Notice & Comment

Noticing Notice, by Gwendolyn McKee

The requirements for notice and comment rulemaking have been well established for decades.  When an agency decides that a new rule should be promulgated, an initial version of that rule is published in the Federal Register.  The public is then invited to comment on it for a period of time, typically 30 or 60 days.  At the end of this period the agency reviews the comments, incorporates any necessary changes, and publishes the final version in the Federal Register.

The Federal Register from the beginning has been statutorily decreed as providing adequate “notice of the contents . . . to any person subject thereto or affected thereby,”[1] an edict that has been judicially blessed.[2]  The subject is settled.  And yet, if we are going to look at ways that systemic racism impacts administrative law, a good place to start is with this assumption.  

The Federal Register is indeed monitored daily, by those who know it exists and have the time to do so, or who know the importance of the publication and can pay others to monitor it for them.  This is, in short, a system that specifically rewards insiders with the knowledge and understanding to take part in it.  The factors responsible for systemic racism have helped ensure that many minority populations are disproportionately less likely to have representatives in these favored groups,[3] and are consequently less likely to be monitoring the Federal Register. 

This is a problem.[4]  When individuals are disproportionately prevented from obtaining actual notice of proposed agency action, they will be correspondingly unlikely to provide input to that agency.  And federal agencies are responsible for regulations that affect everyone and about which many people would in fact be expected to have strong opinions.[5]

It is not merely proposed regulations where broad public feedback could be helpful.  For instance, on July 10, 2020, the FDA published a request for comments to determine the priorities for the FDA’s Office of Women’s Health.[6]  The request asked about “outreach to women, especially underserved and diverse populations.”  The office specifically wanted to learn about “direct outreach to diverse groups of women to promote access to relevant information about FDA-regulated products, encourage participation in clinical trials, and maintain dialogue about critical women’s health topics.”[7] Admirable goals, certainly.  But this request on how best to reach diverse or underserved populations was published exclusively in the Federal Register.  A more concerted effort to speak to people where they are, not merely where a statute from 1935 has decreed they should be, would help counter some of these systemic effects and enable the agency to more effectively reach people who do not routinely read the Federal Register.  This, in turn, would allow the agency to obtain feedback from a more representative sample of the entire population.

The solution is not as simple as “more social media.” The FDA has a Facebook page and posts multiple times a day.[8]  Nor is it true that everything an agency publishes in the Federal Register needs to be broadly publicized.[9]  But requests for comment on issues that affect the public should be more widely broadcast, whether through Facebook posts, contact with influencers,[10] Twitter, press releases, or some other method.  Publication in the Federal Register should be viewed as the floor, not the ceiling.  Given the rapid changes in internet use it likely would not make sense for Congress to decree a particular alternative method of notification, but that does not mean agencies should not be making a better effort at regulatory outreach when warranted, and it is definitely warranted when the impact will go beyond a narrow band of industry players.  

Gwendolyn McKee is a Visiting Assistant Professor at the University of Tulsa College of Law. 

[1] 44 U.S.C. § 1507.  The Federal Register Act itself was passed in 1935. Pub. L. No. 74-220, 49 Stat. 500 (1935).

[2] United States v. Fisher, 289 F.3d 1329, 1333 (11th Cir. 2002) (“In the past, parties have argued that it is unreasonable to expect ordinary people to obtain copies of the Federal Register. While this argument has some appeal, the U.S. Supreme Court has indicated that notices published in the Federal Register are adequate.”) (citing Lyng v. Payne, 476 U.S. 926, 941 (1986)).

[3] In 2019, the American Bar Association reported that 15% of all attorneys were minorities, an increase from 12% ten years earlier.  However, nearly one quarter (23.4% of the general population) identifies as a minority, a stark difference.  American Bar Association, ABA Profile of the Legal Profession 2019 at 8, The numbers decrease further as one moves up the firm ranks.  Among partners – the attorneys most likely to have built connections with agency employees – only 9% were minorities. Id. at 10.

[4] This issue should not be hand-waved away with the maxim “ignorance of the law is no excuse.”  Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 2009 (2015).  While broader publication of the legally binding final regulations would be welcome for many of the same reasons, the argument here specifically refers to publications in which the agency has explicitly requested to hear from the public.  Failing to inform a broad population of the opportunity to comment can deprive the government of important input from voices that might not otherwise be heard. The point is not that universal knowledge of agency action should be required, merely that agencies could do much better than they currently are.

[5] E.g., Simplifying Meal Service and Monitoring Requirements in the National School Lunch and School Breakfast Programs, 85 Fed. Reg. 4094 (Jan. 23, 2020) (proposing relaxing standards in the school lunch regulations that govern lunches served to millions of children each day including both those receiving the lunches free and those paying full or reduced prices).  “Inclusive and effective representation” is the explicit goal for at least the EPA, which it defines as “reaching out to representatives of the full range of relevant stakeholder interests regardless of race, color, national origin, sexual orientation or income.”  EPA, Public Participation Guide: Introduction to Public Participation,

[6] Office of Women’s Health Strategic Priorities; Establishment of a Public Docket; Request for Comments, 85 Fed. Reg. 41591 (July 10, 2020).

[7] Id. at 41592.

[8] FDA posted four times on its Facebook page the day the Office of Women’s Health Strategic Priorities document was published in the Federal Register: on UV protection, a warning that FDA has not approved any COVID-19 treatments, a notice that food facility inspections were resuming after having been halted for COVID, and a notice that a new food safety “blueprint” would be announced the following business day.

[9] For instance, on the same Federal Register page as the Office of Women’s Health Strategic Priorities document the FDA also published a list of information collection activities approved by OMB.  Agency Information Collection Activities; Announcement of Office of Management and Budget Approvals, 85 Fed. Reg. 41591 (July 10, 2020).  This would be closer to an instance where Federal Register publication as a means of information dissemination makes sense.  Someone at a later time wishing to determine whether an information collection activity was valid would have a specific spot to check to find the OMB control number.  There is also no associated opportunity for comment or public feedback.

[10] In this context influencers could mean approaching nonprofits focused in specific areas rather than individuals.  It appears possible this is already occurring in some instances, although the source for this also said that agencies were publishing important rulemakings on their Facebook page, so this is potentially more aspirational than current practice.  Cynthia Farina et. al., Democratic Deliberation in the Wild: The Mcgill Online Design Studio and the Regulationroom Project, 41 Fordham Urb. L.J. 1527, 1551–52 (2014).

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