A Long History of Encouraging Voluntary Agency Efforts to Expand Public Engagement in Informal Rulemaking | Administrative Conference of the United States

In a previous post, I gave a brief overview of the procedural requirements for informal rulemaking under Section 553 of the Administrative Procedure Act. See 5 U.S.C. § 553. Section 553 generally requires agencies to provide the public with notice and the opportunity to comment on proposed rules before they are finalized and given legal effect. Certain kinds of rules are exempt from these notice-and-comment requirements, including interpretative rules, policy statements, and organizational and procedural rules. In addition, Section 553’s “good cause” exemption allows an agency to promulgate a rule without notice and comment if it finds good cause to believe those procedures are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B).

It is important to emphasize, however, that Section 553 establishes only minimum procedural requirements for informal rulemaking. Thus, courts generally are prohibited from imposing additional procedural requirements on agencies. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978). But agencies are subject to no such constraint. They may voluntarily go beyond Section 553’s requirements by, for example, offering an additional opportunity for public engagement in the form of a hearing or public workshop as part of a rulemaking. Agencies even have the discretion to observe notice-and-comment requirements in proceedings exempt from Section 553.

Over the years, the Administrative Conference has sought to improve informal rulemaking by recommending the elimination of the Section 553(a)’s broad statutory exemptions to notice-and-comment requirements:

Recommendation 69-8, Elimination of Certain Exemptions from the APA Rulemaking Requirements, urges Congress to amend the APA to remove the exemption for rules relating to “public property, loans, grants, benefits, or contracts,” see 5 U.S.C. § 553(a)(2).
Recommendation 73-5, Elimination of the “Military or Foreign Affairs Function” Exemption from APA Rulemaking Requirements, similarly urges Congress to amend the APA to remove this exemption, codified at 5 U.S.C. § 553(a)(1).

The Conference has also consistently encouraged agencies to go beyond Section 553’s minimum requirements in appropriate circumstances:

Recommendation 76-3, Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking, identifies circumstances that may warrant the use of various kinds of additional procedures, including second or subsequent comment periods, public conferences, and hearings. See also Recommendation 72-5, Procedures for the Adoption of Rules of General Applicability ¶ 5.

The Conference has similarly urged agencies to interpret Section 553’s exemptions narrowly and voluntarily follow notice-and-comment procedures in exempted proceedings:

Recommendations 69-8 and 73-5 (discussed above) recommends that agencies voluntarily employ notice-and-comment procedures in rulemakings that would otherwise be exempt under Section 553(a). See also Recommendation 93-4, Improving the Environment for Agency Rulemaking ¶ IV.
Recommendation 76-5, Interpretive Rules of General Applicability and Statements of General Policy, acknowledges that “[a]t times policy statements and interpretive rules are barely distinguishable from substantive rules for which notice and comment is required” and accordingly encourages “wider voluntary adoption” of rulemaking procedures in the development of these otherwise exempt rules. See also Recommendation 92-2, Agency Policy Statements.
Recommendation 83-2, The “Good Cause” Exemption from APA Rulemaking Requirements, recognizes the need for the good cause exemption, but generally “recommends that agencies provide a post-promulgation comment opportunity” when they use the exemption.
Recommendation 92-1, The Procedural and Practice Rule Exemption for the APA Notice-and-Comment Rulemaking Requirements, offers agencies a standard to determine whether this exemption applies and further states that “unless the costs outweigh the benefits, we strongly encourage agencies voluntarily to use notice and comment even where an APA exemption applies.”

Shortly before its doors closed in 1995, the Administrative Conference adopted a particularly important component of this larger body of work, Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60 Fed. Reg. 43, 108, 43,110 (Aug. 18, 1995). This recommendation provides agencies with detailed guidance for using two particular species of rulemaking: Direct Final Rulemaking and Interim Rulemaking.

Direct Final Rulemaking is an expedited form of notice-and-comment rulemaking that works well for uncontroversial rules. It allows an agency to open a comment period at the same time that it publishes a final rule. If the agency receives no significant adverse comments, the rule goes into effect as published. Otherwise, the agency may withdraw the rule, address the adverse comments, and initiate a new rulemaking. The Conference recently urged agencies to use Direct Final Rulemaking to keep up to date regulations that incorporate extrinsic materials by reference. See Recommendation 2011-5, Incorporation by Reference ¶ 10.

Interim Final Rulemaking makes it easier for agencies to invite public input on rules exempt from Section 553’s requirements. Using this approach, an agency invites post-promulgation comment when it publishes a final rule. Although an interim final rule may become effective even if the agency receives significant adverse comments, this approach facilitates public engagement. If public comments identify a problem the agency had not foreseen, for example, the agency can revise the rule as necessary.

In my next post, I’ll examine how Direct Final Rulemaking and Interim Final Rulemaking have evolved from cutting-edge Administration Conference recommendation to common agency practice. In the course of that discussion, I’ll explain how the small staff of the Administrative Conference supports implementation of the agency’s recommendations—and how surprisingly difficult it is to measure the extent of that implementation.