- 25 -
is "silent or ambiguous with respect to the specific issue",
however, the court proceeds to ask "whether the agency's answer
is based on a permissible construction of the statute", id. at
843; if so, then the court must defer to the agency's
construction. The Chevron framework has been applied in
determining that an agency can interpret the term “hearing” to
mean a written exchange of views. See, e.g., Chem. Waste Mgmt.,
Inc. v. U.S. Envtl. Prot. Agency, 873 F.2d 1477 (D.C. Cir. 1989).
6. When Formal Adjudication Is Required
With a note of caution, Professors Davis and Pierce reach
the following conclusion:
The sequence of opinions in Florida East Coast,
Vermont Yankee, Chevron, and LTV suggests strongly that
the Supreme Court is increasingly reluctant to require
an agency to use formal adjudicatory procedures unless
Congress has explicitly directed an agency to do so,
either by requiring the agency to act “on the record”
or by describing the nature of the required hearing
with language that can only refer to an oral
evidentiary hearing. * * *
1 Davis & Pierce, supra sec. 8.2 at 387.5 I reach the same
conclusion. Moreover, we have concluded that section 6330 does
not require a formal adjudication (i.e., an on-the-record
hearing). See supra sec. II.C.2. (discussion of Davis). Section
5 Professors Davis and Pierce caution: “Some caution is
necessary in interpreting and applying this generalization,
however, because of the Court’s countervailing tendency to
interpret ambiguous statutory provisions in a manner that avoids
the need to resolve difficult issues of constitutional law.”
1 Davis & Pierce, supra sec. 8.2 at 387.
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