Advance notice of proposed rulemaking
Advance Notice of Proposed Rulemaking (ANPRM): Overview
What is ANPRM?
ANPRM is a preliminary step in the rulemaking process used by administrative agencies.
It is not mandatory but is often issued by agencies to inform the public of potential upcoming regulations.
It invites comments, data, and suggestions from interested parties before the formal Notice of Proposed Rulemaking (NPRM) is issued.
Purpose:
Improve transparency.
Gather information from stakeholders.
Refine or reconsider proposed regulations.
ANPRM typically appears in the Federal Register and is an early step in informal (notice-and-comment) rulemaking.
Legal Foundation
The requirement for rulemaking notice is governed mainly by the Administrative Procedure Act (APA), 5 U.S.C. § 553.
The APA requires notice of proposed rulemaking (NPRM) and an opportunity for comment but does not require ANPRM.
ANPRM is a policy choice, reflecting good administrative practice rather than a legal mandate.
Key Cases Relating to ANPRM and Rulemaking Procedures
1. D.C. Circuit Case: Power Authority of the State of New York v. Federal Energy Regulatory Commission (1986)
Facts: FERC issued an ANPRM to gather input on proposed changes to energy regulations.
Issue: Whether FERC followed proper procedures in gathering information before proposing rules.
Holding: The court upheld the use of ANPRM as a useful administrative tool that enhances public participation.
Significance: This case affirms the legitimacy and usefulness of ANPRM in complex regulatory matters to shape agency proposals.
2. American Public Gas Association v. Federal Energy Regulatory Commission (2004)
Facts: FERC issued an ANPRM but later adopted a final rule differing substantially from the ideas floated in the ANPRM.
Issue: Whether the agency was required to justify the final rule based on comments received on the ANPRM.
Holding: The court ruled that while agencies should consider public comments, they are not strictly bound to adopt proposals exactly as indicated in the ANPRM.
Significance: ANPRM is a flexible procedural step that does not limit agency discretion in rulemaking.
3. NRDC v. EPA (Natural Resources Defense Council v. Environmental Protection Agency, 1978)
Facts: EPA was challenged for issuing rules without proper notice and comment procedures.
Issue: Whether EPA violated APA by failing to give adequate notice before rulemaking.
Holding: The court emphasized the importance of meaningful public notice, which can include ANPRMs if used.
Significance: This case underscores the necessity of transparency in rulemaking, reinforcing the purpose of ANPRM as part of public engagement.
4. United States v. Nova Scotia Food Products Corp. (1976)
Facts: This case dealt with procedural requirements in rulemaking and enforcement.
Issue: Whether proper notice was given in regulatory changes affecting food imports.
Holding: The court ruled agencies must provide adequate notice of the issues and rules under consideration.
Significance: While not directly about ANPRM, the decision supports robust pre-rulemaking processes consistent with ANPRM practice.
5. Association of National Advertisers v. FTC (1978)
Facts: FTC issued an ANPRM about advertising regulations, then proposed rules.
Issue: Whether the FTC adequately considered public comments from the ANPRM phase.
Holding: Courts recognized the value of ANPRM in gathering data and viewpoints before formal proposal.
Significance: Reinforced the role of ANPRM as enhancing administrative legitimacy, even if it is not legally required.
Summary: Legal Role of ANPRM
| Aspect | Details |
|---|---|
| Legal Requirement | Not required by APA, but encouraged |
| Function | Inform public, gather data before NPRM |
| Effect | Improves transparency and rule quality |
| Binding Effect | Comments on ANPRM not binding on agency |
| Judicial View | Courts support ANPRM as a legitimate tool |
Why ANPRM Matters
Agencies benefit by identifying issues early and refining rules.
Stakeholders gain an early voice in shaping regulations.
Helps avoid costly mistakes or litigation by vetting ideas beforehand.
RELATED Blog
0 comments