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Adequacy of Notice

The Federal Administrative Procedure Act authorizes either a notice that specifies the terms or substance of the proposed regulation or a notice that identifies the subjects and issues involved.  There is no need to identify every proposal by a notice which can be adopted by the agency.

For example, it is not necessary to state in the notice about the exact numerical standard that will be fixed in the revised rule, or the exact position agency staff will take at the rule making proceeding.  However, notice of proposed rulemaking will not be adequate if it fails to give a precise idea of the reasoning that leads the agency to the proposed rule.

Adequacy of a notice in any case is determined by a close examination of the facts of the particular proceeding that produced a challenged rule.  A notice is considered as adequate, if it notifies interested parties of the issues to be addressed in the rule making proceeding.  It must have sufficient clarity and particularity to allow the parties to participate in the rulemaking in a meaningful and informed manner.

An agency which adopts final rules that differ from its proposed rules is required to renotice if there is any major change which the original notice failed to adequately frame the subjects for discussion.[i]

However, if the final rule adopted differs substantially from the rule proposed in the notice, the courts will evaluate the adequacy of the initial notice under one or both of the following tests:

  • Whether the final rule is a logical outgrowth of the proposal or the notice and comments during the rule making process following the publication of the proposed rule;
  • Whether the notice of the proposed rulemaking apprised interested parties fairly so that they had an opportunity to comment.[ii]

[i] Connecticut Light & Power Co. v. Nuclear Regulatory Com., 673 F.2d 525 (D.C. Cir. 1982)

[ii] American Iron & Steel Institute v. Environmental Protection Agency, 568 F.2d 284 (3d Cir. 1977

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