'Data, Views, or Arguments': A Rumination

Abstract

The Administrative Procedure Act requires an opportunity for public comment as part of the rulemaking process. One undertheorized question is what exactly the purpose of such comments is. What sort of input, from whom, is desirable? This question has become more salient in recent years as new technologies have opened up greater opportunity for broad lay participation in what has historically been largely an insiders’ game.

“Notice and comment” is a shorthand that diverges from the statutory text. The APA does require “notice,” but it does not provide for “comment.” Rather, in words that seem carefully chosen, it provides that “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” This Article unpacks those last three nouns -- “data, views, arguments” -- in discussing what it is exactly that commenters, especially lay commenters, have to contribute to rulemaking.

Keywords: rulemaking, 553, notice and comment, public comment, regulations.gov, regs.gov, e-rulemaking, electronic rulemaking, Administrative Procedure Act, honeybees