Notice and Comment Rulemaking Explained

Notice and Comment Rulemaking Explained: How Federal Regulations Are Actually Made

Every federal regulation that governs your life — the safety standards on your car, the nutritional requirements for school lunches, the pollution limits on the factory down the road — went through the same basic process before it became law. An agency proposed it, the public got a chance to respond, and the agency finalized it after considering what people said. That process is called notice and comment rulemaking, and it's the primary way federal agencies create binding rules.

The process exists because of a fundamental tension in how the administrative state works. Agencies have enormous power to write rules that carry the force of law, but unlike Congress, they aren't elected. Notice and comment is the mechanism that provides democratic accountability — it forces agencies to show their work, explain their reasoning, and respond to objections before a rule takes effect. Anyone can participate. Individuals, businesses, advocacy groups, other government agencies, and ordinary citizens all have the right to submit comments, and the agency is legally required to consider them. It's not a vote — the agency doesn't have to follow the majority — but it has to engage with substantive objections and explain why it made the choices it did.

The process is also the source of most legal challenges to agency action. When a court strikes down a regulation, it's often because the agency didn't follow notice and comment procedures correctly — it failed to adequately respond to significant comments, didn't provide enough data for meaningful public input, or changed the rule so dramatically between proposal and final version that people never had a real opportunity to weigh in. Understanding how notice and comment works isn't just academic — it's the key to understanding how regulations get made, why they sometimes get struck down, and how ordinary people can actually influence the rules that govern their lives.

In this episode, we walk through the entire process step by step, from the moment an agency decides to write a rule through publication in the Federal Register, the public comment period, and the issuance of a final rule with the force of law.

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What We Cover

  • How the notice and comment process works from start to finish — proposal, public comment, agency response, and final rule
  • What the Federal Register is and why it matters as the public record of agency rulemaking
  • Who can submit comments, what makes a comment effective, and how agencies are required to respond
  • The legal requirements under the Administrative Procedure Act — what agencies must do to make a rule legally valid
  • Why most legal challenges to regulations focus on whether the agency followed the process correctly
  • The difference between legislative rules that carry the force of law and guidance documents that don't go through notice and comment
  • How interest groups, industries, and ordinary citizens actually participate in shaping federal regulations
  • Why the process matters for democratic accountability when unelected agencies are writing rules that affect millions of people

Full Transcript

Rough S1E5 Transcript — Notice and Comment Rulemaking

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. And it’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: So Marc, before we start talking about today’s topic, I want to play a fun little game.

Marc: That was not what I bargained for in this podcast.

Gwen: Nevertheless, I’m going to give you a list of animals and you can tell me which one someone did not try to bring on an airplane as an emotional support animal. Ready. Dog. Peacock, pig, turkey, sheep, squirrel, or duck?

Marc: I gotta go, it’s either gotta be peacock or pig. I’m gonna go peacock.

Gwen: So actually it’s sheep. Sheep is the one out of that list I was not able to find a documented instance of.

Marc: So no one has tried to bring a sheep onto an airplane as an emotional support animal?

Gwen: To my knowledge, it’s possible somebody’s done that too.

Marc: Have they tried to bring a sheep on a plane for other reasons?

Gwen: I would imagine there are reasons people need to fly sheep.

Marc: Okay. Are there other animals that people have tried to bring on the planes as emotional support animals?

Gwen: There certainly are a lot of different emotional support animals. But the idea that people were bringing all of these different types of animals onto the plane led to a major rulemaking by the Department of Transportation in 2020. And it is a perfect example of what we’re going to be talking about today, how agencies make rules. So we’re going to see how this process works.

Marc: Exactly. We’ve spent a bunch of episodes so far talking about why we need agencies, how Congress delegates authority to them, why Congress needs to delegate, what the constitutional limits are. But now we’re going to watch the process unfold from “people should stop bringing peacocks on planes” to “here’s the final rule about service animals.”

Gwen: So buried in that rulemaking, is there a controversy?

Marc: There absolutely is.

Gwen: It’s not about peacocks. Virtually nobody thinks peacocks should be on planes.

Marc: That’s too bad.

Gwen: It’s about miniature horses as service animals.

Marc: Wait, like ponies?

Gwen: Not ponies. Miniature horses. Different thing.

Marc: All right. I am so excited to hear about miniature horses as service animals.

Gwen: Fantastic. So let’s start with the hierarchy. We’ve talked about it before. What is the hierarchy of law?

Marc: So we started with the Constitution, which is the supreme law of the land. The Constitution gives Congress the powers to enact statutes in certain areas, and then agencies create regulations.

Gwen: So if a regulation conflicts with a statute, what happens to the regulation?

Marc: I think the regulation would be null.

Gwen: Yes, exactly. The regulation is a lower level. If it conflicts with a higher level, it’s invalid. Same thing if a statute conflicts with the Constitution or the regulation conflicts with the Constitution. However, in the absence of that, all three are legally binding. When the EPA sets a limit on particulate matter in the air, when the FDA defines what counts as milk, those aren’t suggestions, they’re law. Break them and you could be fined, shut down, or potentially prosecuted.

Marc: But how does an agency go from Congress saying something broad like, make sure air travel is accessible to people with disabilities, to specific rules about which animals can fly, like miniature horses?

Gwen: That’s where the APA comes in. This is what we talked about at the very beginning. This is the rules behind the rules.

Marc: But what does the APA actually do?

Gwen: It tells agencies how they can make rules. It is the instruction manual. And most importantly for our purposes today, it sets up the idea of notice and comment rulemaking.

Marc: So why did we need a law about this in 1946?

Gwen: We’ve talked about the rise of the agencies. This really started in the ’30s. By the ’40s, people were concerned about how big the agencies had gotten and how much power they had. So this was an attempt to make sure that these unelected agency officials weren’t just making up rules on their own.

Marc: So this is about making sure agencies have to explain themselves to the general public.

Gwen: It’s about making sure they have to explain themselves and making sure that the public has a voice in the process.

Gwen: So let’s talk about how it works. Step one, the agency has to publish a notice of proposed rulemaking in the Federal Register.

Marc: So what’s the Federal Register?

Gwen: That is essentially the government’s daily newspaper. Every day, they publish all sorts of proposed rules, final rules, agency notices, all sorts of official documents. It’s how agencies and the government in general communicates with the public. Last year, there were over 100,000 pages in the Federal Register. This year, there will be fewer.

Marc: So that’s step one. The agency has to publish the notice of proposed rulemaking.

Gwen: Step two, after that, we start the comment period. It’s usually 30 to 60 days. It can be longer in cases of big rules. Sometimes agencies will also go through and extend it. During this time, anyone can submit a comment.

Marc: So this is sort of like whenever someone tries to build a house outside the zoning requirements. And the city gives you a notice that says you can show up for a hearing and give comments.

Gwen: Yes, it’s like that, except on a huge scale and without the invitation. So anybody at all who wants to can comment. We would expect to hear from industries. We’ll hear from individual citizens and advocacy groups. But literally anybody in the world can comment. If you are in Zambia and you have a really strong feeling about whatever the federal government has proposed, you can comment.

Marc: And they have to read all of those comments?

Gwen: They do. And for major rules, this could be thousands or even millions of comments.

Marc: Let me ask a side question on that. Has anyone ever tried to game the comment period by logging down the comments with so many inane comments that the agency effectively can’t do its job?

Gwen: We’ll talk about when people are submitting duplicate comments later, but the basic idea is if they’re really duplicative, the agency doesn’t have somebody who is sitting there reading the same thing over and over again. They’ll functionally be informed that this comment was submitted and it was submitted by this many people.

Marc: Got it.

Gwen: Step three, the agency reads the comments. Step four, the agency revises the rule if it needs to based on these comments and then publishes the final rule along with a preamble.

Marc: So this sounds a little basic, but what’s a preamble?

Gwen: The preamble is where the agency tries to explain everything that’s happened. It lays out what the legal authority for the rule is. It responds to the significant issues that the comments have raised. It explains changes between the proposed and final rule and explains why the agency made the decisions it did.

Marc: And step five?

Gwen: Step five is when this actually becomes law. It’s usually 30 days after publication, but they can go longer. There is generally a period of time between when the final rule comes out and when it will actually go into effect.

Marc: Can these rules ever be challenged in court?

Gwen: Absolutely. We could think of that as step six. The person needs to have standing to challenge it. I’m sure we’ll spend an entire episode at least talking about challenging them. But before we get to that, let’s see the process in action.

Marc: So going back to the peacocks and essentially everything in the world but sheep.

Gwen: The Department of Transportation regulates air travel under the Air Carrier Access Act. And that says that airlines can’t discriminate against people with disabilities. So this means they need to allow them to have service animals in the cabin.

Marc: So someone with a guide dog can bring the dog on the plane.

Gwen: Right. Which is good. We want people to be able to fly even if they need a guide dog. But the definition of service animal had gotten really broad. People were starting to claim that all these emotional support animals were service animals. And there were a bunch of reasons for this. Service animals were able to travel free, so you could choose to pay for your dog to come with you on the plane, or you could say your dog was an emotional support dog in which case it could travel for free. Same with your emotional support peacock, although the airline tried to refuse that one. And part of the reason the airlines were raising complaints is because there were concerns about safety and sanitation.

Marc: And so DOT decided to tighten up the rules.

Gwen: It did. In January 2020, they published a proposed rule. Can you read what their new definition of service animal was?

Marc: Service animal means a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals for the purpose of this part.

Gwen: So, definitely that establishes that we’re not going to count emotional support animals. But notice that service animal is defined as just a dog. This means ducks, squirrels, and everything else will no longer qualify.

Marc: I’m guessing this did not go over well.

Gwen: That would be an understatement.

Gwen: So they published a proposed rule. Next step is the comment period opens and people had very strong opinions. Before we look at the actual comments, let’s talk about what makes a comment effective. Not all comments are effective.

Marc: So what do you mean?

Gwen: So you could think of it like we’re in a town hall meeting. The mayor’s proposed a new parking rule for Main Street and one person stands up and says, this is stupid and I hate it. Whereas another person stands up and says, this isn’t going to work because of the street cleaning schedule on Tuesdays and there’s only one loading zone for the grocery store, which will create problems for deliveries. Which comment is the mayor more likely to address?

Marc: The second one because it has more specifics.

Gwen: Yeah, it has actual reasoning. It’s presenting specific problems with the proposal. It’s not just saying that they like it or don’t like it. Same thing with comments for agencies. They’re looking for comments that are specific, that are supported by evidence, that focus on the impact. And especially if there’s an issue that the agency has overlooked. That’s some of the most important stuff to put in a comment.

Marc: It’s not a vote. If a million people submit comments saying they don’t like the rule, the agency doesn’t have to change it.

Gwen: Right. It’s really important. This is absolutely not a vote. The agency isn’t doing a poll. They’re really looking for information they might have missed. And part of that information might be that a bunch of people really don’t like the decision the agency is taking. But that doesn’t mean that they need to follow whatever those people want.

Gwen: All right. Let me show you something from this rulemaking. Read the comments. I’ve substituted in our dogs’ names for the actual people.

Marc: My name is JP. I thank you for the opportunity to make a public comment on proposed amendments to the Air Carrier Access Act. I am asking that the ACAA continue to recognize miniature service horses and give them the same protections in the air that the ADA gives them in public. I understand that one of the biggest concerns regarding the miniature service horses is whether they can be potty trained. Miniature service horses, like service dogs, can be trained to eliminate on cue, which is a requirement for them to be recognized as a service animal per the ADA guidelines.

Gwen: All right. Stop there. So now we’re going to look at another comment. This one is from a person we’re going to call Molly. Can you read this one?

Marc: My name is Molly. I thank you for the opportunity to make the public comment on the proposed amendments to the Air Carrier Access Act. I am asking the ACAA continue to recognize miniature service horses and give them the same protections in the air that the ADA gives them in public. I understand that one of the biggest concerns regarding the miniature service horses is whether they can be potty trained.

Marc: Wait, this is the exact same comment word for word.

Gwen: It is. This was an example of a mass comment campaign. Someone creates a template, distributes it, and in this case, hundreds, but it can be thousands or millions of people submit the exact same text, sometimes changing their name.

Marc: So does that work?

Gwen: It really doesn’t. Like we said, this isn’t a popularity contest. The agency views this as essentially one comment with 400 signatures, not 400 separate comments. Any argument that’s raised, they would respond to once. They wouldn’t be responding to it individually. So if the template makes a good argument, that is something the agency is going to have to consider, but it would also be something they would have to consider if it just received it once.

Marc: Okay, so what were the arguments? Let’s keep reading the JP comment.

Marc: Miniature horses can be trained to, one, go on cue, two, into a bag, so on longer flights, the miniature service horse can eliminate hygienically, and three, use the same service animal areas in the airports provided for service dogs. Miniature horses, just like service dogs, can be trained to be able to go through TSA checkpoints safely and without any gear on, and they can also be trained to lay down on command for emergency situations in flight. I understand that the size of the miniature horse can be daunting, but because the ADA states the height of the miniature service horse should be generally 34 inches or shorter, in most cases, a Great Dane will be larger and take up more room than a miniature service horse.

Gwen: So that’s part of the argument. So more about why somebody might specifically want a miniature horse instead of a dog.

Marc: Most people don’t understand what tasks a miniature service horse can perform for people with disabilities and that in some cases, miniature service horses can be better suited than dogs for specific service tasks. For example, miniature horses make excellent diabetic alert service animals as they already naturally detect glucose levels in grass. Since they are already sensitive to registering glucose levels, they have an advantage when learning to alert to high or low glucose in their handler’s saliva. While it takes roughly the same amount of time to train a mobility service dog as a mobility miniature service horse, about two years, a miniature service horse can be in active service with their handler 25 plus years. This is in contrast to a mobility service dog, which are often large or extra large breed dogs and are most often retired after five to seven years of service.

Gwen: So, there are some important points they’re bringing out here.

Marc: Yeah, it’s actually interesting. I didn’t know that horses could do all that.

Gwen: This is a pretty substantive comment, especially for part of a mass comment campaign. It’s making specific claims about their capabilities and talking about the longevity issue. If you’re going to get a service animal, one that lives 25 years is certainly going to have an advantage over one that lives five to seven years.

Marc: So, did the agency change the rule?

Gwen: Let’s look at what the agency said. In the preamble, this is where the agency needs to respond to the comments that they got. Can you read what they said about the support they received for miniature horses?

Marc: More than 400 individual commenters supported also including miniature horses in the department’s definition of a service animal. These commenters noted that some individuals with disabilities may not be able to use dogs to accommodate their disability because of allergies or religious and/or cultural reasons. Furthermore, these commenters note that excluding miniature horses runs counter to DOT’s mission of promoting consistency among federal regulations, as DOJ requires regulated entities in certain circumstances to recognize miniature horses as a reasonable accommodation under the ADA.

Gwen: So they acknowledge some of the arguments in the comments. They also talked about opposing comments. Keep going.

Marc: Airlines and other industry stakeholders who oppose the inclusion of miniature horses argued that miniature horses are too big to be accommodated in the cabin of an aircraft, and that potential safety concerns could arise from transporting miniature horses in the aircraft cabin. A4A asserted that a miniature horse’s size, weight, and inability to curl up in a passenger’s allotted foot space would pose a serious risk of injury to passengers and crew during moderate to severe turbulence or an emergency situation due to the animal’s weight and size. American Airlines likewise commented that miniature horses have hooves, are unable to manage their elimination functions the way a trained service dog can, and that miniature horses’ hooves could puncture an aircraft evacuation slide in the event of evacuation, potentially disabling it.

Gwen: Notice in this they are raising an issue that that mass comment didn’t address, which is what will happen if we get these hooves on one of these inflatable slides.

Marc: Yeah, so these seem like they’re specific practical concerns. A hoof puncturing a backup evacuation slide is not something I would have thought of, but that does seem like a legitimate safety issue.

Gwen: Yes, this is where the agency’s expertise comes in. They have to weigh these competing concerns. It does make sense that we would want to allow people who have a horse to travel, but it also makes sense that if there’s a lot of turbulence, you probably don’t want a miniature service horse landed on you.

Marc: So what did they decide? Well, you want to read the final rule definition for a service animal?

Marc: Service animal means a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of the qualified individual with a disability.

Gwen: So miniature horses are out.

Marc: Yes, they’re out despite the fact that there were 400 comments supporting them.

Gwen: This is, again, the notice and comment process is not a vote. If we viewed it as 400 votes for miniature horses and a handful of votes from the airlines against miniature horses, it might seem like they should have won. But that’s not what the agency is looking at. The agency is looking at what should we require. That doesn’t mean that individual airlines can’t decide they will allow horses on, just that they’re not required to.

Marc: But if DOT decided that safety concerns were dispositive, why didn’t they just ignore the comments altogether? Why go through this whole process?

Gwen: The point of the process is that it’s forcing them to confront arguments they might not have fully considered. So in this, we had a bunch of disability advocates who made the point that excluding miniature horses conflicted with the ADA, which allows them in public accommodations. There’s a consistency argument that DOT had to address. They also had to explain why the airline context is different. And they did that. They explained that there are unique considerations in an aircraft cabin. So even though the miniature horse advocates lost, their comments forced the agency to justify its decision more thoroughly.

Marc: Yes, and those justifications matter because when somebody tries to challenge the rule in court, one of the things the court will be looking at is did the agency consider the relevant factors and did the agency provide a reasoned explanation for the choices that it made.

Gwen: Let’s talk about a thing that you probably interact with every day, and that is the backup camera in your car.

Marc: I mean, I’d like to think I interact with miniature horses every day, but that’s clearly not the case. But yes, I do use my backup camera quite often. They are fantastic.

Gwen: So the reason they’re in all cars now is because in 2014, the National Highway Traffic Safety Administration finalized a rule that required all new cars to have rear-view cameras. That rule went through notice and comment. Auto manufacturers commented on cost. Safety advocates commented on the lives saved. Consumer groups commented on how quickly it should be implemented.

Marc: To see why you would want a backup camera. Oh, so that you don’t run over people behind you.

Gwen: Yes, because the thing about little kids is that they’re little and they’re really hard to see if they happen to be standing right behind a car. So a backup camera is what lets you see the kid and not run over the kid.

Marc: A really great thing. Yeah, that’s a positive innovation.

Gwen: It is, but it still took years. This was first proposed in 2010. There were thousands of comments. They revised the rule and proposed it again and didn’t eventually finalize it until 2014.

Marc: Why did it take so long?

Gwen: Because the APA says that the agency has to do things properly. They have to go through the comments. They have to look at costs and benefits. They have to coordinate with other agencies. If it’s an economically significant rule with impact over $100 million, and backup cameras would be an economically significant rule, they have to get approval from the Office of Information and Regulatory Affairs in the White House.

Marc: So there’s more process than just notice and comment.

Gwen: There is. There are a lot of things. We talked about kind of a streamlined simplified version of this.

Gwen: But all of these requirements mean that people have talked about the ossification of the rulemaking process.

Marc: First, do you know what ossification means?

Gwen: No, I don’t.

Marc: Ossification is bone formation. So we’re talking about the fact that the rulemaking process has become so calcified with different requirements that it is hardening into bone.

Gwen: I was going to say the creation of rust on metals, but then that’s the oxidation process. So yes, I did not know ossification was the bone problem.

Marc: On one hand, we want thoroughness. We want agencies to think about the consequences, consider different perspectives. But when the process gets too burdensome, agencies avoid the rulemaking process altogether.

Gwen: So what do they do instead?

Marc: We’ll have to go into more detail on another episode, but they can issue guidance documents or do interpretive rules. Other things that tell regulated parties what the agency is thinking without making it a legally binding requirement.

Gwen: So they’re avoiding the public processes.

Marc: They are. And that can mean that they’re not getting the feedback they would be.

Gwen: So we’ve created this elaborate process to ensure accountability, but it’s so elaborate that agencies avoid it, which reduces accountability.

Marc: Yes. That’s one of the central dilemmas in modern administrative law. There isn’t an easy solution here. Efforts that we take to streamline the process means that we’re not putting in place some of these protections that other people really want to see.

Gwen: So how long does this actually take?

Marc: For major rules, it can take years.

Gwen: A decade?

Marc: Yeah. For the benzene rule, the one we were talking about earlier, it took over a decade from the initial proposal to the final rule. And that was partly because of all the legal challenges.

Gwen: So these legal challenges and the preparation that the agency has to make for the legal challenges are part of the way we get this ossification problem. But they can also go quite fast. The service animal rule was enacted in less than a year.

Marc: Yes, it went from a proposed rule in January 2020 to a final rule in December 2020. That is less than a year. It probably moved quickly in part because they were responding to what was viewed as a pressing problem.

Gwen: But it was also because this was barely contained. When we’re talking about backup cameras, it’s going to affect all of the car manufacturers and everybody who’s buying a car. When we’re talking about service animals, the group of people affected is going to be a lot smaller.

Marc: So agencies can move faster when they need to?

Gwen: They can, but it can still be risky. If they move too fast and don’t consider issues, courts can strike down the rule.

Marc: Why does all this matter?

Gwen: The bottom line here is that notice and comment rulemaking is how democracy works in an administrative state. It’s not perfect. It’s slow. Sometimes it feels like agencies have already made up their mind, but this is the best way we have for regular people as well as advocacy groups and industry to have a chance to influence rules before they actually become law.

Marc: Even if the outcome isn’t what commenters wanted?

Gwen: Even then, because it at least forces agencies to explain themselves and to consider the perspective of that commenter, which they might not have been doing before.

Marc: So it’s transparency?

Gwen: It is transparency and accountability and the agency’s expertise. They’re bringing in their technical knowledge, but the public is pointing out potential practical problems and local knowledge so that we can get a better rule than we would if the agency was just trying to go it alone.

Marc: So this is the process that agencies are going to have to use when they create rules, but there are also different kinds of agencies.

Gwen: Next time we will be talking about independent versus executive agencies.Related Guides

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