Stephen and Ann Schwalbach - Page 20

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          1311 (D.C. Cir. 1991)); American Water Works Association v. EPA,            
          40 F.3d 1266, 1274 (D.C. Cir. 1994) (quoting Fertilizer Inst. v.            
          EPA, 935 F.2d at 1311).  The critical inquiry is whether                    
          commentators have had a fair opportunity to present their views             
          on the final plan in a way that the Commissioner might find                 
          convincing.  American Water Works Association v. EPA, 40 F.3d at            
          1274; Fertilizer Inst. v. EPA, supra; United Steelworkers of Am.,           
          AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1225 (D.C. Cir. 1980);              
          BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642 (1st Cir.                 
          1979); South Terminal Corp. v. EPA, 504 F.2d 646, 658 (1st Cir.             
          1974); see also American Med. Association v. United States, 887             
          F.2d at 768; Natural Resources Defense Council v. EPA, 824 F.2d             
          at 1283; American Transfer & Storage Co. v. ICC, 719 F.2d 1283,             
          1303 (5th Cir. 1983); Wing v. Commissioner, 81 T.C. at 33-35.               
          Stated differently, the Commissioner's final regulations are not            
          subject to another notice and comment period where the proposed             
          regulations fairly apprise interested persons of subjects and               
          issues that may be addressed in the final regulations.  Wing v.             
          Commissioner, 81 T.C. at 35; see also Small Refiner Lead                    
          Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983);           
          American Iron & Steel Inst. v. EPA, 568 F.2d 284, 293 (3d Cir.              
          1977).  The purposes of notice and comment are adequately served            
          when proposed rules generate diverse public comment, are fair to            
          affected parties, and give affected parties an opportunity to               
          develop evidence in the record.  Association of Am. R.R. v.                 



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