Public Commenting on Federal Agency Regulations

Research on Current Practices and Recommendations to the Administrative Conference of the United States

March 15, 2011

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Executive Summary

This report, commissioned by the Administrative Conference of the United States (ACUS), investigates agency practices in soliciting, circulating, and responding to public comments during the federal rulemaking process. Specifically, the report develops recommendations regarding the following aspects of the public commenting:

1. Should there be a required, or at least recommended, minimum length for a comment period?

2. Should agencies immediately make comments publicly available? Should they permit a “reply comment” period?

3. Must agencies reply to all comments, even if they take no further action on a rule for years? Do comments eventually become sufficiently “stale” that they could not support a final rule without further comment?

4. Under what circumstances should an agency be permitted to keep comments confidential and/or anonymous?

5. What effects do comments actually have on agency rules?

The report considers three sources of information as the bases for developing recommendations in these areas of public commenting. First, the report reviews published research as a means of identifying the most salient arguments and evidence on commenting that have been offered by researchers in law and the social sciences. Second, original research was conducted during the preparation of the report. This research specifically addresses issues for which existing information is especially limited in scope and clarity. Third, interviews were conducted with rulemaking experts from inside and outside of government. The aims of these interviews were to learn about agency experiences in the commenting process and bring the insights of researchers and practitioners directly to bear on the issues being addressed in the report.

Based on these sources of information, the report draws conclusions about the state of practice and understanding in each of the five areas of public commenting and states recommendations for ACUS consideration. The report proposes benchmarks for assessing the impacts of the recommendations, if implemented, on the notice and comment process. The recommendations, which are developed and justified in the text of the report, are listed below by area of inquiry.

The Duration of Comment Periods

Recommendation 1: There should not be a required minimum duration of comment periods.

Agency Circulation of Public Comments

Recommendation 2: Agencies should be encouraged to make appropriate use of reply comment periods.

Recommendation 3: Agencies should be encouraged to record online both the dates on which comments are submitted and the dates on which comments are posted to the Internet.

Recommendation 4: Agencies should be encouraged to establish a stated policy of posting public comments to the Internet within a specified period after submission.

The Staleness of Comments

Recommendation 5: Agencies should be encouraged to make use of existing procedures, such as supplemental notices of proposed rulemaking, to refresh rulemaking records that have become stale due to the passage of time, changes in facts and technology, and activation of additional interested parties.

Confidential and Anonymous Comments

Recommendation 6: Agencies should retain the discretion to establish their own policies regarding the submission of anonymous comments.

Recommendation 7: Agencies should be encouraged to state explicit policies regarding the treatment of confidential business information and other forms of proprietary commenting.

The Effects of Public Commenting

Recommendation 8: Agencies should be encouraged to report in the Federal Register the precise number of comments that are submitted during comment periods.

Recommendation 9: The analysis of stakeholder behavior ought to be considered a fundamental component of assessments of the public commenting process.

Recommendation 10: Agencies should be encouraged to develop and publicize statements about the characteristics of effective comments.

Conclusion

Taken together, these recommendations constitute modest steps that agencies can take to enhance transparency and participation in public commenting without significantly diminishing the efficiency of rulemaking proceedings. The recommendations are grounded in the notion that the commenting process is not broken and therefore is not in need of fundamental reform. Although the published findings, original data, and expert interviews identified uncertainties and concerns in current practices, these sources suggest that, on balance, commenting continues to possess substantial utility for both agencies and stakeholders.

The recommendations are also characterized by a common focus on the provision of information. For example, the report recommends that agencies record the dates on which comments are submitted, as well as the dates on which comments are posted to the Internet. The report also recommends that agencies establish policies of posting comments to online dockets within announced time periods after submission. Such information provision measures serve to enhance the transparency of the commenting process. These measures have the potential to bring about increases in participation and efficiency as well. To what extent do stated policies on the posting of comments result in agencies increasing the speed with which submissions are made available to the public? With what regularity do interested parties take advantage of opportunities to respond to previously submitted comments that are accessible via the Internet?

Systematic assessments of questions such as these are the modes through which the effects of the reports recommendations are most naturally and effectively evaluated. This empirical orientation suggests a final recommendation for ACUS to consider.

Recommendation 11: ACUS should place a high priority on commissioning empirical studies of rulemaking.

In the context of this report, empirical analysis is essential in determining the efficacy of the modest, information provision-oriented recommendations that have been developed. If such analyses indicate that these recommendations have not enhanced transparency and participation, then more substantial, mandate-oriented approaches can be targeted for scrutiny in subsequent ACUS consideration of rulemaking comments.