According to the Federal Administrative Procedure Act, a general notice of proposed rulemaking must be published in the Federal Register.[i] The notice has to be published unless persons subject to the rule are named and received actual notice of rulemaking either served to them personally or by any other way.[ii]
In New York Dep’t of Social Servs. v. Shalala, 21 F.3d 485 (2d Cir. N.Y. 1994), the court observed that except to the extent that a person has actual and timely notice of the terms, a person may not required to resort in any manner, or be adversely affected by a matter required to be published in the federal register and not so published.
In Connecticut Light & Power Co. v. Nuclear Regulatory Com., 673 F.2d 525 (D.C. Cir. 1982), the court observed that the Administrative Procedure Act requires an agency engaged in informal rule making to publish a notice of proposed rule making in the Federal Register.
In Safe Air for Everyone v. United States EPA, 475 F.3d 1096 (9th Cir. 2007), the court observed that the participation of interested parties in the rule making process can be meaningfully exercised, only if the public can understand the proposed rules in the correct meaning.
However, if any failure to publish a notice of the proposed rulemaking required by the Federal Administrative Procedure Act occurs, it will automatically invalidate the ensuing rule.[iii] Similarly, an untimely objection can be waived by a regulated entity when the objection is that a notice of a proposed regulation was not published.[iv]
[i] 5 USCS § 553
[iii] Clever Idea Co. v. Consumer Product Safety Com., 385 F. Supp. 688 (E.D.N.Y. 1974)
[iv] United States v. Elof Hansson, Inc., 48 C.C.P.A. 91 (C.C.P.A. 1960)