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Explore the requirements for formal and informal rulemaking procedures under the APA, including notice, comment, and basis & purpose statements. Learn about textual requirements, logical outgrowth rule, and addressing comments in the rulemaking process.
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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?
