SUPPLEMENTARY INFORMATION:

The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see www.acus.gov.

Processing Public Comments in Agency Rulemaking

The public notice-and-comment process is an integral part of federal agency rulemaking. It provides an important opportunity for interested persons to share their perspectives, expertise, and experiences relevant to an agency's proposed action. Public comments can help inform an agency's decision making, for example by identifying potential local impacts, implementation challenges, and alternative approaches to regulatory action. Addressing public comments adequately is essential to ensure that final agency actions are based on the best available information, are perceived as legitimate by the public, and are not subsequently set aside on judicial review.^[1]

While most proposed rules receive few or no public comments, many receive hundreds or thousands of them. Processing voluminous comments requires significant agency resources, but even small numbers of comments may raise complex questions of law and policy that require substantial time and effort to address. Accordingly, agencies must ensure they employ robust procedures for processing comments from intake and analysis to response and resolution of comments.

ACUS is undertaking a project to examine how agencies receive public comments related to rulemaking proceedings; make those comments available to agency staff, contractors, and the public; analyze the content of the comments; and develop responses to them. The project includes consideration of the organizational practices agencies use to process comments; how agencies use contractors in comment processing; and how agencies procure and use various technological tools (including algorithmic tools) in receiving, analyzing, and responding to comments.

General Topics for Public Comment

ACUS welcomes views, information, and data on all aspects of federal agencies' process for receiving, reviewing, analyzing, and responding to comments in connection with rulemaking proceedings. ACUS invites interested persons to share their experiences with submitting comments on proposed rules or other rulemaking-related requests for information. For example:

A. What has been your experience submitting comments to federal agencies on proposed rules or in response to advance notices of proposed rulemaking or other rulemaking-related requests for information?

B. If you have submitted comments via both Regulations.gov and another agency platform, such as the Federal Communications Commission Electronic Comment Filing System, in what ways were the experiences similar? In what ways were they different?

Specific questions that ACUS is examining as part of this study include:

1. Which agencies conduct rulemakings that commonly receive public comments? What are the notable variations in the kinds of rules that receive comments and the quantity and quality of those comments?

2. How do agencies use Regulations.gov and the Federal Docket Management System (FDMS) to solicit, organize, store, and publish public comments? What agency officials (or contractors) are involved in these processes?

3. Which agencies have developed their own electronic systems to solicit, organize, and store public comments? How do these systems compare to Regulations.gov and FDMS?

4. How do agencies conduct comment analysis? What are the primary elements of the agency's comment analysis process? Who is involved in it? What ( printed page 67263) technologies, if any, do agencies use to analyze comments? How formal or informal is the process?

5. How do agencies develop responses to public comments? How does this stage of the process relate to prior stages? How does the development of comment responses relate to other aspects of developing the final rule? How do public comments affect the substance of final rules?

6. What aspects of agency comment processing procedures seem to be working well and why? For areas where things are not working well, what seem to be the sources of the problems and what are the potential solutions?

(Authority: 5 U.S.C. 595.)

91 FR 67262