Administrative Rulemaking - Module 3 of 5

Question 1

1. In which of the follow circumstances must an agency employ a “formal” rulemaking process?

When it seeks to implement policy by rulemaking rather than adjudication

When the statute which grants authority to the agency calls on it to hold “a hearing on the record” as part of the rulemaking process

When the proposed rule impacts a large number of people in a substantial way

When the statute which grants authority to the agency requires “a hearing” as part of the rulemaking process

Question 2

Which one of the following is not one of the elements of the informal rulemaking process?

Publication of the proposed rule in the Federal Register

A period of public participation in the rulemaking

A statement of the basis and purpose of the agency’s final decision

A judicial-type hearing with cross examination of witnesses

Question 3

Which of the following is false?

Notice of a proposed rule must include information about when and where public comments can be submitted

Publication in the Federal Register may not be needed if individuals specifically impacted by the proposed new rule are given notice of the rule personally

The final form of an adopted rule must be exactly the same as the proposed rule as initially published

The final adoption of the rule must include a statement of the basic purposes of the new rule

Question 4

Which one of the following correctly describes the exceptions to the APA requirements for informal rulemaking?

The APA recognizes categorical exceptions such as agency organizational rules, as well as exceptions for specific areas of rulemaking, such as those involving foreign affairs

The APA recognizes categorical exceptions such as agency organizational rules

The APA recognizes exceptions for specific areas of rulemaking, such as those involving military or foreign affairs

The APA does not recognize any exceptions to the rulemaking process

Question 5

Which one of the following would not be exempted from APA rulemaking?

A regulation concerning public benefits

A regulation concerning an emergency threat to public safety

A procedural agency rule which has a substantial impact on a legal right

A regulation concerning internal agency organization

Question 6

Fill in the blank. Ex parte contacts between interested parties and agency officials during the informal rulemaking process are _____ ?

Always prohibited

Always permitted

Always permitted but must be disclosed to the public

Generally permitted, but may be improper if the rulemaking process in question serves a similar function to that of an adjudication hearing

Question 7

With regard to which of the following do formal and informal rulemaking not differ?

The notice and publication requirement

The notice and comment period

The permissibility of ex parte contacts

The powers of the presiding officers

Question 8

Which of the following may be a reason why a court would overturn an agency adoption of a proposed rule?

Improper ex parte contacts

Failure of an agency to disclose material data relevant to the proposed rule

The final version of the adopted rule does not represent a logical outgrowth of the version of the rule as initially published

All of the reasons are correct

Question 9

Which of the following is not one of the ways that an interested party may seek to affect the outcome of an informal rulemaking process?

Submitting comments during the designated comment period

Demanding the right to cross examine witnesses in a judicial-type hearing

Directly engaging agency officials regarding concerns outside of the comment process

Petitioning the agency to amend or repeal a rule

Question 10

Which of the following is false?

A federal agency which obtains critical material data relevant to a proposed rule after the comment period must still disclose the data

Formal rulemaking involves rules of evidence and the creation of an official record

Federal courts may not review agency rulemaking determinations once the rule has been adopted

Courts may not impose procedural rulemaking requirements beyond those provided for in the APA