is a mechanism that is already built in to the federal rule-making process. Federal agencies implement laws passed by Congress through rules and regulations. When any federal agency needs to create a new regulation, it starts with a regulation proposal in the Federal Register. Under the Administrative Procedures Act (1946), the agency is then required to request comments on that proposal by all members of the public.
Agencies are looking for any information pertinent to the actions proposed in the regulation, from public input on community impacts to scientific research. This means that public comment is utilized not only by private citizens, but also by non-profit organizations, industry lobbying groups, and even other government agencies. The agency is then required to take into account and respond to substantive comments when writing the final regulation. These responses are also published in the Federal Register. Agencies may also solicit public comment outside of proposed rules, for example, when soliciting information for a potential regulation or simply gathering information on a particular topic.
how do scientists fit in?
“The need for scientific and technical inputs exceeds what can be provided from panels of scientists tasked with discrete analyses, which are often generated over months and years. Scientific input to policy-makers should be dynamic and continuous, provided by scientists who span various disciplines and career stages.”
-AAAS 2017 Report: Connecting Scientists to Policy Around the World
Scientists can think of public comment as a type of peer review for federal regulations. And as with scientific peer review, the most effective and helpful reviewers are those that demonstrate expert understanding of the issue and support positions with substantive data.
Scientists have developed a unique expertise in their respective fields. They are trained to analyze and synthesize data and to navigate the technical context in which their own work takes place. They can consolidate and communicate research that is critical to evidence-based policy.
All agencies incorporate scientific data throughout the rule-making process, and many structure substantial scientific review prior to the comment period through advisory boards and committees. However, the extent and timing of this review varies by statute and agency, and so it is often unclear how an independent scientist can plug into this process. Public comment is an invaluable gateway to plug in to the regulatory process because it is required of all agencies, across statutes, for any new regulation. It casts a wider net for collecting scientific information by encouraging participation by scientists across disciplines, sectors, and career states. And because public comments can be submitted online and comment periods tend to last weeks to months, scientists can support evidence-based policy at their own pace and on their own schedule.
the rule-making process
Public comment is just one part of an extensive rule-making process. While the specifics of rule-making can vary between federal agencies and by the subject of the regulation, the figure below outlines the general process.
(1) What documents are posted for public comment?
Preliminary Rule-making Documents:
These include advance notices of proposed rule-making, petitions for rule-making, and notices of inquiry, where no rules have yet been proposed but comments are invited on the agency's intent to add, remove, or change a rule or regulation.
For example, a Notice of Proposed Rule-making is a public notice that must be issued whenever agencies plan to add, remove, or change a rule or regulation. They are usually open for public comment for 60 days. If an agency changes their regulation proposal drastically in response to public comments on this Notice, they publish a Further Notice of Proposed Rule-making.
New Regulation or Rule Proposal:
A agency plans to establish a new regulation or rule. The agency has used a rigorous process of revision and scientific review to produce a proposal, or draft text, of the planned regulation. This text also includes the justification and analysis behind the regulation proposal.
Proposed Changes to Existing Rules:
An agency wants to update one of their existing rules. This can be a result of new information, research or technology.
Agency Information Collection Activities:
Federal agencies are required to publish a notice in the Federal Register each time they intend to collect information, or extend an existing collection of information, to ensure that information collection methods are sound. The notices solicit comment on proposed information collection actions and requirements.
(2) Statutes v. Regulations
The words "statute" and "law" are basically interchangeable, as are "regulations" and "rules." A statute is a written law passed by the legislature, e.g., The Administrative Procedures Act. Agencies implement statutes through development and enforcement of regulations.
(3) The Federal Register
The Federal Register is the official "newspaper" of the federal government, compiled by the Office of the Federal Register in the National Archives and Records Administration. This daily publication contains presidential documents and executive agency rule and notice documents. The purpose of publishing documents in the Federal Register is to provide the public official notice of a document's existence and to specify the legal authority of the agency that is issuing it.
(4) Avenues to Comment
Over 300 agencies invite comments through the online portal at Regulations.gov. The Regulations.gov website was established in 2002 as a cross-agency initiative, and is based within the US Environmental Protection Agency. The website also allows you to search all regulatory materials (including regulations open for comment and posted public comments), and sign up for email alerts about a specific regulation.
Some agencies will request that public comments on certain documents be emailed or mailed to an individual within the agency. The agency will include the necessary contact information and details in the text of the document on the Federal Register.
(5) Agency response to public comment
In accordance with the Administrative Procedures Act, federal agencies are legally required to respond to every unique, fact-based comment. These responses are published, along with the final rule or action, in the Federal Register. If the agency does not respond to such a comment, or does respond but does so in a way that may be considered "arbitrary and capricious," the commenter has cause to take the agency to court for violating procedural law. This is primarily done by a special interest group with extra resources, rather than an average citizen.
(6) Tracking the effect of your comment
So you've commented - now what? If you submitted your comment through the online portal at Regulations.gov, you can sign up to receive email notifications about any newly posted documents related to the that regulation. This will include the publication of the final rule, along with the agency responses to substantive comments. Learn more about the email alert system and how to sign up here, on Regulations.gov ("Sign Up for Email Alerts" tab).