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Use an ANPRM to Minimize the Risk of Failing the Logical Outgrowth Test

The notice-and-comment process is designed to allow agencies to learn from public comments and to make appropriate changes in the final rule based on the comments. Sometimes, however, the result is that the final rule is significantly different from the proposed rule. In such instances, parties who dislike the changed final rule may claim that they were not given adequate notice that the agency was considering such important changes.

To address such challenges, reviewing courts developed the “logical outgrowth” test. The court determines whether the provisions of the final rule logically grow out of the terms of the proposed rule. If so, then the commenters are deemed to have adequate notice. If the final rule introduces provisions that couldn’t have been anticipated by reviewers of the NPRM, it’s open to challenge because stakeholders did not have the opportunity to comment on the unexpected provisions. And if challenged, then the agency will be ordered to undertake a new round of notice and comment.

Agencies conduct extensive research in creating NPRMs, but they may not have access to all the relevant data, or they may be missing input from a segment of stakeholders. If they publish an NPRM and discover concerns that need to be addressed, they may need to issue a supplemental notice of proposed rulemaking (SNPRM), which would extend the rulemaking period.

However, an advance notice of proposed rulemaking (ANPRM) can help minimize the risk of failing the logical outgrowth test. Also known as a request for comments, the ANPRM provides a mechanism for agencies to obtain public input early in their research efforts – before they have formulated the proposed regulatory change and published the NPRM. The ANPRM does not offer proposed regulatory text. The ANPRM is simply an explanation of a potential problem the agency has identified and a request for information about the potential problem. The ANPRM is typically framed around a set of questions the agency is seeing answers to.

Although the Administrative Procedure Act doesn’t require agencies to publish an ANPRM, use of ANPRMs can be an effective way to avoid surprises in the later phases of the rulemaking process because it provides the agencies with valuable feedback early in the process while they are formulating their regulatory policy.