How can you comment on a federal rule?

#What the law gives you

The Administrative Procedure Act sets the basic process in 5 U.S.C. § 553. An agency publishes a general notice of proposed rulemaking in the Federal Register. The notice cites the legal authority and gives either the rule’s terms or a description of the subjects involved. It must also give the web address of a plain-language summary of no more than 100 words, posted on Regulations.gov. Interested persons then get to submit “written data, views, or arguments,” with or without oral presentation.

Not every rule goes through this. Section 553 excludes military and foreign affairs functions, along with matters of agency management, personnel, public property, loans, grants, benefits and contracts. Unless another statute requires notice, it also excludes interpretive rules, policy statements and rules of agency procedure. An agency can also skip notice for good cause, if it finds notice impracticable, unnecessary or contrary to the public interest and says why in the rule.

#How to read the notice

Look for two captions near the top of a proposed rule. “Dates” gives the deadline, and “Addresses” gives the methods for filing. The Office of the Federal Register says many agencies accept mail, private courier, email or Regulations.gov, and that comment periods generally run 30 to 60 days. An agency may use a shorter period when that can be justified. You can ask for more time, but agencies generally are not legally required to consider late comments. The proposed rule or the agency’s procedural rules usually say whether late ones will be considered.

#What a comment can and cannot do

The Office of the Federal Register says the process “is not like a ballot initiative or an up-or-down vote in a legislature.” An agency may not base a final rule on how many comments support or oppose it. It has to base its reasoning on the rulemaking record: the comments, scientific data, expert opinions and facts it gathered. In Perez v. Mortgage Bankers Association (2015), the Supreme Court said an agency “must consider and respond to significant comments” received during the comment period.

Comments can change the outcome. If the record contains persuasive new data or difficult questions, an agency may end the rulemaking, change the rule or publish a supplemental proposal.

#A worked example: remote ID for drones

The Federal Aviation Administration’s remote identification rule shows the full sequence. It would make unmanned aircraft in flight provide identification and location information.

• December 31, 2019: The FAA publishes the proposed rule (84 Fed. Reg. 72438) under docket number FAA-2019-1100.
• March 2, 2020: The comment deadline. The notice lists Regulations.gov, mail and hand delivery or courier among the filing methods.
• Comment count: FederalRegister.gov shows 53,049 comments received at Regulations.gov. The FAA says about 53,000, a significant amount from individuals, many of whom identified as recreational flyers, plus manufacturers and organizations.
• January 15, 2021: The FAA publishes the final rule (86 Fed. Reg. 4390). The proposal would have required sending identification data over the internet to a third-party provider. The FAA dropped that requirement after “careful consideration of these challenges, informed by public comment.”

#After the comment period

The final rule must include a concise general statement of its basis and purpose. Most substantive rules must be published at least 30 days before they take effect, with some exceptions. Section 553(e) also gives any interested person the right to petition an agency to issue, amend or repeal a rule, separate from any comment period. For how courts and Congress can review a final rule, see our explainer on laws, regulations and executive orders.