiguity, had delegated to the Commission the power to regulate broadband service. By contrast, in Brown & Williamson the Court held that Congress had “precluded” the FDA from regulating cigarettes." [USTA v. FCC Slip 37-38 DC Cir. 2016]

Congressional Intent Not Resolved By Congresses Subsequent Failure to Pass Legislation

"But as the Supreme Court has made clear, courts do not regard Congress’s “attention” to a matter subsequently resolved by an agency pursuant to statutory authority as “legislative history demonstrating a congressional construction of the meaning of the statute.” American Trucking Ass’ns v. Atchison, Topeka, & Santa Fe Railway Co., 387 U.S. 397, 416–17 (1967). Following this approach, we have rejected attempts to use legislative history to cabin an agency’s statutory authority in the manner amici propose. For example, in Advanced Micro Devices v. Civil Aeronautics Board, petitioners challenged the Civil Aeronautics Board’s rules adopting a more deferential approach to the regulation of international cargo rates. 742 F.2d 1520, 1527–28 (D.C. Cir. 1984). Petitioners asserted that the Board had no authority to promulgate the rules because “Congress deliberately eschewed the course now advanced by the [Board],” id. at 1541, when it tried and failed to enact legislation that would have put “limits on the Board’s ratemaking functions regarding international cargo,” id. at 1523. Rejecting petitioners’ argument, we explained that “Congress’s failure to enact legislation . . . d[oes] not preclude analogous rulemaking.” Id. at 1542 (citing American Trucking Ass’ns, 387 U.S. at 416–18). In that case, as here, the relevant question was whether the agency had statutory authority to promulgate its regulations, and, as we explained, “congressional inaction or congressional action short of the enactment of positive law . . . is often entitled to no weight” in answering that question. Id. at 1541. " [USTA v. FCC Slip 36-37 DC Cir. 2016]

Courts Interpret First :: Binding only if Statute Unambiguous

A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from Chevron itself. Chevron established a “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley, supra, at 740–741. Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. See 467 U. S., at 843–844, and n. 11. The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency’s construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.

  A contrary rule would produce anomalous results. It would mean that whether an agency’s interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court’s construction came first, its construction would prevail, whereas if the agency’s came first, the agency’s construction would command Chevron deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals’ rule, moreover, would “lead to the ossification of large portions of our statutory law,” Mead, supra, at 247 (SCALIA, J., dissenting), by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither Chevron nor the doctrine of stare decisis requires these haphazard results. -- NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 11 (S.Ct. June 27, 2005)

In addition to the obvious exceptions to this rule, see, e.g., In re Watts, 298 F.3d 1077, 1084 (9th Cir. 2002) (O'Scannlain, J., concurring) ("We need not convene the en banc court when the Supreme Court reverses us directly. Nor must we do so when that Court, in reviewing a case from another circuit, knocks the props out from under one of our decisions."), our circuit has provided for an exception where our precedent conflicts with a subsequent agency interpretation. In Mesa Verde Construction Co. v. Northern California District Council of Laborers, 861 F.2d 1124 (9th Cir. 1988) (en banc), we held that "if a panel finds that an [agency] interpretation of [its statute] is reasonable and consistent with the law[ ], the panel may adopt that  Interpretation even if circuit precedent is to the contrary." Id. at 1136. We immediately qualified this holding by stating that the earlier panel decision may be disregarded in favor of the agency interpretation "only where the precedent constituted deferential review of [agency] decision making." Id. "If the precedent held either that the [agency] decision was unreasonable or the only possible interpretation of the statute," then the prior court's construction trumps the agency's interpretation. Id. -- BrandX v FCC, Sec. II.C.[2], 9th Cir 10/6/2003 reversed

Step Two: Reasonable

"Under the APA, we must “determine whether the Commission’s actions were ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Verizon, 740 F.3d at 635 (quoting 5 U.S.C. § 706(2)(A)). As noted at the outset of our opinion, “[o]ur role in this regard is a limited one, and we will not substitute our judgment for that of the agency.” EarthLink, Inc. v. FCC, 462 F.3d 1, 9 (D.C. Cir. 2006). Provided that the Commission has “articulate[d] . . . a ‘rational connection between the facts found and the choice made,’” we will uphold its decision. Verizon, 740 F.3d at 643–44 (alteration in original) (quoting State Farm, 463 U.S. at 52) (some internal quotation marks omitted); see also FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760, 784 (2016) (“Our important but limited role is to ensure that [the agency] engaged in reasoned decisionmaking—that it weighed competing views, selected [an approach] with adequate support in the record, and intelligibly explained the reasons for making that choice.”)." [USTA v. FCC Slip 42 DC Cir. 2016] 


"We evaluate the Commission’s reasoning to ensure that it has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 839 (D.C. Cir. 2006) (quoting Motor Vehicle Manufacturers Ass’n of U.S. v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted). When assessing the reasonableness of the Commission’s conclusions, we must be careful not to simply “‘substitute [our] judgment for that of the agency,’” especially when the “agency’s predictive judgments about the likely economic effects of a rule” are at issue. National Telephone Cooperative Ass’n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009) (quoting State Farm, 463 U.S. at 43)." Verizon v. FCC., Slip at 34 D.C. Circuit 2014

Arbitrary and Capricious

"First, our “role in reviewing agency regulations . . . is a limited one.” Ass’n of American Railroads v. Interstate Commerce Commission, 978 F.2d 737, 740 (D.C. Cir. 1992). Our job is to ensure that an agency has acted “within the limits of [Congress’s] delegation” of authority, Chevron, 467 U.S. at 865, and that its action is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A)." [USTA v. FCC Slip 22-23 DC Cir. 2016]

"Courts will set aside agency decisions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As the Supreme Court has explained: “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. Reviewing courts “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))." -- Fox v FCC, Docket No 06-1760-ag, slip 18-19 (2nd Cir. June 4, 2007)

Motor Vehicle Manuf. Assoc. v. State Farm, 463 U.S. 29, 43 (1983): "an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: "We may not supply a reasoned basis for the agency's action that the agency itself has not given." SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). We will, however, "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transp. Inc. v. Arkansas-Best Freight System, supra, 419 U.S., at 286, 95 S.Ct., at 442. See also Camp v. Pitts, 411 U.S. 138, 142-143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam)."

“in proscribing . . . practices with the statutorily identified effect, an agency might stray so far from the paradigm case as to render its interpretation unreasonable, arbitrary, or capricious.” National Cable & Telecommunications Ass’n v. FCC, 567 F.3d 659, 665 (D.C. Cir. 2009).

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) "[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

We cannot accept this argument as a reasoned basis justifying the Commission's new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful "first blow" for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the "first blow" theory bears no rational connection to the Commission's actual policy regarding fleeting expletives. As the FCC itself stressed during oral argument in this case, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules.7 For example, although "there is no outright news exemption from our indecency rules," Remand Order, at ¶ 71, the Commission will apparently excuse an expletive when it occurs during a "bona fide news interview," id. at ¶ 72-73 (deferring to CBS's "plausible characterization" of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane). Certainly viewers (including children) watching the live broadcast of The Early Show were "force[d]...to take the 'first blow'" of the expletive uttered by the Survivor: Vanuatu contestant. Yet the Commission emphasized during oral argument that its news exception is a broad one and "the Commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language was necessary for any journalistic or artistic purpose." The Commission further explained to this court that a broadcast of oral argument in this case, in which the same language used in the Fox broadcasts was repeated multiple times in the courtroom, would "plainly not" be indecent or profane under its standards because of the context in which it occurred. The Commission even conceded that a re-broadcast of precisely the same offending clips from the two Billboard Music Award programs for the purpose of providing background information on this case would not result in any action by the FCC, even though in those circumstances viewers would be subjected to the same "first blow" that resulted from the original airing of this material. Furthermore, the Commission has also held that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC's policy if the expletives are "integral" to the work. See Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004, of the ABC Televison Network's Presentation of the Film "Saving Private Ryan", 20 F.C.C.R. 4507, at ¶ 14 (2005) ("Saving Private Ryan") (finding numerous expletives uttered during film Saving Private Ryan not indecent or profane because deleting the expletives "would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers"). In all of these scenarios, viewers, including children who may have no understanding of whether expletives are "integral" to a program or whether the interview of a contestant on a reality show is a "bona fide news interview," will have to accept the alleged "first blow" caused by use of these expletives. Thus, the record simply does not support the position that the Commission's new policy was based on its concern with the public's mere exposure to this language on the airwaves.8 The "first blow" theory, therefore, fails to provide the reasoned explanation necessary to justify the FCC’s departure from established precedent.-- Fox v FCC, Docket No 06-1760-ag, slip 25-26 (2nd Cir. June 4, 2007)

For decades broadcasters relied on the FCC's restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent. The agency asserts the same interest in protecting children as it asserted thirty years ago, but until the Golden Globes decision, it had never banned fleeting expletives. While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change. Cf. State Farm, 463 U.S. at 42 ("[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.") (emphasis added). The FCC's decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation. Such evidence would seem to be particularly relevant today when children likely hear this language far more often from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech. Yet the Remand Order provides no reasoned analysis of the purported "problem" it is seeking to address with its new indecency policy from which this court can conclude that such regulation of speech is reasonable. See, e.g., United States v. Playboy Enter. Group, Inc., 529 U.S. 803, 822-23 (2000) (rejecting indecency regulation of cable television in part because "[t]he question is whether an actual problem has been proved in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban."); Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994) (remanding for additional fact finding to determine whether speech regulation justified because government had failed to demonstrate "that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way"); Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1463 (D.C. Cir. 1985) (invalidating FCC regulation because "the Commission has failed entirely to determine whether the evil the rules seek to correct 'is a real or merely a fanciful threat'"); Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C. Cir. 1977) ("[A] regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist." (internal quotation marks omitted)). The Commission has similarly failed to explain how its current policy would remedy the purported "problem" or to point to supporting evidence. -- Fox v FCC, Docket No 06-1760-ag, slip 29-30 (2nd Cir. June 4, 2007)

No Second Guessing

"Critically, we do not “inquire as to whether the agency’s decision is wise as a policy matter; indeed, we are forbidden from substituting our judgment for that of the agency.” Ass’n of American Railroads, 978 F.2d at 740 (alteration and internal quotation marks omitted). Nor do we inquire whether “some or many economists would disapprove of the [agency’s] approach” because “we do not sit as a panel of referees on a professional economics journal, but as a panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.” City of Los Angeles v. U.S. Department of Transportation, 165 F.3d 972, 978 (D.C. Cir. 1999)." [USTA v. FCC Slip 23 DC Cir. 2016]

When assessing the reasonableness of the Commission’s conclusions, we must be careful not to simply “‘substitute [our] judgment for that of the agency,’” especially when the “agency’s predictive judgments about the likely economic effects of a rule” are at issue. National Telephone Cooperative Ass’n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009)

Rationale Must be articulated in decision

"Our evaluation of the agency's reasons for its change in policy is confined to the reasons articlated by the agency itself. See State Farm, 463 U.S. at 50 ("[C]ourts may not accept appellate counsel's post hoc rationalizations for agency action. It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." (internal citation omitted)); Yale-New Haven Hosp., 470 F.3d at 81 ("Generally speaking, after-the-fact rationalization for agency action is disfavored."). -- Fox v FCC, Docket No 06-1760-ag, slip p. 23 (2nd Cir. June 4, 2007)

SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196 (1947) (describing holding in Chenery I, 318 U.S. 80 (1943)) Reasoned Decisionmaking - agency must articulate in the order the reasons for its decision with clarity such that it can be reviewed and comprehended by the court.

Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 408, 420 (1971). Post Hoc rationalization is rejected

Changed Decision

"As relevant here, “[t]he APA’s requirement of reasoned decision-making ordinarily demands that an agency acknowledge and explain the reasons for a changed interpretation.” Verizon, 740 F.3d at 636. “An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). That said, although the agency “must show that there are good reasons for the new policy[,] . . . it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.” Id." [USTA v. FCC Slip 42 DC Cir. 2016]


"US Telecom raises a distinct arbitrary and capricious argument. It contends that the Commission needed to satisfy a heightened standard for justifying its reclassification. As US Telecom points out, the Supreme Court has held that “the APA requires an agency to provide more substantial justification when ‘its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account.’” Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015) (quoting Fox Television, 556 U.S. at 515). “[I]t is not that further justification is demanded by the mere fact of policy change[,] but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox Television, 556 U.S. at 515–16. Put another way, “[i]t would be arbitrary and capricious to ignore such matters.” Id. at 515.

US Telecom believes that the Commission failed to satisfy the heightened standard because it departed from factual findings it made regarding consumer perception in its 2002 Cable Broadband Order without pointing to any changes in how consumers actually view broadband. According to US Telecom, even in 2002, when the Commission classified broadband as an information service, consumers used broadband primarily as a means to access third-party content and broadband providers marketed their services based on speed. As we have explained, however, although in 2002 the Commission found that consumers perceived an integrated offering of an information service, in the present order the Commission cited ample record evidence supporting its current view that consumers perceive a standalone offering of transmission. See supra at 25–27. It thus satisfied the APA’s requirement that an agency provide a “reasoned explanation . . . for disregarding facts and circumstances that underlay . . . the prior policy.” Fox Television, 556 U.S. at 515–16. Nothing more is required." [USTA v. FCC Slip 46-47 DC Cir. 2016]


Some of the respondents dispute this conclusion, on the ground that the Commission’s interpretation is inconsistent with its past practice. We reject this argument. Agency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework. Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 46–57 (1983). For if the agency adequately explains the reasons for a reversal of policy, “change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996); see also Rust v. Sullivan, 500 U. S. 173, 186–187 (1991); Barnhart v. Walton, 535 U. S. 212, 226 (2002) (SCALIA, J., concurring in part and concurring in judgment). “An initial agency interpretation is not instantly carved in stone. On the contrary, the agency . . . must consider varying interpretations and the wisdom of its policy on a continuing basis,” Chevron, supra, at 863– 864, for example, in response to changed factual circumstances, or a change in administrations, see State Farm, supra, at 59 (REHNQUIST, J., concurring in part and dissenting in part). That is no doubt why in Chevron itself, this Court deferred to an agency interpretation that was a recent reversal of agency policy. See 467 U. S., at 857– 858. We therefore have no difficulty concluding that Chevron applies. -- NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 9-10 (S.Ct. June 27, 2005)

"“An initial agency interpretation is not instantly carved in stone.” Chevron, 467 U.S. at 863. The APA’s requirement of reasoned decision-making ordinarily demands that an agencyacknowledge and explain the reasons for a changed interpretation. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“An agency may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.”); Brand X, 545 U.S. at 981 (“Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act.”). But so long as an agency “adequately explains the reasons for a reversal of policy,” its new interpretation of a statute cannot be rejected simply because it is new. Brand X, 545 U.S. at 981" Verizon, Slip at 19-20 (D.C. Cir. 2014). 

"But the Commission need not remain forever bound by the Advanced Services Order’s restrictive reading of section 706(a). “An initial agency interpretation is not instantly carved in stone.” Chevron, 467 U.S. at 863. The APA’s requirement of reasoned decision-making ordinarily demands that an agency acknowledge and explain the reasons for a changed interpretation. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“An agency may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.”); Brand X, 545 U.S. at 981 (“Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act.”). But so long as an agency “adequately explains the reasons for a reversal of policy,” its new interpretation of a statute cannot be rejected simply because it is new. Brand X, 545 U.S. at 981. " - Verizon v. FCC, No. 11-1355, Slip at 20 (D.C. Cir. Jan. 14, 2014)

Agencies are of course free to revise their rules and policies. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (“An initial agency interpretation is not instantly carved in stone.”). Such a change, however, must provide a reasoned analysis for departing from prior precedent. As this court has explained:

[W]hen an agency reverses its course, a court must satisfy itself that the agency knows it is changing course, has given sound reasons for the change, and has shown that the rule is consistent with the law that gives the agency its authority to act. In addition, the agency must consider reasonably obvious alternatives and, if it rejects those alternatives, it must give reasons for the rejection, sufficient to allow for meaningful judicial review. Although there is not a “heightened standard of scrutiny . . . the agency must explain why the original reasons for adopting the rule or policy are no longer dispositive.” Even in the absence of cumulative experience, changed circumstances or judicial criticism, an agency is free to change course after reweighing the competing statutory policies. But such a flip-flop must be accompanied by a reasoned explanation of why the new rule effectuates the statute as well as or better than the old rule.

N.Y. Council, Ass'n of Civilian Technicians v. Fed. Labor Relations Auth., 757 F.2d 502, 508 (2d Cir. 1985) (second emphasis added; internal citations omitted); see also State Farm, 463 U.S. at 41-42 ("A settled course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to." (internal quotation marks omitted)); Huntington Hosp. v. Thompson, 319 F.3d 74, 79 (2d Cir. 2002) ("While an agency is not locked into the first interpretation of a statute it embraces, it cannot simply adopt inconsistent positions without presenting 'some reasoned analysis.'"); Mr. Sprout, Inc. v. United States, 8 F.3d 118, 129 (2d Cir. 1993) ("When the Commission departs from its own settled precedent, as here, it must present a 'reasoned analysis' that justifies its change of interpretation so as to permit judicial review of its new policies."). An agency's "failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making." Ramaprakash v. FAA., 346 F.3d 1121, 1125 (D.C. Cir. 2003) (internal quotation marks omitted). Accordingly, agency action will be set aside as arbitrary and capricious if the agency fails to provide a reasoned explanation for its decision. See, e.g., Massachusetts v. EPA, 127 S. Ct. 1438, 1463 (2007) ("EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore arbitrary, capricious, ... or otherwise not in accordance with law.") (ellipses in original; internal quotation marks omitted); State Farm, 463 U.S. at 34 (agency's rescinding of rule requiring passive restraints in automobiles was arbitrary and capricious for failure to provide a reasoned explanation justifying revocation); see also Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 72 (2d Cir. 2006) (agency action based on new rule governing Medicare reimbursement was arbitrary and capricious "because the Secretary did not satisfactorily explain his reasons" for changing historical practice); ANR Pipeline Co. v. Fed. Energy Regulatory Comm'n, 71 F.3d 897, 901 (D.C. Cir. 1995) ("[W]here an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious."). -- Fox v FCC, Docket No 06-1760-ag, slip 21-23 (2nd Cir. June 4, 2007)

PPL Montana, LLC v. Surface Transp. Bd., 437 F.3d 1240, 1247 (D.C. Cir. 2006) (“[T]he [agency’s] attempt to distinguish its prior cases, while terse, is entitled to deference.” (quoting Inland Lakes Mgmt., Inc. v. NLRB, 987 F.2d 799, 805 (D.C. Cir. 1993))

Predictive Judgment

"In reviewing these conclusions, we ask not whether they “are correct or are the ones that we would reach on our own, but only whether they are reasonable.” EarthLink, 462 F.3d at 12 (internal quotation marks omitted). Moreover, “[a]n agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise are entitled to particularly deferential review, as long as they are reasonable.” Id. (internal quotation marks omitted). The Commission has satisfied this highly deferential standard. As to section 207, the Commission explained that “[a]lthough [it] appreciate[d] carriers’ concerns that [its] reclassification decision could create investment-chilling regulatory burdens and uncertainty, [it] believe[d] that any effects are likely to be short term and will dissipate over time as the marketplace internalizes [the] Title II approach.” 2015 Open Internet Order, 30 FCC Rcd. at 5791 ¶ 410. This too is precisely the kind of “predictive judgment[] . . . within the agency’s field of discretion and expertise” that we do not second guess." [USTA v. FCC Slip 44 DC Cir. 2016]

Jurisdiction of the Agency

"we have consistently held “that Chevron applies to cases in which an agency adopts a construction of a jurisdictional provision of a statute it administers.” 1 R. Pierce, Administrative Law Treatise §3.5, p. 187 (2010). One of our opinions explicitly says that no “exception exists to the normal [deferential] standard of review” for “‘jurisdictional or legal question[s] concerning the coverage’” of an Act. NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 830, n. 7 (1984). A prime example of deferential review for questions of jurisdiction is Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). That case involved a CFTC interpretation of 7 U. S. C. §18(c), which provides that before the Commission takes action on a complaint, the complainant must file a bond to cover “any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent.” (Emphasis added.) The CFTC, pursuant to its broad rulemaking authority, see §12a(5), interpreted that oblique reference to counterclaims as granting it “the power to take jurisdiction over” not just federal-law counterclaims, but state-law counterclaims as well. Schor, supra, at 844. We not only deferred under Chevron to the Commission’s “eminently reasonable . . . interpretation of the statute it is entrusted to administer,” but also chided the Court of Appeals for declining to afford deference because of the putatively “ ‘statutory interpretation- jurisdictional’ nature of the question at issue.” 478 U. S.,at 844–845.

"Similar examples abound. We have afforded Chevron deference to the Commerce Department’s determination that its authority to seek antidumping duties extended to uranium imported under contracts for enrichment services, United States v. Eurodif S. A., 555 U. S. 305, 316 (2009); to the Interstate Commerce Commission’s view that courts, not the Commission, possessed “initial jurisdiction with respect to the award of reparations” for unreasonable shipping charges, Reiter v. Cooper, 507 U. S. 258, 269 (1993) (internal quotation marks and ellipsis omitted); and to the Army Corps of Engineers’ assertion that its permitting authority over discharges into “waters of the United States” extended to “freshwater wetlands” adjacent to covered waters, Riverside Bayview Homes, supra, at 123–124, 131. We have even deferred to the FCC’s assertion that its broad regulatory authority extends to pre-empting conflicting state rules. City of New York v. FCC, 486 U. S. 57, 64 (1988); Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 700 (1984)." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 11 (2013)

"The U. S. Reports are shot through with applications of Chevron to agencies’ constructions of the scope of their own jurisdiction. And we have applied Chevron where concerns about agency self-aggrandizement are at their apogee: in cases where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regulatory scheme. In FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000), the threshold question was the “appropriate framework for analyzing” the FDA’s assertion of “jurisdiction to regulate tobacco products,” id., at 126, 132—a question of vast “economic and political magnitude,” id., at 133. “Because this case involves an administrative agency’s construction of a statute that it administers,” we held, Chevron applied. 529 U. S., at 132. Similarly, in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 224, 229, 231 (1994), we applied the Chevron framework to the FCC’s assertion that the statutory phrase “modify any requirement” gave it authority to eliminate rate-filing requirements, “the essential characteristic of a rate-regulated industry,” for long-distance telephone carriers." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 12-13 (2013)

"Those who assert that applying Chevron to “jurisdictional” interpretations “leaves the fox in charge of the henhouse” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox-in- the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter. Chevron, 467 U. S., at 842. " City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 16-17 (2013)

Interpretation of statutes that limit agency jurisdiction

"Our cases hold that Chevron applies equally to statutes designed to curtail the scope of agency discretion. For instance, in Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 123 (1985), we considered a statute prohibiting the Environmental Protection Agency from “modify[ing] any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list.” The EPA construed the statute as not precluding it from granting variances with respect to certain toxic pollutants. Finding no “clear congressional intent to forbid EPA’s sensible variance mechanism,” id., at 134, we deferred to the EPA’s construction of this express limitation on its own regulatory authority, id., at 125 (citing Chevron, 467 U. S. 837); see also, e.g., Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221, 226, 232–234 (1986)." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 12 (2013)

Jurisdiction versus Non-jurisdictional

"Some interpretations— the big, important ones, presumably—define the agency’s “jurisdiction.” Others—humdrum, run-of-the-mill stuff— are simply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between “jurisdictional” and “nonjurisdictional” interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 5 (2013)

"there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its “jurisdiction”) and its exceeding authorized application of authority that it unquestionably has. “To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending on how generally one wishes to describe the ‘authority.’” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (SCALIA, J., concurring in judgment); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm.”)." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 8 (2013)

"In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold inquiry.”). The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 9-10 (2013)

"The false dichotomy between “jurisdictional” and “nonjurisdictional” agency interpretations may be no more than a bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake—the ultimate target here is Chevron itself. Savvy challengers of agency action would play the “jurisdictional” card in every case. See, e.g., Cellco Partnership v. FCC, 700 F.3d 534, 541 (CADC 2012). Some judges would be deceived by the specious, but scary-sounding, “jurisdictional”“nonjurisdictional” line; others tempted by the prospect of making public policy by prescribing the meaning of ambiguous statutory commands. The effect would be to transfer any number of interpretive decisions—archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy interests—from the agencies that administer the statutes to federal courts. We have cautioned that “judges ought to refrain from substituting their own interstitial lawmaking” for that of an agency. Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568 (1980). That is precisely what Chevron prevents." City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 13-14 (2013)

Hypo: ISP as Common Carrier

"An example will illustrate just how illusory the proposed line between “jurisdictional” and “nonjurisdictional” agency interpretations is. Imagine the following validly- enacted statute:

COMMON CARRIER ACT

SECTION 1. The Agency shall have jurisdiction to prohibit any common carrier from imposing an unreasonable condition upon access to its facilities.

There is no question that this provision—including the terms “common carrier” and “unreasonable condition”— defines the Agency’s jurisdiction. Surely, the argument goes, a court must determine de novo the scope of that jurisdiction.

"Consider, however, this alternative formulation of the statute:

COMMON CARRIER ACT

SECTION 1. No common carrier shall impose an unreasonable condition upon access to its facilities.

SECTION 2. The Agency may prescribe rules and regulations necessary in the public interest to effectuate Section 1 of this Act.

Now imagine that the Agency, invoking its Section 2 authority, promulgates this Rule: “(1) The term ‘common carrier’ in Section 1 includes Internet Service Providers. (2) The term ‘unreasonable condition’ in Section 1 includes unreasonably high prices. (3) A monthly fee greater than $25 is an unreasonable condition on access to Internet service.” By this Rule, the Agency has claimed for itself jurisdiction that is doubly questionable: Does its authority extend to Internet Service Providers? And does it extend to setting prices? Yet Section 2 makes clear that Congress, in petitioners’ words, “conferred interpretive power on the agency” with respect to Section 1. Brief for Petitioners in No. 1545, p. 14. Even under petitioners’ theory, then, a court should defer to the Agency’s interpretation of the terms “common carrier” and “unreasonable condition”—that is to say, its assertion that its “jurisdiction” extends to regulating Internet Service Providers and setting prices."City of Arlington, TX v. FCC, 133 S. Ct. 1863, Slip at 6-7 (2013)

Legislative Recourse: Upset parties can of course also petition Congress to revise or amend the statutory authority in question.

All final rules must be submitted to Congress and GAO. Congressional Review ActLeaving CT 5 USC 801 et seq

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