APA Rulemaking (5 U.S.C. § 553)
The core APA provision governing informal (notice-and-comment) rulemaking, the default rulemaking procedure when an enabling act does not require a formal (on-the-record) hearing.
§ 553(b) — Notice of Proposed Rulemaking (NPRM)
The NPRM must state:
- The time, place, and nature of the rulemaking
- Reference to the legal authority for the rule
- Either the terms or substance of the proposed rule, or a description of the subjects and issues involved
Portland Cement Ass’n v. Ruckelshaus (1973): the NPRM must disclose the data and studies underlying the rule so commenters can meaningfully respond. Shell Oil v. EPA: agency must reveal new data gathered after the NPRM if the final rule departs significantly.
§ 553(c) — Comment Period and Statement of Basis and Purpose
- Agency must give interested persons opportunity to submit written comments
- Agency must consider “relevant matter presented” and issue a statement of basis and purpose (concise general statement of basis and purpose)
- Home Box Office v. FCC: ex parte contacts during rulemaking may require disclosure; must be placed on the public record
- Logical Outgrowth Rule: final rule must be a “logical outgrowth” of the proposed rule; if not, a new NPRM is required (Connecticut Light & Power v. NRC)
Vermont Yankee Nuclear Power Corp. v. NRDC (1978): § 553 establishes the maximum procedural requirements courts may impose. Courts cannot require agencies to provide more procedures than § 553 mandates (absent a showing of constitutional due process violations).
§ 553(a) — Subject Matter Exemptions
Exemptions from notice-and-comment for:
- Military or foreign affairs functions
- Internal personnel rules
- Rules relating to grants, benefits, loans, subsidies, or contracts
§ 553(b)(A)–(B) — Procedural and Good Cause Exemptions
- (A) Interpretive rules, general statements of policy, and rules of agency organization/procedure
- (B) Good cause: notice and comment are “impracticable, unnecessary, or contrary to the public interest” (narrowly construed; agency must publish statement of reasons)
Formal vs. Informal
Formal rulemaking under §§ 556–557 is triggered only when the enabling act requires the rule to be made “on the record after opportunity for an agency hearing.” United States v. Florida East Coast Railway (1973): the “magic words” must appear; “after hearing” alone is insufficient.