Judicial Review of "(g) Each agency subject to the requirements of this section shall, within 180 days after the date of enactment of this section, following consultation with the Office of the Chairman of the Administrative Conference of the United States and published notice in the Federal Register of at least thirty days and opportunity for written comment by any person, promulgate regulations to implement the requirements of subsections (b) through (f) of this section. Any person may bring a proceeding in the United States District Court for the District of Columbia to require an agency to promulgate such regulations if such agency has not promulgated such regulations within the time period specified herein. Subject to any limitations of time provided by law, any person may bring a proceeding in the United States Court of Appeals for the District of Columbia to set aside agency regulations issued pursuant to this subsection that are not in accord with the requirements of subsections (b) through (f) of this section and to require the promulgation of regulations that are in accord with such subsections." Subsection (g) is largely self-explanatory. Section 6(a) of the Government in the Sunshine Act provided that the provisions of the Act take effect on March 12, 1977, 180 days after enactment. During that 180-day period the agencies were required to promulgate regulations to implement the provisions of section 552b.1 Subsection (g) required that the rulemaking process include consultation with the Office of the Chairman of the Administrative Conference of the United States and at least a thirty-day period for notice of the proposed rules and opportunity for written public comment. These provisions of subsection (g) have now been executed and require no further comment.2 'Subsection (g) is, of course, not applicable to agency regulations issued to implement section 4 of the Act, regarding ex parte communications, or section 5, which makes certain conforming amendments in the Freedom of Information Act, the Federal Advisory Committee Act, and the Postal Service legislation. 2See Appendix B for a list of agencies which have issued regulations, with citations to both proposed and final rules. GOVERNMENT IN THE SUNSHINE ACT The rulemaking procedures prescribed by subsection (g) apply in our view only to the initial promulgation of rules and not to subsequent amendments. This conclusion is consistent with a literal reading of the language of the subsection and is supported by practical considerations. It cannot be assumed that the consultation provision and a rigid requirement for a thirty-day period for notice and comment were intended to apply to every amendment, however insignificant, of an open meeting regulation. Since amendments to these regulations are not governed by subsection (g), the only statutory authority which might apply to the amendment process, absent special provision in the agency's organic legislation, is the Administrative Procedure Act, 5 U.S.C. §553. However, because these regulations are "rules of agency organization, procedure, or practice" within section 553(b)(A), the APA does not require the agencies to follow notice-and-comment procedures in amending them. Nevertheless, agencies should bear in mind that the Sunshine Act assumes a broad public interest in the openness of agency decisionmaking processes and in how the requirements of section 552b are implemented. Consequently, we believe that agencies should comply voluntarily with the procedures for notice and comment set forth in section 553 (b) and (c), except where the agency finds, pursuant to section 553(b)(B), that notice and public procedure are "impracticable, unnecessary, or contrary to the public interest."3 The last sentence of subsection (g) provides that "any person" may challenge an agency rule issued under section 552b in the United States Court of Appeals for the District of Columbia. Subsection (g) assumes a challenge of the rule on its face and not a dispute arising out of its application to a particular meeting. (Such litigation would be brought under subsection (h).) The Act deliberately eschews any requirement that the plaintiff have standing, in the sense of being able to demonstrate that he is "adversely affected" or "aggrieved" by the challenged regulation. S. Rept., 32-33; see United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 684-89 (1973). On the other hand, the Senate report suggests, "If an issue is too 3See, e.g., 42 F.R. 20639 for proposed amendments to 39 C.F.R. §§3001.42, 3001.43, Sunshine Act rules of the Postal Rate Commission. The PRC, however, allowed only 12 days for public comment. See also 42 F.R. 21632 for proposed amendments to the rules of the National Transportation Safety Board, 49 C.F.R. §804.3(c). The NTSB allowed 30 days for public comment. GOVERNMENT IN THE SUNSHINE ACT speculative or remote, the Court of Appeals may refuse to entertain the suit."4 A suit under the last sentence of subsection (g) must be brought "[s]ubject to any limitations of time provided by law." This is a reference to those statutes which set a time limit on challenging a rulemaking order of an agency. Examples cited in the House Report include the Administrative Orders Review Act, 28 U.S.C. §2344, and the Communications Act of 1934, 47 U.S.C. §402(c). H. Rept. I, 16. Reference to these statutory review procedures suggests potential problems of interpretation. While it is settled that the Administrative Orders Review Act, which provides for review of the orders of specified agencies in the U.S. Courts of Appeals, applies to orders issuing rules of general applicability, United States v. Storer Broadcasting Co., 351 U.S. 192, 195-200 (1956), courts have differed over the application of the Storer rationale to analogous statutes. Compare PBW Stock Exchange v. SEC, 485 F.2d 718, 729-31 (3d Cir. 1973), cert. denied, 416 U.S. 969 (1974), with Investment Company Institute v. Bd. of Governors, Federal Reserve System, 551 F.2d 1270, 1276-78 (D.C. Cir. 1977). Nor is it clear that such statutory review provisions, which usually specify the agency actions to which they apply, see, e.g., 28 U.S.C. §2342, impose by their terms any limitations of time on review of an agency's Sunshine regulations. Accordingly, it may be difficult to ascertain which statutory periods of limitation are brought into play by subsection (g). Indeed, there is little reason for courts to construe broadly the phrase "subject to any limitations of time provided by law." The time limitations in the statutory provisions cited were imposed on the assumption that the order to be reviewed was issued on an administrative record and in a proceeding participated in by the party seeking review. See Gage v. United States Atomic Energy Commission, 479 F.2d 1214, 1217-19 (D.C. Cir. 1973). The considerations which have induced courts to construe such review provisions as applicable to rules rules issued after notice-and-comment procedures have to do with the choice of an appropriate judicial forum for review, either district court or court of appeals, see Investment Company Institute v. Board of 4S. Rept., 33. A critic of this provision might observe that the ordinary ripeness and standing requirements swept aside by the last sentence of subsection (g) have traditionally been used by the courts to avoid speculative and remote issues. See, e.g., Metcalf v. Natl. Petroleum Council, 553 F. 2d 176, 187-90 (D.C. Cir. 1977). GOVERNMENT IN THE SUNSHINE ACT Governors, Federal Reserve System, supra, at 1278-80, Administrative Conference Recommendation No. 75-3, 1 C.F.R. §305.75-3, and are not relevant where the issue is the applicability of such provisions to rules reviewable under subsection (g), since review is in the court of appeals in either case. |