Notice and Comment Rulemaking: Proposed Rules, Final Rules, Comments

Short answer: notice and comment rulemaking is the process a federal agency usually must follow before it makes a binding rule. The agency publishes a proposed rule in the Federal Register, which is the government's daily journal. It takes public comments, answers them, and then publishes a final rule with an effective date. The final text is added to the Code of Federal Regulations (the CFR), the book of federal rules in force. The Administrative Procedure Act sets the basic steps. It sits in title 5 of the US Code, section 553.

TL;DR

• Rulemaking is how an agency makes, changes or repeals a rule. The Administrative Procedure Act, or APA, defines both words.
• A proposed rule is a draft the public can comment on. It has no legal force and can change. A final rule is the agency's decision, with a date it takes effect.
• A comment is not a vote. The agency must base its decision on the record. The number of people who agreed does not decide it.
• A final rule normally takes effect at least 30 days after publication, then joins the Code of Federal Regulations (CFR).
• Shortcuts exist. An agency can skip the proposal for good cause, or use an interim or direct final rule.
• Any business can comment. Most comments go in through Regulations.gov.

What rulemaking is

A federal agency is a government body, such as the Department of Labor, that carries out laws Congress passes. Congress gives an agency power in a statute, which is a law passed by a legislature. The agency then writes rules to fill in the details. Our guide to how a regulation differs from a statute covers that split.

The APA defines both terms. A "rule" is an agency statement "of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy" (title 5, section 551(4)). "Rule making" is the "agency process for formulating, amending, or repealing a rule" (section 551(5)). So rulemaking covers new rules, edits and repeals.

How notice and comment rulemaking works, step by step

The Office of the Federal Register publishes the Federal Register. It also wrote a Guide to the Rulemaking Process. It dates from 2013, so trust it for the steps and check the websites it names. Our Federal Register guide and Regulations.gov guide show how the two sites fit together.

What the Administrative Procedure Act requires

The APA is a 1946 law. It sets minimum steps for agencies. Four parts of section 553 matter most. The text is on the House's US Code site.

• Section 553(b), notice. The agency must publish "general notice of proposed rule making" in the Federal Register. It must state the legal authority, the terms or substance of the rule, and where the public can take part. It must also link to a plain-language summary of 100 words or fewer on Regulations.gov.
• Section 553(c), comment. The agency must let "interested persons" send "written data, views, or arguments." When it adopts the rule, it must add "a concise general statement of their basis and purpose."
• Section 553(d), delay. A rule must be published "not less than 30 days before its effective date." There are exceptions, such as rules that relieve a restriction.
• Section 553(e), petitions. Any interested person has "the right to petition for the issuance, amendment, or repeal of a rule."

The APA sets no minimum number of comment days. The Federal Register guide says agencies usually pick 30 to 60 days, and more for complex rules. Later, a court can set a rule aside. Reasons include being "arbitrary, capricious," meaning without a reasonable basis. Others are going beyond the agency's power, or skipping a required step (section 706(2)). That is why agencies follow the steps closely.

What a comment is and what happens to it

A comment is a written submission about the proposal. It can include facts, costs, examples, legal arguments or a suggested rewrite. Most are sent through Regulations.gov. Comments appear on the public docket. That is the online folder for the rulemaking. Leave out anything you want kept private.

The agency reads the comments and groups them by topic. Then it decides what to do. The Federal Register guide says an agency may not base its final rule on how many comments support it and how many oppose it. The decision must rest on the rulemaking record. That record holds the comments, data, expert opinions and facts the agency gathered.

The agency's answer appears in the final rule. The preamble must explain the rule's basis and respond to major criticisms. If the changes are big, the agency may publish a new proposal first.

One real rule, start to finish

Take a fee many small businesses pay: filing a trademark application with the US Patent and Trademark Office (USPTO). One choice on the form can add $200 per class. Here is how that fee was made.

• The statute. Section 10 of the America Invents Act (Public Law 112-29), as amended by the SUCCESS Act (Public Law 115-273), lets the USPTO set trademark fees by rule. That law adds steps of its own. They include public hearings, advice from an advisory committee, and oversight by Congress. A statute can add to the APA's minimum.
• The proposed rule. "Setting and Adjusting Trademark Fees During Fiscal Year 2025" ran in the Federal Register on March 26, 2024, at 89 FR 20897. That means volume 89, page 20897. It sits in docket PTO-T-2022-0034 on Regulations.gov, and comments were due May 28, 2024. One proposal: a $200 fee when an applicant types the goods or services into a free-form box instead of picking them from the office's list.
• The comments. The final rule says the USPTO received comments from 27 associations and individuals. The docket lists 33 comment entries, so the two counts differ. The final rule prints each comment topic with the agency's response. In one, a commenter praised the agency for lowering a fee for one kind of filing from $250 to $150 after its public hearing.
• The final rule. The final rule ran on November 18, 2024, at 89 FR 91062. It took effect on January 18, 2025, which is 61 days later. A correction fixing small errors followed on January 14, 2025, at 90 FR 3037.
• The CFR. The rule changed parts 2 and 7 of title 37 of the CFR. Section 2.22 of that title says an application that does not use the office's list pays the fee set in section 2.6(a)(1)(v). The current text of section 2.6 shows that fee as "$200.00" per class. Section 2.22 ends with a source line: "[89 FR 91090, Nov. 18, 2024, as amended at 90 FR 3038, Jan. 14, 2025]." That line points back to the Federal Register pages above. For a founder, a rulemaking docket can become a real line in the budget. Picking goods and services from the office's list avoids the $200 charge.

The number held from start to finish. The proposal named $200, and the CFR shows $200. A reader can walk the chain in either direction, starting from the proposal's Federal Register PDF or from the CFR section. The CFR text above is the eCFR as read on October 5, 2026. Fees change, so check the current section before relying on it.

When the agency skips steps

Section 553 lets an agency skip notice and comment for three kinds of items. They are interpretive rules (an agency's explanation of what a law or rule means), general policy statements (how the agency plans to use its power), and rules about its own organization or procedure. It also allows a skip for "good cause," when notice would be "impracticable, unnecessary, or contrary to the public interest" (section 553(b)). Two shortcuts follow from that. An interim final rule is what an agency often calls a rule issued under good cause. It takes effect right away, and the agency takes comments afterward. A direct final rule is for routine matters. It takes effect on a set date unless the agency gets substantive adverse comments, meaning serious objections with a real reason behind them. If it does, the agency must withdraw the rule. The Federal Register guide describes both.

How a business can take part

1. Watch for proposals. Check the Federal Register and Regulations.gov for your industry's agencies. Agencies also publish a regulatory agenda each spring and fall.
2. Read the notice first. The summary, the dates and the contact details come before the long explanation.
3. Comment before the deadline. Name the section you mean. Give figures, costs or real cases. Offer a specific fix.
4. Ask for more time if you need it. Agencies can extend a comment period, though they do not have to.
5. Join others. Trade groups often file comments. The trademark docket above includes two intellectual property associations.
6. Petition. Section 553(e) lets you ask an agency to write, change or repeal a rule.

What goes wrong

• Treating the proposal as the rule. The final text can differ. Read the final rule and the CFR section.
• Missing the deadline. The guide says agencies are generally not required to consider late comments.
• Counting on volume. A thousand identical comments do not outweigh one comment with data.
• Using a stale CFR copy. The eCFR updates daily, but it calls itself an informational resource. For anything official, use the annual CFR edition. Then check the Federal Register for newer changes.
• Ignoring dates. A final rule has an effective date. Some also have a later compliance date, the day you must actually meet the rule.
• Assuming it lasts. A court can set a rule aside, and the agency can change it later through the same process.

Write down the Federal Register citation and the date you read the text. Our guide to citing a statute or regulation shows the format. Our guide to USC and CFR explains where each lives. States run a similar process, covered in our guide to the state register and administrative code. This is general information, not legal advice.

This guide is part of US Law Data: The Complete Guide, a map of where US law comes from and how to use it.

FAQ

What is notice and comment rulemaking? It is the usual federal process for making a rule. The agency publishes a proposal, takes public comments, and then publishes a final rule that explains its decision. Section 553 of the APA sets the basic steps.

What is a proposed rule? A proposed rule is a draft that an agency publishes in the Federal Register to get public comment. It has no legal force yet. It shows the planned text, the legal authority and the comment deadline.

What is a final rule? A final rule is the agency's published decision. It states an effective date, explains its basis and responds to major comments. Its text is added to the CFR.

What is rulemaking? Rulemaking is the agency process for making, changing or repealing a rule. The APA defines it in title 5, section 551(5).

How long is the comment period? The APA sets no number. Agencies usually allow 30 to 60 days and sometimes much longer. The proposed rule gives the exact deadline.

Does the agency have to answer every comment? It must explain the basis for the rule and respond to major criticisms. Agencies often print each comment summary with a reply. The USPTO did in the example above.

Can anyone submit a comment? Yes. The Federal Register office's guide says anyone may comment on any part of a proposed rule. Individuals, companies and groups all do.

How do I tell whether a proposed rule became final? Keep three things: the docket number, the Federal Register citation and the CFR section. Search the docket for the final rule. Then read the CFR section, which usually ends with a source line naming the rule that last changed it.

What if an agency skips the comment step? A court can set the rule aside as made "without observance of procedure required by law" (section 706(2)). Good cause, interim final rules and direct final rules are the lawful routes around the step.

For readers who want the rule text behind a guide like this one as data they can use in their own tools, see the Vaquill AI legal data API.

Priyansh Khodiyar

Co-Founder & CTO

Priyansh leads engineering and AI at Vaquill AI: the pipelines that pull statutes, regulations and court rules from every US jurisdiction's official publisher, and the REST API, MCP server and open dataset that serve them.