• Prof. Lamdan

Class 7: Adequate notice in the rulemaking process

Updated: Sep 19, 2019

Read Before Class on Thursday, Sept. 19

Class 7 Supplemental Reading:

In Class 7, we learn about the Logical Outgrowth Test. Here's the IRAC breakdown of that Test:

  • Issue: Whether there was adequate notice in the proposed rule to alert interested persons about the content of the final rule.

  • Rule: APA Section 553 require that agencies give interested persons the opportunity to participate in rulemaking. Courts have determined that for interested persons to participate meaningfully in agency rulemaking, they must be "alerted by the notice to the possibility of the changes eventually adopted from the comments." Thus, courts apply the "logical outgrowth test" to determine whether the final rule is a logical outgrowth of the proposed rule.

  • How to Apply the Rule: Compare the proposed rule and the final rule. Is there anything in the final rule that would come as a surprise to anyone based on the proposed rule? Do you think the proposed rule provides enough notice that the final rule is a logical outcome of the rulemaking process?

  • Conclusion: If the final rule is a logical outgrowth of the proposed rule, then the agency has satisfied APA's notice and participation ("comment") requirement.

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