In an ideal world, administrative agencies would develop regulations in an informal rulemaking process that would be transparent and efficient and that included broad input from the public, or an entity advocating for the public, as well as the regulated community. Instead, critics assert that the informal rulemaking process is opaque and is dominated by regulated entities and industry groups, rather than public interest groups. The process does not encourage a dialogue among the commenters or between the commenters and the agency. Indeed, regulated entities are frequently strategic in the timing of their comments, withholding comment until the end of the comment period when it will be difficult for other commenters to respond to their input. Further, critics complain that comments have little impact on the content of regulations adopted by agencies. In addition, the process is time-consuming and costly for agencies
Stephen M. Johnson, Beyond the Usual Suspects: ACUS, Rulemaking 2.0 and a Vision for Broader, More Informed and More Transparent Rulemaking, 65 Admin. L. Rev. 77 (2013).