Free tool · Administrative Law
Notice-and-Comment Rulemaking: What Must an Agency Do?
Under the federal Administrative Procedure Act, an agency that makes a legislative rule must usually publish notice of the proposed rule, give the public a chance to comment, consider and answer the significant comments, and publish the final rule with a statement of its basis and purpose, generally 30 days before it takes effect. The final rule must be a logical outgrowth of the proposal. Interpretive rules, general policy statements, rules of agency procedure and rules made for good cause are exempt. If the statute requires rules or orders to be made ‘on the record after an opportunity for a hearing’, the formal procedures apply instead.
Tool · Notice-and-Comment Checker
Informal rulemaking (notice and comment): The procedure appears to satisfy § 553, subject to the court’s review of the reasons.
Informal (notice-and-comment) rulemaking: Under § 553, the agency must publish notice of the proposed rule in the Federal Register (with the time, place and nature of the proceedings, the legal authority and the terms or the subjects), give interested people an opportunity to comment, consider the comments, and publish the final rule with a concise general statement of its basis and purpose.
Notice: Notice of the proposed rule was published.
Considered comments: The record does not show that the agency considered and answered the significant comments, which would make the rule vulnerable as arbitrary and capricious.
Logical outgrowth: The final rule is a logical outgrowth of the proposal, so the public had fair notice.
Statement of basis and purpose: A concise statement of the rule’s basis and purpose was published.
Publication before effect: The rule was published at least 30 days before it takes effect.
- The federal APA sets minimum procedures. A court may not add procedures that the APA and the agency’s statute do not require (Vermont Yankee Nuclear Power Corp. v NRDC), though it may require the agency to explain itself (arbitrary and capricious review). State administrative procedure acts are similar but not identical.
Shows what procedure an agency action needs under the federal Administrative Procedure Act (formal or informal rulemaking, formal or informal adjudication, guidance, or an exemption), and checks the steps of notice and comment. Invented facts and simplified rules; states have their own administrative procedure acts. A teaching aid, not legal advice. Runs in your browser; nothing is stored or sent.
How to use it
- Choose what the agency is doing: a rule, an order, guidance or a decision not to enforce.
- Say whether the document binds the public and whether an exemption is claimed.
- Tick the steps the agency took.
- Read which procedure applies and whether the rule is likely to survive.
Common questions
What is a logical outgrowth?
A final rule that the public could have anticipated from the proposal. If it differs so much that commenters had no fair notice, the agency must ask for comments again.
When can an agency skip notice and comment?
For interpretive rules, general statements of policy, rules of agency organisation and procedure, and for good cause, which the agency must state and which courts read narrowly.
Do state agencies follow the same rules?
Most states have their own administrative procedure acts, often modelled on the federal one or on the Model State APA, but with differences.
Learn the law behind the tool
This tool is part of our Administrative Law course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Administrative Law: Rulemaking, Notice and Comment.
More free law tools
General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.