Rethinking Notice

11 Pages Posted: 4 Nov 2013 Last revised: 12 Nov 2013

Date Written: November 4, 2013


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

Suggested Citation

Beermann, Jack Michael, Rethinking Notice (November 4, 2013). Boston Univ. School of Law, Public Law Research Paper No. 13-49, Available at SSRN: or

Jack Michael Beermann (Contact Author)

Boston University School of Law ( email )

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