ted States Code, is the APA's ty and flexibility was shown by done by the Attorney General's cedure, in existence from 1939eson. See generally Attorney ative Procedure, Final Report on nment Agencies, S. Doc. No. 8, y, Report on the Administrative 2 D. ine reuerai Courts and Rшemaking proc and After "Vermont Yankee". The term "hybrid rulemaking" was initially us judicially-imposed use of procedures in agency ru went beyond the minimum requirements of section the early "hybrid rulemaking" judicial decis rulemaking under statutes that called for either a d hearing (but not on the record) or "substantial evi The courts refused to apply formal rulemaking proc proceedings, but they did remand final rules to th additional development of issues through cross-e other unspecified procedural devices.' 7 The rationales given in support of these ju were often quite broad, and for a decade beginni Procedure Act, S. Rep. No. 752, 79th Cong., 1st Sess 5/ See Chapter Two at pp. 24-44. 6/ See Williams, "Hybrid Rulemaking" Under the Procedure Act: A Legal and Empirical Analysis, 42 401 (1975). The term "hybrid rulemaking" apparen prior to publication of the Williams article. See Cla Action-Adjudication-Rulemaking: Some Recent De Federal Administrative Law, 1971 Duke L.J. 5 agencies to fashion "hybrid or conglomerate procedu 7/ See generally Williams, supra note 6. 3 THE FEDERAL RULEMAKING PROCESS Passage of the Administrative Procedure Act (the APA)1 in 1946 established the basic framework of administrative law governing agency action, including rulemaking. However, the APA no longer provides the exclusive procedural framework for many agency rulemakings, and it appears that subsequent developments have undermined the original unifying effect of the APA. Beginning around 1970, the federal courts began to reject as procedurally deficient, on one rationale or another, the results of agency rulemaking that complied with the minimum procedural requirements of the APA. Congress in the same period began mandating, in specific legislation, procedures to supplement or supersede the APA's procedural requirements for agency rulemaking. More recently, Presidents have issued executive orders imposing procedural requirements on rulemaking by executive branch agencies that go far beyond the procedures required by the APA. A major purpose of this guide is to provide the agency rulemaker with an integrated view of these procedural requirements as they pertain to each stage of the rulemaking process. However, before the stage-by-stage discussion, it will be useful to review generally the major events in the development of the federal rulemaking process. A. Rulemaking Under the APA. 2 The APA was the product of a struggle between interests that supported the programs of the New Deal agencies and those that were afraid or suspicious of the power given those agencies. A major accomplishment of the APA was the establishment of minimum procedural requirements applicable to many types of agency proceedings. However, the APA did not require-as earlier 1/ 5 U.S.C. SS 551-706 (1976 and Supp. V 1981). 2/ See Verkuil, The Emerging Concept of Administrative Procedure, 78 Colum. L. Rev. 258, 268–274 (1978). 1 3 bills would have-that all administrative action follow a single, rigid procedural model. Instead, the APA recognizes and applies different procedures to proceedings that are commonly characterized as "formal adjudication," "formal rulemaking," "informal rulemaking," and "informal adjudication." The emphasis in this guide is on "informal" rulemaking rather than "formal" rulemaking. Formal rulemaking is triggered by a statute other than the APA that requires rules to be made on the record after opportunity for an agency hearing. If formal rulemaking is required, then the rulemaking proceedings must be conducted following the trial-type or adversary procedures set forth in sections 556 and 557 of the APA. Formal rulemaking procedure is described in Chapter Two, but subsequent chapters do not deal with it because it is rarely used except in ra temaking cases and other narrow categories of proceedings. Section 553 of Title 5, United States Code, is the APA's general rulemaking section, and rulemaking governed by it is commonly called "informal" or "notice and comment" rulemaking. The "notice-and-comment" label derives from the requirements for: (1) publication of a notice of proposed rulemaking, (2) opportunity for public participation in the rulemaking by submission of written comments, and (3) publication of a final rule and accompanying statement of basis and purpose not less than 30 days before its effective date. It is important to stress that these requirements are the procedural "floor" below which an agency may not go in prescribing procedures for a particular rulemaking. The drafters of the APA contemplated that "[m]atters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures."4 3/ The need for procedural variety and flexibility was shown by the excellent empirical research done by the Attorney General's Committee on Administrative Procedure, in existence from 19391941 and chaired by Dean Acheson. See generally Attorney General's Committee on Administrative Procedure, Final Report on Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess. (1941). 4/ Senate Comm. on the Judiciary, Report on the Administrative (Continued) |