ARTICLES ADEQUACY OF NOTICE OF RULEMAKING UNDER THE FEDERAL ADMINISTRATIVE PROCEDURE ACT-WHEN SHOULD A SECOND ROUND OF NOTICE AND COMMENT BE PROVIDED?

This article discusses when a federal administrative agency should provide a second round of notice of comment under section 553 of the APA prior to the agency's adoption of a final rule which differs from the proposed rule published in the NOPR and which was subject to a public comment period. Agencies should be encouraged to be responsive to public comments and to modify their proposed rules in response to concerns and suggestions offered during public comment without fearing that they will need a second round of notice and comment. Two approaches that have been followed by courts when dealing with this issue -- the logical outgrowth test and the harmless error approach. This article analyzes both approaches, and supports a modified logical outgrowth test which is slightly different than the one followed in most opinions. Concern is expressed that some court opinions have been too lenient in their application of the logical outgrowth test.