The Mechanics & Procedures re Rulemakings Under the APA

1. The Mechanics & Procedures re Rulemakings Under the APA Sections 553, 556 & 557 cover the procedural requirements for rulemakings under the APA • FORMAL rulemakings REQUIRE that an agency use the trial-like procedures of §§ 556/557 • But the trigger for formal proceedings is found in §553. • INFORMAL rulemaking procedures are found within §553

2. Formal Rulemakings under the APA APA § 553(c) indicates that the formal rulemaking procedures of §§556/557 must be used when “rules are required by statute to be made on the record after opportunity for agency hearing.” • When does an organic statute meet this triggering language? • NOT enough for statute to say agency can enact rules after a rsblopportunity for “a hearing” or “public hearing” • SCT (after FECR/ALS) indicates that there must be CLEAR indication of Congress’s intent to require formal on-the-record proceedings • How should the Beer Trade Act fare here? • Sec 8(C) – After opportunity for full hearing, the Commission shall promulgate rules [re eligibility for licenses]. Such rule shall be based only on substantial evidence of record at such hearing and shall set forth … detailed findings of fact on which the order is based.

3. Informal Rulemaking under APA § 553 • Notice – 553(b): General notice shall be published in Fed. Reg. (unless actual notice is given to parties subject to rule), with the following: • Time, place & nature of public RM proceeding • Reference to legal authority under which rule proposed • Terms of proposed rule OR description of subject/issues involved • Opportunity for Comment – 553(c) • Opportunity for “interested parties” to submit written data, views or arguments, with or without opportunity for oral presentation • No req’d time for comment period – anywhere from 30- 180 days • Statement of Basis & Purpose – 553(c) • After consideration of relevant matter presented, the agency must incorporate into the final rules a concise general statement of their basis and purpose

4. Some preliminaries regarding the “notice requirement of Sec. 553 • Improves rulemaking quality – 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 • Even if an “NPR” meets the textual requirements of §553 it can nevertheless give inadequate notice in light of these goals: • What if the agency failed to disclose a good deal of external technical or scientific information that it relied on as it was formulating the proposed rule? • What if the agency buried the actual proposed rule in a footnote in a long, technical, confusing document that seemed to be a rule about something else?

5. Chocolate MfrsAss’n v. Block - more on notice • Did the NPR in CMA comply with the textual requirements of §553? • Why does the court still find the notice deficient? • Are the proposed and final rules the same? • How were the proposed and final rule different? • Why is that a problem?

6. 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? • How do we determine when a final rule is a logical outgrowth of a proposed rule? • Why wasn’t the “no flavored milk” final rule a logical outgrowth of the proposed rule?

7. Some practicalities about commenting & the comment period under Sec 553 • Sec. 553 contemplates that any interested party can comment on a proposed rulemaking • You can file comments via mail, fax or personal delivery for pretty much every proposed rulemaking • Many agencies allow comments directly on their websites e.g., Federal Energy Regulatory Commission • http://www.ferc.gov/docs-filing/ferconline.asp • Most agencies allow comment at the central Internet clearinghouse for regulatory action - www.regulations.gov • Some agencies only allow Internet comment there – e.g., the EPA

8. NSFP – the relationship between comments and the concise statement of basis & purpose • Are these comments just something agencies have to allow people to make so they will feel better? ORmust the agency respond to those comments? • Sec. 553(c) gives little guidance re this beyond the requirement that the final rules incorporate a concise general statement of their basis and purpose(“SBP”) • Does the SBP involved in Nova Scotia Food Products(p. 434) seem to comply with the textual requirements of Sec. 553(c)? • Why does the court find the SBP inadequate?

9. Statements of basis & purpose – responding to relevant comments • In NSFP, OSHA failed to address comments going to the core of the rulemaking (i.e., the reason the rule was enacted) and used standard boilerplate for the SBP • Failure of that sort 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? NO • Does the relative importance of the issue matter? YES • Does it matter if the comments/claims were specific vs vague? YES • What if an agency gets several similar comments on a particular issue – how should that weigh in whether it needs to respond? DEPENDS

10. Statements of basis and purpose in a nutshell • Key to whether an agency must respond to comments can be seen in Judge McGowan’s statement in Automotive Parts (quoted in NSFP excerpt): • We do not expect the agency to discuss every item of fact or opinion included in the submissions made to it in informal rulemaking. We do expect that, if the judicial review which Congress has thought it important to provide is meaningful, the [SBP mandated by the APA] will enable us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted as it did. • Agency must respond to comments on “major policy issues” with sufficient detail/explanation so judge reviewing the rules on arbitrary & capricious or procedural challenge can adequately make a decision

11. The NHTSA & DEA rulemakings • NHTSA – installation of event data recorders • http://www.regulations.gov/#!docketDetail;D=NHTSA-2012-0177 • Gist of comments: • Privacy concerns – invasive now & potential future misuse • Cost concerns • Constitutionality • Sources of comments – primarily private citizens/some manufacturers • DEA – broadening locations/types of disposal of controlled substances • http://www.regulations.gov/#!docketDetail;D=DEA-2012-0008 • Gist of comments: • Practical implementation issues & suggestions to tweak rules • Source of comments – primarily professional orgs & individuals