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Tips on Writing Effective Public Comments

The key to writing effective public comments is understanding how rulemaking decisions are made. Unlike members of the legislature or a vote for the President or Governor, agency rulemakers are not allowed to decide based on a majority vote. Rather, they are supposed to study the problem, collect information, and use its specialized expertise, experience, and good judgment to come up with the overall best answer.

Furthermore, they must do so within the confines of the authority they have been granted. Agency rulemaking is not to be used as a substitute for legislation. Rather, agency rulemaking is to be used to communicate how the executive branch is going to effectuate the goals of legislation. Thus, if the proposed rulemaking is outside of the confines of the empowering statute, the Office of Administrative Law (OAL), the Office of Information and Regulatory Affairs (OIRA), or the courts would overturn a rule that the agency adopted. This can happen even to popular rules or regulations. And it will not survive just because a lot of people support it.

Rather, the best comments explain not only what the agency should do, but why. One person with some new information, a relevant personal experience, or a good idea will have more impact on the outcome than 1,000 people who just say they are for or against the proposed rule. Similarly, the best comments can explain what the agency cannot do and why it cannot do so.

Here are some effective tips on writing effective public comments to administrative rulemaking.

Learn What is Trying to Be Accomplished

Invest some time learning what the agency is actually proposing, and why. 

  • What is the agency trying to do? Will this proposal do that successfully?
  • What information is the agency relying on? Is this information correct? Is the agency missing important facts?
  • What does the agency predict the costs and benefits to be? Is it missing something?
  • What questions does the agency want commenters to answer?

Doing so will also help you recognize what the agency can, and can't, do. The individual agencies are limited to what they can do based upon the underlying enabling legislation. It cannot do something only Congress or the legislature can change by way of new law.

Determine How What is Proposed Will Affect You

Focus on parts of the proposal that will affect you directly, or that you know about or have personal experience with.

  • Explain how you know what you're talking about.
  • Give details and specific examples.
  • Provide data if you know about any, or at least identify the kinds of information that would be important to have.

Read all Existing Comments

Before jumping in, check to see what others are commenting on. First and foremost, this will help you confirm that you clearly understand the issues. Second, it will help you avoid a repeat comment.  

If you can add to what someone else has already said and make it better, reference their comment and add your own idea, reason, or information. And if you cannot improve what others have said, endorse their comment to help strengthen the volume of the concern, request, or error.

Taking it to the next level, reviewing the comments helps you identify potential allies. This may be useful in the long tail. Even if the regulation ultimately passes, it does not necessarily mean that all hope is lost. Rather, by finding likeminded individuals or organizations, you may be able to help pool resources and seek other avenues for challenging regulations or overturning them through the legislative process. 

Express your views, concerns, or ideas clearly.

Stay on topic. Make sure the comment is appropriately organized as per the instructions of the notice of proposed rulemaking. This will include being specific about language you are addressing by identifying proposed regulation numbers and subsections. Or, if questioning the legislative authority, specifying the statute or subsection therein that you believe has been overstepped. 

And always give reasons for what you want the agency to do — whether you agree or disagree with the proposed rule. The strongest kinds of reasons are ones that help the agency do the job that Congress or the legitslature told it to do. So pay attention to anything in the topic posts that explain the goals, requirements, or limits of the agency's underlying statute.

Show that you’ve considered the pros and cons.

The agency is supposed to take all comments under consideration. But a protest comment is only going to go so far. While sometimes there is no way to improve the proposed rulemaking, strive to do so.

There's almost always at least two sides to any issue, and the agency often has to balance many different goals (e.g., consumer protection, cost, efficient operation). Showing that you realize this makes your comments seem more well-thought out. By weighing the pros and cons and suggesting a method for improving the regulation or curing the defect, it makes the recipient more likely to take your position seriously and pause to consider the ramifications.

Even good proposals can often be made better. Help the agency improve its work. And if you think the proposal is a bad idea, maybe there are ways it could be made less bad. Sometimes Congress doesn't give the agency a choice about doing something, but the agency may still have different options on how to do it.

Disagree politely.

Even if you think the proposal is a bad idea, real people in the agency worked hard on it. You're not likely to change their minds by insulting them or their work.

You can point out errors. You can point out confusion. However, do so politely in a method that assists the agency. If you just attack, you aren’t helping the agency figure out why it should give another comment more or less creedence. Stay away from ridicule, sarcasm, and personalized attack. It isn't useful to the agency.

Other commenters have just the same rights as you to provide feedback to the proposed rulemaking. And not every commenter will be as savvy as you (or has read our tips list!). Thus, there is a chance that a comment provided is not going to be as well thought out or nuanced. And it may lack some of the necessary details to help improve the proposed regulation. Again, you can point out these errors and confusion; just do so politely in a way that helps the agency.

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Wit of Mandate - the official blog of Simas & Associates, Ltd., is made available by Simas & Associates, Ltd. to the general public for educational purposes only.  Specifically, the entries contained within Wit of Mandate are designed to provide the general public with general information concerning California and Federal law.  Wit of Mandate does not provide specific legal advice and does not create an attorney-client relationship between the reader and Simas & Associates, Ltd.  Wit of Mandate is not an effective or appropriate substitute for obtaining legal advice from a qualified attorney licensed in your state with experience in your practice area or forum of law.

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