Public Commenting on Federal Agency Regulations: Research on Current Practices and Recommendations to the Administrative Conference of the United States

washington dc

by Steven Balla, Associate Professor

March 15, 2011

Download the working paper

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.

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