Public Participation in Administrative Rulemaking

Public Participation in Administrative Rulemaking

Introduction

Administrative agencies exercise enormous governmental power.

They regulate workplaces, financial markets, transportation, environmental protection, communications, healthcare, consumer products, energy, employment, and countless other areas of modern life.

But administrative government is not supposed to operate entirely behind closed doors.

One of the defining features of American administrative law is the opportunity for the public to participate in the process through which agencies develop regulations.

This participation is most closely associated with notice-and-comment rulemaking.

An agency proposes a rule. The public is given an opportunity to respond. Individuals, businesses, organizations, experts, governments, and other interested parties can provide information and arguments. The agency then considers the relevant material before adopting the final rule.

The basic statutory foundation is § 553 of the Administrative Procedure Act (APA). The statute expressly requires agencies, after the required notice, to give interested persons an opportunity to participate through submission of written data, views, or arguments, with or without an opportunity for oral presentation.

For the primary statutory text, see the Cornell Law School Legal Information Institute’s text of 5 U.S.C. § 553, particularly subsection (c), which establishes the opportunity for public participation in federal rulemaking.

Public participation is therefore not simply a matter of political courtesy.

It is part of the legal architecture of administrative government.

---

1. What Is Public Participation in Administrative Rulemaking?

Public participation in administrative rulemaking is the involvement of individuals, organizations, businesses, experts, governmental entities, and other interested parties in the process by which an administrative agency develops, modifies, or repeals a regulation.

Participation can take several forms.

The most familiar is the submission of written comments on a proposed rule.

But participation can also include:

• providing scientific or technical information;
• submitting economic analysis;
• identifying practical problems;
• proposing alternative approaches;
• responding to other participants’ arguments;
• participating in public meetings;
• requesting or participating in hearings where available;
• petitioning an agency to issue, amend, or repeal a rule;
• participating in negotiated rulemaking;
• and communicating information to the agency before or during the formal rulemaking process.

The important point is that administrative rulemaking is not necessarily a one-way process.

The agency does not simply speak to the public.

The public can speak back.

---

2. Why Does Public Participation Matter?

Public participation serves several purposes at the same time.

It promotes democratic legitimacy.

It improves the quality of information available to agencies.

It can reveal unintended consequences.

It gives affected parties an opportunity to identify legal and factual errors.

It creates a record that may later become relevant to judicial review.

And it can force agencies to explain why they chose one regulatory approach rather than another.

The process therefore serves both democratic and technocratic functions.

An agency may possess specialized expertise that Congress does not have.

But the public may possess practical knowledge that the agency does not have.

Effective administrative government needs both.

---

3. Public Participation Begins With Notice

Participation is impossible without information.

Before people can comment meaningfully on a proposed regulation, they need to know:

• what the agency proposes;
• why it proposes it;
• what authority it claims;
• what the proposal would require;
• what problems the agency is attempting to address;
• and how interested persons can participate.

That is why notice is fundamental.

Under § 553(b), general notice of proposed rulemaking ordinarily must be published in the Federal Register, and the notice must identify the agency’s legal authority and the terms, substance, or issues involved in the proposed rule.

Notice therefore performs a constitutional and practical function.

It gives people an opportunity to understand the governmental action before it becomes legally binding.

---

4. Meaningful Participation Requires Meaningful Notice

Simply publishing something somewhere is not necessarily enough to create meaningful participation.

Imagine that an agency publishes a notice stating:

“The agency is considering changes to environmental regulations.”

That tells the public very little.

What regulations?

What changes?

What industries are affected?

What legal authority is involved?

What alternatives are being considered?

A person cannot provide an intelligent comment without knowing what the agency is actually proposing.

Meaningful participation therefore depends on sufficiently meaningful notice.

This principle becomes particularly important when an agency changes the proposal substantially during the rulemaking process.

The public must have a genuine opportunity to address the regulatory choices that ultimately matter.

---

5. Who Can Participate?

The concept of “interested persons” is broad.

Potential participants may include:

Individuals

Ordinary citizens may submit comments concerning regulations affecting their lives, communities, employment, businesses, or interests.

Businesses

Companies may comment when proposed rules affect their operations, costs, products, employees, or compliance obligations.

Trade associations

Industry organizations may submit comments representing broader sectoral interests.

Labor organizations

Unions and worker organizations may comment on regulations affecting employment conditions and workplace protections.

Nonprofit organizations

Public-interest organizations frequently participate in environmental, consumer, civil-rights, healthcare, and other rulemaking proceedings.

Academic and scientific experts

Experts can provide research, technical analysis, and specialized knowledge.

State and local governments

Governmental entities may comment when federal regulations affect state or local programs, budgets, responsibilities, or regulatory systems.

Professional organizations

Medical, engineering, legal, accounting, scientific, and other professional bodies may contribute specialized expertise.

The diversity of participants is one of the strengths of the rulemaking process.

---

6. Individual Citizens Matter

Administrative law can sometimes appear to be a world dominated by lawyers, corporations, and government officials.

But individuals can play an important role.

Consider a proposed transportation regulation.

A government agency may possess extensive technical data.

A transportation company may possess industry expertise.

But an individual with a disability may understand a practical accessibility problem that neither the agency nor the industry fully recognized.

Similarly, a parent may identify an unintended consequence of a proposed consumer-safety rule.

A small business owner may explain why a compliance requirement is impossible for a small operation even though it appears reasonable for a large corporation.

Firsthand experience can therefore become valuable regulatory information.

---

7. Businesses and Regulated Industries

Businesses have strong incentives to participate in rulemaking.

Regulations can affect:

• production costs;
• employment;
• licensing;
• reporting;
• product design;
• investment;
• competition;
• liability;
• technology;
• and market access.

A proposed regulation that appears straightforward on paper may create complex consequences in practice.

For example, an agency might propose requiring a particular technology.

A manufacturer might respond:

“The technology is technically available, but only for large facilities.”

Another company might explain:

“The technology is available, but installation requires an eighteen-month construction period.”

Another participant might argue:

“A less expensive alternative technology would achieve the same regulatory objective.”

These comments can materially improve the agency’s understanding of the proposal.

---

8. Experts and Technical Information

Modern regulation often involves highly technical questions.

Consider regulations concerning:

• pharmaceuticals;
• nuclear safety;
• artificial intelligence;
• telecommunications;
• aviation;
• financial markets;
• cybersecurity;
• environmental science;
• medical devices;
• or energy systems.

Government agencies may have substantial expertise, but no agency can possess every piece of relevant knowledge.

Outside experts can provide:

• scientific studies;
• engineering analysis;
• statistical evidence;
• economic models;
• technical data;
• empirical research;
• and alternative methodologies.

The public comment process therefore functions partly as an information-gathering mechanism.

---

9. Written Comments

Written comments are the central form of participation in ordinary notice-and-comment rulemaking.

Section 553(c) expressly provides an opportunity for interested persons to participate through submission of written data, views, or arguments.

A comment may be short.

It may also be hundreds of pages long.

The appropriate length depends on the complexity of the issue.

A useful comment normally identifies the particular issue being addressed and explains why the agency should consider the argument.

A strong comment might include:

1. a clear statement of the participant’s position;
2. identification of the relevant portion of the proposed rule;
3. factual or legal support;
4. evidence;
5. explanation of practical consequences;
6. and, where appropriate, an alternative approach.

---

10. A Comment Is More Than an Opinion

A common mistake is to assume that a public comment is simply an opportunity to express approval or disapproval.

For example:

“This regulation is terrible.”

That may communicate an opinion, but it gives the agency relatively little to work with.

Compare:

“The proposed reporting requirement would require small operators to maintain a data system that the agency estimates will cost $10,000 to implement. The agency’s cost estimate does not account for the required software licensing and cybersecurity expenses, which would increase the initial implementation cost substantially.”

The second comment identifies a specific problem and gives the agency something it can investigate.

This is the difference between expressing opposition and participating substantively in rulemaking.

---

11. Legal Arguments in Public Comments

Public comments can raise legal issues.

A commenter may argue that:

• the agency lacks statutory authority;
• the proposed rule conflicts with the governing statute;
• the agency misunderstood its statutory mandate;
• the proposal conflicts with another federal law;
• the agency failed to consider a required factor;
• the agency is attempting to regulate conduct beyond its delegated authority;
• or the proposal raises constitutional concerns.

These arguments can be particularly important because they may identify problems before the final rule is issued.

An agency that recognizes a statutory defect during the comment process may modify or abandon the proposal.

---

12. Factual and Scientific Arguments

Comments can also challenge the agency’s factual assumptions.

Suppose an agency estimates that a proposed technology will cost $50,000 per facility.

A regulated company may submit evidence showing that the actual cost is closer to $200,000.

Or suppose an agency believes that a particular technology is commercially available.

A manufacturer may provide evidence that the technology remains experimental.

Such comments can force the agency to reconsider the factual foundation of the proposed regulation.

This illustrates an important principle:

Public participation can improve government decision-making by exposing government to information it did not previously possess.

---

13. Economic Arguments

Economic consequences are often central to administrative rulemaking.

A proposed rule may affect:

• consumer prices;
• business costs;
• employment;
• investment;
• market competition;
• government spending;
• or the availability of products and services.

Businesses may provide cost estimates.

Consumers may explain likely price effects.

Economists may submit models.

Small businesses may identify burdens that large companies can absorb but small firms cannot.

The agency must then evaluate the relevant information under the legal framework applicable to the particular rule.

---

14. Public Participation Is Not a Popularity Contest

One of the most important principles to understand is that public participation does not ordinarily operate as a vote.

Suppose 50,000 people submit identical comments supporting a proposed rule.

That demonstrates significant public interest.

But it does not necessarily mean that the agency must adopt the rule.

Likewise, a technically detailed comment from a single expert may be more useful to the agency than thousands of identical statements.

The purpose of comments is to provide information, reasoning, evidence, and arguments.

The agency remains responsible for making the regulatory decision within the authority granted by law.

---

15. Form Letters and Mass Comments

Modern rulemaking sometimes produces enormous volumes of comments.

Organizations may distribute templates encouraging supporters to submit standardized statements.

These are sometimes called form letters or mass comments.

They are not inherently illegitimate.

A standardized comment can communicate genuine public concern.

But mass volume does not automatically equal substantive weight.

If 100,000 people submit the same sentence, the agency still needs to understand what the underlying concern is.

Conversely, a detailed comment submitted by a single person may identify a serious technical or legal problem.

The value of participation therefore cannot always be measured numerically.

---

16. Public Meetings and Oral Presentations

Written comments are central to § 553 rulemaking, but oral participation can sometimes supplement written submissions.

Section 553(c) permits participation through written material with or without opportunity for oral presentation.

An agency may therefore conduct:

• public meetings;
• listening sessions;
• hearings;
• workshops;
• roundtables;
• or other forms of engagement.

Whether an oral presentation is available depends on the governing statute and the agency’s procedures.

Importantly, ordinary informal rulemaking should not be confused with formal rulemaking.

Formal rulemaking is a distinct procedural category triggered when the governing statute requires rulemaking to occur “on the record” after an agency hearing.

---

17. Petitions for Rulemaking

Public participation does not necessarily begin when an agency publishes a proposed rule.

The public can also ask the agency to begin rulemaking.

Section 553(e) provides that each agency must give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

This creates an important additional mechanism of participation.

The public does not merely react to the government’s agenda.

It can attempt to place an issue on that agenda.

For example, an organization may petition an agency to:

• create a new safety regulation;
• amend an outdated requirement;
• repeal an obsolete regulation;
• or address an emerging technological problem.

A petition does not guarantee that the agency will adopt the requested rule.

But it gives interested persons a formal avenue through which to request regulatory action.

---

18. Participation Before the NPRM

Public participation can sometimes occur before the formal notice-and-comment stage.

Agencies may conduct preliminary research and consultation before publishing a proposed rule.

They may seek information from:

• experts;
• affected industries;
• state officials;
• local governments;
• nonprofit organizations;
• academic researchers;
• and members of the public.

This preliminary engagement can help the agency understand the problem before deciding what regulatory approach to propose.

It can also prevent the agency from developing a proposal based on incomplete information.

---

19. Negotiated Rulemaking

An especially interesting form of participation is negotiated rulemaking.

Instead of developing a proposed rule entirely within the agency and then asking the public to comment on it, an agency may bring affected interests together earlier in the process.

Representatives may include:

• regulated industries;
• public-interest groups;
• labor organizations;
• state governments;
• technical experts;
• and other stakeholders.

The participants attempt to reach consensus on the substance of the proposed regulation.

Negotiated rulemaking does not eliminate the formal legal requirements that apply afterward.

Rather, it can supplement the ordinary rulemaking process by involving affected interests at an earlier stage.

This approach reflects a broader idea:

People may be more willing to accept a regulation when they had a meaningful role in developing it.

---

20. The Administrative Docket

Public participation increasingly occurs through electronic administrative dockets.

For many federal rulemakings, members of the public can access proposed rules, supporting documents, and submitted comments through Regulations.gov.

Cornell’s explanation of informal rulemaking notes that individuals can submit comments electronically through Regulations.gov.

The docket therefore serves as a public record of the rulemaking process.

It can reveal:

• what the agency proposed;
• what evidence it relied upon;
• what comments were submitted;
• what objections were raised;
• and how the regulatory process developed.

The docket is consequently important not only for participation but also for transparency.

---

21. Participation and Transparency

Public participation and government transparency are closely connected.

A person cannot meaningfully participate in a regulatory process if important information is inaccessible.

Transparency therefore involves making relevant information available concerning:

• the proposed rule;
• the agency’s authority;
• supporting studies;
• technical analyses;
• economic information;
• public comments;
• and the final agency decision.

The more transparent the process, the easier it becomes for the public to understand how governmental decisions are made.

---

22. Participation and the Administrative Record

Public comments can become part of the administrative record relevant to judicial review.

This gives public participation an important legal dimension.

Imagine that an agency receives a detailed comment identifying a serious factual problem.

The agency ignores it.

The agency later adopts the rule without addressing the issue.

If the rule is challenged, the existence of that comment may become significant.

The issue is not simply that the commenter disagreed with the agency.

The issue may be whether the agency adequately confronted an important problem raised during the rulemaking process.

Public participation can therefore influence not only the substance of regulation but also the legal record on which later judicial review operates.

---

23. The Agency Does Not Have to Respond to Everything

The existence of public participation does not mean that agencies must write an individualized response to every sentence submitted by every commenter.

That would often be impossible.

A major rule may generate thousands or even millions of submissions.

The agency’s obligation is instead connected to the relevant issues and significant concerns raised during the rulemaking.

The agency must engage sufficiently with important matters to demonstrate that it actually considered the relevant issues and reached a reasoned decision.

This distinction is essential.

Public participation does not transfer regulatory decision-making from the agency to the commenters.

It requires the agency to take public input seriously as part of lawful decision-making.

---

24. Public Participation and Agency Expertise

There is sometimes a perceived conflict between agency expertise and public participation.

Why should an agency listen to people who may know less about the subject?

The answer is that expertise is not the same thing as complete knowledge.

An agency scientist may understand the scientific literature.

A company engineer may understand how a technology works in actual industrial conditions.

A small-business owner may understand compliance burdens.

A consumer may understand how a product affects ordinary users.

A community organization may understand local consequences.

Each participant may possess a different piece of the puzzle.

Public participation allows those pieces to enter the regulatory process.

---

25. Equality of Participation

Formal legal access does not necessarily mean equal practical access.

A large corporation may have:

• lawyers;
• economists;
• scientists;
• consultants;
• lobbyists;
• and regulatory specialists.

An individual citizen may have only an hour after work to prepare a comment.

This creates a difficult question:

Is a process truly participatory if some participants have dramatically greater resources than others?

Administrative law cannot completely eliminate this inequality.

But mechanisms such as electronic filing, public dockets, accessible notices, public-interest organizations, and simplified comment procedures can reduce some barriers.

The challenge is to make participation not merely legally available, but realistically meaningful.

---

26. Small Businesses and Public Participation

Small businesses can face particular difficulties in participating.

A regulation may impose the same formal obligation on a multinational corporation and a small local business even though their resources are dramatically different.

Federal law contains additional protections concerning small entities.

For example, the Regulatory Flexibility Act includes procedures designed to facilitate participation by small entities in certain rulemakings, including techniques such as direct notification, public hearings, and electronic solicitation of comments.

This reflects an important principle:

A regulation can have very different practical consequences for entities of different sizes.

Public participation can help agencies discover those differences.

---

27. Underserved and Less-Visible Communities

A regulation may affect communities that do not routinely participate in federal administrative proceedings.

This creates a representational problem.

The people most affected by a regulation may not always be the people most capable of submitting sophisticated legal comments.

Public participation is therefore partly about ensuring that agencies hear from people whose interests might otherwise remain invisible.

Community organizations, public-interest groups, local governments, and individual citizens can help bring those perspectives into the regulatory process.

---

28. The Limits of Public Participation

Public participation is powerful, but it has limits.

The public cannot:

• give an agency authority that Congress did not give it;
• compel an agency to adopt a particular policy;
• convert an unlawful regulation into a lawful one;
• replace statutory requirements;
• or eliminate constitutional limitations.

An agency remains bound by law.

This is an important distinction:

Participation influences the exercise of governmental power; it does not create governmental power.

---

29. Participation Does Not Replace Agency Judgment

The final regulatory decision remains an agency decision.

The agency must evaluate:

• the statutory mandate;
• available evidence;
• technical information;
• public comments;
• policy considerations permitted by law;
• and the practical consequences of the regulation.

The agency cannot simply delegate the decision to whichever commenter makes the strongest argument.

At the same time, it cannot treat the comment period as meaningless theater.

The legitimacy of the process depends upon genuine consideration.

---

30. Participation and Arbitrary-and-Capricious Review

Public participation becomes particularly important when a final rule is challenged under the Administrative Procedure Act.

A court may examine whether the agency:

• considered relevant factors;
• ignored important aspects of the problem;
• relied on erroneous facts;
• failed to explain important changes;
• or otherwise acted in an arbitrary and capricious manner.

The comments submitted during rulemaking can help establish what issues were before the agency.

They can also demonstrate whether the agency was alerted to particular problems before adopting the rule.

This creates an important connection:

Public participation → administrative record → agency reasoning → judicial review.

---

31. A Practical Example

Imagine that a federal agency proposes a regulation requiring certain factories to install a new pollution-control system within one year.

The agency’s proposal assumes that the equipment is commercially available.

Several groups participate.

Industry

Manufacturers submit evidence showing that the equipment has an eighteen-month delivery time.

Environmental organizations

Environmental groups submit scientific evidence arguing that the proposed standard is too weak.

Small businesses

Small companies explain that installation costs would threaten their ability to remain operational.

State governments

Several states argue that the proposed federal requirements conflict with existing state permitting systems.

Scientists

Researchers provide evidence concerning alternative technologies.

The agency now has information that was not necessarily available when it drafted the original proposal.

It might:

• change the compliance period;
• modify the technical standard;
• revise its economic analysis;
• clarify the rule;
• adopt an alternative;
• or withdraw the proposal.

This is public participation functioning as intended.

---

32. How to Write an Effective Public Comment

A person preparing a serious comment should consider the following structure.

1. Identify the rule

State clearly which proposed rule is being addressed.

2. State the position

Explain whether you support, oppose, or recommend modifying the proposal.

3. Identify specific provisions

Avoid discussing the proposal only in general terms.

4. Provide evidence

Use studies, data, professional experience, or other reliable information.

5. Explain practical consequences

Tell the agency what will happen in the real world.

6. Identify legal concerns

If appropriate, explain statutory or constitutional problems.

7. Offer an alternative

If possible, explain what the agency should do instead.

8. Remain precise

A clear, organized comment is easier for an agency to evaluate.

The strongest comments often answer a simple question:

What does the agency need to know before it makes this decision?

---

33. A Lawyer’s Checklist for Public Participation

When analyzing participation in a rulemaking proceeding, ask:

1. Was adequate notice provided?
2. What exactly did the agency propose?
3. Who are the affected parties?
4. Who participated?
5. What major issues were raised?
6. What factual evidence was submitted?
7. What legal arguments were submitted?
8. Were alternative approaches proposed?
9. Did the agency receive information contradicting its assumptions?
10. Did the agency address significant objections?
11. Did the final rule remain within the scope of the proposal?
12. Is the administrative record complete?
13. Was an exception to notice and comment invoked?
14. Did the agency possess statutory authority?
15. Could the agency’s response to the comments become relevant in judicial review?

These questions help connect public participation with the larger structure of administrative law.

---

34. Frequently Asked Questions

What is public participation in administrative rulemaking?

It is the process through which members of the public and other interested parties provide information, arguments, evidence, and perspectives to an administrative agency during the development of a regulation.

Does the public have a legal right to comment?

Under § 553(c), interested persons generally must be given an opportunity to participate in covered notice-and-comment rulemaking through submission of written data, views, or arguments, subject to applicable exceptions.

Who can submit a public comment?

Potential participants include individuals, businesses, nonprofit organizations, trade associations, experts, state and local governments, professional organizations, and other interested persons.

Does a person need to be a lawyer?

No. Legal expertise can be useful, but factual, technical, scientific, economic, and firsthand information can also be highly valuable.

Does the agency have to agree with public comments?

No. The agency must consider relevant material, but it is not required to adopt the position of commenters.

Do agencies count comments as votes?

Generally, no. The substance and relevance of comments matter more than simply counting identical submissions.

Can the public request that an agency create a new regulation?

Yes. Section 553(e) gives interested persons the right to petition an agency for the issuance, amendment, or repeal of a rule.

Can public comments affect a final rule?

Yes. Agencies may revise proposed rules after considering information and arguments submitted during the rulemaking process.

Can public comments matter in court?

Yes. Comments may become part of the administrative record and can help establish what issues and evidence were presented to the agency.

Does public participation guarantee democratic control over agencies?

No. It improves participation and accountability, but agencies remain subject to statutory authority, constitutional limitations, and judicial review.

---

Key Takeaways

• Public participation is a central feature of federal administrative rulemaking.
• Section 553(c) of the APA expressly provides an opportunity for interested persons to participate in covered rulemaking.
• Participation commonly occurs through written comments.
• Individuals, businesses, organizations, experts, and governmental entities can all participate.
• Comments can provide legal, factual, scientific, technical, economic, and practical information.
• Public comments are not votes.
• The quality and relevance of a comment may matter more than the number of comments submitted.
• The public can petition an agency to issue, amend, or repeal a rule.
• Electronic dockets have made participation more accessible and transparent.
• Public comments can become part of the administrative record.
• Participation can influence both the substance of a regulation and the agency’s explanation of its decision.
• Public participation does not create agency authority.
• The ultimate regulatory decision remains subject to statutory limits, constitutional constraints, and judicial review.

Conclusion

Public participation is one of the most important ways in which American administrative law attempts to reconcile government expertise with democratic accountability.

Administrative agencies possess specialized knowledge.

They also possess significant governmental power.

Public participation creates a mechanism through which that power can be exposed to information, criticism, expertise, experience, and alternative perspectives from outside the agency.

A citizen can identify a practical problem.

A scientist can challenge an assumption.

A business can explain an economic consequence.

A lawyer can identify a statutory defect.

A state government can identify an implementation problem.

A public-interest organization can raise concerns affecting a community that might otherwise receive little attention.

None of these participants controls the final decision.

That is not the purpose of notice and comment.

The purpose is to ensure that the agency does not make the decision in an informational or institutional vacuum.

The best understanding of public participation is therefore not:

The public decides the rule.

It is:

The public has an opportunity to help inform the government before the government makes the rule.

That distinction captures the fundamental relationship between administrative expertise and democratic participation.

Public participation does not eliminate administrative discretion.

It makes that discretion more visible, more informed, and more accountable to law.