Notice and Comment Rulemaking

Notice and Comment Rulemaking

Introduction

One of the most important ideas in American administrative law is that government agencies generally cannot simply announce new regulatory requirements and impose them on the public without following legally prescribed procedures.

For many federal regulations, the central procedure is notice and comment rulemaking.

Notice and comment rulemaking is the process through which an administrative agency proposes a rule, tells the public what it is considering, gives interested persons an opportunity to submit comments, considers the relevant material submitted, and then issues a final rule.

The procedure is principally governed by § 553 of the Administrative Procedure Act (APA). The process is often called informal rulemaking, although “informal” does not mean casual or optional. It is a structured legal procedure designed to combine governmental expertise with public participation.

The basic idea is simple:

An agency proposes. The public responds. The agency considers. The agency decides.

That process is one of the principal mechanisms through which administrative government is made more transparent, participatory, and accountable.

For a useful primary-law reference, see the Cornell Law School Legal Information Institute’s text of 5 U.S.C. § 553, which sets out the federal statutory framework for rulemaking, including notice, public participation, exceptions, and petitions for rulemaking.

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1. What Is Notice and Comment Rulemaking?

Notice and comment rulemaking is a procedure in which an administrative agency publicly proposes a rule and allows interested members of the public to submit written information, views, arguments, and other relevant material before the agency adopts the final rule.

The process normally has three central stages:

1. Notice of the proposed rule
2. Opportunity for public comment
3. Agency consideration and issuance of a final rule

The procedure is commonly associated with legislative or substantive rules—rules that have legal consequences for members of the public.

Cornell’s Legal Information Institute describes informal rulemaking as the most common process through which administrative agencies make rules and identifies § 553 of the APA as its principal statutory framework.

Notice and comment therefore represents a compromise between two competing needs.

Government needs enough flexibility to regulate complex areas of modern life.

But the public needs protection against government decisions being made without adequate notice, information, participation, or explanation.

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2. Why Does Notice and Comment Exist?

Administrative agencies possess enormous expertise.

An environmental agency may understand pollution control better than Congress.

A financial regulator may understand complex financial markets better than a generalist legislature.

A transportation agency may possess technical knowledge that legislators cannot realistically acquire for every regulatory question.

But expertise creates its own danger.

An agency may become disconnected from the people and industries affected by its decisions. It may misunderstand practical consequences. It may overlook important evidence. It may interpret a statutory mandate too broadly.

Notice and comment attempts to reduce these problems.

The public is given an opportunity to tell the agency:

• what the proposal would actually do;
• what problems it may create;
• what evidence supports or contradicts it;
• whether the agency misunderstood the regulated industry;
• whether the proposed rule exceeds statutory authority;
• whether alternative approaches would work better;
• and whether the agency has overlooked important consequences.

Public participation is therefore not merely a courtesy.

It is part of the administrative decision-making process.

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3. The Legal Foundation: Section 553 of the APA

The principal federal statutory provision governing ordinary notice and comment rulemaking is 5 U.S.C. § 553.

Section 553 generally requires an agency to provide public notice of proposed rulemaking and an opportunity for interested persons to participate through submission of written material.

The statute provides that, after the required notice, the agency must give interested persons an opportunity to participate through submission of:

• written data;
• views; or
• arguments.

The agency must then consider the relevant material presented and include a concise general statement of the rule’s basis and purpose.

These requirements are important because they connect procedure with reasoned decision-making.

An agency does not merely announce:

“This is the rule.”

It must proceed through a legally structured process that allows affected parties to respond.

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4. Step One: The Notice of Proposed Rulemaking

The first major stage is the Notice of Proposed Rulemaking, commonly called an NPRM.

The NPRM informs the public that the agency is considering a regulatory action.

It serves an essential democratic function.

People cannot meaningfully participate in a process if they do not know that the process exists.

Under § 553, general notice of proposed rulemaking ordinarily must be published in the Federal Register, subject to statutory exceptions.

The notice generally identifies matters such as:

• the agency involved;
• the legal authority for the proposed rule;
• the subject of the proposed regulation;
• the substance or issues under consideration;
• and information necessary for interested persons to participate.

Cornell’s Wex explains that an NPRM is the formal announcement and explanation of an agency’s intent to address an issue or achieve an objective.

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5. Why Adequate Notice Matters

Notice is not merely a technical formality.

It determines whether public participation is meaningful.

Suppose an agency announces that it intends to regulate workplace safety but gives the public almost no information about what it intends to regulate.

People may technically have an opportunity to comment, but they cannot provide useful comments because they do not know what the agency is actually proposing.

Meaningful participation therefore requires meaningful notice.

The public must have enough information to understand the proposal and respond intelligently.

This principle becomes particularly important when the final rule differs significantly from the proposed rule.

An agency generally should not use the notice-and-comment process to propose one regulatory scheme and then unexpectedly adopt an entirely different scheme that interested parties had no meaningful opportunity to address.

This concern is often discussed through the logical outgrowth principle.

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6. Step Two: The Public Comment Period

After publication of the proposed rule, the agency provides an opportunity for public participation.

The most important form of participation is usually the submission of written comments.

A comment may come from:

• an individual citizen;
• a corporation;
• a trade association;
• a nonprofit organization;
• a professional organization;
• a labor organization;
• a state or local government;
• an academic institution;
• or another interested party.

The commenter may support the proposal, oppose it, or recommend modifications.

A comment can also provide technical information that the agency may not possess.

For example, an agency proposing a new environmental standard may receive comments containing:

• scientific studies;
• engineering data;
• economic analyses;
• information concerning compliance costs;
• evidence concerning technological feasibility;
• or proposed alternative regulatory language.

The comment process therefore expands the informational base available to the agency.

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7. A Public Comment Is Not a Vote

One of the most common misunderstandings about notice and comment is that the agency simply counts the comments.

It does not.

If 10,000 people support a proposal and 500 oppose it, the agency is not necessarily required to adopt the proposal.

Likewise, a technically sophisticated comment from one person may be more legally significant than thousands of identical form letters.

The purpose of the process is not primarily to determine which side has more votes.

It is to give the agency an opportunity to receive and evaluate relevant information and arguments.

This distinction is fundamental.

Administrative rulemaking is not ordinarily a referendum.

It is a structured process of governmental decision-making informed by public participation.

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8. What Makes a Comment Legally Useful?

A strong comment generally does more than express disagreement.

Consider two comments:

“I don’t like this rule.”

and:

“The proposed requirement would require regulated entities to replace equipment that is currently unavailable from manufacturers. The agency’s regulatory analysis assumes that compliant equipment can be obtained within six months, but manufacturer data indicates that the current average lead time is approximately eighteen months.”

The second comment is much more useful.

It identifies:

• a specific part of the proposal;
• a factual assumption;
• evidence concerning that assumption;
• and a practical consequence.

Good comments help the agency identify problems that may otherwise remain invisible.

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9. Types of Arguments That Can Appear in Comments

A public comment may raise several different kinds of arguments.

Legal arguments

A commenter might argue that the agency lacks statutory authority to issue the proposed rule.

Factual arguments

A commenter might argue that the agency’s factual assumptions are incorrect.

Scientific arguments

A commenter might provide scientific evidence contradicting the agency’s proposed approach.

Economic arguments

A commenter might explain that the proposal would impose costs that the agency underestimated.

Practical arguments

A regulated party might explain that compliance is technically impossible or substantially more difficult than the agency assumes.

Policy arguments

A commenter might argue that another regulatory approach would better achieve the agency’s statutory objectives.

Constitutional arguments

In appropriate circumstances, a commenter may argue that the proposed rule raises constitutional concerns.

The comment process can therefore involve much more than public opinion.

It can become a sophisticated exchange of legal, technical, economic, scientific, and policy information.

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10. The Agency Must Consider Relevant Material

The agency does not have to agree with every commenter.

Nor does it have to accept the preferred solution proposed by the public.

But the agency must engage with the relevant issues raised through the rulemaking process.

This is closely connected to the principle of reasoned decision-making.

An agency that simply ignores important evidence or serious objections may face problems when the final rule is challenged in court.

The goal is not to force agencies to satisfy every commenter.

The goal is to require agencies to make decisions rationally and transparently.

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11. The Agency’s Statement of Basis and Purpose

After considering the relevant material, the agency issues the final rule.

The APA requires the agency to include a concise general statement of the rule’s basis and purpose.

This requirement provides an explanation of why the agency adopted the rule.

The statement may address matters such as:

• the problem the agency is attempting to solve;
• the statutory authority supporting the regulation;
• important comments received;
• significant alternatives considered;
• relevant factual findings;
• and the agency’s reasoning.

This explanation becomes particularly important if the final rule is challenged in court.

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12. Notice and Comment as Part of Judicial Review

Notice and comment does not end with publication of the final rule.

The rule may later be challenged in federal court.

A court may examine whether the agency:

• acted within its statutory authority;
• complied with required procedures;
• considered relevant factors;
• adequately explained its reasoning;
• and engaged in lawful, non-arbitrary decision-making.

Thus, the administrative record created during rulemaking can become extremely important.

The comments submitted by the public may become part of the record against which the agency’s reasoning is evaluated.

Public participation therefore has a second function.

It can influence the rule itself.

But it can also shape the record that later permits judicial review.

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13. The Importance of the Administrative Record

The administrative record is the collection of materials that informs the agency’s decision.

Depending on the proceeding, it may contain:

• the proposed rule;
• supporting studies;
• technical reports;
• economic analyses;
• public comments;
• agency memoranda;
• responses to comments;
• and other relevant materials.

The record allows a reviewing court to understand how the agency reached its decision.

This is one reason why submitting a carefully developed comment can matter even when the agency ultimately rejects the commenter’s position.

The argument may later become relevant to a judicial challenge.

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14. Who Can Participate?

The phrase “interested persons” is deliberately broad.

Participation is not limited to lawyers.

Individuals may participate.

Businesses may participate.

Nonprofit organizations may participate.

Industry associations may participate.

Academic experts may participate.

State and local governments may participate.

Professional organizations may participate.

People who are not directly regulated may also have legitimate interests in a proposed rule.

For example, an environmental regulation may affect not only regulated companies but also communities, consumers, workers, scientists, and environmental organizations.

Notice and comment therefore creates a relatively broad channel for public participation in federal administrative government.

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15. Organized Interests and Trade Associations

Businesses and trade associations frequently participate heavily in rulemaking.

That is unsurprising.

Regulations can have significant consequences for:

• operating costs;
• employment;
• compliance systems;
• licensing;
• product design;
• reporting obligations;
• liability exposure;
• and market competition.

Trade associations may therefore submit detailed comments representing the concerns of an entire industry.

This can provide valuable technical information to the agency.

But it also illustrates an important tension in administrative law.

Organizations with substantial resources may be able to participate more extensively than individuals with limited time and money.

Notice and comment is therefore formally open to the public, but practical access to the process can vary considerably.

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16. Individual Citizens

Individual participation is also important.

A person does not need to be a lawyer or policy expert to submit a meaningful comment.

A citizen may have direct experience with a problem that the agency is attempting to regulate.

For example, a proposed transportation regulation might affect:

• commuters;
• drivers;
• passengers;
• people with disabilities;
• rural communities;
• small businesses;
• or local governments.

Firsthand experience can reveal practical consequences that are difficult to discover through government studies alone.

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17. Mass Comments and Form Letters

Modern rulemaking can generate enormous numbers of comments.

Organizations may encourage supporters to submit standardized comments.

Sometimes thousands of people submit substantially identical statements.

Mass participation demonstrates public interest, but quantity alone does not determine legal significance.

An agency generally needs to consider relevant issues, not mechanically treat every identical submission as a separate substantive argument.

At the same time, a large volume of comments may demonstrate that a regulatory issue has substantial public importance.

The better approach for a serious participant is therefore not simply:

“Send more comments.”

It is:

Send better comments.

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18. Electronic Participation

Modern federal rulemaking is heavily dependent on electronic participation.

Members of the public can commonly locate proposed rules, review supporting materials, and submit comments electronically through government platforms such as Regulations.gov.

Electronic participation has significantly reduced some traditional barriers to participation.

A person no longer needs to mail a paper submission to an agency simply to make a basic comment.

Information can also be distributed rapidly through organizations, professional groups, academic networks, and public-interest organizations.

Technology has therefore made notice and comment more accessible while simultaneously increasing the volume of information agencies must process.

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19. Oral Participation

Written comments are the central mechanism under ordinary § 553 rulemaking.

But oral presentations may sometimes be available.

Section 553(c) expressly contemplates participation through written submissions, with or without an opportunity for oral presentation.

An agency may therefore hold public meetings, hearings, listening sessions, or other forms of public engagement depending on the statutory framework and the agency’s procedures.

It is important, however, not to confuse ordinary informal rulemaking with formal rulemaking.

Formal rulemaking involves a substantially different procedural framework and applies only when the governing statute triggers it.

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20. Exceptions to Notice and Comment

Notice and comment is important, but it is not universal.

Section 553 excludes several categories from ordinary notice-and-comment requirements.

These include, subject to applicable statutory provisions:

• interpretive rules;
• general statements of policy;
• and rules concerning agency organization, procedure, or practice.

The APA also contains a good-cause exception.

An agency may dispense with ordinary notice and public procedure when it finds that those procedures are impracticable, unnecessary, or contrary to the public interest and provides the required explanation.

These exceptions are important because they prevent the APA from imposing identical procedures on every conceivable agency action.

But they also create opportunities for legal disputes.

An agency cannot simply label an action “guidance” or invoke “good cause” without regard to the substance and circumstances of the action.

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21. Notice and Comment Does Not Give an Agency Power It Does Not Have

This point is particularly important.

Notice and comment is a procedural requirement.

It does not itself create substantive governmental authority.

Suppose Congress gives an agency authority to regulate X.

The agency cannot acquire authority over Y simply by publishing a proposed rule concerning Y and accepting thousands of comments.

The sequence:

Notice → comments → final rule

does not automatically mean:

lawful authority.

The agency must have statutory authority in the first place.

This is why administrative law constantly combines questions of procedure with questions of delegated power.

A perfectly conducted rulemaking can still produce an unlawful rule if the agency exceeded the authority Congress gave it.

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22. Notice and Comment After Chevron

Modern administrative law also requires understanding the relationship between rulemaking and judicial interpretation of statutes.

In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overruled Chevron deference.

Courts therefore cannot simply defer to an agency’s reasonable interpretation of an ambiguous statute under the former Chevron framework.

This does not eliminate administrative rulemaking.

Instead, it makes the boundaries of delegated authority especially important.

Agencies still exercise authority delegated by Congress, but courts independently determine questions of statutory meaning and the limits of that authority.

Consequently, notice and comment should never be understood as giving an agency the final word on the meaning of the statute that authorizes its regulatory power.

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23. The Logical Outgrowth Principle

An important limitation on agency rulemaking is the principle that a final rule should generally emerge logically from the proposal.

Imagine that an agency proposes:

“We are considering requiring factories to report emissions once every year.”

During the comment period, the public discusses annual reporting.

After receiving comments, the agency suddenly adopts:

“Factories must install expensive monitoring equipment and submit daily reports.”

The final rule may raise a serious notice problem.

Why?

Because interested parties may not have had a meaningful opportunity to comment on the substantially different regulatory requirements.

The public cannot meaningfully participate in a proposal that it was never actually given an opportunity to understand.

The logical-outgrowth principle therefore protects the integrity of notice and comment.

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24. The Democratic Significance of Notice and Comment

Notice and comment is more than administrative procedure.

It reflects a broader constitutional and democratic idea:

Government power should be exercised through procedures that allow those affected by government decisions to be heard.

Administrative agencies are not legislatures.

But agencies make rules that can have enormous practical consequences.

Notice and comment creates a participatory bridge between administrative expertise and democratic accountability.

It allows affected people to say:

“Here is what your proposal means in the real world.”

That information can improve government decision-making.

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25. The Practical Value of Public Comments

A useful way to understand notice and comment is to imagine an agency operating with incomplete information.

Before the proposal, the agency may have:

• government studies;
• staff expertise;
• economic models;
• scientific reports;
• industry information.

The public comment process adds another layer:

outside knowledge.

A small company might explain that a compliance requirement is impossible for small operators.

A scientist might identify a methodological error.

A consumer organization might identify an unintended effect on vulnerable consumers.

A state government might explain conflicts with an existing regulatory system.

A lawyer might identify a statutory limitation.

The agency can then revise the proposal before issuing the final rule.

That is one of the strongest practical arguments for notice and comment.

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26. Example: A Hypothetical Environmental Rule

Suppose a federal agency proposes a regulation limiting emissions from a particular industrial process.

The NPRM explains:

• the statutory authority;
• the proposed emissions limit;
• the technical assumptions;
• the anticipated costs;
• and the proposed compliance period.

The public then submits comments.

A manufacturer argues that the proposed technology does not currently exist at commercial scale.

An environmental organization submits scientific research supporting a stricter standard.

A small-business association argues that the compliance period is too short.

A state environmental agency proposes an alternative implementation system.

After reviewing the submissions, the federal agency modifies the proposal.

The final rule adopts a somewhat different emissions standard and gives smaller facilities additional time to comply.

This example illustrates the central purpose of notice and comment.

The final rule is not simply the agency’s original idea.

It is the product of an administrative process informed by public participation.

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27. Common Misunderstandings

“The agency must accept the majority view.”

No.

The agency is not conducting a referendum.

“Anyone can force an agency to adopt a proposed change through comments.”

No.

Comments provide information and arguments. They do not automatically dictate the outcome.

“A comment is useless unless written by a lawyer.”

No.

Technical knowledge, professional experience, scientific evidence, and firsthand experience may all be valuable.

“Once the agency receives comments, the rule is automatically valid.”

No.

The agency must still possess statutory authority and comply with applicable procedural and substantive requirements.

“Notice and comment applies to every agency document.”

No.

The APA contains important exceptions, including for certain interpretive rules, policy statements, and procedural rules.

“More comments always mean a stronger argument.”

Not necessarily.

The quality, relevance, and substance of comments can be more important than raw numerical volume.

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28. Why Lawyers Should Understand Notice and Comment

For lawyers, notice and comment is important at several stages.

A lawyer representing a regulated company may participate during the proposed-rule stage.

A public-interest lawyer may submit comments on behalf of an organization.

A government lawyer may help an agency evaluate comments.

A lawyer challenging a final rule may examine the notice, comments, administrative record, and agency’s explanation.

A lawyer defending the rule may need to demonstrate that the agency followed the required procedures and adequately responded to significant concerns.

Thus, understanding notice and comment is useful both before and after a regulation becomes final.

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29. A Lawyer’s Checklist

When analyzing a federal rulemaking proceeding, ask:

1. What statute gives the agency authority?
2. Is the agency actually exercising delegated authority?
3. What kind of agency action is being taken?
4. Does § 553 apply?
5. Has an NPRM been properly issued?
6. Does the notice adequately describe the proposal?
7. Has the public received a meaningful opportunity to comment?
8. What significant comments were submitted?
9. Did the agency consider the relevant material?
10. Did the agency explain its reasoning?
11. Does the final rule remain within the scope of the proposal?
12. Did the agency rely on an applicable exception to notice and comment?
13. If so, is the exception legally justified?
14. Did the agency comply with other statutory requirements?
15. Does the final rule exceed the agency’s statutory authority?
16. Is the agency’s reasoning vulnerable to arbitrary-and-capricious review?

These questions provide a useful starting framework for analyzing the legality of administrative rulemaking.

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30. Frequently Asked Questions

What is notice and comment rulemaking?

Notice and comment rulemaking is the process by which an administrative agency proposes a rule, provides public notice, accepts comments from interested persons, considers relevant submissions, and adopts a final rule.

What law governs federal notice and comment rulemaking?

The primary federal framework is § 553 of the Administrative Procedure Act, codified at 5 U.S.C. § 553.

Is notice and comment the same as informal rulemaking?

Generally, yes. Notice-and-comment rulemaking is commonly referred to as informal rulemaking.

Does every administrative rule require notice and comment?

No. The APA contains exceptions, and other statutes may establish different procedures.

Who can submit a public comment?

Generally, interested members of the public may participate. This can include individuals, businesses, nonprofit organizations, professional groups, governmental entities, and other organizations.

Does the agency have to agree with commenters?

No. The agency must consider relevant material but is not required to adopt every suggestion.

Are public comments votes?

No. Notice and comment is not normally a referendum.

Can an agency adopt a completely different rule from the proposed rule?

There are limits. A final rule generally must have sufficient connection to the proposal to provide affected parties with meaningful notice and an opportunity to comment.

Can a court review a final rule?

Yes. Final agency rules are generally subject to judicial review, subject to applicable jurisdictional and statutory limitations.

Does notice and comment create agency authority?

No. An agency must already possess statutory authority to act. Procedure cannot substitute for substantive legal authority.

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Key Takeaways

• Notice and comment rulemaking is the principal form of informal federal administrative rulemaking.
• The basic statutory framework is found in 5 U.S.C. § 553.
• An agency ordinarily begins by publishing a Notice of Proposed Rulemaking.
• Interested persons are given an opportunity to submit written data, views, and arguments.
• Public comments are not votes.
• The agency must consider relevant material and explain the basis and purpose of the final rule.
• The administrative record can become important in later judicial review.
• Notice and comment does not create substantive agency authority.
• The APA contains important exceptions to ordinary notice-and-comment requirements.
• The final rule generally must remain sufficiently connected to the proposal to provide meaningful notice.
• Notice and comment combines administrative expertise with public participation.
• It is therefore both a procedural mechanism and an important accountability mechanism in the administrative state.

Conclusion

Notice and comment rulemaking is one of the defining procedures of modern American administrative law.

It recognizes a practical reality: government agencies possess expertise that legislatures cannot always replicate, but agencies exercising significant governmental power must remain subject to legal limits and meaningful public participation.

The procedure creates a structured conversation between government and the governed.

The agency proposes.

The public responds.

Evidence, arguments, objections, and alternatives enter the administrative record.

The agency evaluates that material and explains its final decision.

And, when appropriate, courts can later review whether the agency stayed within the authority granted by law and followed the procedures required by law.

That combination of expertise, participation, reasoned decision-making, and judicial oversight is what makes notice and comment such a central institution of American administrative law.