Are Industry Comments The Only Comments That Matter?

Under the federal Administrative Procedure Act's informal rule making mandate, agencies must give interested persons an opportunity to participate in rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.  5 U.S.C. § 553(c).  Agencies are required to consider these comments and provide reasoned responses to all significant comments.  Agencies are not required to respond to every comment.  Rather, ”comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern”. Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 394 (D.C.Cir.1973). 

I have chronicled in this blog the Securities and Exchange Commission's efforts to adopt a resource extraction disclosure rule.  When the SEC solicited comments on its propose rule in 2016, I recommended that the SEC define "mineral" because it was "an indefinite term that can have a variety of meanings".  Although the SEC eventually adopted rules, that effort was for naught when the President signed a joint resolution of Congress disapproving the 2016 Rules pursuant to the Congressional Review Act, an idea that I floated in this very blog in 2012.  See Can Congress Veto A Rule Adopted By The SEC? and There's Still Time For Congress To Void The SEC's Resource Extraction Rule.  

When the SEC in December tried for the third time to adopt a resource extraction disclosure rule, it declined to define "mineral".  Without citing my specific proposal, the SEC justified this omission by stating "we note that no industry commenter suggested that we define the term in connection with the 2016 Rules".  It would be easy to read into this statement an implicit position on the part of the SEC that only industry comments are worthy of consideration.  That is not a good look for the SEC.