requirement is fairly straightforward, it occasionally has been an issue on review of rules, and courts have invalidated rules for failure to comply with it. 15 Finally, section 553 requires that the rulemaking notice contain "either the terms or substance of the proposed rule or a description of the subjects and issues involved."16 The Attorney General's Manual on the APA recommended that agencies only include a description of the subjects and issues, rather than the terms of a proposed rule, if "publication... in full would unduly burden the Federal Register or would in fact be less informative to the public."17 Today most agencies publish a specific rulemaking proposal when commencing rulemaking. Requirements of additional analysis and the heightened scrutiny given agency rules are incentives for prior agency investigation and publication of 18 specific proposals. Specific proposals help focus public comment, and that, in turn, assists reviewing courts in deciding whether interested persons were given a meaningful opportunity to participate in the rulemaking. 19 Of course, both generally-worded and very specific proposals ultimately may be found deficient, depending on the terms of the agency's final rule. One way an agency can set forth specific proposals in a NPRM and, yet, retain flexibility in fashioning the final rule is to include in the NPRM alternative rule provisions that are under consideration.20 3. Federal Register requirements. The Director of the 15/ See, e.g., National Tour Brokers Ass'n v. U.S., 591 F.2d 896, 900 (D.C. Cir. 1978). 16/ 5 U.S.C. S 553(b)3) (1976). 17/ Attorney General's Manual on the APA 29 (1947). 18/ Of course, agencies may precede an NPRM with an advance NPRM, see Chapter Four, text accompanying nn. 54-56. 19/ See discussion of variance from NPRM in the final rule, infra, text accompanying nn. 36-40. 20/ This approach was suggested by the court in United Steelworkers of America v. Marshall, 647 F.2d 1189, 1222 (D.C. Cir. 1980). See also Rochvarg, Adequacy of Notice of Rulemaking Under the Federal Administrative Procedure Act-When Should a Second Round of Notice and Comment Be Required?, 31 Am. U.L. Rev. 1, 16-17 (1981). 21 Office of the Federal Register may return to the issuing agency any document submitted for publication in the Federal Register that does not comply with Federal Register publication requirements. A general requirement is that every proposed or final rule must include "a preamble which will inform the reader, who is not an expert in the subject area, of the basis and purpose for the rule or proposal."22 Additionally, the preamble must follow a set format, or the Office of the Federal Register will not print the rule document." The Office of the Federal Register's Document Drafting Handbook provides detailed instructions for 24 drafting rules and proposed rules. The Federal Register staff 23 also can be consulted for additional assistance. Finally, an agency preparing a NPRM must comply with Federal Register requirements if it wants to incorporate material by reference.25 Generally, any published data, criteria, standards, and similar material can be incorporated in a rule by reference if it is reasonably available to and usable by the class of persons affected by the agency's rule.26 When incorporating documents by reference, agencies should be mindful of the effect the incorporation has on the intelligibility of the notice. In PPG Industries, Inc. v. Costle, the Environmental Protection Agency (EPA) incorporated by reference internal agency guidelines on acceptable test methods for measuring air quality." The incorporation was meant to change the monitoring requirements 27 28 21/ 1 C.F.R. S 2.4(b) (1983). These requirements are established by the Administrative Committee of the Federal Register under S 1506 of the Federal Register Act, 44 U.S.C. Chapter 15. 22/ 1 C.F.R. S 18.12(a) (1983). 23/ See 1 C.F.R. S 18.12(b) (1983); Office of the Federal Register, Document Drafting Handbook $ 2.3 (June 1980) at p. 6. 24/ Document Drafting Handbook, id., Part 2. 25/ The requirements are published at 1 C.F.R., Part 51 (1983). See also Document Drafting Handbook S 3.1, at p. 23; Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977). 26/ 1 C.F.R. S 51.7 (1983). 27/ 659 F.2d 1239 (D.C. Cir. 1981). 28/ It should be noted that the Federal Register usually will not approve agency incorporation by reference of a publication of the same agency. 1 C.F.R. S 51.7(b) (1983). for regulated industries. When the EPA sought to enforce this aspect of its rule, the rule provision was challenged and, later, invalidated by the reviewing court because the incorporation, buried in the NPRM, failed to give interested persons adequate notice of the change. 4. 29 Notice of the agency's "intent to rely" on specific information. Today there is much greater judicial scrutiny of the factual basis for agency rules. The more closely courts have reviewed the data supporting rules, the more sensitive they have become to the fact that meaningful comment on proposed rules can be precluded by the failure of agencies to disclose especially relevant information. In a leading example, Portland Cement Ass'n v. Ruckelshaus, Judge Leventhal stated that: and: It is not consonant with the purpose of a 30 In order that rulemaking proceedings to as it becomes 32 but This development is described more fully later in this guide, it is mentioned here because of its implications for the contents of the agency's NPRM. Must an agency describe in its NPRM the factual basis for the proposed rule, or go even further and indicate which information it intends to rely upon in support of its rule? Cases 29/ 659 F.2d at 1249-50. 30 486 F.2d 375, 393 (D.C. Cir. 1973), cert. denied 417 U.S. 921 (1974). 31/ Id., at 394. 32/ See discussion infra at pp. 125-127. 33 such as Portland Cement and United States v. Nova Scotia Food Products Corp. should cause the prudent rulemaking staff to notify interested persons of the existence of key studies, surveys or data that are likely to be relied upon by the agency in promulgating a final rule. On the other hand, it is clear that current law does not require an agency to state in its NPRM its "intent to rely" on 34 particular information when making its rulemaking decision. However, such a requirement would have been imposed by S. 1080, the regulatory reform bill passed by the Senate in the 97th Congress. 35 5. Variance between the initial proposal in the NPRM and the final rule. Agencies have considerable leeway to make changes in proposed rules after the comment period ends without 36 commencing a new round of notice and comment. The comment period is, after all, required for the precise purpose of giving interested persons a chance to point out defects in the initial proposal. Requiring an agency to hold a new round of notice and comment every time it changed the proposed rule would discourage modifications of imperfect initial proposals. These considerations are reflected in the court decisions in cases in which rule challengers argued that an agency's final rule was so different from its initial proposal that the NPRM failed to alert them to the terms or substance of the final rule. Generally speaking, courts have found the notice to have been adequate if the final rule is a logical outgrowth of an original, duly noticed rulemaking proposal. Courts are likely to respect changes in the 37 33/ 568 F.2d 240 (2d Cir. 1977). 34/ See 1 K. Davis, Administrative Law Treatise S 6:26 (2d ed. 1978), at 580-581 (discussion of dissenting opinion in Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)). 35/ S. 1080, supra note 11, would have amended S 553 to require "a description of any data, methodologies, reports, studies, scientific evaluations, or other similar information on which the agency plans to substantially rely in the rulemaking, including an identification of each author or source of such information and the purposes for which the agency plans to rely on such information." 36/ See, e.g., American Iron & Steel Inst. v. EPA, 568 F.2d 284, 293 (3rd Cir. 1977); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n. 51 (1973). (Continued) itial NPRM no longer fairly apprises resolved in the rulemaking.40 ns regarding notice. The rulemaking consideration to going beyond the n giving notice. As suggested earlier, ations value in a NPRM that carefully e agency decision to commence focused NPRM can generate more the rulemaking by means o notice may be achieved by trade or other specialized services and loose-leaf re also can "target" notice t the rule or to persons like the rule. For example, journals and membership notice through paid adve members of academic c matter of the rule. In so the mailing lists of trade others, the staff may hav the rulemaking staff for how best to reach those proceeding or who may po B. Opportunity fo Section 553 of the rulemaking shall give 1 Corp. v. EPA, 504 F.2d 646, 659 (1st Corp. v. Costle, 598 F.2d 637, 642 (1st nom. Eli Lilly & Co. v. Costle, 444 er Lead Task Force v. EPA, 705 F.2d For criticism of some applications of see generally Rochvarg, supra note arg, supra note 20, at 17 n. 108; Small PA, id., at 91. 76-3,1.a, Procedures in Addition to or Comment in Informal Rulemaking, See also Comment, The Need for an ent Period When Final Rules Differ les, 1981 Duke L.J. 377 (1981). inistrative Conference on Proposals te 12, ¶ 1. Supra note 39, at 1 122 |