Where a rule comes from
Most federal regulation is made by agencies, not Congress. Congress passes a statute directing an outcome, and an agency writes the rules that carry it out. That delegation is why the volume of regulation vastly exceeds the volume of legislation, and why the comment process is the main point at which someone outside government can affect the text.
The standard path is notice-and-comment: an agency publishes a proposed rule in the Federal Register, opens a comment period, then publishes a final rule that responds to what it received. Some rules are exempt from this — interpretive rules, general statements of policy, and matters of agency procedure — and there are good-cause exceptions for urgency.
What makes a comment count
Comment periods are not votes. An agency is not obliged to follow the majority view, and a hundred identical form letters carry roughly the weight of one. What an agency must do is respond to significant comments — those raising a material point the rule did not address.
A comment that changes a rule usually does one of three things: identifies data the agency did not have, shows an assumption in the analysis to be wrong, or demonstrates a consequence the agency did not anticipate. Specificity is everything. "This rule is burdensome" is not actionable; "this rule requires quarterly reporting that duplicates the filing already made under §X, at an estimated cost of Y per facility" is.
The administrative record
Everything an agency relied on becomes the administrative record, and that record is what a court reviews if the rule is challenged. This is why the response-to-comments section of a final rule is often longer than the rule: the agency is building the record that shows it considered the objections.
A comment submitted during the open period is part of that record. One submitted after it closes generally is not, which is the practical reason deadlines matter more than they appear to.
Questions
Does an agency have to reply to my comment individually?
No. It must respond to significant comments, and it typically does so by grouping them by theme in the preamble to the final rule rather than answering each submission separately.
Are anonymous comments accepted?
Generally yes, though an agency may weigh an anonymous submission differently where the commenter's expertise or stake is what makes the point significant. Submissions are usually posted publicly.
Can a final rule differ from the proposal?
Yes, and that is the point of the process — but a final rule must be a logical outgrowth of the proposal. A change so substantial that the public could not have anticipated it may require a further comment round.
