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Refusals to promulgate rules are susceptible to judicial review, though such review is “extremely limited” and “highly deferential.” National Customs Brokers & Forwarders Assn of America, Inc. v. United States, 883 F. 2d 93, 96 (CADC 1989). 

Before ordering a rulemaking proceeding a reviewing court must find, on the basis of the record before the agency, that the rulemaking requested is 'necessary' and that 'failure to take that action will result in the continuation of practices that are not consistent with the public interest or are not in accordance with this subtitle.' As a general proposition, a court will compel an agency to institute rulemaking proceedings only in extremely rare instances. The law in makes clear that the scope of review under the Administrative Procedure Act ('APA'), 5 U.S.C. Secs . 701-706 (1982), of an agency decision to deny a rulemaking petition is very narrow. Such review is limited to ensuring that the agency has adequately explained the facts and policy concerns it relied on, and that the facts have some basis in the record. See WWHT, Inc. v. FCC, 656 F.2d 807, 817-18 (D.C.Cir.1981). 

Under the APA, the case for deference to ...

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