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Public Institutions: Administrative Law Cases & Materials
Section 2 . 3 . 5

Good Rulemaking Practices - Tips and Resources

Jen Hope

Good Rulemaking Practices - Tips and Resources

 

Elizabeth D. Mullin, author of The Art of Commenting: How to Influence Environmental Decisionmaking With Effective Comments, has created guides for written and verbal commenting.

 

There are no APA or other requirements for commenting. Comments can be from anyone, and they can be any length and contain any comments from personal feelings to scientific research. The commenting process is broad and undefined to democtratize participation in agency decisionmaking. It is meant to be open to all. 

 

Even though there are no requirements, there are some best practices for lawyers participating in commenting. Because lawyers have legal expertise, their comments can speak to legal issues and requirements that laypeople may be less prepared to discuss. You can harness the power of legal writing to create clear, concise, and persuasive arguments. Here are a few tips:

 

Before writing a comment: Do the research and make an outline 

 

Research the purpose and goals of the enabling statute, executive order, or other political or factual forces that prompted the rulemaking. Also look into the history of the rulemaking. Is this an amendment to an existing regulation? Are there any other relevant regulations at play? Is the agency acting on the recommendation of a Federal Advisory Committee or internal study?

 

Draft an outline for your comment. Define your objectives and write them out. Separate your comment into subheadings and use your IRAC skills to organize your arguments/points.

 

Organize with others. Reach out to other organizations doing similar work to partner with them in a single comment or coordinate your comments to strengthen your message.

 

During writing: Be clear, concise, and organized

 

Use subheadings and topic sentences to draw attention and delineate your main points.

 

Make your strongest arguments. Consider and incorporate agency goals, explaining how your arguments will help the agency satisfy its policy objectives and legal requirements. You can do this by:

 

-Identifying legal violations 

-Suggesting specific language

-Illustrating problems with examples

-Offering solutions to help agencies reach goals

-Back up your claims by citing solid primary and secondary authorities. Base your ideas in scientific studies, clear legal arguments that cite the proper legal authorities, and citations that support your arguments.

 

Before submitting: Proofread, and have someone read and provide feedback on the comment to ensure your arguments come across.

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