Document Type


Publication Date

Winter 2014




APA § 553 (b)(3) requires agencies engaged in informal rulemaking to provide notice of "either the terms or substance of the proposed rule or a description of the subjects and issues involved." In most cases, agencies publish the complete text of their proposed rules, together with a preamble describing the need for the rule and the major considerations of policy and law that are raised by the proposal. Comments often convince agencies to make changes to their proposed rules. This, of course, is the whole point of the process. Difficulties arise, however, when, in reaction to comments, agencies promulgate rules that differ substantially from the initial proposal. In such cases, parties whose interests are harmed by the changes to the rule may claim that the process was unfair because they could not have anticipated the scope of the changes and thus did not have an adequate opportunity to participate in the rulemaking.