Legally Binding Action: : Informal Rulemaking

a. APA § 553(b) for informal RM, no need to look at 556/557:
(1) Publish notice of the proposed rulemaking in the Federal Register;See 2 exceptions
(2) Offer all interested persons the opportunity to comment on the proposed rule; &written comments and written views and data
(3) Publish the final rule in the Federal Register, accompanied by a concise statement of the rule's basis and purpose.

For informal rulemaking
1. § 553(b) of the APA imposes the max procedural requirements which Congress was willing to have courts impose upon agencies in rulemaking procedures.

2. Courts MAY NOT impose additional procedural requirements on agencies engaged in informal rulemaking.

3. Agencies should be free to fashion their own rules of procedure in the absence of "extremely compelling circumstances" otherwise.

Just need to comply with 553 Notice and comment but A has discretion

"The notice shall include--(1) a statement of the time, place, and nature of public rule making proceedings; (2) Reference to the legal authority under which the rule is proposed; and (3) Either the terms or substances of the proposed rule or a description of the subjects and issues involved.

Most challenges to the adequacy of agency Notices fall into two categories:

(1) the final rule diverged sufficiently from the proposed rule that the parties affected by the final rule had no way of knowing that the agency was considering one or more critical elements of the final rule ("logical outgrowth" test) (Shell Oil)

Applying the "logical outgrowth" test necessarily is a matter of degree that can only be accomplished on an ad hoc, case-by-case basis

(2) the agency based a rule on data that was not known or made available to interested parties until the agency published the final rule (Portland Cement)

Non legislative rule when : where rules don't affect parties in a way that makes it necessary to participate in proposal and adoption
1. The procedures that must be followed
a. § 553 notice & comment procedure apply only to legislative rules (not interpretive rules, general statements of policy, or rules of agency organization, procedure or practice).

b. Agency can just issue a nonlegislative, interpretive rule; don't need to wait 30 days, can just go into effect.
c. Grounds to attack: party that's regulated can attack adequacy of procedures & say that nonlegislative rule is operating like a legislative rule but did not follow correct procedures.

1. Notice & comment procedure REQUIRED
2. BINDING
a. Carry same legally binding effect as statutes & congressional authorization is needed before agency can promulgate a legislative rule.

Notice and Comment procedure not required
• Policy Statement
• Exercise of discretion
• Non-binding
• Interpretive Rule
• Interpretation of the language of a statute
• Non-binding

Rules Of Agency Organization, Procedure, or Practice: rules that regulate "the form of agency action and proceedings," rather than the actions of regulated parties. Interpretive

Interpretive Rules: statements "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers."

Policy Statements: "statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.

a. Legislative = legally binding on parties & agency;
b. Nonlegislative = not legally binding. agency/party may argue that they're not bound by a rule because it's not legally binding and therefore lacks the force of law.

APA § 553(b)(B): Good Cause Exception

Exempts rules "when the agency finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest"

Did the agency use notice-and-comment rulemaking procedures properly?

Was the notice "sufficient to fairly apprise interested persons of the issues involved, so that they may present responsive data or argument"?

If no, then the notice was insufficient.

If yes, then the notice was sufficient. Did the agency allow interested parties to submit "written data, views, or arguments" on the proposed rule?

If no, then the comment process was insufficient, and the rule is invalid.

If yes, then the comment opportunity was sufficient.

Did the agency have good cause to believe that notice would be impracticable, unnecessary, or contrary to the public interest?

a. No—If no, then the rule may be invalid.

b. Yes—If yes, then the agency was not required to use notice-and-comment rulemaking procedures because it has "good cause" to skip those procedures. The rule is valid.