Proposed Rule: Federal Agencies Could Soon Bar Foreign Adversaries from Submitting Public Comments

The “Safeguarding U.S. Rulemaking Act” is a short, sharp piece of legislation aimed at changing who gets a seat at the table when federal agencies write new rules. Right now, when an agency like the EPA or the FDA proposes a new regulation—say, on car emissions or food labeling—they open a public comment period under the Administrative Procedure Act (APA). Anyone can weigh in: a farmer, a small business owner, a non-profit, or even a foreign entity. This bill changes that by explicitly barring certain foreign parties from participating in this key part of the democratic process.

Who Gets Kicked Out of the Comment Box?

This legislation adds a new section to the APA that makes three specific groups ineligible to submit comments on proposed rules or to petition an agency: any foreign government designated as a “foreign adversary” by the Secretary of Commerce, any national of that designated foreign adversary government, and any entity incorporated in that designated foreign adversary government. It essentially draws a hard line around the rulemaking process, limiting participation to U.S. citizens and entities. This isn’t just about making noise; these comments often contain crucial data, expert analysis, and legal arguments that agencies rely on to craft effective rules.

The Real-World Cost of Excluding Expertise

The stated goal is likely to prevent foreign adversaries from flooding the system or influencing U.S. policy. That sounds reasonable on paper, but the real-world impact could be tricky. Imagine the Department of Energy is writing a new rule on battery technology standards. Currently, a leading global expert on lithium-ion batteries who happens to be a national of a designated adversary country could submit highly technical, beneficial data to the docket. Under this new rule, that expert’s input—even if it’s purely scientific and helpful—would be blocked. This means U.S. regulators might be forced to make decisions based on less complete information, potentially leading to less effective or more costly regulations for U.S. businesses and consumers.

The "Adversary" Definition is Key

The entire mechanism of this bill hinges on an existing designation made by the Secretary of Commerce under 15 C.F.R. 791.4(a). This reliance on an existing, politically driven designation means the list of who is barred can shift depending on foreign policy. For an American company trying to comply with a new environmental rule, this could create confusion. If that company relies on a supplier or academic partner in a country that is suddenly designated an “adversary,” the input they relied on to shape their compliance strategy might suddenly be deemed ineligible for the public record. While the bill aims for security, it introduces a layer of complexity and potential exclusion that could hurt the quality and transparency of the final rules that govern our daily lives and economy.