JoanShear | 27 July, 2006 16:49
Question:
I am researching a federal regulation passed in 1974. I found the regulation but I need to find the comments received by the department influencing the specific regulations.
The request for comments – with a deadline of Sept. 1974 – was included in the proposed rules (issued Aug. 1974.) The proposed rules contained the notation:
The comments themselves were issued by the Office of Child Development, Dept. of Health, Education and Welfare. The final rules were published in the Federal Register (December 1974, vol.39, no.245, pp.43935-43941.
Answer:
Publication of proposed rules in the Federal Register includes the agency’s statement of what it hopes the rules will accomplish and how. Publication of the final rules in the Federal Register includes the agency’s response to the comments it received.
Comments, along with the agency’s responses, are either listed in their entirety or summarized, depending on the number received. The actual comments for your rule were probably put in boxes and stored in a government warehouse, but are probably not indexed or accessible. In the late 1970s a federal agency that had just finished a big rule-making handled their comments that way. (If you’ve seen the first Indiana Jones movie, I always picture them sitting right next to the lost Arc of the Covenant.)
You could consider filing a Freedom of Information Act request with either the rulemaking agency or the agency issuing the comments, but the documents may not be easily accessible. Additionally, the agency or the archives could charge you a search fee as well as a fee for reproducing them, if found.
One approach is to search periodical literature (papers, magazines, professional literature) from that time period to see what was picked up by the press or wire services. That would probably provide the best insight into the nature of the comments received by the drafters of the regulations.
Another suggestion is to look for court challenges to the validity or scope of the regulations. That litigation may include some of the comments received by the agency.
If only this rulemaking were happening today. Regulations.gov allows public access to the actual comments received by the agency. As more agencies move to electronic rulemaking, more of the process will be transparent.
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