One of the primary innovations associated with the Administrative Procedure Act (“APA”) was its implementation of a comment period in which agencies solicit the views of interested members of the public on proposed rules.1 The procedure created by the APA has come to be called “notice-and-comment rulemaking,” and comments have become an integral part of the overall rulemaking process.
...Rulemaking Comments
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Committee:
Project Stages:
1. Gather ideas - Completed2. Select ideas - Completed
3. Council approval - Completed
4. Picking a researcher - Completed
5. Committee consideration - Completed
6. Back to the council - Completed
7. Consideration by the full conference - Completed
8. Implementation - Current
Stage:
8. Implementation
Contacts
Consultant
Steven J. Balla
Associate Professor,
George Washington University
Agencies conduct most rulemaking proceedings via the process of “notice and comment.” Under this process, an agency publishes notice of a proposed rule in the Federal Register, gives the public a period of time in which to comment, and then issues a final rule after considering the comments received. See 5 U.S.C. § 553. The Recommendation addresses various legal and practical issues that arise in connection with the “comment” phase of notice-and-comment rulemaking and that were raised in the Interim Report on the Administrative Law, Process and Procedure Project for the 21st Century issued in December 2006 by the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary of the U.S. House of Representatives. The Recommendation provides best practices on a number of aspects of the comment process, including, amongst other things, minimum comment periods, reply comments, late comments, and anonymous comments.
Final Recommendation
- Recommendation number: 2011-2
- Adopted on: June 16, 2011
- Committees: Rulemaking
- Tags: E-Rulemaking, Rulemaking
Implementation
At its June 2011 Plenary Session, the Conference adopted Recommendation 2011-2, which identifies a series of best practices agencies should undertake to improve the transparency of the rulemaking comment process and promote the submission of useful comments. The recommendation encourages agencies to develop policies explaining the characteristics of effective comments for use by public commenters. It recommends minimum comment periods for rulemakings. It urges agencies to develop policies for posting all comments received to the Internet within a specified period after submission. It recommends that agencies develop policies on the acceptance of anonymous comments and late comments and publish those policies. Finally, it encourages agencies to use reply comment periods when additional input on submitted comments would be beneficial and supplemental notices of proposed rulemaking when a sufficient period of time has elapsed since the initiation of the comment period such that existing comments have become “stale”.
Read the Federal Register notice announcing the adoption of Recommendation 2011-2, available at 76 Fed. Reg. 48,789, 48,791
Project Documents
Committee Meetings & Events
54th Plenary Session
June 16, 2011 - 2:00 pm EDT
June 17, 2011 - 9:00 am EDT
Location name:
Pew Charitable Trusts, Washington, DC
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