by Craig Drumheller
February 08, 2024
Participating in the development of federal regulations through submitting regulatory comments is an opportunity for organizations to influence policymaking and the implementation of national rules, both of which have the potential to impact entire industries. This process enables stakeholders to voice concerns, share expertise, and actively contribute to shaping regulations that impact various aspects of government. Federal agencies that propose regulations also play an important role in addressing issues ranging from public health to appliance efficiencies. The regulatory comment process, summarized in the publication of Proposed Rules and Notices in the Federal Register, marks an opportunity where stakeholders can provide feedback, ultimately helping to shape proposed regulations.
When a Notice of Proposed Rulemaking (NOPR) is published, it generally signifies that the agency has invested a substantial amount of effort in its development and is committed to seeing it move forward. At this stage, influencing major change necessitates a compelling argument, making it imperative for organizations to understand the regulation's goals and delineate areas of compromise. Leveraging experienced staff, lobbyists, or industry associations with established relationships within agencies becomes invaluable in navigating this landscape.
Approaching the drafting of regulatory comments requires a thoughtful strategy. Constructive criticism, clarity in identifying issues and proposed solutions, and a discerning selection of arguments are critical in influencing the final rule. Determining the effectiveness of a comment does not rely on the sheer number of comments – rather, it relies on the quality of the comments. It demands a nuanced formulation of concerns to capture evaluators' attention. A strategic focus on the most impactful aspects of the regulation, supported by rational and concise arguments, enhances the likelihood of influencing the outcome.
Key points that can be raised when crafting impactful comments
- Cost-effectiveness: Providing a thorough cost-effectiveness analysis using recognized sources. Being able to demonstrate that the rule is not cost-effective may cause the agency to modify the rule.
- Disproportionate harm: Demonstrating that a proposed rule will disproportionately harm specific groups, whether it be by race, income, or region, will be taken very seriously by all Federal departments.
- Scrutinizing the basis for the rule: Identifying fundamental flaws in the logic supporting the development of the rule.
- Legality of the rule: Pointing out potential legal issues or challenges, whether overlooked or intentionally approached at the edge of its authority by the agency’s general counsel may cause a reevaluation of the rule or modifications to avoid any potential legal battles. Evidence of the rule's potential illegality or susceptibility to legal challenges must be presented formally by an appropriately credentialed submitter.
- Unintended consequences: Highlighting the potential oversight of unintended consequences during the development of a proposed rule may result in agency modifications of the proposed rule.
Key strategies for developing an effective regulatory comment
- Constructive Alternatives: When expressing opposition, proposing constructive alternatives demonstrates a commitment to collaborative problem-solving rather than mere criticism.
- Enhancement Suggestions: Recommending modifications or additions that can enhance the effectiveness of the proposed rule showcases a proactive engagement with the regulatory process.
- Collaboration: Jointly submitting comments with other stakeholders or through associations fosters a sense of unity and strengthens the impact of the collective position.
- Real-world Examples: Illustrating the real-world impact of the proposed rule through specific examples adds tangible weight to the comments, grounding concerns in practical implications.
Crafting effective regulatory comments can be complex, as it demands knowledge, strategic thinking, and effective communication. By thoughtfully engaging with the regulatory process, stakeholders can contribute meaningfully to the development of regulations that embody a diversity of perspectives and serve the public interest. Through informed, well-reasoned comments, individuals and organizations can actively shape regulations by advocating for policies aligned with their values and priorities. The more impactful the regulation will be on your industry, the more critical it is to have experienced experts in writing regulatory comments and the specific subject matter involved in the comment process.
Craig Drunheller is in Association Management at Smithbucklin.
Craig Drumheller
(he/him)
Association Management
Smithbucklin