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Public Commenting on Federal Agency Regulations: Research on Current Practices and Recommendations to the Administrative Conference of the United States Open Access

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This report, commissioned by the Administrative Conference of the United States (ACUS), investigates agency practices in soliciting, circulating, and responding to public comments during the federal rulemaking process. Specifically, the report develops recommendations regarding the following aspects of the public commenting: 1. Should there be a required, or at least recommended, minimum length for a comment period? 2. Should agencies immediately make comments publicly available? Should they permit a “reply comment” period? 3. Must agencies reply to all comments, even if they take no further action on a rule for years? Do comments eventually become sufficiently “stale” that they could not support a final rule without further comment? 4. Under what circumstances should an agency be permitted to keep comments confidential and/or anonymous? 5. What effects do comments actually have on agency rules? The report considers three sources of information as the bases for developing recommendations in these areas of public commenting.

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