contain a reasoned analysis that supports the rule. This challenge goes to counts one and two of plaintiffs' complaint. Plaintiffs assert that the APA requires that agency rules include a general statement of the rule's basis and purpose and that this statement must enable a reviewing court to determine the major policy issues that are involved and why the agency reacted to them as it did. Plaintiffs allege that the statement of basis and purpose in the present case is conclusory and provides no analysis or insight into OTS's reasoning.
Defendants, in their own motion for summary judgment and in their opposition to plaintiffs' motion, assert that the statement of basis and purpose in this case is entirely adequate. The court agrees with defendants.
Section 553(c) of the APR states that an agency that adopts a rule by notice and comment rulemaking must provide a "concise general statement of [the rule's] basis and purpose." 5 U.S.C. § 553(c). This statement need not be comprehensive. Connecticut Light, 673 F.2d at 534. Rather, the statement should indicate the major policy issues that are raised and explain why the agency responded to them as it did. Indepndent U.S. Tanker Owners Committee v. Dole, 809 F.2d 847, 852 (D.C. Cir.) cert. denied sub nom. Atlantic Richfield Co. v. Independent U.S. Tanker Owners Committee, 484 U.S. 819 (1987). The statement need only "indicate sufficiently the agency's reasons for the rule selected, so that the reviewing court is not faced with the task of 'rummaging' through the record to elicit a rationale of its own. Connecticut Light, 673 F.2d at 534-35 (citing United States ex rel. Checkman v. Laird, 469 F.2d 773, 783 (2d Cir. 1972); American Public Transit Association v. Lewis, 655 F.2d 1272, 1278 (D.C. Cir. 1981); Harborlite Corp. v. ICC, 613 F.2d 1088, 1093 n.9 (D.C. Cir 1979)).
In the present case, the rule's statement of basis and purpose clearly meets this standard because it fully explains the issue involved and the reasons that OTS acted as it did. In this statement, OTS makes clear that the purpose of this rule is to improve the safety and soundness of federal associations. OTS then states that interstate branching by federal associations would improve the safety and soundness of the industry and provides seven reasons to support this policy, including increasing geographic diversity, reducing operating costs, increasing healthy competition and promoting economies of scale.
Plaintiffs' second substantive claim is that the final rule is arbitrary and capricious because OTS failed to provide adequate reasons for reversing its policy on interstate branching. This claim goes to count three of plaintiffs' complaint. Defendants do not dispute that this rule reverses their policy on interstate branching. Defendants assert in their motion for summary judgment and in their opposition to plaintiffs' motion, however, that their change in policy is adequately supported by reasoned analysis. Defendants claim that they examined the relevant data and that they provided a reasoned explanation for the rule itself. The court agrees with defendants.
An agency may always change its mind and alter its policies. When an agency reverses its policy, however, it must supply a reasoned analysis for the change. Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, 463 U.S. 29, 41 (1983). The departure from past policy amplifies the need for an adequate explanation of the new policy. Simmons v. Interstate Commerce Commission, 829 F.2d 150, 156 (D.C. Cir. 1987). In the present case, OTS provided a reasoned basis for adopting the policy of allowing interstate branching by federal associations. OTS enumerated seven facially valid reasons for its decision to allow interstate branching by federal associations. Accordingly, summary judgment shall be granted for defendants on this ground and plaintiffs' motion shall be denied on this ground.
Plaintiffs' final claim is that the rule is arbitrary and capricious because OTS failed to provide a reasoned response to material comments. Plaintiffs claim that OTS did not respond to material comments either in its statement of basis or purpose or in the administrative record. Plaintiffs further assert that in the event that OTS did respond to material comments, its responses were conclusory or cursory in fashion. Plaintiffs assert that this failure has subverted their right to provide meaningful comment pursuant to 5 U.S.C. § 553(c).
Defendants respond by noting that agencies are not obligated to respond to every comment that is submitted. Rather, agencies need only respond to the major issues that are raised in the comments. Defendants assert that their responses to the comments in this case were sufficient.
The court finds that OTS adequately responded to the comments that were submitted in response to the proposed rule in this case. Section 553(c) states that:
the agency shall give interested persons an opportunity to participate in the rule making through submissions of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise and general statement of their basis and purpose.
5 U.S.C. § 553(c). This section has never been interpreted to require an agency to respond to every comment submitted or analyze every issue that is raised. Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984) (citing Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)). Rather, the agency need only respond "in a reasoned manner to significant comments." United States Satellite Broadcasting Co. v. Federal Communications Commission, 740 F.2d 1177, 1189 (D.C. Cir. 1984) (cites omitted).
In the present case, the court finds that OTS adequately responded to the major issues that were presented in the comments in Part B of the final rule. See 57 Fed. Reg. at 12204. In this section of the rule, OTS noted that commenters criticized the proposed rule primarily because it would jeopardize the SAIF, because interstate federal associations would not be responsive to the needs of local businesses and consumers, and because interstate branching would damage competition. OTS responded to each of these concerns in its general statement of basis and purpose.
See supra; 57 Fed. Reg. 12204-06. Consequently, plaintiffs' motion for summary judgment on this ground shall be denied.
For the foregoing reasons, plaintiffs' motion for summary judgment shall be denied on all grounds and defendants' motion for summary judgment shall be granted on all grounds. A separate order shall issue this date.
Royce C. Lamberth
United States District Judge
DATE: JUN 25 1992