The cornerstone of informal rulemaking is the notice and comment procedure. Through this simple, and often efficient system, administrative agencies perform many of their delegated duties. This broad delegation, however, carries with it a substantial burden. Administrative agencies must decide controversial and complex issues that affect all facets of American life. The failure of the rulemaking procedure may unduly delay the implementation of laws which are designed to protect the health of workers, preserve the environment, and insure that the nation's business proceeds in an orderly fashion. It is therefore necessary to properly adhere to rulemaking procedures in order that substantive issues will be settled in an expedient and efficient fashion. A cursory analysis of the basic provisions of Section 4 of the Administrative Procedures Act (APA) does not reveal the problems inherent in informal rulemaking proceedings. One of the procedural problems which has prompted only limited academic discussion is that of how to effectively notify interested parties of the substance of the proposed rule. Although the APA requirements are simple, the resolution of complex issues by informal rulemaking complicates the task of providing adequate notice of the proposed rule to the public.2 An agency will often issue a series of notices on the same subject, with each new notice incorporating the substance of the prior one but adding new and variant facts which must be comprehended and commented upon. The result is often a convoluted notice and comment period extending over a number of years. This creates an immense amount of confusion, often resulting in a law suit in which the court may order yet another round of notice and comment. While there are no easy solutions to this problem, this note will analyze the efficiency of the present system of notifying the public of proposed rules and will examine current thought on how the system can be improved. This paper is divided into six parts. Parts I and 11 discuss the basis for and purpose of giving advanced notice of agency rulemaking to the public. The emphasis in Part I is on the general requirements with respect to notice of a proposed rule in light of the enactment of the APA. Part II analyzes the reviewing courts' resolution of controversies in which litigants claim that notice of the proposed rule was insufficient to apprise them of the "subjects and issues" ultimately addressed in the promulgation of the final rule. Although the facts differ substantially in each case where the sufficiency of the notice is contested, there is one common theme that runs throughout the courts' decisions. The content of the notice of the proposed rule is inadequate if it deprives interested persons of their right to submit informed comments on the issues before the agencies. Otherwise, the issuance of the notice would be a mere perfunctory task having no significant bearing on the substance of the final rule. Part III of- this paper discusses the probable effect of the United States Supreme Court's decision in Vermont Yankee Power Co. v. Natural Resources Defense Council upon the notice requirement in informal rulemaking. This decision, which precludes a reviewing court from ordering regulatory agencies to implement additional procedures which exceed those required by the APA, may result in increased remands for additional notice and comment. This prediction is partly based upon the continued use of the "hard look" doctrine by the federal courts. Courts which apply the "hard look" doctrine carefully scrutinize the informal rulemaking record compiled by the agency, to determine whether it is sufficient to support the agency's ultimate decision. Additional notice and comment is one way in which a court can require an agency to re-examine its decision without violating Vermont Yankee Nuclear Power Co. Any discussion of administrative procedure should be analyzed in light of fairness to the participants in the rulemaking process. This is the subject of Part IV. Full notice of the proposed rule is essential to insure that the public will have a fair opportunity to comment on the issues decided in the final rule. The question of how many notices are necessary and how much comment is to be allowed must be answered by the normative concepts of administrative procedure. A careful balance must be struck between the efficiency of the procedure and the regulatory goals of the agency Additionally, the public must be satisfied that the procedures employed by the agency will be sufficient to bring about a fair and rational resolution of the substantive issues. Part IV also examines the procedural hybrids which the agencies have adopted of their own volition. The EPA and the FDA have been particularly innovative in assuring that the rule making process proceeds fairly. Congress has also been active in adding additional procedures. A close look will be taken at the Consumer Product Safety Act which embraces a complicated scheme for providing notice of proposed rulemaking. Part V is an extension of the examination of improved methods for giving notice of proposed rulemaking. Former President Carter, by executive order, required executive agencies to implement additional administrative procedures beyond those outlined in the APA. Many of these procedures were left in place by President Reagan who also issued an executive order modifying the regulatory process. The important similarities and differences between the Carter and Reagan reforms are analyzed. The United States Congress is also likely to act upon a number of pending bills which may give the-President the power to modify rules promulgated by both independent and executive agencies and which provide for legislative veto of agency rules. The Federal Judiciary Reform Act, commonly referred to as the Bumpers Amendment, will dissolve all presumptions in favor of regulatory rules and each rule promulgated will have to be supported by a preponderance of the evidence.6 This note will examine the possible effect of these proposals upon the notice requirement in informal rulemaking. The Conclusion of this note calls for increased procedural flexibility in administrative law and for greater procedural experimentation by regulatory agencies. Agencies have the power to adopt procedures beyond the APA which may result in broader and more meaningful public participation in the rulemaking process. Agencies should exert this power to the fullest extent. Advanced notice of proposed rules, personal notice to parties likely to be affected by the promulgation of rules, and the use of a second round of notice and comment are all viable means of improving the regulatory system.
Charles R. Bailey,
Toward a More Complete Notice of Proposed Rulemaking: A Judicial Overview and Suggestions for Change,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol84/iss1/9