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Formal Rulemakings under the APA. When does the APA require the use of formal rulemaking procedures (i.e., procedures in Sec. 556, 557)? Does Sec. 553 specify exactly what language must be used in an organic statute to trigger formal procedures?
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Formal Rulemakings under the APA • When does the APA require the use of formal rulemaking procedures (i.e., procedures in Sec. 556, 557)? • Does Sec. 553 specify exactly what language must be used in an organic statute to trigger formal procedures? • What if a statute states that an agency may “establish rules and regulations after a reasonable opportunity for a hearing?” • Does that language trigger the formal rulemaking requirements of the APA? • What language is required after Allegheny-Ludlum Steel/FECR? Why?
Informal Rulemaking under APA § 553 • Notice – 553(b) • Comment – 553(c) • Statement of Basis & Purpose – 553(c)
Purposes of the “notice” requirement • Improves the quality of rulemaking – tests the rule by exposure to new ideas • Fairness – allows affected parties to participate in rulemaking process and air their views • Allows more effective judicial review – vetting of the rule provides some sort of a record in what is otherwise an informal process • Assuming that an “NPR” meets the textual requirements of Sec. 553 can it nevertheless give inadequate notice in light of these goals? • What if the agency failed to disclose a good deal of technical or scientific information that it relied on as it was formulating the proposed rule? • What if the agency buried the actual proposal in a long, technical confusing document that seemed to be about something else?
Chocolate Mfrs Ass’n v. Block - more on notice • Did the NPR in CMA comply with the textual requirements of Sec. 553? • But the court finds it deficient nonetheless: • How were the proposed and final rule different? • Why is that a problem? Shouldn’t the agency be able to respond to legitimate criticisms raised in the comment period? • How does the court respond?
Notice & the logical outgrowth rule • The “logical outgrowth” rule requires a sufficiently close relationship between the proposed and final rule so that one can say that the changes from the original proposal “are in character with the original scheme” and a “logical outgrowth of the notice and comment already given.” BASF Wyandotte Corp. v. Sierra Club, 598 F. 2d 637, 642 (1st Cir. 1979) • What is the purpose of the logical outgrowth rule? • Why wasn’t the “no flavored milk” final rule a logical outgrowth of the proposed rule?
Nova Scotia Food Products – the concise statement of basis & purpose • Does Sec. 553(c) give any guidance regarding what the concise statement of basis and purpose (“SBP”) must contain? • Does the SBP involved in Nova Scotia Food Products(p. 386) seem to comply with the textual requirements of Sec. 553(c)? • Why does the court find the SBP inadequate?
Statements of basis & purpose – responding to relevant comments • In NSFP, OSHA failed to address comments that went to the core of the whitefish industry’s ability to survive and used standard boilerplate for the SBP. • Failure of that sort (i.e., to address issues of enormous import at all) will always get a court’s attention • Short of that, to what extent is the agency’s SBP required to address comments raised during the comment period? • Does an agency have to address every comment no matter how small or irrelevant? • Does the relative importance of the issue matter? • Does it matter if the comments were specific in their criticism/concern versus vague generalities? • What if an agency gets many similar comments on a particular issue?
