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"APA is the principal law governing how agencies make rules.9 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.10 APA outlines a multistep process to initiate and develop rules and includes provisions for parties to challenge them, which FCC 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.11 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)
APA: Govt Wide Procedure
Two Different Regulatory Functions: Legislative (rules) and judicial (orders)
Notice and Comment
Adoption of Rules
[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)
Recourse
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)
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