The issue addressed in this paper is the standard that reviewing courts should apply when deciding whether changes between a proposal and final rule render the notice inadequate under APA § 553. I have written about this issue before, taking the position that courts should stick closely to the language of § 553, and generally allow agencies great leeway in making changes between proposals and final rules. In this essay, I raise some concerns about my earlier position which have led me to reconsider the issue. In short, there is a good instrumental case to be made against strict adherence to the text of the APA and in favor of requiring a new round of notice and comment when agencies make unanticipated changes to their proposals when promulgating final rules.
Keywords: APA, notice, section 553
JEL Classification: K23
Working Paper Series
SSRN Site: http://ssrn.com/abstract=2349716
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