A general notice of proposed rulemaking must be published in the Federal Register according to the Federal Administrative Procedure Act.[i] Similarly, interested persons are given an opportunity to comment in the proposed rule making process.
However, the notice and comment provision of the Federal Administrative Procedure Act cannot be interpreted in such a way that an agency has to respond to every comment, fact or opinion or to analyze every issue or alternatively raised comments.
An agency must respond in a reasoned manner to the comments received, explain how the agency resolved any significant problems raised by such comments, and to show how that resolution led the agency to the ultimate rule.[ii]
An agency establishing a rule need not respond to every comment.[iii] At the same time, the opportunity to comment on proposed rules is meaningless if the agency do not responds to the substantial points raised by the public.[iv] An agency is required to provide a meaningful opportunity for comments.[v] However, the public do not possess any opportunity to comment on every bit of information that influences the decision of an agency. [vi]
Generally, an agency has to respond only to:
- Comments if true, which require a change in the proposed rule;
- Comments which raise any significant issues;
- Comments which challenge a fundamental premise;
- Comments which are relevant.
[i] 5 USCS § 553
[ii] Ohio Valley Envtl. Coalition v. Hurst, 604 F. Supp. 2d 860 (S.D. W. Va. 2009)
[iii] North Carolina v. Federal Aviation Admin., 957 F.2d 1125 (4th Cir. N.C. 1992)
[v] Hill v. Gould, 555 F.3d 1003 (D.C. Cir. 2009)
[vi] Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d 313 (5th Cir. 2001)