Informal rulemaking (notice-and-comment)
Informal Rulemaking (Notice-and-Comment)
What is Informal Rulemaking?
Informal rulemaking, often called notice-and-comment rulemaking, is the most common procedure federal agencies use to create rules or regulations. It is governed by Section 553 of the Administrative Procedure Act (APA).
Key Features of Informal Rulemaking:
Notice: The agency must publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register, informing the public of the proposed rule.
Comment: The public is given a chance to submit written comments, data, and arguments supporting or opposing the rule.
Consideration: The agency must consider these comments before issuing the final rule.
Final Rule: The agency publishes the final rule, accompanied by a statement of basis and purpose explaining its rationale.
This process ensures transparency, public participation, and accountability, even though it is less formal than “formal rulemaking,” which involves trial-like hearings.
Legal Requirements under APA Section 553
Publication of notice including time, place, and nature of rulemaking.
Opportunity to participate by submitting written data, views, or arguments.
A concise statement of the rule’s basis and purpose must accompany the final rule.
Exceptions exist for interpretative rules, general statements of policy, and rules of agency organization, procedure, or practice.
Key Cases Shaping Informal Rulemaking
1. Vermont Yankee Nuclear Power Corp. v. NRDC (1978)
Facts: Environmental groups challenged a Nuclear Regulatory Commission (NRC) rulemaking, arguing the NRC should follow procedures beyond the APA’s minimal requirements.
Issue: Whether courts can impose additional procedural requirements on agencies beyond the APA.
Holding: The Supreme Court held that courts cannot require agencies to use procedures beyond those prescribed by the APA, rejecting the “trial-type” hearing requirement.
Significance: Reinforced that informal rulemaking requires only notice and comment; courts cannot impose extra procedural hurdles.
Takeaway: Agencies have flexibility, and informal rulemaking is a streamlined process focused on written submissions.
2. Citizens to Preserve Overton Park v. Volpe (1971)
Facts: Challenged a Department of Transportation decision to build a highway through a park, alleging inadequate procedure.
Issue: Whether the agency decision was arbitrary or capricious and if proper procedures were followed.
Holding: Although not directly a rulemaking case, the Supreme Court held that agencies must provide a rational explanation for their decisions, ensuring transparency and accountability.
Significance: Established that informal rulemaking decisions must be supported by a reasoned analysis considering public input.
Takeaway: The decision underscores the importance of an agency’s engagement with the public record created during notice-and-comment.
3. American Mining Congress v. EPA (1976)
Facts: The EPA issued new water pollution standards after notice-and-comment rulemaking.
Issue: Whether the agency’s rulemaking complied with the APA requirements, especially regarding the adequacy of notice.
Holding: The D.C. Circuit held the EPA’s notice was insufficient because it failed to give interested parties enough information to comment effectively.
Significance: Emphasized that adequate notice is essential for meaningful public participation.
Takeaway: Notice must be detailed enough to allow the public to understand and comment intelligently.
4. Perez v. Mortgage Bankers Association (2015)
Facts: The Department of Labor rescinded a prior interpretative rule without undergoing notice-and-comment procedures.
Issue: Whether an agency must use notice-and-comment to rescind an interpretative rule.
Holding: The Supreme Court held that agencies need not use notice-and-comment procedures to rescind interpretative rules.
Significance: Clarified that informal rulemaking applies primarily to substantive rules, not interpretative rules.
Takeaway: Not all agency guidance or changes require notice-and-comment.
5. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. (1983)
Facts: The NHTSA rescinded a rule requiring passive restraints without adequate explanation.
Issue: Whether rescinding a rule without reasoned explanation violated the APA.
Holding: The Court held that agencies must provide reasoned explanations for rule changes and cannot act arbitrarily or capriciously.
Significance: Reinforced that rulemaking must be transparent and grounded in reasoned decision-making.
Takeaway: Notice-and-comment requires agencies to justify rules or changes based on the record, including public comments.
6. Cheney v. U.S. District Court (2004)
Facts: Challenged an agency’s refusal to disclose documents during rulemaking.
Issue: Whether agency deliberative materials are exempt from disclosure during rulemaking.
Holding: The Court recognized the “deliberative process privilege” but stressed transparency in informal rulemaking.
Significance: Balanced transparency with protecting candid agency deliberations.
Takeaway: Agencies must be transparent but can protect certain internal communications during rulemaking.
Summary Table of Cases
| Case | Issue | Holding & Significance |
|---|---|---|
| Vermont Yankee Nuclear Power Corp | Courts can’t impose procedures beyond APA | Informal rulemaking only requires notice and comment |
| Overton Park | Agency decisions must be reasoned | Ensures accountability and transparency in decision |
| American Mining Congress | Adequate notice is essential | Notice must be detailed for effective public comments |
| Perez v. Mortgage Bankers | Rescission of interpretative rules may skip notice-and-comment | Limits notice-and-comment to substantive rules |
| Motor Vehicle Manufacturers Assn | Agencies must provide reasoned explanations | Rule changes must be transparent and justified |
| Cheney v. US District Court | Deliberative process privilege vs transparency | Protects some internal deliberations but promotes openness |
Conclusion
Informal rulemaking (notice-and-comment) is a fundamental mechanism for public participation in administrative law. The APA requires agencies to give notice of proposed rules and consider public comments before issuing final rules. Courts generally uphold this streamlined procedure but require agencies to provide:
Adequate notice,
Meaningful opportunity to comment,
Reasoned explanations based on the rulemaking record.
The cases above demonstrate the balance courts strike between procedural efficiency, agency flexibility, and democratic accountability.
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