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Length of Comment Period

An agency must give interested parties an opportunity to participate in the rulemaking procedure.  After publishing the prospective rule, the agency must give third parties a chance to comment on the prospective rule.[i]

According to Federal Administrative Procedure Act, an agency can state in the notice that the comments must be received by a specified date.  Some cutoff margin is required to receive comments.  An abbreviated comment period, such as ten days, can be deemed as proper if necessitated by deadlines for agency action.

An agency can compensate for an abbreviated comment period by stating that comments received after the effective date of the rule will be considered later.  An agency can re-promulgate the rule after those comments are received.  Parties can challenge an agency rule even if they fail to do so during the notice and comment period.[ii]

In Fund for Animals v. Frizzell, 402 F. Supp. 35 (D.D.C. 1975), the court observed that the abbreviated comment procedures do not contravene the public participation provisions of the Administrative Procedure Act.

The Administrative Procedure Act generally obliges an agency to publish for comment the technical studies and data on which it relies.  However, to avoid perpetual cycles of new notice and comment periods, a final rule does not require an additional round of notice and comment even if the final rule relies on data submitted during the comment period.[iii]

Although the Administrative Procedures Act does not establish a minimum time period for third parties to submit comments, it was observed in Fleming Cos. v. USDA, 322 F. Supp. 2d 744 (E.D. Tex. 2004), that a thirty day notice and comment period is sufficient.

[i] 5 USCS § 553

[ii] Fleming Cos. v. USDA, 322 F. Supp. 2d 744 (E.D. Tex. 2004)

[iii] Chamber of Commerce of the United States v. SEC, 443 F.3d 890 (D.C. Cir. 2006)

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