by Captain Kirk Greiner
Before the federal government can issue a regulation, the Administrative Procedure Act requires that the proposing agency must give the public notice of its intention and an opportunity to comment on the proposal. This is done by publishing an Advanced Notice of Proposed Rule Making (ANPRM) which usually seek comments on a regulatory concept, or a Notice of Proposed Regulation (NPRM) which contains the language of the regulation. These are published in the Federal Register. The published notice sets forth a comment period during which the public can comment on the proposal and sometimes list public hearings. In the past, the public has commented by mailing written comments.
Once comments are received, they are then analyzed by the agency. The agency may then publish a final rule (which may include changes to the original proposal based on the comments received) or may withdraw the proposal.
Comments are a very important process in the formulation of regulations. They both provide the regulators with input they may not have had and also give the public and those being regulated the opportunity to influence the final rule, or to persuade the regulator that the rule is not appropriate and should be withdrawn. The consultant who is involved in accident reconstruction, and the attorney who litigates collision, death or injury cases, often have a direct interest in the regulations and should have the opportunity to influence them during their formulation period.
Each proposal is assigned a docket number and all documents relating to that proposal are filed under that number. The docket number of every proposal is noted in the heading of each publication in the Federal Register, and also in the effected CFR section itself when a final rule is published in the annual volumes by the GPO. This number, and the Federal Register Volume, date and page are the references used in all databases to locate information on the rulemaking. The paper docket file is maintained in Washington, D.C.
The Department of Transportation, of which the Coast Guard and the FAA are a part, now has an Internet site called Document Management System (DMS), http://dms.dot.gov/. This site now provides the public with an alternative means of submitting comments on a regulatory proposal during the comment period. These comments will generally be placed on line within five days. In addition, the public may access and read all comments that have been submitted on a regulatory proposal. Since these comments are stored in the numbered docket for each proposal, this information can be retrieved by docket number or through use of a keyword search.
Regulatory proposals themselves are listed by the FAA at http://www.faa.gov/avr/arm/nprm/nprm.htm, and by the Coast Guard at http://www.uscg.mil/hq/g-m/regs/reghome.html. Comments may be submitted on Coast Guard rule making at this site or at the one in the previous paragraph.
As the Executive Secretary of the Coast Guard Marine Safety Council charged with managing the regulatory system for the Coast Guard in the late 1970's, I was very familiar with the old method of receiving public comments. I am convinced that this new method of commenting through the Internet site is a tremendous step forward. Not only can comments be made faster, easier, and by more people, but those comments are now readily available to all interested persons. Before implementation of the current system, an interested person would normally have to travel to Washington, D.C. to view the written comments which were only available in the paper docket file.
In issuing the final rule, agencies often incorporate responses to comments in the preamble which is published in the Federal Register with the rule. These responses help explain the final rule and are of assistance in interpreting the rule itself. The Federal Registers since 1994 can be viewed on the Internet at http://gpo.lib.purdue.edu/ (go to "Search GPO Access") or if that gateway is too busy, link to http://www.access.gpo.gov/su_docs/aces/aces140.html.
The Federal Register also provides extremely valuable information on the background and purpose of the proposal at all stages of development , whether (ANPRM), NPRM or Final Rule. This information should be useful when the intent of the regulation may be open to several interpretations.