So Much to Comment on, So Little Time: Notice-and-Comment Requirements in Agency Informal Rulemaking Under the Administrative Procedure Act

Abstract

On February 1, 2019, the U.S. Court of Appeals for the District of Columbia Circuit decided National Lifeline Ass’n v. FCC. In National Lifeline Ass’n, the D.C. Circuit Court held that, by adopting changes to a tribal telecommunications subsidy that contradicted prior policy rationale after only a two-week comment period, the agency both: (1) acted in an arbitrary and capricious manner, and (2) violated procedural requirements of the Administrative Procedure Act (APA). National Lifeline Ass’n represented a matter of first impression among the federal circuit courts and established a minimum comment period of thirty days for informal agency rulemaking. This Comment argues that the D.C. Circuit Court’s substantive holding aligned with prior case law, but that the procedural holding was inconsistent with the Supreme Court’s 1978 decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council and the spirit of the APA.