(2) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information;

(3) the names and titles or positions of each person responsible for the denial of records requested under this section, and the number of instances of participation for each;

(4) the results of each proceeding conducted pursuant to subsection (a)(4)(F), including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;

(5) a copy of every rule made by such agency regarding this section;

(6) a copy of the fee schedule and the total amount of fees collected by the agency for making records available under this section; and

(7) such other information as indicates efforts to administer fully this section.

The Attorney General shall submit an annual report on or before March 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subsections (a)(4) (E), (F), and (G). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.

(e) For purposes of this section, the term "agency" as defined in section 551 (1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90-23, § 1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502, § 1-4, Nov. 21, 1974, 88 Stat. 1561.)

(a) This section applies, according to the provisions thereof, except to the extent that there is involved

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public property, loans, grants, bene. fits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule proposed; and

(3) either the terms of substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, view, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except

(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;

or

(2) interpretative rules and statements of policy;

(3) as otherwise provided by the agency for good cause found and published with the rule.

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383.)

SUPPLEMENT E

recent court cases

1. Participation in the rulemaking process. 2. Preamble requirements.

3. Scope of the notice problem. 4. Use of informal rulemaking.

Over the last several years there has been a remarkable proliferation of cases in the area of informal rulemaking. In keeping with our desire to make this handbook as comprehensive as possible, the following list of cases has been selected with an eye towards exposing the reader to some of the more recent judicial developments in this area. The cases listed are by no means exhaustive. They have been selected for the manner in which they deal with issues which frequently recur during the informal rulemaking process.

1. Participation in the rulemaking process.

Associated Industries of N.Y. State v. Department of Labor, 487 F.2d 342 (2d Cir., 1973)

Boating Industry Association v. Boyd, 409 F. 2d 408 (7th Cir., 1969)

Buckner Trucking, Inc. v. U.S., 354 F. Supp. 1210 (D.C. 1973)

Citizens To Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402 (1971)

Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C. Cir., 1971)

Permian Basin Area Rate Cases, 390 U.S. 747 (1968)

U.S. v. Scrap, 412 U.S. 669 (1973)

Wagner Electric Corp. v. Volpe, 466 F. 2d 1013 (3d Cir., 1972)

Walter Holm and Co. v. Hardin, 449 F. 2d 1009 (D.C. Cir., 1971)

2. Preamble requirements.

Automotive Parts and Accessories Association v. Boyd, 407 F. 2d 330 (D.C. Cir., 1968)

FTC v. Sperry and Hutchinson Co., 405 U.S. 233 (1972)

Kennecott Copper Corp. v. EPA, 462 F. 2d 846 (D.C. Cir., 1972)

Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir., 1972)

3. Scope of the notice problem.

Buckner Trucking, Inc. v. U.S., 354 F. Supp. 1210 (D.C. 1973)

Lewis-Mota v. Secretary of Labor, 469 F. 2d 478 (2d Cir., 1972)

Overton Park v. Volpe, 401 U.S. 402 (1971)

Phillips Petroleum v. FPC, 475 F. 2d 842 (10th Cir., 1973)

Portland Cement Association v. Ruckelshaus, No. 72-1073 (D.C. Cir., June 29, 1973) 31-37 Scientist's Institute for Public Information Inc. v. AEC, 481 F. 2d 1079 (D.C. Cir., 1973)

U.S. v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972)

U.S. v. Florida East Coast Railway Co., 410 U.S. 224 (1973)

U.S. v. Floyd, 477 F. 2d 217 (10th Cir., 1973) Wagner Electric v. Volpe, 446 F. 2d 1013 (3d Cir., 1972)

Walter Holm and Co. v. Hardin, 449 F. 2d 1009 (D.C. Cir., 1971)

Winston Bros. Co. v. U.S., 458 F. 2d 49 (Ct. Cl., 1972)

4. Use of Informal rulemaking.

City of Chicago v. FPC, 458 F. 2d 731 (D.C. Cir., 1971)

Duquesne Light Co. v. EPA, 481 F. 2d (3d Cir., 1973)

Mobil Oil Corp. v. FPC, 483 F. 2d 1238 (D.C. Cir., 1973)

Permian Basin Area Rate Cases, 390 U.S. 747 (1968)

Phillips Petroleum v. FPC, 475 F. 2d 842 (10th Cir., 1973)

U.S. v. Florida East Coast Railway Co., 410 U.S. 224 (1973)

Wagner Electric v. Volpe, 466 F. 2d 1013 (3d Cir., 1972)

In addition to the cases already cited, the following law review articles should also be of interest. Robert W. Hamilton, Procedures for Adoption of Rules of General Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 Calif. L. Rev. 1276 (1972)

Paul R. Verkuil, Judicial Review of Informal Rulemaking, 60 Virginia L. Rev. 185 (1974)

J. Skelly Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L. Rev. 375 (1974)