Amicus Curiae Brief — American Mining Congress v. Thomas

Supreme Court, U.S,

. FILED

JUN 27 1988

No.? ./41 JOSEPH F. SPANIOL. Jp i

x = J

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

AMERICAN MINING CONGRESS, et al.,

Petitioners,

V.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

IN SUPPORT OF THE PETITIONERS

ROBIN S. CONRAD

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

WILSON - EPes PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

* VIS Fee Cer

A : eo

TABLE OF CONTENTS

Page

pe Ce Bl gw Vis i fy | GER eae ii

STATEMEN. OF INTEREST nnn 2nc.-c-c0ncceses-. 1

ev We jp ht) ge iy | | See eenn 4

REASONS FOR GRANTING THE WRIT ........000....... 5

I. CONFLICTING TESTS FOR DETERMINING

WHETHER AGENCIES MUST PROVIDE A

SECOND ROTIND OF NOTICE AND COM-

MENT GENERATE WIDESPREAD CONFU-

SION OVER THE SCOPE OF SECTION 553

I NN sect cletses tcceatca tenchgpcdatansnenicetcamencassesied 5

A. A Single Test For Determining When An

Agency May Promulgate Substantially Dif-

ferent Final Rules Without Providing A

Second Round Of Notice And Comment Will

Guarantee Meaningful Public Participation

And Ensure Consistent Results For The

Entire Regulated Community ~...................... 6

B. The Logical Outgrowth Test Adopted Below

Is Unfair And Conflicts With At Least Two

Other Tests For Determining Sufficient No-

RRR TR A ote BRE CP Ee Oe os Pe 7

C. A Single Test Will Eliminate This Erratic

Approach To Determining Logical Out-

growth And Avoid Recurring Litigation

Every Time An Agency Substantially

I Te FI NI aiciescckchdieieacenecseneesambonen 11

CONCLUSION ................. sienna leash auphavingaaciediattaccimeasenanae 11

ii

TABLE OF AUTHORITIES

CASES

AFL-CIO v. Donovan, 757 F.2d 330 (D.C. Cir.

DOD ok oicccnsccsccsencchatdsacoe aaa

BASF Wyandotte Corp. v. Costle, 598 F.2d 637

(1st Cir. 1979), cert. denied sub nom. Eli Lilly

& Co. Vv. Costle, 444 U.S. 1096 (1980) _...............

Chamber of Commerce of the United States v.

OSHA, 636 F.2d 464 (D.C. Cir. 1980) .................

Chocolate Manufacturers Ass’n V. Block, 755 F.2d

1008 (060 Cie. TORR) cicencccanteeeee,

International Harvester Co. v. Ruckelshaus, 478

P38 OU (CB. CO. TO) coca

Kennecott v. United States, 780 F.2d 445 (4th Cir.

BOY aac ntesndcccesaviccocnntirinnsiedanaeensioneteccoienneeneen

National Black Media Coalition v. FCC, No. 479

(24 Cle. Shay 37, 2906) 212 eee

PPG Industries, Inc. Vv. Costle, 659 F.2d 1239 (D.C.

Cie; BOB) ainccnc cents talisman eee

Rowell v. Andrus, 631 F.2d 699 (10th Cir. 1980)...

Small Refiners Lead Phase-Down Task Force Vv.

EPA, 705 F.2d 506 (D.C. Cir. 1983) .....................

South Terminal Corp. v. EPA, 504 F.2d 646 (1st

oe | | | yori everenoU. eT Ss

Taylor Diving & Salvage Co., Inc. Vv. U.S. Depart-

ment of Labor, 599 F.2d 622 (5th Cir. 1979)...

United Church Board for World Ministers v. SEC,

617 F. Supp. 887 (D.D.C. 1985) ....................--.-.--

United States v. Florida East Coast R. Co., 41¢

U.S. B86 (i078) Wee

United Steelworkers v. Marshall, 647 F.2d 1189

(D.C. Cir. 1980), cert. denied sub nom. Lead

Industries Ass’n v. Donovan, 453 U.S. 913

fs |} ae ener SRL Ns Sane kOe ones

Wagner Electric Corp. v. Volpe, 466 F.2d 1013

CO Cae. BID cies eee

Weyerhauser Co. Vv. Costle, 590 F.2d 1011 (D.C.

CO TID sinacecskthiccssrceoncceecnsacceee ane

Page

iii

TABLE OF AUTHORITIES—Continued

STATUTES Page

Administrative Procedure Act, Pub. L. No. 89-

554, 80 Stat. 383, 5 U.S.C. §§ 551 et seq. (1982) ..passim

I os eceamnaioesnen 5

SR Nee 5

Clean Water Act, Pub. L. No. 95-217, 91 Stat. 1597,

83 U.S.C. §§ 1251 et seq. (1982) ........................... 4

RULES AND REGULATIONS

48 Fed. Reg. 7046-7047 (Feb. 17, 1983) —.......0..000000... 4

MISCELLANEOUS

Comment, The Need for an Additional Notice and

Comment Period when Final Rules Differ Sub-

stantially from Interim Rules, 1981 Duke L. J.

CE EE GE po 9

K. Davis, Administrative Law of the Seventies

cia acces ceca oorks oeescbcewben comes 6

Note, Toward a More Complete Notice of Proposed

Rulemaking: A Judicial Overiew [sic] and

Suggestions for Change, 84 W. Va. L. Rev. 227

ant hg A Ey ene aan ee 9

Rochvarg, Adequacy of Notice of Proposed Rule-

making under the Administrative Procedure Act

' _.When Should a Second Round of Notice and

Comment be Provided?, 31 Am. U. L. Rev. 1

a acs 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1741

AMERICAN MINING CONGRESS, et al.,

‘. Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

IN SUPPORT OF THE PETITIONERS

STATEMENT OF INTEREST?

This case presents the Court with a critical question of

administrative law that continues to generate conflicting

lower court opinions on when an agency, which substan-

tially changes a final rule from what it originally pro-

posed in the Federal Register, must provide a second

round of notice and comment in order to comply with

§553 of the Administrative Procedure Act (“APA”).

5 U.S.C. § 5538 (1977). Justices Rehnquist and Powell

recognized the importance of this question and the need

1 This brief is filed with the written consent of the parties pursu-

ant to Supreme Court Rule 36.1. The parties’ consent letters have

been filed with the Clerk of this Court.

9

—

to resolve it in their dissent to the denial of certiorari in

Eli Lilly & Co. v. Costle, 444 U.S. 1096 (1980).? In that

case, the lower court held that promulgation of the sub-

stantially changed rule did not require additional notice

and opportunity to comment because the final rule was

the “logical outgrowth” of comments received during the

public comment period. BASF Wyandotte Corp. V.

Costle, 598 F.2d 637 (1st Cir. 1979).

Since then, in partial fulfillment of the dissent’s

prophecy, several other decisions have added to the con-

fusion in the circuits on when to require a second round

of notice and comment prior to adopting a substantially

different final rule. At least three different versions of

the “logical outgrowth” test have emerged, each focusing

on a different source from which the final rule must logi-

cally grow.

The logical outgrowth test used by the Fourth Circuit

below adopts the BASF Wyandotte approach to deter-

mining when a second round of notice and comment must

be provided. This approach is particularly egregious be-

cause it focuses solely on whether the final rule was re-

vised in response to comments on the proposal, and fails

to consider whether the proposal itself initially gave in-

terested parties adequate notice of the subjects and issues

covered in the final rule. Its application invariably re-

sults in decisions like the one below, where the Fourth

?“This case presents an issue of great importance, which cannot

help but become greater as time goes on and more and more admin-

istrative proceedings are conducted either directly under [§ 553],

or similar provisions in new Acts of Congress for review of agency

action. .. . That question is the degree to which an agency, which

publishes a rule for notice and comment .. . very substantially

changes the rule in response to the comments it receives, is obliged

to publish the revised rule to allow another opportunity for notice

and comment ... [W]lhen we consider the very significant effect

that a “rulemaking” procedure may have upon the parties involved

..., I think this Court should grant certiorari to examine the

question,” Jd. at 1097-1698.

3

Circuit ignored the fact that the agency’s choice for the

final rule was not even included among the specified al-

ternatives listed in the Federal Register notice.

This version of the logical outgrowth test adversely

affects anyone wishing to comment on proposed regula-

tions. Notice and comment rulemaking is one of the

key elements of the business community’s ability to adapt

to an everchanging regulatory environment. By requiring

a nexus between only the final regulations and the com-

ments received, this test stands the APA on its head. It

shifts the burden of providing notice from the agency

to the regulated community, requiring interested persons

to determine for themselves the subjects and issues of

the rulemaking. .

As the nation’s largest federation of businesses and

business organizations, the Chamber of Commerce of the

United States (“Chamber”) is particularly disturbed by

the Fourth Circuit’s approach in this case. The Chamber

represents more than 180,000 companies, trade and pro-

fessional organizations, and state and local chambers of

commerce, and often participates on their behalf in rule-

makings * and in challenges to rulemakings.*

The practical implications of the decision below are

overwhelming. Unless rejected by this Court, this theory

for determining logical outgrowth will force the regu-

3 See e.g., Comments of the Chamber of Commerce of the United

States on EEOC Notice of Proposed Rulemaking: Administrative

Exemption Allowing for Waivers Under the ADEA, 50 Fed. Reg.

40,870 (Oct. 7, 1985) ; Proposed Regulations Relating to the Limita-

tion on the Amount of Depreciation and Investment Tax Credit for

Automobiles and the Limitation when Certain Property is Used

for Personal Purposes (Dec. 21, 1984) ; Advance Notice of Proposed

Rulemaking, 40 C.F.R. 765, Formaldehyde: Determination of Sig-

nificant Risk (July 28, 1984).

4 See e.g., Chamber of Commerce of the United States v. OSHA,

636 F.2d 464 (D.C. Cir. 1980) (whether OSHA’s promulgation of

a legislative rule having substantial impact, without giving inter-

ested persons advance notice and opportunity for comment, violated

§ 553 of the APA).

4

lated community to research voluminous administrative

records to obtain “notice” of what the Chamber believes

is the statutory duty of the agency to provide.’ For these

reasons, the Chamber urges the Court to grant certiorari

in this case, and resolve the conflict in the circuits over

the proper use of this test.

STATEMENT OF THE CASE

This case arises out of a lawsuit challenging certain

Clean Water Act regulations on the grounds that the

Environmental Protection Agency (“EPA” or “Agency” )

violated the Administrative Procedure Act when it pro-

mulgated substantially different regulations from those

originally proposed in the Federal Register, without pro-

viding additional notice and opportunity for comment.°

The notice of proposed rulemaking listed six pollution

control technologies being considered by the Agency.’

5 The Federal Register proposal in this case comprised 94 pages

out of a 55,000-page administrative record. (Petition for Certiorari

at 5). In 1985, the Environmental Protection Agency alone pub-

lished 1,878 entries in the Federal Register alone, amounting to

5,494 “billable” pages, which is roughly equal to 4,500 full pages

of text. (Government Printing Office statistics).

® Section 304 of the Clean Water Act, 33 U.S.C. §§ 1251, 1317,

requires EPA to set industry-wide water pollution standards, called

“effluent guidelines.” The effluent guidelines at issue in this case

were promulgated for the non-ferrous metal manufacturing in-

dustry.

7 Section VII of the preamble to the proposal, entitled “Available

Wastewater Control and Treatment Technology,” contained three

subheadings: A. Control Technologies Considered; B. Status of

In-Place Technology; and C. Control] and Treatment Options, which

listed the six options (“EPA considered the following treatment

and contre! options . . . for facilities with the nonferrous metal

manufacturing category: ....”). 48 Fed. Reg. 7046-7047 (Feb. 17,

1983). Section XXIV of the preamble, entitled “Solicitation of

Comments,” specifically invited the submission of data from facili-

ties “using the treatment technologies relied upon for this regula-

tion, and also other equally effective treatment technologies.” Id.

at 7073 (emphasis added).

5

The final rule, however, imposed a seventh technology

selected from EPA’s 2200-page Development Document,

an encyclopedic compendium of technologies and back-

ground material, which was never published in the Fed-

eral Register. The Petitioners challenged the final regula-

tions on the issue of adequate notice and opportunity to

submit data on the seventh technology. The Fourth Cir-

cuit rejected this argument, suggesting that Petitioners

should have been aware of the seventh technology because

“EPA actually did discuss [it] in the Development Docu-

ment, which accompanied the Proposed Rules... .”

Kennecott v. United States, 780 F.2d 445, 452 (4th Cir.

1985) (emphasis added). Endorsing EPA’s characteriza-

tion of the final rule as a “ ‘natural and logical out-.

growth’ of the commenting procedure,” the Fourth Cir-

cuit held that the agency did not violate the APA when

it added the new technology “in an attempt to respond

to industry comments and complaints.” Jd. at 453.

REASONS FOR GRANTING THE WRIT

I. CONFLICTING TESTS FOR DETERMINING

WHETHER AGENCIES MUST PROVIDE A SEC-

OND ROUND OF NOTICE AND COMMENT GEN.-

ERATE WIDESPREAD CONFUSION OVER THE

SCOPE OF SECTION 553 OF THE APA

Section 553 establishes the general statutory frame-

work for informal rulemaking. It requires federal agen-

cies to publish notice of proposed rulemaking in the Fed-

eral Register, and to include in the notice “either the

terms or substance of the proposed rule or a description

of the subjects and issues involved.” 5 U.S.C. § 553(b) (3).

After the required notice is published, the agency must

“give interested persons an opportunity to participate in

the rule making through submission of written data,

views or arguments with or without the opportunity for

oral presentation.” Jd. at § 553(c).

Informed public «» tice and meaningful opportunity to

comment on proposed rules are fundamental requirements

6

of administrative law. Whether and how well an agency

meets these requirements depends largely on how the

courts interpret § 553. Conflicting judicial interpreta-

tions of what the APA requires when an agency pub-

lishes a final rule that substantially differs from its pro-

posal raise serious questions about the adequacy of agency

rulemaking procedures. The recurring nature of these

questions and the breadth of their impact call for im-

mediate resolution by this Court.

A. A Single Test For Determining When An Agency

May Promulgate Substantially Different Final

Rules Without Providing A Second Round Of Notice

And Comment Will Guarantee Meaningful Public

Participation And Ensure Consistent Results For

The Entire Regulated Community

This Court recognized the very significant effects that

a “rulemaking” procedure may have upon interested par-

ties in United States v. Florida East Coast R. Co., 410

U.S. 224 (1973). The impact of the rulemaking proce-

dure at issue here is equally pervasive. It extends far

beyond these EPA regulations and the metal manufactur-

ing industry challenging them, and adversely affects all

parties and agencies regulated under § 553 of the APA.

Action by this Court to establish a single test for de-

termining logical outgrowth would allow all courts to

take a uniform approach when interpreting the require-

ments of § 553. Besides giving the regulated community

an understanding currently absent from the law, uni-

formity would ensure that litigation regarding the scope

of the logical outgrowth test would not recur each time

an agency substantially changes a final rule.

8 See, Chamber of cater iota of the United States, 636 F.2d at

472 (Bazelon, J., concurring) (“advance notice and opportunity

for public participation are vital if a semblance of democracy is to

survive in this regulatory era”). See generally, K. Davis, Admin-

istrative Law Of The Seventies, § 6.01-1 (1976).

7

B. The Logical Outgrowth Test Adopted Below Is

Unfair And Conflicts With At Least Two Other

Tests For Determining Sufficient Notice

The logical outgrowth test used by the court below is

one of three tests which have emerged from the courts

of appeals for determining whether a second round of

notice and comment should be required. The fundamental

difference between these tests is the way they measure

“outgrowth.” The Fourth Circuit focuses only on the

comments submitted during the comment period.’ Ac-

cordingly, an agency may make substantial changes to

its original proposed rule without providing an additional

notice and comment period if the changes are a logical

outgrowth of the comments received. Accord, BASF

Wyandotte Corp., 598 F.2d 637.

Other courts, and even another opinion in the Fourth

Circuit, expressly reject the use of comments received to

® The court specifically noted that sulfide precipitation was not

listed in the Federal Register proposal: “EPA listed six control

and treatment options in the proposed rules; sulfide precipitation

was not among them.” Kennecott, 780 F.2d at 452.

10 There, the First Circuit warned, “It should be clear to com-

mentators when they criticize a regulatory scheme that if the

agency accepts those criticisms a new scheme will be substituted

. .. [T]hough EPA’s solution was not the one for which the in-

dustry argued, it was suggested by and, in part, a logical out-

growth of the industry’s comments. They cannot now complain

because they misread the regulatory waters [and] incorrectly

anticipated how EPA would react to their criticisms.” BASF

Wyandotte Corp., 598 F.2d at 643. See note 2 and accompanying

text, supra. See also International Harvester Co. v. Ruckelshaus,

478 F.2d 615, 632 (D.C. Cir. 1978) (“In part, EPA developed its

methodology on the basis of submissions made by the companies at

the hearing ... The requirement of submission of a proposed rule

for comment does not automatically generate a new opportunity for

comment merely because the rule promulgated by the agency differs

from the rule it proposed, partly at least in response to submis-

sions.”’).

8

measure logical outgrowth."' They instead focus their

examination of the final rule on either the proposed rule

as published in the Federal Register,? or a combination

of the proposal and the comments submitted.”*

11 See e.g., Small Rejfiners Lead Phase-Down Task Force Vv. EPA,

705 F.2d 506, 549 (D.C. Cir. 1983) (“As a general rule, EPA must

itself provide notice of a regulatory proposal. Having failed to do

so, it cannot bootstrap notice from a comment. The APA does not

require comments to be entered on a public docket. Thus notice

necessarily must come—if at all—-from the agency.”); PPG In-

dustries, Inc. v. Costle, 659 F.2d 1289, 1249 (D.C. Cir. 1981)

(“While an absence of comments in no way implies inadequate

notice, it does alert us to that possibility.”) ; Wagner Electric Corp.

v. Volpe, 466 F.2d 1013, 1019 (3d Cir. 1972) (“The absence of

comments from such groups may well be because the notice of

rulemaking never advised of this subject or issue.”). Even a prior

Fourth Circuit decision cited by the court rejected this approach.

See Chocolate Manufacturers Ass’n V. Block, 755 F.2d 1098, 1104

(4th Cir. 1985) (“An agency, however, does not have a carte blanche

to establish a rule contrary to its original proposal simply because

it receives suggestions to alter it during the public comment

period.’’).

12 See e.g., AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C. Cir.

1985) (“A determination of whether notice was adequate in this

case turns, then, on an examination of the notice which the secre-

tary provided in relation to the final rule which was ultimately

adopted.) ; Taylor Diving & Salvage Co., Inc. v. U.S. Department

of Labor, 599 F.2d 622, 626 (5th Cir. 1979) (“It is not necessary,

however, for the final form of a regulation to be republished... .

where the proposed regulation, in its initial form, gives sufficient

notice to interested parties of the Secretary’s intentions... Here,

. . . the contested provision in the standard finally promulgated

was a logical outgrowth of provisions found in the standard orig-

inally proposed.”). Accord, United Church Board for World Min-

isters v. SEC, 617 F. Supp. 837, 840 (D.D.C. 1985) (“Failure to

make agency views known at the time of publication of notice

circumvents the purpose of the APA notice requirements. Proposed

rule changes cannot be “tested” when the public is unaware of both

the proposed revision and the theory under which the agency makes

its proposal.”’).

13 See e.g., United Steelworkers v. Marshall, 647 F.2d 1189, 1221

(D.C. Cir. 1980), cert. denied sub nom. Lead Industries Ass’n V.

9

Of these three approaches,’ the one adopted by the

Fourth Circuit is the most unfair and burdensome to the

public. Measuring logical outgrowth from comments re-

ceived fails to consider whether the proposed rule initially

provided adequate notice of the subject and issues cov-

ered in the final rule. This approach undermines the

rulemaking process, and denies interested parties their

right to comment on important aspects of a rule prior to

final promulgation. It also turns the APA on its head,

using the comment period as a substitute for an agency’s

failure to satisfy its statutory obligations. Comments

submitted during the public comment period should not

be confused with notice from the agency. As succinctly

put by one court, only an agency can provide notice; “it

Donovan, 453 U.S. 913 (1981) (“We must proceed to compare

carefully the specific language of the proposal with that of the final

rule, in light of the evidence adduced at the hearings.’’); South

Terminal Corp. v. EPA, 504 F.2d 646, 658 (1st Cir. 1974) (“Al-

though the changes were substantial, they were in character with

the original scheme and were additionally foreshadowed in the

proposals and comments advanced during the rulemaking.”). A--

cord, Rowell v. Andrus, 631 F.2d 699, 702 n.2 (10th Cir. 1980);

Weyerhauser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1980)

(“[T]he Agency’s final conclusions are far from the ‘logical out-

growth’ of the preceeding notice and comment process. .. .”).

14 One commentator has identified yet a fourth test: whether the

final rule is a logical outgrowth of agency statements published in

the notice of proposed rulemaking. See, Rochvarg, Adequacy of

Notice of Proposed Rulemaking under the Administrative Proce-

dure Act—When Should a Second Round of Notice and Comment

be Provided?, 31 Am. U. L. Rev. 1, 8 (1981). But cf., Comment,

The Need for an Additional Notice and Comment Period when Final

Rules Differ Substantially from Interim Rules, 1981 Duke L. J. 377

(1981) (does not recognize agency statements in preamble as a

separate test). See also Note, Toward a More Complete Notice of

Proposed Rulemaking: A Judicial Overiew [sic] and Suggestions

for Change, 84 W. Va. L. Rev. 227, 246-252 (1981) (the relationship

between the “hard look doctrine” and sufficiency of notice) ; Roch-

varg supra, at 18-23 (use of the “harmless error approach” as an

alternative test for deciding whether to provide additional notice

and comment).

10

cannot bootstrap notice from a comment.” Small Refiners

Lead Phase-Down Task Force, 705 F.2d at 549.

The Fourth Circuit’s application of this version of the

logical outgrowth test is particularly egregious because

no comments were even filed on sulfide precipitation as

a possible treatment technology. Instead, the court held

that EPA’s selection of sulfide was the logical outgrowth

of the negative comments received on the six treatment

options listed in the notice of proposed rulemaking. More-

over, the court suggested that EPA had further dis-

charged its statutory obligation to provide notice by dis-

cussing sulfide precipitation, along with over twenty-five

other treatment technologies, in a document not even

published in the Federal Register.° According to this

approach, an interested party could protect its right to

participate meaningfully in a rulemaking only by search-

ing the docket for clues of agency intent and commenting

on every technology discussed in a Development Docu-

ment.*® And such a party would have no way to protect

its right to receive meaningful prior notice of the agen-

cy’s proposal.

15In PPG Industries, Inc. v. Costle, 659 F.2d 1239 (D.C. Cir.

1981), the court invalidated as “hardly the ‘logical outgrowth’ of

the rulemaking” a final rule developed from methodology cited in

a footnote to an unpublished appendix to the proposed rule. The

court held that “if a required definition or procedure is part of a

rule, it must be published or incorporated by reference in the Fed-

eral Register.” Jd. at 1250. See also, National Black Media Coali-

tion v. FCC, No. 479 (2d Cir. May 27, 1986) (agency reliance on

mzps and studies not disclosed throughout the proceedings denied

parties the opportunity to comment on their methodology or con-

clusions, and therefore the final rule was not a logical outgrowth of

the proposed rule).

16 Yet, as noted by the court in Small Refiners Lead Phase-Down

Task Force, 705 F.2d at 550, “[n]Jothing in the text or legislative

history of the [Clean Air Act] hints that Congress intended to

require private parties to scrutinize the record for notice of issues

that the agency did not raise itself.’ Nor are there any such hints

in the text or legislative history of § 553 of the APA.

11

C. A Single Test Will Eliminate This Erratic Approach

To Applying The Logical Outgrowth Test And

Avoid Recurring Litigation Every Time An Agency

Substantially Changes A Final Rule

The conflicting versions of the logical outgrowth test

outlined above demonstrate an erratic approach to inter-

preting § 553 of the APA that utterly fails to provide

the regulated community and the courts with a workable

degree of guidance on when an agency must provide a

second round of notice and comment. The Chamber urges

this Court to put an end to this continuing conflict by

establishing a single logical outgrowth test that complies

with the notice and comment provisions of the APA, and

ensures meaningful public participation in agency deci-

sionmaking.

The test adopted by the court below imposes unreason-

able burdens on interested parties and severely restricts

their rights under the statute. The Chamber urges the

Court to reject this approach and instead to adopt a test

which measures logical outgrowth only from the pro-

posed rule as published in the Federal Register. Such a

test would respond to the regulated community’s need for

guidance and reduce the multiplicity of litigation that

continues to occur every time an agency promulgates a

substantially different final rule.

CONCLUSION

For these reasons stated above, this Court should grant

the petition for cerziorari.

Respectfully submitted,

ROBIN S. CONRAD

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

June 1986 of the United States