Federal agencies are required by the Administrative Procedure Act (APA) to read and respond to public comments they receive on proposed rules. In this guide we shed light on what this process looks like, what agencies look for, and how they process the comments they receive. Our information is based on the EPA, but similar processes occur in other federal agencies.
How to cite this guide:
Gehrke, G., & Paz, A. (2024). What Happens to a Public Comment After It Is Submitted. Environmental Data and Governance Initiative. https://envirodatagov.org/what-happens-to-a-public-comment-after-it-is-submitted
Before the Public Comments: Proposing the Rule and Receiving Comments
When the EPA sets out to develop a new or updated regulation, it first establishes a working group to conduct the work and steward this “Action Development Process.” The working group will include representatives from all of the different relevant offices within the agency, often involving people from the Office of Research and Development, the media office (e.g. water, air, land – from both Headquarters and appropriate Regional Offices), and the Office of General Counsel (OGC). Drafting rules can take varying lengths of time, but most major rules take 2-3 years to develop. Over this time, the working group explores the evidence it has and considers the scientific, economic, technological and legal rationale that shape its proposed rule. It also conducts outreach activities to get input from a variety of interest groups and share progress with them. Since litigation about regulations is very common, proposed rules are carefully written such that they can withstand scrutiny in court, and are further vetted for legal authority by the agency and the White House Office of Management and Budget (OMB). After this series of approvals, the proposal is published and opened for public comment.
Proposed rules are published in the Federal Register and a docket is created for each rule, which is a digital folder that includes official documentation for the rule, such as the regulatory text and technical analyses for the proposed rule. Dockets are posted on Regulations.gov, where the public is able to download the relevant support documents in addition to the proposed rule, and to submit comments. The agency’s workgroups control their own dockets, including how they label and tag the proposed rules and supporting documentation, and when and how extensively they publish the comments they receive from the public.1 Members of the public will typically have 30 to 90 days to submit written comments on a proposed rule. The agency may also provide an opportunity for a public hearing and public listening sessions, and transcripts from the hearings and listening sessions will be added to the docket alongside any written public comments. During the public comment period, EPA may meet with members of the public, but the agency must include at least a summary of the meeting in the rule’s docket. During the comment review process (described below), agency workgroups will also determine whether comments can be posted publicly (i.e. ensuring there is no inappropriate content in the comment (such as Confidential Business Information (CBI) which may be shielded from public view), and will eventually post them to the rule’s docket on Regulations.gov.
Sorting and Splitting
Once the commenting period has ended, agencies commence reviewing submitted comments. Staff and/or contractors hired by the agency sort and split comments using several approaches. They identify comments that were submitted as part of larger writing or form letter campaigns and group them together. They also divide lengthier comments into parts and match them with the sections of a rule that would change if the agency were to adopt the comments’ recommendations. This process allows staff members, who are responsible for specific sections of a rule according to their expertise, to more readily respond to relevant comments.
Agency workgroups will group comments so that those making similar arguments can be addressed together. In the case of long, complex, and heavily commented-on proposed rules, the process of matching parts of comments with different sections of a proposed rule can be difficult and laborious, which is why agencies will oftentimes hire contractors to assist with this work. Contractors may not have the same level of knowledge about a proposed rule as the agency working group, so this process can occasionally lead to comments being misunderstood or parts of comments being applied to the wrong parts of rules if they’re not clearly labeled. By and large, however, splitting comments into components that address different parts of a proposed rule is an effective way for agencies to process comments.
Responding to Comments
Once the comments have been sorted, split and applied to the appropriate sections of a proposed rule, agency staff begin to address the comments. They address the direct relevance of the comment and assess whether the commenter has raised an issue that should alter the rule, or whether the agency has already considered the issue and determined that the proposed course is best. They look for scientific, technical, economic or legal rationale for incorporating or rebuffing recommendations and evaluate whether and how a commenter’s recommendations could be implemented. The agency will disregard comments they deem off-topic, vague, or otherwise inappropriate, and in its Responses to Comments (described below), it can state a simple disagreement with comments that don’t provide evidence or a rationale for their arguments. For a better idea of what agencies look for in a public comment, see our guide How to Write Effective Public Comments.
The final versions of many rules incorporate feedback from and are the product of the public commenting process. Agencies take public comments seriously, and particularly respond to new data and analyses raised in public comments that weren’t included in the agency’s original analyses during rule development. However, it is rare that a final rule is drastically different from its proposed version or that the agency revises the proposed rule enough that it must open a new public comment period for the revised proposed rule.
Protecting the Agency
In accordance with the APA, the EPA is required to consider the “relevant matter” presented to the agency during the public comment process, which has been interpreted in the courts as meaning EPA must respond to all “significant comments” submitted.2 Parties capable of effectively challenging regulations in court, such as industry and large environmental advocacy organizations, will often write extensive, detailed comments on proposed rules, both to offer genuine suggestions and arguments, but also to serve as a mechanism for launching future lawsuits. If a litigant can prove in court that an agency did not appropriately consider a comment, then a court may strike down an entire rule or parts of it.
In order to anticipate whether lawsuits will be filed when a final rule is published, the EPA’s OGC will look for litigious language in the comments it received on proposed rules, in case any comment merits special attention due to the risk the agency may be sued by the comments’ authors. The OGC will also extensively review the agency working group’s collated “responses to comments” to ensure the responses are well reasoned and have strong technical backing.
Publishing Responses
Once the agency has determined the changes that will be made for the final rule and completes its responses to comments, the agency will publish its responses. The EPA’s official “responses to comments” will generally be included in the preamble for the final rule, as well as in an independent document added separately to the rule’s docket on Regulations.gov. The official responses to comments will not address every comment received, but will include an overview of the themes of significant comments and the agency’s responses to them. They also will often refer to some specific points raised in specific comments, sometimes even quoting comments. Commenters will not be referred to by name, but often each section of the response to comments will include a list with the codes of different comments that were included in that grouping.
Here is an example of EPA’s response to comments:
Here is a link to the final rule about particulate matter pollution, published in February 2024. Notice how the text of the final rule has a section summarizing significant public comments received, and references public comments that were submitted throughout the document.
Final Rule: Reconsideration of the National Ambient Air Quality Standards for Particulate Matter
How Your Comment Might Influence Agency Actions
Many rules, especially major rules, do change from their proposed version to their final version as a result of the information the agency receives through public comments. The modifications to the rules usually deal with meaningful technical or legal details. If there is substantial public interest in a rule, administrators may consider the political implications of a rule and components of it in addition to the technical or legal issues raised in comments. It is quite rare, however, that a rule is revised so substantially that it fundamentally changes the approach to a regulation.
Written public comments are a protected and important part of our participatory democracy, but they are only one of several ways to engage with and attempt to influence the agency. To learn about other approaches, please see our guide Beyond Public Comments: Other Ways to Engage and Influence Federal Agencies.
See something that needs changing or want to contribute to this work?
If you have feedback, comments, or would like to get involved, please contact Gretchen Gehrke at gretchen.gehrke@envirodatagov.org.