A notice of proposed rulemaking must contain some elements, as required by the Federal Administrative Procedure Ac,t such as statement of the time, place, and nature of public rule making proceedings and reference to the legal authority under which the rule is proposed.[i]

Similarly, a general notice of proposed rulemaking must be published in the Federal Register.[ii] Any failure to publish a notice of the proposed rulemaking will automatically invalidate the ensuing rule.[iii] Similarly, an untimely objection can also be waived by a regulated entity when the objection is that a notice of a proposed regulation was not published.[iv]

However, a final rule is not necessarily invalid for not providing adequate notice by reason of the fact that the final rule adopted differs from the original proposal.[v]

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 fairly apprised interested parties so that they had an opportunity to comment.[vi]

[i] 5 USCS § 553

[ii] Id

[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)

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

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