Final Report (all chapters)

ighteous manner, justifying their conduct with appeals to vacuous notions of “public interest.”
Section 553 was one of the measures envisaged by Congress to curb the worst administrative
excesses. 22
Today, notice-and-comment in agency rule-making is no longer regarded as an effective tool
to curb agency discretion, and it is certainly not considered an effective institution of public
consultation, for several reasons. Notice-and-comment takes place at a point in time when all
controversial issues surrounding a new rule have already been sorted out. By the time a proposed
new rule is announced in the Federal Register, all influential interest groups have already been
consulted. Public comments at this late stage in the rule-making process are very unlikely to have
a significant impact on key aspects of a proposed new rule. Nor are they likely to provide
fundamentally new insights. According to practitioners, the actual importance of notice-andcomment
lies in building the agency rule-making record for judicial review rather than as a tool
for public consultation. 23 Indeed, if an agency were to make significant changes to a proposed
new rule in response to public comments, the courts could require the agency to re-propose the
rule.
The reasons for this dramatic shift are complex, but they can be summarized fairly easily.
Starting in the 1970s, numerous judicial decisions over agency rule-making have produced what
is today known as the “hard look” doctrine. The very strict standards of judicial review embodied
in the hard look doctrine force regulators to justify in excruciating detail all technical and
scientific assumptions incorporated in a proposed new rule. These requirements have made rulemaking
an exceedingly cumbersome and complex process. In addition to assembling a very
detailed technical “preamble,” an agency will negotiate extensively but informally with all
affected parties before publishing a proposed new rule. Strict judicial review has also had a
chilling effect on the willingness of many federal agencies to promulgate new rules, an effect
described by some commentators as a process of “ossification.” 24 An in-depth discussion of this
claim is well beyond the scope of the present discussion. What seems indisputable is that the
“hard look” doctrine has forced agencies to negotiate extensively with organized interest groups,
and in the process has rendered notice-and-comment as a tool of public consultation largely
irrelevant.
As tool of public consultation, notice-and-comment is not merely ineffectual; in some cases,
it actually contributes to amplifying existing political distortions. While in principle anyone can
22
23
24
Robert L. Rabin, "Federal Regulation in Historical Perspective," Stanford Law Review 38 (1986).
Donald E. Elliott, "Re-Inventing Rulemaking," Duke Law Journal 41 (1992), p.1492-96.
William S. Jordan, "Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with
Agency Ability to Achieve Regulatory Goals through Informal Rulemaking?," Northwestern University Law
Review 94 (2000); Thomas O. McGarity, "Some Thoughts on 'Deossifying' the Rulemaking Process Duke,"
Duke Law Journal 41 (1992); Thomas O. McGarity, "The Courts and the Ossification of Rulemaking: A
Response to Professor Seidenfeld," Texas Law Review 75 (1997); Richard J. Pierce, "Rulemaking and the
Administrative Procedure Act," Tulsa Law Journal 32 (1996); Mark Seidenfeld, "Demystifying Deossification:
Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking," Texas Law
Review 75 (1997).
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