How to Comment on a Proposed Federal Rule (and Make It Count)

Most people think of advocacy as something that happens in a legislature or on a ballot. A great deal of everyday policy, though, is written by federal agencies through rulemaking, and the public has a formal seat at that table: the right to comment on proposed rules before they become final. If you have ever wanted to weigh in on a food label standard, an air-quality limit, a safety requirement or a benefits program, this is one of the most direct routes available.

This guide explains how public comment works, how to find an open rule, how to submit a comment, and how to write one that agencies can actually use. It is general information about a federal process. Every rule has its own instructions, so the notice for the rule you care about always controls.

What is a proposed rule?

When a federal agency wants to create or change a regulation, it usually publishes a proposed rule, also called a Notice of Proposed Rulemaking, in the Federal Register. The Office of the Federal Register's guide to the rulemaking process describes the proposed rule as the official document that announces and explains the agency's plan to address a problem or accomplish a goal. It also says that all proposed rules must be published in the Federal Register to notify the public and give people an opportunity to submit comments, and that the proposed rule and the comments received form the basis of the final rule.

A proposed rule typically opens with a summary of the issue and why the agency thinks a rule is needed. Under the "Dates" and "Addresses" headings, the agency invites everyone to comment, sets a deadline, and lists the ways to send comments. Many agencies offer several options, including U.S. mail, private courier, email and the federal electronic comment portal, Regulations.gov.

Step 1: Find a rule that is open for comment

You can find proposed rules in two main places. The Federal Register publishes them, and Regulations.gov is the official federal electronic comment portal, where many rules have an electronic docket that accepts comments. Search by topic, agency, or docket number if you already have one. Check the comment deadline before you do anything else.

Agencies also sometimes publish earlier notices. The Office of the Federal Register guide explains that an agency in the early stages may publish an "Advance Notice of Proposed Rulemaking," which is a formal invitation to help shape a proposed rule. The same guide notes that if an agency receives a "Petition for Rulemaking" from a member of the public, it may announce the petition and accept public comments on the issue. That is worth knowing if you are the kind of person who starts petitions: a federal agency has a formal process for petitions from the public, although an online petition is not the same thing as a Petition for Rulemaking.

Step 2: Understand the timing

The guide says agencies in general specify a comment period of 30 to 60 days, although the time can vary. For complex rulemakings, an agency may give longer periods, such as 180 days or more, and it may use shorter periods when it can justify them. You can ask an agency for more time. The guide adds that agencies are generally not legally required to consider late-filed comments, so plan to submit well before the deadline.

For the electronic deadline, read the notice carefully. One Justice Department notice, for example, stated that the system would not accept comments after midnight Eastern Time on the last day of the comment period. That example comes from one specific notice. Your rule may set a different time, so confirm it in the document you are responding to.

Some agencies also hold public hearings or meetings during the comment period, and some open a second round for reply comments, which respond to what others have written. The guide points out that a reply period is not required by law.

Step 3: Read before you write

It is tempting to react to a headline. A better approach is to read the summary of the proposed rule and the specific section that affects you. Note the agency's stated reasons, the evidence it cites, and the alternatives it considered. You are not required to address the entire rule. You can comment on any part of it, including a single paragraph.

Step 4: Write a comment the agency can use

The Office of the Federal Register guide is blunt about one point that surprises many first-time commenters: the process is not like a ballot initiative or an up-or-down vote. The guide says an agency is not permitted to base its final rule on the number of comments in support of a rule compared with those in opposition. Instead, it must base its reasoning and conclusions on the rulemaking record, which consists of the comments, scientific data, expert opinions and facts accumulated during the process. In plain terms, because the record counts for more than the tally, a well-reasoned, evidence-based comment gives the agency more substance to evaluate than a collection of identical form letters.

These general writing practices fit that reality:

• Say who you are and why you care. A sentence about your experience, your work or how the rule affects you gives the agency context.
• Be specific. Refer to the section or paragraph of the proposal you are discussing.
• Give reasons and evidence. Cite data, studies, official records or direct experience. Records you obtain through a FOIA request can support your points.
• Offer alternatives. The guide explains that an agency must consider whether alternate solutions would be more effective or cost less. If you disagree with the proposal, explain what you would do instead and why.
• Be respectful and concise. Clear, organized comments are easier to use than long, angry ones.
• Write in your own words. A template can help you get started, but your own details are what make the comment distinct.

Step 5: Submit it

Follow the submission instructions in the Federal Register notice. The Office of the Federal Register guide explains that electronic comments can make input more easily available to the public and can help agencies organize comments by subject. Many proposed rules display a button for submitting comments directly to the official electronic docket on Regulations.gov. Mail and courier options remain available for many rules, so use the one the notice lists.

Keep a copy of what you submit. If the system gives you a confirmation or tracking number, save it.

Remember: comments are public

The Justice Department example mentioned above said that comments received were part of the public record and made available for public inspection online. That example is useful, but it is not a substitute for the privacy language in the notice for the rule you are addressing. As a practical precaution, assume that a comment may be public. Do not include anything you want to keep private, such as a home phone number, personal medical details or a private email address, in the text of your comment or in an attachment. If you are unsure how an agency handles names or anonymous comments, read the notice before submitting.

What happens after the comment period closes?

The agency reviews the rulemaking record. The Office of the Federal Register guide explains that if the record contains persuasive new data or policy arguments, or poses difficult questions or criticisms, the agency may decide to end the rulemaking or to continue with changes. If the changes are major, it may publish a supplemental proposed rule; if they are minor or a logical outgrowth of the issues already discussed, it may proceed to a final rule. When it does publish a final rule, the guide says the agency must explain the basis and purpose of the rule, which includes responding to major criticisms raised in the comments.

That last point is what makes commenting worth the effort. A thoughtful comment is not merely a vote in a tally. It becomes part of the record the agency reviews, and the agency's final rule must explain its basis and purpose, including its response to major criticisms raised in the comments.

Pairing comments with the rest of your advocacy

Public comment works best as one piece of a larger effort. A petition can help you find and organize people who care about the issue, and a letter to the editor can alert the wider community that a comment period is open. Encourage each supporter to submit their own comment, in their own words, rather than copying a single script.

Quick checklist

• Do you know the docket or rule you are responding to and its deadline?
• Did you read the section that affects you, not just the summary?
• Does your comment include specific points, evidence and an alternative?
• Did you leave out private information?
• Will you submit early and keep a copy?

Sources

• Office of the Federal Register, "A Guide to the Rulemaking Process": https://uploads.federalregister.gov/uploads/2013/09/The-Rulemaking-Process.pdf
• U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Instructions for Submitting Public Comments on the Advance Notices of Proposed Rulemaking (ANPRMs)" (2010 archive): https://archive.ada.gov/anprm2010/anprm2010_comment.htm