The Office of Management and Budget published a useful guide: “How You Can Effectively Participate in the Regulatory Process Through Public Comment.” Especially relevant are the following sections:
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 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.
