post-promulgation comment is not a substitute for comment before rule adoption.123 Though not curing erroneous use of the good cause exemption, an opportunity for post-promulgation comment may be beneficial when the agency rightly invokes the exemption because prior notice and comment are "impracticable" or "contrary to the public interest." In Recommendation 83-2 (adopted June 10, 1983), the Administrative Conference advises agencies to always provide an opportunity for post-promulgation comment in that situation. The comment opportunity will give interested persons a chance to expose errors or oversights that occurred in the formulation of the rule, and the agency may decide to amend the rule in light of the comments. g. Rules that recognize an exemption or relieve a restriction Section 553(d) states "[t]he required publication or service of a substantive rule shall be made not less than 30 days before its effective date...," but there are three exceptions to this requirement. Two exceptions were discussed earlier in connection with section 553 exemptions from notice and comment: interpretive rules and policy statements are not subject to the delayed effective date requirement, nor are rules for which the agency finds "good cause" for dispensing with the requirement. 124 125 The third exception to the delayed effective date requirement is for "a substantive rule which grants or recognizes an exemption or relieves a restriction."126 This exemption has no direct counterpart in section 553(b)'s exemptions from notice and comment requirements. Nevertheless, it appears to be merely a more particularized statement of when a requirement is "unnecessary," which is one ground for a "good cause" finding under section 553(b)(B). The primary purpose of the delayed effective F.2d 1153, 1157 (1981). 123/ See, e.g., Natural Resources Defense Council v. EPA, 683 F.2d 752, 768 (3rd Cir. 1982); American Fed'n of Gov't Employees v. Block, id. at 1158. 124/ See discussion supra at text accompanying n. 79. 125/ See discussion supra at p.39. (Continued) date requirement is to give people a reasonable time to prepare to comply with or take other action with respect to the rule.127 The exemption is explained in the Attorney General's Manual, as follows: The reason for this exception would appear to The exemptions from the APA's delayed effective date requirement sometimes have been confused with the exemptions 129 from the APA's notice and comment requirements. Therefore, we stress that this exemption does not apply to section 553's notice 130 and comment provisions. 5. Petitions for rulemaking. A final APA rulemaking requirement is section 553(e)'s provision that "[elach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." This requirement applies "not only to substantive rules but also to interpretations and statements of general policy, and to organizational and procedural rules. It is applicable both to existing rules and to proposed or tentative rules."131 The Attorney General's Manual on the APA advised that every agency with rulemaking authority should establish and publish procedural rules governing the receipt, consideration and 132 disposition of rulemaking petitions. The APA, however, does 126/ 5 U.S.C. S 553(d)(1) (1976). 127/ See Attorney Ggeneral's Manual on the APA 36 (1947). 128/ Id. at 37. 129/ See Jordan, supra note 113 at 26-27. 130/ See Joseph v. Civil Service Comm'n, 554 F.2d 1140, 1153 n. 23 (1977). (Continued) not contain any special procedural requirements applicable to 133 rulemaking petitions, and, until recently, the decision whether to initiate rulemaking in response to a petition was considered to be committed to agency discretion and not judicially 135 reviewable." However, in WWHT v. FCC, a court, for the first time, squarely held that agency denials of petitions for rulemaking are subject to judicial review. The scope of review of agency responses to rulemaking petitions is narrow: 134 [W]here the proposed rule pertains to a matter In summary, although courts generally will defer to the agency on the substance of the decision to begin rulemaking in response to a petition, the agency should have procedural rules that ensure a prompt response to petitions. C. Other Procedural Requirements That Apply to Agency Rulemaking. Chapter One briefly described the trend of imposing extra APA procedural requirements on agency rulemaking. In some 131/ Attorney General's Manual on the APA 38 (1947). 132/ Id. 133/ Section 555(b) requires agencies to conclude matters within a "reasonable time," and courts are empowered by 5 U.S. C. $ 706(1) to compel action "unreasonably delayed." If agency discretion was constrained by statute, these provisions could operate to compel agency rulemaking in response to petitions. See, e.g., Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1158 (D.C. Cir. 1983) (agency required to expedite hazardous substances rulemaking). 134/ See Attorney General's Manual on the APA 39 (1947). 135/ 656 F.2d 807 (D.C. Cir. 1981). 136 Id. at 817 (citing Natural Resources Defense Council v. SEC, 606 F.2d 1031, 1053 (D.C. Cir. 1979)). See also Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216 cases, Congress has mandated on a general basis additional steps to be followed by agencies when conducting rulemaking. In other cases, Congress has required some "hybrid" form of rulemaking procedure for particular agencies or agency programs. Additional requirements also have been imposed on rulemaking through Presidential executive orders. We now turn to these various sources of additional requirements. 137 1. The National Environmental Policy Act. The National Environmental Policy Act (NEPA) directs all agencies of the federal government to include in proposals for "major Federal actions significantly affecting the quality of the human environment" a detailed environmental impact statement (EIS) addressing listed subjects and applying substantive criteria set 138 forth in the Act. The Act provides that: Prior to making any detailed statement, the To comply with NEPA, all Federal agencies with legislative rulemaking authority should have regulations establishing the procedure to be followed for assessing the need for an environmental impact statement and for preparing and obtaining comment on the statement.140 In an effort to produce uniformity (D.C. Cir. 1983). 137/ Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. SS 4321-4361 (1976). 138/ 42 U.S.C. S 4332(C) (1976). (Continued) in agency regulations, President Carter issued an executive order in 1977 that directed the Council on Environmental Quality to adopt regulations, binding upon all agencies, that set forth uniform standards for conducting environmental reviews. The Council's regulations are codified at 40 C.F.R. Parts 1500-1508 (1982). 142 141 2. The Regulatory Flexibility Act. The Regulatory Flexibility Act" is like the National Environmental Policy Act in that it directs agencies to give special attention to certain values during the decisionmaking process. The value preference recognized by the Regulatory Flexibility Act is concern about the impact of regulations on small business and other small entities. Like NEPA, the Act mandates consideration of regulatory alternatives, with the anticipated (if unstated) purpose of influencing the substance of the final agency action. 143 The Regulatory Flexibility Act incorporates the APA's broad definition of "agency," thus making it applicable to independent regulatory agencies as well as executive agencies. However, there are important limitations on the Act's coverage. First, the Act only applies to rules for which an agency publishes a general notice of proposed rulemaking-either pursuant to the APA or some other 144 law-and it does not apply to ratemaking." The Act's flexibility analysis requirements also are limited to rulemaking for which the agency "is required by section 553... or any other law, to publish 139/ Id. 140/ The environmental impact statement requirement has generated a huge volume of caselaw and commentary, the extent of which is suggested by the following law review articles: Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. Pa. L. Rev. 509 (1974); Rodgers, A Hard Look at Vermont Yankee: Environmental Law Under Close Scrutiny, 67 Geo. L.J. 699 (1979). 141/ Exec. Order No. 11,991, 3 C.F.R. 123 (1977). For a discussion of the background and legal effect of CEQ's regulations, see Note, NEPA After Andrus v. Sierra Club: The Doctrine of Substantial Deference to the Regulations of the Council on Environmental Quality, 66 Va. L. Rev. 843, 849-855 (1980). 142/ Pub. L. No. 96-354, 94 Stat. 1165 (1980) (codified at 5 U.S.C. SS 601-612 (Supp. V 1981). 143/ 5 U.S.C. S 601(1) (Supp. V 1981) (hereinafter code edition omitted). (Continued) |