When an agency engages in rule making, all parties that might be interested in the rule must have been alerted to the possibility of the changes, and the impact of potentially adopted comments. The notice must be sufficiently descriptive to provide interested parties with a fair opportunity to comment and to participate in the rulemaking.
The Department of Agriculture promulgated a rule, under which it would list the foods that would be recommended for pregnant women and infants. Throughout the entire rule making and comment process, flavored milk was not included in the list of unhealthy foods. However, towards the end of the comment process, and without notifying the appellants, appellees changed the rule to include flavored milk on that list. Appellants appealed, on the grounds that they had not been given an adequate amount of time to participate in the rule making process. Trial Court denied appellants' prayer for relief.
Were appellants given sufficient notice such that they were able to actively participate in the rule-making process?
In reversing the lower court's ruling, the Court held that the appellant should have been allowed to contribute comments during the rule-makng process. The fact that the rule had been changed so quickly before the rule was passed deprived appellant of the opportunity to participate in rule-making.