Many of the rules that touch everyday life, from food labels and airline fees to school lunches and workplace safety, are written by federal agencies, not by Congress. Congress passes laws that set broad goals and gives agencies the job of working out details through regulations. Before most of those regulations take effect, the law requires the agency to tell the public what it plans to do and to listen to responses. That opportunity is open to everyone, not only lawyers and lobbyists, and it is easier to use than most people think.
How does rulemaking work?
Most federal rules follow a process set out in the Administrative Procedure Act, a 1946 law that governs how agencies make decisions. For a typical rule, the steps are as follows:
- The agency decides to act. The impetus might be a new law, a court decision, a petition or the agency’s own judgment that a rule is needed.
- The agency publishes a proposed rule. The proposal appears in the Federal Register, the government’s daily journal, and explains what the agency intends to do and why. It sets a deadline for public comments and tells people how to submit them.
- The public comments. Anyone can submit a comment during the period, which generally lasts 30 to 60 days or more, though the length varies by rule.
- The agency reviews the comments. Staff read, categorize and consider the comments and may revise the proposal.
- The agency publishes a final rule. The final rule must include a statement of its basis and purpose and respond to significant issues raised in the comments. It generally takes effect after a waiting period.
Not every rule follows every step. Some are issued without notice and comment under specific exceptions, and some begin with an earlier notice asking for input before a proposal exists. Major rules face extra review by the White House’s regulatory office and, after they are final, by Congress, which has a limited power to overturn them under the Congressional Review Act.
Where do you find a proposed rule?
Two websites do most of the work. The Federal Register posts every proposed and final rule, and its site lets people search by agency or topic and sign up for email alerts. Regulations.gov is the government’s central portal for viewing and submitting comments. Each rulemaking has a docket, a folder that collects the proposed rule, supporting documents and public comments, identified by a docket number. A resident can search by keyword, agency or docket number, open the proposed rule and see whether the comment period is open and when it closes.
Agencies also announce proposals on their own websites and in press releases, and advocacy groups and trade associations often send summaries to their members. Anyone who cares about a topic, such as housing, transportation or health care, can set up a search or an alert.
How do you submit a comment?
On Regulations.gov, a “Comment” button appears on the page of a document that is open for comment. Commenters fill in a form, type or attach a statement and submit it. Some agencies accept comments by mail or other methods, as the Federal Register notice explains. A few practical points apply:
- Comments are public. They are generally posted online with the name the commenter provides, so personal or confidential information should not be included.
- Cite the docket number. It ensures the comment is filed with the right rule.
- Meet the deadline. Late comments may be ignored.
- Submit it once. Duplicate submissions do not add weight and can clutter the record.
What makes a comment effective?
Agencies must consider what commenters say, but they are not counting votes. A rulemaking is not a referendum, and a thousand identical form letters carry about as much information as one. What persuades is substance. Effective comments tend to share several features:
- They address the actual proposal. The comment refers to specific sections or questions in the proposed rule, and many agencies list questions they want answered.
- They offer evidence. Data, studies, firsthand experience and concrete examples are more persuasive than opinions alone. A teacher, a small business owner or a clinician can explain how a rule would work in practice.
- They explain the effects. A comment that describes who would be helped or harmed, and how, helps the agency understand consequences it may not have considered.
- They suggest alternatives. Saying how the rule could be improved gives the agency something to act on.
- They are organized and concise. Clear headings, short paragraphs and plain language help busy staff.
Courts review final rules, and an agency that ignores a significant, well-supported comment risks having its rule overturned. That is part of why substantive comments matter.
What happens next?
After the comment period closes, the agency reviews the record. Staff group comments by theme, analyze the issues and decide whether to finalize the rule as proposed, change it or withdraw it. The final rule published in the Federal Register includes a response to the main comments. Comments stay in the docket and remain publicly viewable, so anyone can see how others responded and what the agency said in return.
A final rule can still be challenged in court, and a new administration can propose to change it through its own rulemaking, which requires the same notice-and-comment steps. The cycle is slow, and that slowness is part of the design.
How does this connect to state and local government?
Federal rules often shape what states, cities and school districts do, because federal funding and standards flow through them. State and local governments run parallel processes. California agencies publish proposed regulations and take comments under the state’s own administrative law, and the Legislature sets policy through the process described in how the California Legislature makes law. Utility rates are decided in proceedings with their own public-comment rules, as explained in how the CPUC regulates utility bills. The skills for a useful comment carry across all of these arenas.
What should a commenter avoid?
A few habits reduce a comment’s value. Personal attacks on agency staff, long rants that never mention the proposal and claims with no support are easily set aside. So are comments that arrive after the deadline or that are submitted to the wrong docket. Commenters should also avoid overstating certainty. If a data point comes from a single experience or a small survey, saying so helps the reader weigh it and makes the rest of the comment more credible. Where the commenter is representing an organization, it helps to say who the organization is, how many people it speaks for and why its view is informed.
Is it worth the effort?
For the individual, a single comment rarely changes a rule on its own. But comments collectively create a record that agencies and courts rely on, and an expert or affected person who provides specific information can influence details such as definitions, effective dates, exemptions and enforcement. Many of the most significant changes to proposed rules come from detailed comments that point out a practical problem the agency had missed.
Anyone who has a stake in a rule, or a story that shows what it would mean, has a legitimate role in the process. The tools are free, the deadlines are posted and the record is public.
Sources: Federal Register; Regulations.gov; Administrative Procedure Act; U.S. Government Accountability Office
