{
  "id": "us-1946-apa-notice-and-comment-reasoned-response",
  "provision": "A rule may not be adopted until the agency has published notice, taken comments and answered the significant ones",
  "source": {
    "constitution": "Administrative Procedure Act, Public Law 79-404 (ch. 324, 60 Stat. 237), approved 11 June 1946; section 4 recodified without substantive change as 5 U.S.C. 553 by Public Law 89-554 (1966). The statute never says an agency must answer anyone. The duty to answer significant comments was read into the words 'concise general statement of their basis and purpose' by the D.C. Circuit from 1968 onward and restated as settled law by the Supreme Court in 2015.",
    "jurisdiction": "United States of America, binding on federal executive agencies",
    "year": 1946,
    "article": "APA s 4(a) to 4(d) (60 Stat. 238 to 239), now 5 U.S.C. 553(b) to (e), read with the scope-of-review provision 5 U.S.C. 706(2)(A); glossed by Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330 (D.C. Cir. 1968), Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), Motor Vehicle Mfrs Ass'n v. State Farm, 463 U.S. 29 (1983), Vermont Yankee v. NRDC, 435 U.S. 519 (1978) and Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015)"
  },
  "text_summary": "The whole participation rule fits in one sentence of the 1946 Act: 'After notice required by this section, the agency shall afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and, after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose' (s 4(b), 60 Stat. 239; now 5 U.S.C. 553(c)). Notice goes in the Federal Register and must give the time, place and nature of the proceedings, the legal authority, and 'either the terms or substance of the proposed rule or a description of the subjects and issues involved' (s 4(a), now 553(b); a 2023 amendment added the internet address of a plain-language summary 'of not more than 100 words'). Anyone may petition for a rule (553(e)). A court may set aside a rule found 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' (706(2)(A)). The duty to reply is judicial construction laid on that thin text: the statement of basis and purpose must 'enable us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did' (Boyd), and, as the Supreme Court now puts it, 'An agency must consider and respond to significant comments received during the period for public comment' (Perez, 575 U.S. at 96).",
  "period": "Approved 11 June 1946; still in force. Recodified as 5 U.S.C. 553 in 1966. Last amended by the Providing Accountability Through Transparency Act of 2023, Public Law 118-9, 137 Stat. 55, approved 25 July 2023, which added the 100-word plain-language summary to the notice requirement.",
  "history": "The 1946 text promised less than it came to mean. Twenty-two years later, on 27 December 1968, Judge McGowan took the phrase 'concise general statement' and turned it outward in Automotive Parts & Accessories Ass'n v. Boyd: the statement must let a reviewing court see which major policy issues were ventilated and why the agency reacted as it did, though 'We do not expect the agency to discuss every item of fact or opinion included in the submissions made to it in informal rule making.' On 2 March 1971 the Supreme Court decided Overton Park, holding that formal findings were not required but that the agency's presumption of regularity 'is not to shield his action from a thorough, probing, in-depth review'; the inquiry into the facts 'is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.' On 29 June 1973 Judge Leventhal added the other half in Portland Cement Ass'n v. Ruckelshaus: the data behind a proposal must be on the table while comment is still possible, because 'It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, critical degree, is known only to the agency.' The same opinion set the filter that still governs, that comments 'must be significant enough to step over a threshold requirement of materiality' before silence matters. Two limits followed. On 3 April 1978 Vermont Yankee v. NRDC reversed the D.C. Circuit and held that section 553 sets 'the maximum procedural requirements which Congress was willing to have the courts impose upon agencies', so courts may police an agency's reasons but may not invent extra procedure. On 9 March 2015 Perez v. Mortgage Bankers Ass'n restated the duty to respond as settled law while killing the Paralyzed Veterans doctrine, because the exemption of interpretative rules from notice and comment 'is categorical, and it is fatal'; an agency may therefore reverse an interpretation without notice and without answering a soul. Between those limits the duty has bitten. On 24 June 1983, in State Farm, the Court struck down NHTSA's rescission of the passive restraint standard as arbitrary and capricious: the agency had to 'examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made', and it 'apparently gave no consideration whatever to modifying the Standard to require that airbag technology be utilized'. Then came volume. EPA's own fact sheet records 4.3 million comments on the proposed Clean Power Plan during a six-month comment period before the final rule of 3 August 2015. The FCC's Restoring Internet Freedom docket 17-108 reached 21.766 million comments by 30 August 2017 (Emprata's independent analysis of the full dataset); Balla and co-authors put it at almost 22 million by the official close with roughly 3 million more afterwards, and report that on nine separate occasions more than 75,000 comments entered the docket in the very same second. Emprata found form letters making up upwards of 89.8 per cent of comments against repeal and upwards of 99.6 per cent of comments for repeal, 9.93 million comments filed from a repeated physical address and email, 1.72 million attributed to international addresses, and more than 7.75 million (about 36 per cent of the docket) sent from self-described temporary or disposable email domains traced to FakeMailGenerator.com with nearly identical language. The fraud was then documented in detail. The New York Attorney General's report 'Fake Comments: How U.S. Companies and Partisans Hack Democracy to Undermine Your Voice', released 6 May 2021, found that 'fake comments accounted for nearly 18 million of the more than 22 million comments the FCC received during its 2017 rulemaking'. The broadband industry group Broadband for America generated and submitted more than 8.5 million comments to the FCC plus about half a million letters to Congress using the names and addresses of real people without their consent, paid for out of roughly 8.2 million dollars the largest broadband companies spent opposing net neutrality. Separately, a 19-year-old computer science student in California submitted more than 7.7 million pro-neutrality comments one at a time with software, all of them fabricated, using disposable email addresses; a further 1.6 million fake pro-neutrality comments were never traced. Three lead generators settled with the OAG (Fluent, about 4.8 million fraudulent comments; React2Media, about 329,000; Opt-Intelligence, more than 250,000), paying more than 4.4 million dollars in penalties and disgorgement. The OAG found no evidence that the broadband companies that funded the campaign knew of the fraud, and recommended consent requirements for advocacy groups, technical safeguards for bulk submission, and stronger impersonation laws. Institutional response was mild. The Administrative Conference of the United States adopted Recommendation 2021-1, 'Managing Mass, Computer-Generated, and Falsely Attributed Comments', on 17 June 2021 (Federal Register, 8 July 2021), offering best practices rather than rules; this register saw that recommendation only as a snippet, because the ACUS site refused the fetch. GAO-21-103181 (21 September 2021) found that agencies do not always fully describe their comment data and do not post all instances of duplicate comments. Meanwhile the doctrine itself never treated numbers as weight: the D.C. Circuit holds that 'An agency is not obliged to respond to every comment, only those that can be thought to challenge a fundamental premise', that a failure to address a comment or category of comments 'is not an APA violation per se', and that agencies are under 'no obligation to take the approach advocated by the largest number of commenters', while regulations.gov tells the public outright that 'The comment process is not a vote' (all four quoted in Balla and others, 74 Administrative Law Review 95 (2022), which this register opened; the underlying opinions were not opened here). Ronald Levin's 2025 survey in the Yale Law Journal Forum reports that 'perfunctory recitals' of having considered everything 'will not suffice today', yet finds the 'significant comment' standard still so vague that two tax cases reached conflicting conclusions on the same kind of comment. One claim in the brief for this entry could not be checked: what the D.C. Circuit made of the corrupted FCC record in Mozilla v. FCC (2019). Justia, CourtListener and Google Scholar all refused the fetch, so this entry asserts nothing about it.",
  "assessment": {
    "verdict": "mixed",
    "reasoning": "As a duty, it works, and it has worked for a long time in the only place where an answer is cheap to give: ordinary rulemaking with a handful of expert objections. Agency officials told OIRA that about 80 per cent of proposed rules draw ten comments or fewer (quoted in Balla and others, 2022). In that world the rule is enforceable rather than ornamental, and State Farm is the proof: a finished rescission was set aside in 1983 because the agency had said nothing at all about an obvious alternative sitting in front of it. Three design features carry that weight. The answer must be written and published with the rule, not delivered privately. It must be anchored to disclosed data (Portland Cement), so the objector can see what he is objecting to. And it is reviewed against a record fixed at the moment of decision, which is why a later rationalisation 'must be viewed critically' (Overton Park). The mass comment era strains all three without breaking them, because the duty was never a duty to count. Nothing in the doctrine makes 22 million comments weigh more than one good one, and when nearly 18 million of those 22 million were fabricated, the thing that was corrupted was the appearance of public sentiment, not the agency's obligation to answer the substantive objections that were genuinely filed. That is the duty's quiet strength and also its political weakness: it survived the FCC proceeding intact and simultaneously failed to protect anyone whose identity was stolen, or anyone who believed that commenting mattered. The real erosion is elsewhere. The duty attaches only where notice and comment attaches, and GAO-13-21 found no notice of proposed rulemaking at all for about 35 per cent of major rules and about 44 per cent of nonmajor rules published between 2003 and 2010, with the good cause exception cited for 77 per cent of those major rules; where agencies did invite comment voluntarily on major rules issued without a proposal, they failed to respond on 26 of 77. Perez widened the gap further by confirming that an interpretative rule can be reversed with no notice and no reply. So the honest verdict is that the obligation is sound and the perimeter around it leaks.",
    "dissent": {
      "verdict": "critical",
      "reasoning": "The ossification critique says the duty to answer did not make rulemaking better, it made rulemaking unusable. Thomas McGarity, who named the problem in 1992, told the Senate Judiciary Subcommittee on Oversight, Federal Rights and Agency Action on 7 November 2013 that the process 'is not merely ossified, it is broken', and that agencies committed to their statutory missions 'have sought out policymaking vehicles outside of the broken informal rulemaking process' which 'often lack transparency' and 'provide regulated entities with little notice of the agency's position'. The escape routes he names are policy in individual adjudications, guidance documents and technical manuals issued with no comment at all, and above all interim final rules, which take effect immediately under the good cause exception and which, as he notes, the agency 'need not ever promulgate' as a final rule; they 'have a tendency to achieve a permanence that belies the agency's expressed willingness to consider public comments'. On this reading the answer-the-objection rule is self-defeating. Make the reply enforceable and reviewable and you make every rule a lawsuit, so the defensive record grows, the proceeding slows, and policy migrates to instruments where nobody has to answer anybody. The empirical case for ossification is, however, contested on its own terms: Jason Webb Yackee and Susan Webb Yackee tested it on Department of the Interior rulemaking from 1950 to 1990 and found that although the modern era is slower (about 40 per cent of proposals final within 200 days against about 80 per cent before 1975), agencies still finalised most rules inside a year and roughly 90 per cent inside two years, with only 17 proposals in the whole dataset taking five years or more and 77 (three per cent) taking 1,000 days or more.",
      "evidence": [
        "https://cpr-assets.s3.amazonaws.com/documents/McGarity-Ossification-Testimony-DR3.pdf (opened; McGarity testimony, Senate Judiciary Subcommittee on Oversight, Federal Rights and Agency Action, 7 November 2013: 'not merely ossified, it is broken', and the escape to adjudication, guidance and never-finalised interim final rules under the 553(b)(3)(B) good cause exception)",
        "https://www.gao.gov/products/gao-13-21 (opened; 20 December 2012: no NPRM for about 35 per cent of major and about 44 per cent of nonmajor rules 2003 to 2010, good cause cited for 77 per cent of those major rules, no response to comments on 26 of 77 major rules where comment was invited anyway)",
        "https://www.gwlr.org/wp-content/uploads/2012/07/80_5_3_Yackee.pdf (opened; Yackee and Yackee, 80 George Washington Law Review 1414 (2012), contrary evidence: most rules final within a year, about 90 per cent within two years, only 17 proposals took five years or more)",
        "https://law.utexas.edu/faculty/publications//1992-Some-Thoughts-on-Deossifying-the-Rulemaking-Process/ (snippet; McGarity, 41 Duke Law Journal 1385 (1992), the article that named ossification)"
      ]
    }
  },
  "lesson": "Copy the mechanism, which is small: a published answer to every objection that crosses a stated materiality threshold, written before the proposal passes, anchored to the evidence the proposer disclosed in advance, and frozen into the record so that a later justification can be recognised as a later justification. Then do the two things the Americans could not do in 1946, because an objection now costs its author nothing: make the objector bear a cost the proposer does not (a signed key, a named member, an agent whose operator is on the register, so that an objection is attributable and a fabricated one is a revocable offence rather than an anonymous flood), and write down in the rule itself that the duty is to answer each distinct reasoned objection once, not to answer each copy of it, so that a thousand identical machine objections earn one public answer and no voting power at all.",
  "evidence": [
    "https://www.govinfo.gov/content/pkg/STATUTE-60/pdf/STATUTE-60-Pg237.pdf (opened; primary text, Administrative Procedure Act, ch. 324, Public Law 404, 60 Stat. 237, approved 11 June 1946; s 4(a) to (d) at 60 Stat. 238 to 239 quoted verbatim)",
    "https://www.law.cornell.edu/uscode/text/5/553 (opened; current 5 U.S.C. 553, notice, opportunity to participate, concise general statement, 30-day publication, right to petition, and the 100-word plain-language summary in 553(b)(4))",
    "https://www.govinfo.gov/content/pkg/PLAW-118publ9/html/PLAW-118publ9.htm (opened; Providing Accountability Through Transparency Act of 2023, Public Law 118-9, 137 Stat. 55, approved 25 July 2023, adding 553(b)(4))",
    "https://law.resource.org/pub/us/case/reporter/F2/407/407.F2d.330.21820.22015_1.html (opened; Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, D.C. Cir., McGowan J, 27 December 1968: the statement must show what major issues of policy were ventilated and why the agency reacted as it did, against an overly literal reading of 'concise' and 'general')",
    "https://law.resource.org/pub/us/case/reporter/F2/486/486.F2d.375.72-1073.html (opened; Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, D.C. Cir., Leventhal J, 29 June 1973: no rules on data known only to the agency, disclose the basis at the time of issuance, continuing duty to take a hard look)",
    "https://tile.loc.gov/storage-services/service/ll/usrep/usrep401/usrep401402/usrep401402.pdf (opened; official reporter, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, argued 11 January 1971, decided 2 March 1971: formal findings not required, 'thorough, probing, in-depth review', inquiry 'searching and careful' but 'The court is not empowered to substitute its judgment for that of the agency', and 706(2)(A) quoted in full)",
    "https://caselaw.findlaw.com/court/us-supreme-court/463/29.html (opened; Motor Vehicle Mfrs Ass'n v. State Farm, 463 U.S. 29, White J, 24 June 1983: the arbitrary and capricious factors, the duty to articulate a rational connection between facts found and choice made, and the rescission struck down for giving 'no consideration whatever' to requiring airbags)",
    "https://caselaw.findlaw.com/court/us-supreme-court/435/519.html (opened; Vermont Yankee v. NRDC, 435 U.S. 519, Rehnquist J, 3 April 1978: section 553 sets 'the maximum procedural requirements which Congress was willing to have the courts impose upon agencies'; the D.C. Circuit reversed for adding procedure)",
    "https://www.law.cornell.edu/supremecourt/text/13-1041 (opened; Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, Sotomayor J, 9 March 2015: 'An agency must consider and respond to significant comments received during the period for public comment', citing Overton Park at 416 and Thompson v. Clark; and the interpretative-rule exemption held 'categorical, and it is fatal' to Paralyzed Veterans)",
    "https://ag.ny.gov/sites/default/files/reports/oag-fakecommentsreport.pdf (opened; primary report, New York OAG, 'Fake Comments', 6 May 2021: nearly 18 million of more than 22 million FCC comments fake, more than 8.5 million from the Broadband for America campaign using real people's identities without consent plus about half a million letters to Congress, more than 7.7 million fabricated pro-neutrality comments from one 19-year-old using software, 1.6 million more untraced, no evidence the funding broadband companies knew)",
    "https://ag.ny.gov/press-release/2021/attorney-general-james-issues-report-detailing-millions-fake-comments-revealing (opened; press release of 6 May 2021 with the settlements: Fluent about 4.8 million fraudulent comments, React2Media about 329,000, Opt-Intelligence more than 250,000, more than 4.4 million dollars in penalties and disgorgement)",
    "https://www.emprata.com/emp2017/wp-content/uploads/2017/08/FCC-Restoring-Internet-Freedom-Comments-Analysis.pdf (opened; Emprata analysis of the full docket 17-108 dataset, 30 August 2017: 21.766 million comments, form letters upwards of 89.8 per cent against and 99.6 per cent for repeal, 9.93 million duplicates by address and email, 1.72 million international, more than 7.75 million from temporary or disposable email domains, and the finding that ECFS does no user authentication at all)",
    "https://regulatorystudies.columbian.gwu.edu/sites/g/files/zaxdzs4751/files/2022-06/gw-reg-studies-responding-to-mass_computer-generated_malattributed-comments-administrative-law-review.pdf (opened; Balla, Bull, Dooling, Hammond, Herz, Livermore and Noveck, 74 Administrative Law Review 95 (2022): taxonomy of mass, malattributed and computer-generated comments, nine occasions of more than 75,000 comments in one second, about 80 per cent of proposed rules draw ten comments or fewer, and the case law that the process 'is not a vote' and that no reply is owed to every comment)",
    "https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-clean-power-plan-numbers.html (opened; EPA fact sheet: 4.3 million comments in a six-month comment period, final Clean Power Plan announced 3 August 2015)",
    "https://www.gao.gov/products/gao-13-21 (opened; GAO-13-21, 20 December 2012: rules issued without any notice of proposed rulemaking, good cause reliance, and failures to answer comments the agency had invited)",
    "https://www.gao.gov/products/gao-21-103181 (opened; GAO-21-103181, 21 September 2021: agencies do not always fully describe comment data and do not post all duplicate comments)",
    "https://yalelawjournal.org/essay/the-duty-to-respond-to-rulemaking-comments (opened; Ronald M. Levin, Yale Law Journal Forum vol. 134, 2025: the APA has 'no explicit mandate to write a response', 'perfunctory recitals' no longer suffice, and the 'significant comment' line stays vague enough that two tax cases split)",
    "https://docs.fcc.gov/public/attachments/DA-17-1089A1.txt (opened; FCC public notice, 7 November 2017, docket 17-108: the proceeding 'has generated an unprecedented number of comments', with no figure given by the agency itself)",
    "https://www.acus.gov/recommendation/managing-mass-computer-generated-and-falsely-attributed-comments (snippet; ACUS Recommendation 2021-1, adopted 17 June 2021, Federal Register 8 July 2021, best practices only; acus.gov refused the fetch)"
  ],
  "adopted_in": [
    "Article 10.7",
    "Rule 1.8"
  ],
  "status": "proposed",
  "people": [
    "Jakob Hirn"
  ],
  "agents": [
    "claude-for-jakob"
  ]
}