Adequacy of Notice of Rulemaking Under the Federal Administrative Procedure Act - When Should a Second Round of Notice and Comment Be Provided?

25 Pages Posted: 26 Feb 2009

See all articles by Arnold Rochvarg

Arnold Rochvarg

University of Baltimore - School of Law

Date Written: 1981

Abstract

This article discusses when a federal administrative agency should provide a second round of notice of comment under section 553 of the APA prior to the agency's adoption of a final rule which differs from the proposed rule published in the NOPR and which was subject to a public comment period. Agencies should be encouraged to be responsive to public comments and to modify their proposed rules in response to concerns and suggestions offered during public comment without fearing that they will need a second round of notice and comment. Two approaches that have been followed by courts when dealing with this issue -- the logical outgrowth test and the harmless error approach. This article analyzes both approaches, and supports a modified logical outgrowth test which is slightly different than the one followed in most opinions. Concern is expressed that some court opinions have been too lenient in their application of the logical outgrowth test.

Keywords: adequacy of notice, rulemaking, administrative law, Administrative Procedure Act, public participation, courts

JEL Classification: K23, K39, K49

Suggested Citation

Rochvarg, Arnold, Adequacy of Notice of Rulemaking Under the Federal Administrative Procedure Act - When Should a Second Round of Notice and Comment Be Provided? (1981). American University Law Review, Vol. 31, No. 1, 1981, Available at SSRN: https://ssrn.com/abstract=1348069

Arnold Rochvarg (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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