Under the Federal Administrative Procedure Act, an agency must give an opportunity to the interested persons to participate in the rule making process in the case of informal rulemaking. The participation of such persons can be through submission of written data, views, or arguments with or without oral presentation. After considering the relevant matter presented, the agency will incorporate the rules adopted in a concise general statement of their basis and purpose.[i]
However, it is not mandatory that a federal agency must provide a hearing or oral presentation as part of the comment requirement according to the Administrative Procedure Act.[ii]
It was observed in Safe Air for Everyone v. United States EPA, 475 F.3d 1096 (9th Cir. 2007), that the Administrative Procedure Act mandates that agencies provide interested parties notice and an opportunity for comment before promulgating rules of general applicability.
In Connecticut Light & Power Co. v. Nuclear Regulatory Com., 673 F.2d 525 (D.C. Cir. 1982), the court found that an agency adopting final rules that differ from its proposed rules is required to renotice when there are major changes. The purpose of the new notice is to allow interested parties a fair opportunity to comment upon the final rules in their altered form.
An agency is required to provide a meaningful opportunity for comments, which means that the agency’s mind has to be open while considering them.[iii] However, the public do not possess any opportunity to comment on every bit of information that influences the decision of an agency [iv]
[i] 5 USCS § 553
[iii] Hill v. Gould, 555 F.3d 1003 (D.C. Cir. 2009)
[iv] Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d 313 (5th Cir. 2001)