scope:

The purpose of the APA notice requirement is to ensure that the public is provided a reasonable opportunity to comment on the substance of a proposed rule. The courts have routinely recognized the importance of compliance with this requirement by federal agencies. If a final rule contains a provision that was not in the proposed rule, and that provision increases the burden on the public, the rule will not comply with this notice requirement. The changed material would be considered to be "beyond the scope of the notice." Such changes include (but are not limited to) adding or significantly changing required actions, expanding applicability, and reducing the compliance time.

On occasion, a comment that exceeds the scope of the notice may raise an issue that should have been addressed in the proposed rule. If such a change is necessary, whether based on a comment or other new information, three options are available:

(a) The FAA may issue a supplemental notice of proposed rulemaking (SNPRM), allowing the public to comment on the changes before adopting a final rule; or

(b) The FAA may adopt a final rule that is "within the scope" of the original proposal and immediately issue a new notice proposing to supersede or otherwise amend the final rule with a new rule that incorporates the necessary changes; or

(c) If the changes themselves address an urgent safety problem sufficient to support a finding of "impracticability," the changes can be included in the final rule, and the final rule issued as an immediately adopted rule (that is, a "Final rule, request for comment"). In this case, the Supplementary Information section should include both the discussion of comments submitted regarding the proposed rule and the required finding of impracticability relating to the changes. Comments limited to the new issue should also be solicited.

(d) Regarding options (2)(a) and (2)(b), the choice depends on the urgency of the actions originally proposed in the notice, not the issue raised by the commenter. If the actions are not urgent, the first option is appropriate; if the actions must be taken as soon as possible, the second option should be chosen.

(3) If the change involves a terminating action for a repetitive inspection or operating limitation, the final rule can be revised to include the terminating action as an option, since optional actions do not impose additional burdens. If the terminating action must be made mandatory, it can be mandated by a subsequent rulemaking, beginning with an NPRM.