Yesterday, Broc Romanek wrote that the Commodity Futures Trading Commission had removed a comment letter from its website.  This caught my attention because I teach Administrative Law at the University of California, Irvine School of Law and this very week I had used the CFTC's website to demonstrate to my class how the informal comment process (Section 553) works under the federal Administrative Procedure Act.  In general, I find that the CFTC does a much better job of organizing comment letters and ex parte meetings than does the SEC.  For an example, see this CFTC rule making record relating to position limits for futures and swaps.

In any event, Broc raised the question of whether the CFTC had the authority to pull a comment letter from its website.  California has its own APA which can be found in the Government Code.  The California APA rule making procedure is roughly similar to the federal procedure.  Both APAs require public notice and an opportunity for public comment.

Public notice under both acts is required in printed registers - the California Regulatory Notice Register (Gov't Code § 11346.4(a)(5)) or the Federal Register (5 U.S.C. § 553(b)).  California, however, goes a step further by requiring that an agency publish notice on its website if it has one.  Gov't Code § 11346.4(a)(6).  The federal APA doesn't mention the internet, but President Obama has issued an Executive Order that requires "To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days" (emphasis added).  The order also further requires that "To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded."