How You Can Effectively Participate in the Regulatory Process Through Public Comment

 Regulations.gov

 How You Can Effectively Participate in the Regulatory Process Through Public Comment 

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 When most people think of laws, they think of bills passed by Congress and signed into law by the President. However, many legal requirements come from “regulations” or “rules” that are issued by agencies that work for the President, like the Department of Transportation or the Department of Health and Human Services, instead of Congress. 

Regulations, like statutes passed by Congress, are law. Congress passes statutes that give agencies the authority to issue regulations. Regulations can impose binding legal requirements. Regulations can do everything from creating requirements for food manufacturing companies to prevent food-borne illness to outlining certain requirements for going through TSA security screening on your way to board a flight. Regulations can establish significant policies and requirements for individual citizens, state and local governments, small businesses, and organizations large and small. 

An important way for Americans to influence the policies impacting their lives is by interacting directly with federal agencies on the regulations those agencies create. Federal law generally provides organizations and individuals with opportunities to comment on agencies’ proposed regulations. Agencies, in turn, consider comments the public submitted on their proposed rules and, in publishing any final rule, must respond to relevant and significant comments. 

Effective, relevant comments provide regulators with information to help them improve draft rules. Comments are typically most effective when they provide information directly relevant to analyzing the rule and its potential impact. While members of the public are both allowed and welcome to express their support or opposition to a proposed regulation, simply stating that you support or oppose a policy is not as persuasive as explaining how the policy would positively or negatively impact the specific situation with which you are familiar. The goal of this guide is to help you write effective comments on agencies’ proposed rules by describing how to structure comments and what should be included in them to make them as useful for agencies as possible. 

 Make Your Voice Heard 

The process by which agency rules or regulations are made is different from how Congress develops legislation. Congress directs agencies who work for the President to develop regulations by taking certain important steps. Generally, agencies are first required to publish a proposed rule and seek comment from the public on it,¹ often providing a window of 30 to 60 days to submit comments after a proposed rule is issued. Agencies then consider public comments and, in issuing any final rule, must respond to significant, relevant comments. In doing so, agencies may explain how those comments informed any changes from the proposed rule. If the agency fails to adequately respond to significant, relevant comments in a final rule, members of the public may seek to challenge the rule in court on that basis and claim it should be struck down. In other words, agencies generally must consider the voice and perspective of public commenters in the rulemaking process. 

While agencies consider views from the public, the public comment process is not a vote. The number of public comments submitted in favor of a regulation does not ensure that it will move forward. (The opposite is also true—the number of comments against a rule’s proposed course does not indicate whether it will be withdrawn.) An agency also is not required to change its proposed policy simply because a commenter suggests it should. Particularly influential public comments are often those that simply provide good reasoning and evidence or a perspective that the agency had not previously considered. 

How to Make Your Comments Effective 

Effective public comments often have one or more of the following characteristics: 

(1) an introduction where you explain why you are interested in the regulation and highlight any experience with the subject of the rule that may distinguish your comment; 

(2) a background section where you clearly identify the relevant part of the regulation you are commenting on; 

(3) analysis that lays out your argument and evidence (including with clear citations to any helpful research)—for example, how the action impacts you and what you care about; whether the agency anticipated or estimated these impacts correctly; any unintended consequences of this approach that the agency did not consider; and what additional details from the agency would help you better understand the action; 

(4) recommendations describing your suggestions to the agency and identifying specific changes you would advise—for example, providing a different way of addressing the problem the agency may not have considered; and 

(5) a conclusion which recaps your main argument and lists your recommendations again. 

What information is helpful? 

The basic idea of seeking public comment in developing regulations is that even though the agencies have staff with deep, specific knowledge, they cannot perfectly guess every potential impact of a proposed regulation, such as how a given policy may affect a specific market, industry, activity, or person. Public comments on a proposed regulation can help make sure that the government is on the right track—or alert it when it’s not—by providing information that challenges or supports the agency’s assumptions and approach. In drafting a public comment, it is helpful to pay special attention to any prompts from the agency itself, such as questions or requests for data or evidence, within the proposed rule. Such prompts highlight areas the agency believes are important, where it may be missing information, and where it thinks commenters could be most helpful. 

Note that a good comment need not be extremely technical to be effective and helpful. In fact, some of the most effective comments are from individuals who describe the impacts of a proposal in terms of their own lived experience. Letting an agency know what may or may not work “on the ground” is often a very useful perspective to share. 

Drawing on best practices, here are considerations and evaluative criteria that may help to make your comments more effective: 

• Consider the problem that the regulation intends to address. Why is this regulation needed? What is the problem the agency is trying to address? Is it actually a problem? 
• Consider whether proposed regulations are based on the best available scientific, technical, economic, experience-based, and other information. If you are aware of flawed, inaccurate, or out of date information the agency is using, for example, your comment explaining that fact to the agency will be very helpful for the agency to get its regulation right. 
• Consider whether the agency is missing a certain perspective. A proposed rule may have particular impacts on a specific group or community, such as small businesses. Members of these communities or affiliated groups may be able to offer the agency insights into their perspectives. 
• Consider whether the costs of the proposed regulation are justified by its benefits. Generally, the costs a regulation imposes should be justified by the benefits that it brings. Are they? 
• Consider distributional analysis and costs or benefits that are hard to monetize. Those who bear the costs of a rule and those who enjoy its benefits are not always the same people. Identifying the differences between who will enjoy the benefits and bear the costs can help an agency in considering how to regulate. In other cases, a rule may have impacts that are particularly difficult or impossible to quantify or assign a monetary value to, such as impacts on dignity, equity, and fairness. In those cases, discussing the impacts qualitatively may provide valuable insight to the agency, even if the agency is not able to put a dollar figure on the impact. 

• Who can submit public comments? 

  Absolutely anyone can submit a public comment on an agency’s proposed regulation. You do not have to be an academic, expert, or even someone who knows all of the ins and outs of the policy at hand. If you have something to say and think that your perspective could constructively add to the conversation, please comment. 

  In addition to individuals, a variety of groups and associations often provide comments, including business groups, unions, religious organizations, privacy advocates, environmental policy advocates, and others. 

  
  

  The perspective of state, local, tribal, and territorial (SLTT) governments also can be very valuable in understanding any interaction of Federal requirements with SLTT government requirements and policies. That perspective may also help the agency identify whether the rule will have any disproportionate regional impacts. 

  And technical experts and practitioners can offer important insight into how the rule functions in practice. Even if a technical expert is commenting as a generalist, they can provide helpful reflections on the agency’s assumptions, the rigor of studies on which the agency has based its analyses, and potential alternative sources of information for the agency to consider. 

  What does an effective comment look like? 

  For each of the above groups, a useful comment might look different. 

  Private Individuals: Comments that reflect the perspective of individual persons are valuable in several ways: 1) they have the potential to show the agency unique situations that it has not yet contemplated in its evaluation of the policy; 2) the individual can then explain how that unique situation will impact their own behavior in response to the proposed policy change; and 3) they can express judgments on the policy that speak to their general opinion of whether the agency is heading in the right direction. 

  However, simply stating that you support or oppose a policy is not as persuasive as explaining how the policy would positively or negatively affect your specific situation. Even when agencies receive hundreds or thousands of comments opposing or supporting a policy, if those comments simply state preferences without providing relevant information or evidence, they are less likely to affect agency decision-making. Similarly, multiple identical comments are not likely to be more persuasive than if the comment had been sent only once. 

  Groups and Associations: Groups and associations can aggregate the concerns and experiences of their members to paint a broader picture of the potential impacts of the proposed policy. They can direct agencies to public data sources to help them better analyze the costs and benefits of their actions or provide their own data. These groups can also make value-based arguments on behalf of their members. 

  These groups also play an important role in making sure their members and those they advocate on behalf of are aware of a potential policy change. Many individual commenters may only have known that there was an opportunity to comment on a rule because a group or association notified them and encouraged them to share their experience. 

  Technical Experts and Practitioners: Experts in the field can present helpful data, whether from their own research or that of others in their field. They may also present expert analysis on alternate ways a regulation could be designed. 

  
  

  For example, they could draw from different sources written on a topic and combine them together to provide a perspective and a potential solution an agency may not have considered. 

  State, Local, Tribal, and Territorial (SLTT) governments: SLTT governments can provide helpful insight into disparate impacts a rule may have, given the unique characteristics of their area—for example, the geography, environment, makeup of the population, tradition and local culture, or the particulars of the local economy. SLTT governments can provide data and insight regarding the impacts a rule could have on their residents or environment. SLTT governments should keep in mind, however, that agencies are still primarily working to analyze the impacts on the entire country. Agencies writing the rule may not be able to utilize data from a locality for the primary analysis if that data cannot be scaled to inform the country-wide impacts of the proposal. 

  
  

  For example, they could draw from different sources written on a topic and combine them together to provide a perspective and a potential solution an agency may not have considered. 

  State, Local, Tribal, and Territorial (SLTT) governments: SLTT governments can provide helpful insight into disparate impacts a rule may have, given the unique characteristics of their area—for example, the geography, environment, makeup of the population, tradition and local culture, or the particulars of the local economy. SLTT governments can provide data and insight regarding the impacts a rule could have on their residents or environment. SLTT governments should keep in mind, however, that agencies are still primarily working to analyze the impacts on the entire country. Agencies writing the rule may not be able to utilize data from a locality for the primary analysis if that data cannot be scaled to inform the country-wide impacts of the proposal.