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Notice-and-comment rulemaking is a common rulemaking procedure under which a proposed rule is published in the Federal Register and is open to comment by the general public. Rules that are exempt from "notice-and-comment" requirements of the APA are those dealing with military or foreign affairs functions and those "relating to agency management or personnel or to public property, loans, grants, benefits or contracts."

Agencies often voluntarily waive an exemption, although when they do so, they still retain the power to omit notice-and-comment when for "good cause" the procedures would be "impracticable, unnecessary, or contrary to the public interest." Congress may, of course, require an agency to follow a specific public participation procedure.

There are other exemptions from notice-and-comment procedures:

  • Rules of "agency organization, procedure or practice,"
  • "Interpretive rules" that add little substantive interpretation of the law; or
  • "General statements of policy"

If the proposed action has a major impact on the public, however, agencies may run into difficulties in the courts trying to invoke these exemptions.


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