EPA Rulemaking and Adequate Notice

In the early 1970s, agency rulemaking became the mainstay for carrying out government programs. Today, federal agencies execute their rulemaking responsibilities principally through informal rulemaking. While the choice between proceeding by general rule or individual adjudication in establishing agency policy is one that lies primarily within an agency's informed discretion, the U.S. Supreme Court, agencies themselves, and commenters have recognized the advantages of rulemaking over adjudication in the formulation of general regulations or agency policy. See, e.g., United States v. Storer Broadcasting Co., 351 U.S. 192 (1956); Statement and Purpose of Trade Regulation Rule, 29 Fed. Reg. 8325, 8365-69 (1965); Robinson, 'The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U. Pa. L. Rev. 485 (1970). As a result, federal agencies are exercising broad rulemaking powers that affect every aspect of our economy and our society. The exercise of these broad rulemaking powers is subject to the procedures set forth in section 4 of the Administrative Procedure Act (APA). 5 U.S.C. § 553 (1982). Section 4 imposes a fourfold obligation on federal agencies that undertake rulemaking. First, the agency must publish a notice of a proposed rulemaking in the Federal Register, unless affected by the rule are named and either personally served or actually noticed. 5 U.S.C. § 553(b). Second, the notice must include the legal authority under which the rule is proposed and either the terms or substance of the proposed rule or. . . a description of the subjects and issues involved. Id. Third, section 4 requires the agency to give interested persons an opportunity to participate in the rulemaking by presenting written data, views, or arguments with respect to the proposed rule. Id. Fourth, [a]fter consideration of the relevant material presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. Id. Together, these requirements are intended to allow informal rulemaking to proceed in a fashion that is not only orderly but also, more important, fair to all affected parties.