Step Two: Comment and Hearing

According to the Federal Administrative Procedure Act, the rules promulgated by administrative agencies must undergo certain procedures.  Notice improves the quality of agency rulemaking by testing the agency regulations through diverse public comment.[i]

However, it is not necessary that a federal agency must provide an evidentiary hearing or oral presentation as part of the comment requirement.[ii] An agency is required to provide a meaningful opportunity for comments, which means that the agency’s mind has to be open while considering them.[iii] However, the public do not possess any opportunity to comment on every bit of information that influences the decision of an agency. [iv]

It is to be noted that to provide everyone a chance of hearing in rulemaking is impractical.  In rulemaking, a trial form of hearing is not required.[v] However, any person interested must be given an opportunity to comment on facts and ideas that is considered by the agency.

According to the 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.  In Fleming Cos. v. USDA, 322 F. Supp. 2d 744 (E.D. Tex. 2004), it was observed that a thirty day notice and comment period is sufficient.

An opportunity to comment granted after a rule is promulgated cannot substitute for an opportunity to comment beforehand.[vi]

[i] Castellini v. Lappin, 365 F. Supp. 2d 197 (D. Mass. 2005)

[ii] Id

[iii] Hill v. Gould, 555 F.3d 1003 (D.C. Cir. 2009)

[iv] Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d 313 (5th Cir. 2001)

[v] Sima Products Corp. v. McLucas, 460 F. Supp. 128 (N.D. Ill. 1978)

[vi] Waco v. Environmental Protection Agency, 620 F.2d 84 (5th Cir. 1980)


Inside Step Two: Comment and Hearing