Under Maryland's 1986 rulemaking amendment, when could an agency change a proposed regulation without republishing it for comment?

Plain-English summary

Maryland's Secretary of the Environment asked the Attorney General in January 1990 when an agency could adopt a regulation that differed from the version it originally published for public comment, without republishing the changed version and starting the comment process over. The question mattered because Maryland's rulemaking statute had been amended in 1986 to tighten the standard for when republication was required, and agencies needed guidance on how much a proposed regulation could change before that tighter standard applied.

The opinion concluded that an agency did not have to repropose a changed regulation if two conditions were both met: the change had to be something participants in the rulemaking could reasonably have anticipated from the original proposal, and the change could not significantly disadvantage anyone affected by the regulation, including the general public, compared to how they would have fared under the regulation as originally proposed. If either condition failed, meaning the change went beyond what the original notice fairly signaled, or it meaningfully increased burdens or reduced benefits for some affected group, the agency had to republish that part of the regulation for a new round of comment.

Currency note

This opinion was issued in 1990 and interpreted the version of SG §10-113 and §10-101(f) that existed after Maryland's 1986 amendment to its rulemaking statute. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the standard for when a Maryland agency must republish a changed regulation for public comment. Treat this page as historical context, not current legal advice. Verify the current version of SG §10-113 and its republication requirements before relying on any specific rule described here.

Common questions

When could a Maryland agency change a proposed regulation in 1990 without republishing it for public comment?
According to this opinion, an agency could adopt the change without republishing only if the change could reasonably have been anticipated by people who took part in the rulemaking, and it did not significantly worsen anyone's position compared to the regulation as originally proposed.

Did Maryland's 1986 rulemaking amendment make republication easier or harder to avoid?
Harder, according to the opinion. It concluded the 1986 amendment to SG §10-113 imposed a more demanding test than the one used before, so some changes that agencies previously could have made without republishing would need to be reproposed after 1986.

Who had to sign off before a changed Maryland regulation could be adopted without republication?
The opinion explained that the Attorney General had to certify, before final adoption, that the changed regulation did not differ substantively from the original proposal, and that this certification had to explain why no one was significantly affected by the change, not just state a bare conclusion.

Background and statutory framework

Under SG §10-111 and §10-112 of the State Government Article, a proposed regulation generally had to be submitted to the Joint Committee on Administrative, Executive, and Legislative Review and published in the Maryland Register for public comment before an agency could adopt it. SG §10-113 addressed what happened when an agency wanted to change the proposal's text after the comment period ended: if a change made the text "differ substantively" from what had been published, the agency could not adopt it without proposing the changed version anew and going through the notice-and-comment process again.

The opinion traced the history of that substantive-difference standard. A 1976 AG opinion, relying on federal cases like South Terminal Corp. v. Environmental Protection Agency and Chocolate Manufacturers Association v. Block, had set the test as whether the class of people affected by the final rule could reasonably have anticipated it from the original notice; if so, no republication was required even if the final version differed markedly from the proposal. The General Assembly used similar "substantially different" language when it first codified the reproposal requirement in 1977, and the opinion concluded that in practice this codification did not change the 1976 test.

In 1986, the General Assembly amended SG §10-113 to require republication whenever a change "differs substantively" from the original proposal, and separately defined "substantively" in SG §10-101(f) to mean affecting the rights, duties, or obligations of a regulated group or the public in a substantial way. The opinion read this definitional change, together with legislative history describing concern that seemingly small wording changes could have a real impact on affected people, as imposing a stricter test than the 1976 standard: even a change that people could have anticipated might still require republication if it would appreciably increase burdens or decrease benefits for anyone affected, compared to the original proposal. The opinion illustrated the distinction with a pollution-control filter example: an agency could adopt an alternative, cheaper filter without republishing if convinced the substitute would have essentially the same environmental effect as the one originally proposed, but had to republish if the environmental effect of the substitute was genuinely debatable. The opinion also confirmed that SG §10-113(c) required the Attorney General to certify, before a changed regulation's final adoption, that it did not differ substantively from the original proposal, and that a conclusory certification was not enough; the certification had to explain why no one was significantly affected by the change.

Citations and references

Statutes:

• SG §10-111, requiring submission of a proposed regulation to the AELR Committee
• SG §10-112, governing publication of a proposed regulation in the Maryland Register
• SG §10-113, requiring reproposal when a change "differs substantively" from the published text
• SG §10-113(a), the operative reproposal-trigger language quoted and analyzed in the opinion
• SG §10-113(c), requiring Attorney General certification before final adoption of a changed regulation
• SG §10-101(f), the 1986-enacted definition of "substantively" central to the opinion's analysis
• former Article 41, §256(F)(f), the 1977 predecessor provision using "substantially different"
• Chapter 848, Laws of Maryland 1977, sec. 2, enacting the 1977 reproposal provision
• Chapter 654, Laws of Maryland 1986, amending SG §10-113 and adding the SG §10-101(f) definition

Cases:

• Vega v. National Union Fire Insurance Co., 682 P.2d 73, 77 n.9 (Haw. 1984), cited for the rule that restating an existing statutory requirement does not require reproposal
• South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646 (1st Cir. 1974), federal case applying the anticipated-notice standard for rule changes
• Seneca Grape Juice Corp. v. United States, 367 F.Supp. 1396 (Cust. Ct. 1973), federal case upholding a product-standard change where interested parties had adequate notice
• Chocolate Manufacturers Association v. Block, 755 F.2d 1098 (4th Cir. 1985), federal case on whether a final rule is a "logical outgrowth" of the proposed rule and comments
• Small Refineries Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983), federal case applying the logical-outgrowth republication standard
• Emerson Electric Co. v. Schlesinger, 609 F.2d 898, 902 (8th Cir. 1979), cited for the broad definition of "substantive" as creating, defining, or regulating rights
• Krause v. State, 31 Ohio St. 2d 132, 285 N.E.2d 736, 744 (1972), cited for the same broad definition of "substantive"
• Herdeman v. City of Muskego, 343 N.W.2d 814 (Wis. App. 1983), state case holding a rezoning change was not "substantial" because it did not affect landowners differently
• Inganamort v. Borough of Fort Lee, 293 A.2d 720 (N.J. Super. 1972), state case holding republication was not required where the amendment's effect was insignificant
• Concerned Citizens v. 32nd Dist. Agric. Ass'n, 42 Cal. 3d 929, 727 P.2d 1029 (1986), state case finding project changes significant enough to require a new environmental impact statement
• Fund for Environ. Defense v. County of Orange, 204 Cal. App. 3d 1538, 252 Cal. Rptr. 79 (1988), state case finding project changes not significant enough under the same standard
• International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n. 51 (D.C. Cir. 1973), federal case warning against a rule that would punish agencies for learning from comments

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 27-36 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ADMINISTRATIVE LAW

Rulemaking — Republication of Regulation That is
Changed From Original Proposal

                       January 22, 1990

The Honorable Martin W. Walsh, Jr.
Secretary of the Environment

 You have requested our opinion concerning the legal requirements

for reproposal of regulations. Specifically, you have asked for
guidance in determining the circumstances under which an agency need
not republish a regulation that is changed from the text originally
published for comment.

 For the reasons stated below, it is our opinion that an agency need

not repropose a portion of a regulation that is changed from the
originally proposed language if both of the following tests are met:

 1. The changed regulation must not include material that goes

beyond the scope of the issues raised by the proposed rule. Provisions
that could not reasonably have been anticipated by participants in the
rulemaking must be republished.

 2. The groups affected by the regulation, including the general

public, must not be disadvantaged in any significant way by the
changes, compared to their situation if the proposed regulation had
been adopted without change. If any group's benefits are reduced or
its burdens increased appreciably by the change, or if the agency is
uncertain about the significance of the change, the agency must
republish the changed part.

                               I

                         Background

 Under §10-111 of the State Government Article ("SG" Article), a

proposed regulation may not be adopted unless it has been submitted
to the Joint Committee on Administrative, Executive, and Legislative
Review ("AELR Committee") and published in the Maryland Register
for public comment. The procedures governing publication are set
forth in SG §10-112.

If an agency has proposed a regulation and wishes to make a

change after the period for public comment has ended, the requirements
of SG §10-113 must be met. SG §10-113(a) provides as follows:

         If a unit wishes to change the text of a proposed
     regulation so that any part of the text differs
     substantively from the text previously published in
     the Register, the unit may not adopt the proposed
     regulation unless it is proposed anew and adopted in
     accordance with the requirements of §§10-111 and
     10-112 of this subtitle.1

 Since its enactment in 1986, this provision has resulted in

occasional controversies between the AELR Committee and agencies
that did not repropose a changed regulation. All agree that stylistic and
clarifying changes need not be reproposed. See Memorandum from
Robert L. Colborn, Jr., Division of State Documents, to Regulations
Coordinators (July 1, 1986) ("Colborn Memorandum").2 The issue to
be discussed in this opinion is whether an agency may make other
changes without republication.

                                II

The 1976 Attorney General's Opinion and Federal Case Law

In 1976, the Administrator of the Division of State Documents

asked this office to clarify whether notice and a new opportunity for
public comment were required when the final text of a regulation
contained provisions that, in the Administrator's phrase, were
"substantially different" from the text originally proposed.

 At the time, no provision in State law governed an agency's duty

to provide notice to the public before adopting a final regulation that
differed from the published proposal. Nor had any Maryland court
addressed the problem, as Attorney General Burch phrased it, of "what
would constitute sufficient notice under the Administrative Procedure
Act where the final version of a regulation differs substantially from its
proposed version ...." 61 Opinions of the Attorney General at 8.

  Surveying the leading federal cases on republication, the Attorney

General stated as follows: "The crux of adequacy of notice seems to be
not so much whether a substantially different rule is adopted than the
one originally proposed, but whether the entire class actually affected
by the adopted rule could reasonably have anticipated the possibility of
its adoption by the notice given." 61 Opinions of the Attorney General
6, 9 (1976). Thus the guidance provided in the 1976 opinion was this:
"Whenever the affected class reasonably could not have anticipated
from the published notice the substance of a regulation finally proposed
for adoption, the agency should treat its revised version as a newly
proposed rule." 61 Opinions of the Attorney General at 10.

 South Terminal Corp. v. Environmental Protection Agency, 504

F.2d 646 (1st Cir. 1974), typifies the federal cases relied on by the
Attorney General. In that case, the court held that, under the federal
Administrative Procedure Act, notice was not insufficient simply
because an agency's final plan differed markedly from the plan
originally proposed. As long as the changes made "were in character
with the original scheme" and "had been foreshadowed in proposals
and comments advanced during the rulemaking," the public's
opportunity to influence the rulemaking process was not negated by
changing the proposal. 504 F.2d at 658. Similarly, in Seneca Grape
Juice Corp. v. United States, 367 F.Supp. 1396 (Cust. Ct. 1973), the
court held that where "[a]ll interested parties had sufficient notice of
what was under consideration, and were given an opportunity to
present their views," the agency's change in a product standard was
valid. 367 F.Supp. at 1406.

 The federal courts continue to take this approach. They evaluate

whether changes to a proposed regulation are "in character with the
original scheme" and whether the "final rule is a logical outgrowth of
the notice and comments already given." See Chocolate Manufacturers
Association v. Block, 755 F.2d 1098 (4th Cir. 1985). If the court
determines that these criteria have been met, republication is
unnecessary. See Small Refineries Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).

                                III

            Subsequent Legislative Developments

A. "Substantially Different"

During the legislative session following the release of the Attorney

General's opinion, the General Assembly adopted former Article 41,
§256(F)(f) as follows:

           If, after the proposed rule has been published
     initially in the Register, the agency decides to alter
     the initial text so that the proposed rule is
     substantially different from the initial text, the
     agency shall submit the altered text as though for
     initial publication.

Chapter 848, Laws of Maryland 1977, sec. 2 (emphasis added). The
General Assembly did not define "substantially different" in this
legislation, and we are not aware of legislative history explaining the
phrase or the legislative objective underlying it.3

 It is possible that the use of the identical phrase as had been used

a few months earlier in the predicate to the Attorney General's opinion
reflects an intention to mirror the standard announced in that opinion,
despite the fact that the Attorney General's conclusion did not give
controlling weight to the degree of difference between the proposed and
final regulations. At any rate, as a practical matter, the new statutory
provision apparently was treated as if it did not add anything to the test
set out in the 1976 opinion.4

B. "Differs Substantively"

 In 1986 the General Assembly amended SG §10-113 "[f]or the

purpose of altering the standard for determining whether an amendment
of a regulation proposed for final adoption warrants republication for
public comment." Chapter 654, Laws of Maryland 1986. SG §10-
113(a) now provides as follows:

            If a unit wishes to change the text of a proposed
       regulation so that any part of the text differs
       substantively from the text previously published in
       the Register, the unit may not adopt the proposed
       regulation unless it is proposed anew and adopted in
       accordance with ... §§10-111 and 10-112 of this
       subtitle.

(Emphasis added.) As part of the 1986 amendment, the General
Assembly also defined the term "substantively" to mean "in a manner
substantially affecting the rights, duties, or obligations of: (i) a
member of a regulated group or profession; or (ii) a member of the
public." SG §10-101(f).

                                IV

                Effect of the 1986 Amendment

 As discussed in Parts II and IIIA above, prior to the 1986

amendment, the test for republication, derived from the 1976 opinion
and in practice not altered by the 1977 legislation, was whether a
change could reasonably have been anticipated from the notice
originally published. If so, the change was not "substantially
different." See 61 Opinions of the Attorney General at 10. The evil
that this test sought to prevent was unfair surprise. As long as
participants in the rulemaking were given notice of the issues to be
resolved, the agency was left with considerable discretion to resolve
those issues without republication, even if the final rule reflected a
different balancing of benefits and burdens.

The 1986 amendment reflects legislative dissatisfaction with this

degree of agency discretion. As the legislative history pointed out,
amendments that "might seem to be an insubstantial change to the
promulgating unit could have a significant impact on people affected by
the regulation." Summary of Committee Report, Economic and
Environmental Affairs Committee at 2 (1986). The Committee report
further stated that the purpose of the change was to ensure "that
proposed regulations that have had changes in wording will be
adequately reviewed by the Office of the Attorney General, proposed
anew, and republished when the changes will affect people covered by
the regulations." Id.

 Based on this legislative history, we believe that the 1986

amendment was intended to impose a more stringent test than had
previously been used. To be sure, we perceive no intention by the
General Assembly to abandon altogether the old standard. If a change
in a proposed regulation would not likely have been anticipated by
participants in the rulemaking, the change must be reproposed, just as
it would have been prior to 1986. However, after the 1986
amendment, even some changes that might have been recognized by all
as a possibility nevertheless no longer may be adopted without
reproposal.

 One possible interpretation of the 1986 amendment is that any

change requires republication, apart from changes in codification,
punctuation, spelling, and grammar and mere rewordings for the sake
of clarity. Under this construction, only these sorts of minor changes
are not "substantive" and therefore may be adopted without reproposal.

 In its broadest sense, the word "substantive" refers to laws that

create, define, or regulate rights. See Emerson Electric Co. v.
Schlesinger, 609 F.2d 898, 902 (8th Cir. 1979); Krause v. State, 31
Ohio St. 2d 132, 285 N.E.2d 736, 744 (1972); Black's Law Dictionary
128 (5th ed. 1979). If the General Assembly had only amended SG
§10-113, that is, if it had simply replaced the phrase "substantially
differs" in that section with the phrase "differs substantively" and left
the latter term undefined, this broad meaning of the term
"substantively" might have been intended. The result would have been
that any change whatever touching on benefits or burdens would
require republication, regardless of its significance. In our view,
however, this construction of SG §10-113 is incorrect.

 First, the General Assembly did not simply amend SG §10-113 and

thereby import the broad meaning of "substantive." It also enacted its
own definition of "substantively": "in a manner substantially affecting
the rights, duties, or obligations of" members of a regulated group or
the public. SG §10-101(f). The emphasized adverb requires
consideration of degree: Some changes affecting rights, duties, or
obligations are significant enough to be "substantial" and therefore are
"substantive," as thus defined; others, though they might affect rights,
duties, or obligations and therefore would be "substantive" in the broad
sense of the term, are comparatively insubstantial and therefore are not
"substantive" as defined in SG §10-101(f).

 The phrase "substantially affects," in other words, requires

assessment of the actual effect on the public and on those regulated, to
determine the extent of that effect. For example, in Herdeman v. City
of Muskego, 343 N.W.2d 814 (Wis. App. 1983), the court held that an
amendment to a rezoning proposal decreasing the amount of land to be
rezoned was not a "substantial change":

       [T]he amendment did not affect different landowners
       nor did it affect the same landowners in a different
       way. An additional public hearing could only have
       resulted in repetitive statements by the same parties.
       Nothing would have been accomplished by requiring
       another notice and public hearing, except delay.

343 N.W.2d at 816. See also Inganamort v. Borough of Fort Lee, 293
A.2d 720 (N.J. Super. 1972) (republication of ordinance not required
under "substantial alteration" standard, because effect of amendment
was insignificant). Compare Concerned Citizens v. 32nd Dist. Agric.
Ass'n, 42 Cal. 3d 929, 727 P.2d 1029 (1986) (changes to public works
project were significant enough to require new environmental impact
statement under "substantial change" standard) with Fund for Environ.
Defense v. County of Orange, 204 Cal. App. 3d 1538, 252 Cal. Rptr.
79 (1988) (project changes were not significant enough under same
standard).5

 Although the legislative history does not explain why this

definition of the term "substantively" was enacted, we infer legislative
recognition of the harm that too rigid a republication requirement
would cause. Agencies would be forced either to republish virtually
all changes, thereby doubling the time involved in adopting a
regulation, or to refuse to incorporate suggested comments, even ones
that would lessen the regulatory burden without reducing the benefits
of the regulation, because to do so would lead to too much delay.
The latter result would do a great disservice to the public. As the
D.C. Circuit has observed, an agency "undoubtedly has authority to
promulgate a final rule that differs in some particulars from its
proposed rule .... '[A] contrary rule would lead to the absurdity that
the agency can learn from the comments on its proposals only at the
peril of starting a new procedural round of commentary.'" Small
Refineries, 705 F.2d at 546-47 (quoting International Harvester Co. v.
Ruckelshaus, 478 F.2d 615, 632 n. 51 (D.C. Cir. 1973)).

 Applying the definition of "substantive" in SG §10-101(f), we

conclude that an agency can "learn from the comments on its
proposals" and incorporate what it learns without republication if, but
only if, the agency is convinced that the change would not substantially
worsen the position of any group affected by the regulation, including
the general public, compared to their position if the regulation had been
adopted as proposed.

 For example, suppose that an agency, as part of a regulation

intended to limit a form of pollution, proposes to require that an
industry use a particular type of filter. During the comment period,
someone points out to the agency that another type of filter, less costly
to install, would be just as effective. If that comment convinces the
agency that use of the new filter would have substantially the same
environmental effect as would use of the proposed filter, the agency
may incorporate permission to use the new filter in the final regulation
without republishing. In this example, no one will have been
"substantially affect[ed]" by the difference between the proposed and
final regulation.6 Likewise, no one can reasonably claim surprise,
given that the agency included a provision on filtration in its proposed
regulation.

 Another version of the example will illustrate when republication

is required. Suppose that the agency recognizes the benefits to the
industry of allowing use of the new filter but is not convinced by the
comment that it really is as effective as the proposed filter. The
significance of the environmental effect is debatable. In this case, in
which adopting the comment might well involve a real policy trade-off
between savings to the industry and significant environmental
degradation, the agency must republish for comment. Unless the
agency is able to conclude, on the basis of the rulemaking record, that
the adverse effect on the environment would not be significant if the
comment were adopted, republication is required.

 In our view, this construction of SG §§10-101(f) and 10-113 better

reflects the legislative intention. It will assure, as the Economic and
Environmental Affairs Committee wanted, that a change will be
reproposed when it "could have a significant impact on people affected
by the regulation." Report at 2.7

                                V

                 Attorney General Certification

SG §10-113(c) requires the Attorney General to certify, prior to a

regulation's final adoption, that it does not differ substantively from the
original proposal. Typically, the certification is made by the Assistant
Attorney General who counsels the agency adopting the regulation. A
final regulation may not be adopted without this certification.

 If the Attorney General certifies that a changed regulation does not

differ substantively from the original proposal, the certification must
explain the agency's basis for deciding that a change would not
appreciably disadvantage interested parties and should summarize the
comments that led to the change. Conclusory statements are
insufficient; rather, the certification must explain how the rulemaking
process influenced the change and why no one is adversely affected in
any significant way.

                               VI

                          Conclusion

 In summary, it is our opinion that an agency need not repropose

a portion of a regulation that is changed from the originally proposed
language if the change (i) could reasonably have been anticipated by
participants in the rulemaking; (ii) does not decrease, in any significant
way, the benefits that would have been achieved by the regulation as
proposed; and (iii) does not increase, in any significant way, the
burdens that would have been imposed by the regulation as proposed.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                             Opinions & Advice

                                           Sharon Krevor-Weisbaum
                                           Staff Attorney

1
As part of the notice of final adoption, the Attorney General must
certify that the final regulation does not differ substantively from the text
originally proposed. SG §10-113. See Part V below.

2
Changes in codification, punctuation, spelling, and grammar are not
substantive and thus need not be republished. Colborn Memorandum at 2-3.
To require republication in these situations would be of no benefit to the
public. Similarly, a change that merely conveys a requirement already
specified by statute does not require reproposal, since public comment could
have no effect. See Vega v. National Union Fire Insurance Co., 682 P.2d 73,
77 n.9 (Haw. 1984).

3
Chapter 848 largely dealt with the procedures of the AELR Committee;
the provision on reproposal of regulations was not its focus.

4
The same language, "substantially different," was used when the State
Government Article was enacted in 1984. See Revisor's Note to SG §10-113.

5
The current Model State Administrative Procedure Act requires
republication if a rule "is substantially different from the proposed rule." To
determine whether an adopted rule is substantially different the agency must
consider:

            (1) The extent to which all persons affected by the
       adopted rule should have understood that the published
       rule would affect their interests;
             (2) The extent to which the subject matter of the
       adopted rule or the issues determined by that rule are
       different from the subject matter or issues involved in the
       published proposed rule; and
             (3) The extent to which the effects of the adopted
       rule differ from the effects of the published proposed rule
       had it been adopted instead.

Comments to §3-107 of the Model Act recognize that this approach does not
"eliminate all ambiguity as to the meaning of "substantially different"; but the
proposed test creates "a more specific functional test relating the acceptability
of any changes in the proposed rule as compared to the adopted rule to the
extent to which affected parties have received fair notice by the proposed rule
publication." See Comment to Model State Administrative Procedure Act
(U.L.A.) §3-107(b).

6
It would be absurd to conclude that the benefit to the industry means
that it is "substantially affect[ed]"; surely the General Assembly did not intend
to delay by many months wholly beneficial changes in regulations. See
Inganamort v. Borough of Fort Lee, 293 A.2d at 725.

7
An agency must republish if "part of the text differs substantively from
the text previously published in the Register ...." This language raises the
question of whether the agency may make final, without republishing, the
parts of a proposed regulation that are unchanged. We believe that it may.
It makes no sense to suppose that the General Assembly meant to require a
delay in the adoption of all aspects of a regulation even if only a single
discrete part were controversial.
Likewise, an agency is free to make final the whole of a proposed
regulation, without change, and then immediately initiate a new rulemaking
proceeding to seek comments on a proposed amendment that was suggested
in the first rulemaking.