Public Comment on a Federal Rule, the Citizen Power Written Into the 1946 APA

Most Americans think federal rules arrive the way weather does: from nowhere, without warning, to be endured. They are wrong. By law, most of them are announced in advance, in public, with an open invitation to tell the agency what you think. Almost nobody takes the invitation.

That is both the scandal and the opportunity. The invitation was written into the Administrative Procedure Act of 1946, and it has been sitting there for eighty years like a casserole nobody at the reunion will touch. A citizen who reads a proposed rule and files a good comment is using one of the few direct levers ordinary people have over the administrative state. Let me show you how to pull it.

I'll keep the steps plain and exact. The law is the persuasion.

What the law gives you

The Administrative Procedure Act, or APA, was enacted on June 11, 1946. Congress passed it after the New Deal and the war had produced a great many agencies with a great deal of power, and it set out the basic procedures agencies must follow when they make rules. The key provision is section 553 of Title 5 of the United States Code, usually cited as 5 U.S.C. 553.

Here is what section 553 requires, in plain terms, for the ordinary kind of rule known as informal or "notice-and-comment" rulemaking.

1. Notice. The agency must publish a notice of proposed rulemaking in the Federal Register. The notice must state the time, place and nature of the proceeding, the legal authority for the rule, and either the terms or the substance of the proposed rule or a description of the subjects involved.
2. Opportunity to comment. The agency must give interested persons the chance to participate by submitting written data, views or arguments. The agency may also allow oral presentations, but the written comment is the standard.
3. Consideration and explanation. After considering the comments, the agency must incorporate in the final rule "a concise general statement of their basis and purpose."
4. Delay. Most final rules must be published at least 30 days before they take effect, with exceptions.

Congress did not leave the review of this process to the agency alone. Under 5 U.S.C. 706, a court reviewing a rule must set aside agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." And the Supreme Court has held, in Motor Vehicle Manufacturers Association v. State Farm (1983), that an agency acts arbitrarily if it fails to consider an important aspect of the problem or fails to offer an explanation for its decision that is consistent with the evidence before it. An agency that ignores a significant comment, a point raised in the record with real substance, takes a risk in court.

That is why a good comment matters. The comments become part of the administrative record, the body of material the agency considered and a court reviews if the rule is challenged. A comment that raises a legal point or a factual problem the agency never answered is a comment that a lawyer challenging the rule may later cite. Your words are not just heard. They are preserved for a judge.

Why comment at all

Every conservative worries about the administrative state, and I have written about the constitutional side of it in The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies and in Chevron Began as a Win for Reagan's EPA, Which Makes Its Fall So Ironic. The Constitution vests "all legislative Powers herein granted" in Congress, and yet most of the rules that govern daily life are written by agencies. The APA is the compromise: if agencies are going to make rules, they must do it in the open, with notice, and with an ear to what the public says.

Scale tells the story. The Federal Register published 2,441 final rules in 2025, and 3,248 in 2024. Here is the arithmetic, so nobody has to trust me. The difference is 3,248 minus 2,441, which is 807 fewer rules. Divide 807 by 3,248 and you get about 0.248, a decline of roughly 25 percent in one year. And 2,441 final rules spread over about 250 working days comes to nearly ten new final rules every working day. That is a lot of law for one citizen to read, which is exactly why the citizen who reads one rule closely, in the area he knows, has real leverage. Nobody can watch everything. Everybody can watch something.

There is a second reason. The comment process is one of the few places where specialized knowledge from outside the agency enters the record. A small-business owner knows what a compliance requirement costs. A farmer knows what a water rule does to a field. A nurse knows what a paperwork requirement does to a shift. Agencies rely on that information, or are supposed to, and they often lack it. A comment from someone who actually does the work can change the rule's text.

Step 1: Find the proposed rules

The notice-and-comment process starts with the Federal Register, the government's daily journal of rules and proposed rules, published each business day. Two tools help.

• The Federal Register website lets you search by keyword, agency or topic, and filter to "Proposed Rules." You can set up an email alert for your subjects.
• Regulations.gov is the government's portal for rulemaking dockets. It lets you search open proposed rules, read the documents, and file comments electronically.

Look for rules in the area you know. If you run a trucking company, search the transportation agencies. If you teach, look at education. If you farm, look at agriculture and the environment. You do not need to cover the whole government. You need one rule you can speak about with authority.

Each proposed rule has an agency, a title, a docket number (a code the agency uses to track the rulemaking), a comment deadline, and a summary. Note all of them.

Step 2: Read the docket

Before you write a word, read the material.

1. Read the summary at the top of the Federal Register notice. It tells you in a few paragraphs what the agency wants to do.
2. Read the preamble. The long section before the proposed regulatory text explains why the agency wants the rule, what authority it claims, and what costs and benefits it estimates. This is the most valuable part. It states the agency's own case, and your job is to test it.
3. Read the proposed text. The actual regulatory language is at the end. Read it carefully, because the words that bind you are here, not in the summary.
4. Check the docket on Regulations.gov for supporting documents: the agency's economic analysis, scientific studies, and the comments others have already filed. The agency's analysis of costs and benefits is usually in a separate document in the docket.
5. Note the deadline. Comment periods commonly run 30 or 60 days from publication. The date is in the notice. Missing it is the most common way a good comment fails.

Take notes as you read. Mark what the agency claims, what it relies on, and what it leaves out.

Step 3: Decide what you can add

Agencies are not counting votes. This is the thing most people get wrong. A comment that says "I oppose this rule" is a vote, and a thousand identical ones are a thousand votes, and the agency's own guidance on the rulemaking process says that the number of comments is not the measure of their value. What counts is substance: facts, data, legal arguments and analysis that the agency must take into account.

The kinds of substance that carry weight are these.

• Legal authority. Does the statute actually authorize this rule? Agencies must point to a statute that gives them power, and a rule that goes beyond the statute is vulnerable. This has become a stronger argument since Loper Bright Enterprises v. Raimondo (2024), in which the Supreme Court overruled Chevron and held that courts must exercise their own independent judgment about what a statute means rather than defer to the agency's reading. A comment that says "the statute says this, the rule says that, and here is the gap" is a comment a court can use. Likewise, West Virginia v. EPA (2022) put the weight of the major questions doctrine behind the proposition that a regulation of vast economic and political significance needs clear congressional authorization.
• Cost and benefit claims. Does the agency's estimate hold up? Did it count the costs to small businesses, workers and consumers? Is a benefit assumed without evidence? If you run the numbers in your own field and they differ from the agency's, say so, show the arithmetic, and cite the source.
• Alternatives. Is there a cheaper way to reach the same goal? Agencies are expected to consider reasonable alternatives, and a specific alternative you propose gives them something to answer.
• Real-world facts. What will this do on the ground? A concrete example from your own experience, stated as what the rule would require you to do and what it would cost, is evidence the agency may not have.
• Errors. Mistaken data, misread studies, gaps in logic. Point to the page.

Step 4: Write the comment

Keep it organized, specific and short enough to be read. Here is a structure that works.

1. Identify the rule. State the agency, the title and the docket number at the top.
2. Identify yourself and your stake, in a line or two. "I own a small machine shop with eleven employees" tells the reader why your comment is informed. You do not have to be an expert in law, but you should be an expert in something the rule touches.
3. State your position in one sentence: you support the rule, oppose it, or support it with changes.
4. Give your reasons, one at a time. Use headings or numbered paragraphs, and begin each with a plain statement of the point. Cite the page of the notice, the statute section or the document you are addressing. "On page such-and-such, the agency estimates compliance will cost X. That estimate omits Y."
5. Offer a fix. Suggest specific language or a specific alternative, where you can.
6. Close politely. Thank the agency, and ask it to address your points in the final rule.

A few cautions on style. Be accurate, because a wrong fact discredits the rest. Be civil, because an insulting comment is easier to set aside. Do not pad. A tight three-page comment with a statutory citation and a worked cost example will do more than twenty pages of adjectives.

Also be aware that comments are usually public. What you file is often posted on Regulations.gov for anyone to read. Leave out private details such as your home phone number, and think about what you want attached to your name.

Step 5: File on time, through the right channel

The notice tells you how to submit. The usual route is the federal eRulemaking portal, which is Regulations.gov: find the docket, click to comment, paste or attach your text and submit. The notice may also list a mailing address. Whatever method you use:

• File before the deadline, preferably a few days early. Systems get busy near the cutoff.
• Include the docket number and the agency name on your comment.
• Keep a copy and any confirmation number you receive.
• Mention each point you want preserved for judicial review. A court is more likely to consider an argument that was presented to the agency than one raised for the first time in a lawsuit.

If you need more time, you can ask the agency for an extension of the comment period. Agencies sometimes grant them, and the request is cheap.

Step 6: Follow the rule after you file

Your work is not finished when you hit submit.

1. Watch for the final rule in the Federal Register. It will include a preamble responding to the significant comments. Read the part that addresses yours.
2. Compare. Did the agency change anything? Did it answer your point or avoid it? A final rule that brushes past a serious comment is the kind of rule that can be challenged.
3. Tell Congress. If the final rule exceeds the agency's authority, your members of Congress can hear about it, and Congress has its own tools, including the Congressional Review Act of 1996, which lets Congress disapprove a rule. The site's red tape page tracks the regulatory side, and big companies love the regulations their small rivals cannot afford explains why small businesses should pay particular attention.
4. Remember the court option. The people who sue over a rule are often the ones who commented on it. If you are directly affected, a lawyer you consult can tell you whether the record you built helps.

Nothing in this post is legal advice for your situation. If a rule threatens your livelihood, talk to a lawyer who handles administrative law.

The strongest objection

Someone will say that this is all theater. The agency has made up its mind, the comment period is a formality, and the final rule will look like the proposed one no matter what you say. There is something to that, and I won't pretend otherwise. Agencies often do finalize rules that look much like the proposal.

But the objection gives away less than it appears to. First, a comment that changes nothing in the rule can still change the record, and the record is what a court reads. The agency that ignores a strong comment has handed a challenger a point. Second, agencies do change rules in response to comments, and the changes are often in the details that matter to the people who are regulated: a compliance date, an exemption, a definition. Third, even a formality has value when it is one of the few moments at which the government must say, in writing, why it is doing what it is doing. And fourth, nobody gets to complain about a process they refused to use.

Measuring it against the Founding

The Declaration of Independence lists among its grievances that the King had "erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out their substance." I am not equating a modern agency with George III, and I think the comparison would be unfair to most civil servants. But the underlying concern, that officers who are not elected can make decisions that shape ordinary lives, is a Founding concern, and the remedy the Founders favored was consent and accountability. The comment process is a small, practical piece of accountability. It makes the unelected explain themselves to the people they govern.

The best part is the price. Complaining about the administrative state is free, and a good comment is free too. The difference is that one of them goes into the record.

The case in brief

1. The Administrative Procedure Act of 1946, in 5 U.S.C. 553, requires most agencies to publish proposed rules, accept public comments and explain their final rules.
2. Comments become part of the administrative record that courts review, and an agency that ignores a significant comment risks having its rule set aside as arbitrary and capricious.
3. The Federal Register published 2,441 final rules in 2025 and 3,248 in 2024, so a citizen's best leverage is to choose one rule in the field he knows and read it closely.
4. A comment counts for its substance, not its volume: legal authority, cost and benefit claims, alternatives and real-world facts, filed before the deadline.
5. Follow the final rule, report excesses to Congress, and recognize that filing a comment is the first step in any later challenge.

What you can do: search the Federal Register or Regulations.gov this week for one open proposed rule in your own line of work, note its comment deadline, and draft a one-page comment that cites a specific page of the agency's own analysis.