5 U.S.C. § 553. If the agency fails to provide this notice and opportunity to comment or the notice and comment period is in adequate, the "regulation must fall on procedural grounds, and the substantive validity of the change accordingly need not be examined." AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985). DISCUSSION
While a final rule need not be an exact replica of the rule proposed in the Notice, the final rule must be a "logical outgrowth" of the rule proposed. AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985); United Steelworkers v. Marshall, 647 F.2d 1189, 1221 (D.C.Cir. 1980), cert. denied sub nom., Lead Industries Ass'n v. Donovan, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). Clearly, "`if the final rule deviates too sharply from the proposal, affected parties will be deprived of notice and an opportunity to respond to the proposal.'"
If the agency fails to provide this notice and opportunity to comment or the notice and comment period are inadequate, the "regulation must fall on procedural grounds, and the substantive validity of the change accordingly need not be analyzed." AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985) ("AFL-CIO") II. THE AGENCY HAS THE AUTHORITY TO MAKE CATEGORICALCONFIDENTIALITY DETERMINATIONS ABOUT CLASSES OF EWR DATA
We have repeatedly held, however, that each interested party is not required to monitor the comments filed by all others in order to get notice of the agency's proposal; hence, the comments received do not cure the inadequacy of the notice given. American Fed'n of Labor v. Donovan, 757 F.2d 330, 340 (D.C. Cir. 1985); Small Refiner Lead Phase-Down Task Force, 705 F.2d at 550. Insofar as the agency means to show that despite the inadequacy of its notice, the parties had actual notice of its proposal, see Small Refiner Lead Phase-Down Task Force, 705 F.2d at 549 — which one party might well get from the comments of another party — the Commission has not demonstrated that that occurred here.
A final rule need not be identical to the proposed rule, but it must be a "logical outgrowth" of the proposed regulation. Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994); American Fed'n of Labor and Congr. of Indus. Orgs. v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985) (hereinafter "AFL-CIO"). If the "final rule deviates too sharply from the proposal, [however], affected parties will be deprived of notice and an opportunity to respond to the proposal."
[I]f the final rule deviates too sharply from the proposal, affected parties will be deprived of notice and an opportunity to respond to the proposal." American Fed'n of Labor Cong. of Indus. Org. v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985) (citations omitted). A determination whether notice was adequate turns on an examination of the notice given and the rule finally adopted.
5 U.S.C. § 553(b)(3). Plaintiffs recognize, as they must in light of the governing case law, that the rule which is finally adopted by an agency need not be identical to the one originally proposed and published for comment. Shell Oil Co. v. EPA, 950 F.2d 741, 750 (D.C. Cir. 1991); American Federation of Labor v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985). However, Plaintiffs maintain that because the final regulations deviated so substantially from those originally proposed, interested persons were deprived of an opportunity to comment.
Because FERC's notice was not clear that the liability standard was a subject or issue of the rulemaking, the IOUs claim that FERC denied their right to comment on the change. See, e.g., AFL-CIO v. Donovan, 757 F.2d 330 (D.C. Cir. 1985); McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988). Citing principally our opinion in Air Transport Association of America v. DOT, 900 F.2d 369, 379 (D.C. Cir. 1990), the IOUs contend that the fact that they were able to raise their concerns in their petition for rehearing is not a substitute for pre-issuance notice and comment.
The adequacy of the notice depends, according to our precedent, on whether the final rule is a "logical outgrowth" of the proposed rule. Fertilizer Inst., 935 F.2d at 1311; see also AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C. Cir. 1985). Because the "logical outgrowth" formulation may be merely another way of asking "how much notice is enough," Small Refiner, 705 F.2d at 547, answering the question may prove difficult in some cases.
A difference between the two will not invalidate the notice so long as the final rule is a "logical outgrowth" of the one proposed. If the deviation from the proposal is too sharp, the affected parties will not have had adequate notice and opportunity for comment. See American Fed'n of Labor v. Donovan, 757 F.2d 330, 338-39 (D.C. Cir. 1985). RCRA defines the scope of the EPA's regulatory discretion: In formulating rules, the clearly expressed intent of Congress binds agencies as it binds courts.