The Notice and Comment Process Legally Provided for Agency Rulemaking
Government agencies usually use informal rulemaking procedures when creating new administrative regulations, also known as “rules,” or when modifying or repealing existing rules. This process requires the agency to notify the public of the proposed new or changed rule, and to accept public comments. The informal rulemaking process is therefore also referred to as “notice and comment” rulemaking. Government agencies at the federal and state level use this process for most rulemaking actions.
Publication of Notice
At the federal level, agencies must publish a notice of a proposed rule in the Federal Register, the federal government’s daily journal. The Office of the Federal Register (OFR) compiles the Federal Register, and the Government Printing Office (GPO) prints it. The OFR is part of the National Archives and Records Administration (NARA), an independent agency of the federal government. The GPO is an agency of the Legislative Branch of the government.
In addition to proposed new rules, final rules, and changes to existing rules, the Federal Register also publishes notices of administrative agency meetings, administrative adjudications, and executive orders.
State governments maintain their own journals for publication of administrative matters. California’s Office of Administrative Law, for example, publishes the California Regulatory Notice Register on a weekly basis. It is also available online or by subscription.
Public Comment
Federal law requires government agencies to allow at least 30 days after publication for the public to submit “written data, views, or arguments” regarding a proposed rule. In some cases, the statute authorizing a rule requires a longer comment period. The federal rulemaking statute also allows agencies to enact rules without a comment period if the rule solely deals with an exemption from, or serves to interpret, an existing rule, or for other good cause explained in the publication of the rule.
Agencies are not generally required to hold public hearings or meetings on a proposed rule, although a statute might specifically require an agency to do so. They may decide to hold public meetings, however, if they receive a substantial amount of criticism or opposition from the public.
Response to Public Comments
Agencies must consider all “relevant matter presented” during the comment period, and they must respond in some form to all comments received. They are not, however, required to take any specific action with regard to the rule itself. The publication of the final rule must include analyses of any relevant data or other materials submitted by the public and a justification of the form of the final rule in light of the comments the agency received.
If opposition to the proposed rule is exceptionally large or strident, the agency may decide to make substantial modifications and start the process over by publishing a new notice and opening a new comment period. Otherwise, the agency will publish its final findings along with the rule, which is codified in the Code of Federal Regulations.
