Learn More About the Notice and Comment Process

With certain statutorily-defined exceptions, issuance, amendment, or repeal of a federal regulation requires the responsible agency of the Government to follow what is known as the “Notice and Comment” procedure set out in a more than 70 year old federal law called the Administrative Procedure Act. (If you are not familiar with it, and wish to read the exact words of the relevant statutory provision, you can find it in Title 5 United States Code Section 553.)  Importantly, the definitional section of the Act defines “rule making” to include repeal or amendment, as well as issuance, of a regulatory rule.  As a result, in most instances, before an Executive agency can make a new regulatory issuance, repeal, or amendment effective, it must publish a “Notice of Proposed Rulemaking” in a daily federal publication called the Federal Register, at least 30 days prior to the effective date of the proposed regulatory action. In addition, the Notice must designate a time period (usually at least 30 days, although the law does not specify a minimum  length of time) during which members of the public can submit written views, arguments, data, objections or other comments to the Government before it makes the proposed action final.

The involved federal agency then publishes a summary of public comments it has received, along with written responses to relevant points raised in those comments, in the Federal Register at the time the final regulatory issuance or repeal is published.

The law does not explicitly require the Government to follow or respond to public comments on a regulatory proposal. However, the law does require that all factors relevant to the Government’s decision making be considered. Consequently,in order to compile a record of governmental decision making that can withstand a court challenge, Government staff must review all public comments that are submitted on a “rule making” proposal, and must formulate reasonable responses to significant points raised in those comments.

Businesses and other special-interest organizations and their members regularly participate in this Notice and Comment process. But most people do not follow the publication of Notices in the daily Federal Register, do not frequent the Government’s website that tracks federal regulatory issuances, and are probably unaware of their rights to comment directly to Government agencies on regulatory and deregulatory proposals.

Under a law passed in 2002 (the “E-Government Act”), the Government has established an “E-Rulemaking” program and a website that accepts public comment on regulatory matters. This website is a valuable resource and a useful tool; and in fact part of what we try to do on this website is provide simple instructions for how you may wish to use the regulations.gov site. However, the Government program has not engaged in extensive outreach to the public, and has not mobilized truly widespread understanding of and participation in the federal regulatory process. Citizens Comment hopes that information provided on this website can play a role in filling this gap.

If you wish to read more about rule making, the Notice and Comment process, and the role members of the public can play in regard to proposals to roll-back existing regulatory requirements, you may be interested in looking at a Guide on such matters that is available online through the website of Save EPA (an organization of former EPA employees).  (It should be noted that this Guide is drafted from the perspective of an effort to resist Trump Administration roll-backs of regulations affecting the environment.  Whether your own perspective is generally supportive of or opposed to the current Administration’s deregulatory agenda, however, the Guide contains a good deal of general information and advice about participation in the Notice and Comment process that may interest you and may be helpful in drafting comments, irrespective of the direction of the views you wish to express.

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