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Using the system
- First, and most importantly, do it! Commenting on rulemaking notices is like voting—if you
don't do it you have little right to complain. The regulated community (that's us) often grumble
about real world difficulties implementing regulations that were written in offices. Even
if regulation writers have field experience, it is in the past. Of course, if anyone in the
regulated community has regulation-writing experience, it is also in the past. The good news
is that the regulation writers are required to seek comments from the field and to give each
one careful consideration. This is our pathway to strive for regulations that accurately consider
our realities and achieve their purpose with limited impact on our work.
- Anyone can comment as an individual. If you want your comment to represent your employer or
organization, be sure to follow any processes needed to get their concurrence.
- Submit comments before the end of the comment period to be sure they will be read. If something
delays your submission, submit it anyway. It still may be read and used, although that is not certain.
- Read the Federal Register document that opens the regulations for comments. Pay attention to
legal limitations if you are commenting on a proposed rule. It is useless to flatly oppose
regulations that are mandated by a law or court decision. Comments on laws need to be
directed to elected representatives; the regulatory agency is only a conduit to implement the
law. Nonetheless, even mandated regulations can be shaped within the limits of the law.
- Use the electronic submission system. It is fast, economical (free), and minimizes the
possibility of transcription errors or loss in transit. Incoming snail mail is delayed for
irradiation, which is faster than it used to be, but still adds days to delivery time. Electronic
comments are anonymous unless you include contact information in the body of the comment.
Identifying the source probably adds credibility.
Your comments
- Categorize your comments. An early step in the process of reviewing and responding to
comments is to take each submission and sort the information according to subject with a
category for each individual comment. If you make the separations clear you help the reviewer
to divide the comments according to your intent. To understand the benefits of clarity and
categorization, imagine the process of sorting comments from several hundred sources, each
with five to ten comments.
- Make each individual comment self-contained. Because the comments are sorted by category,
cross-references can be missed. If a comment assumes knowledge of something mentioned in a
previous comment, the assumed knowledge may not be recognized or easily available. This may
feel redundant but it helps assure that your comment is fully understood by the reviewers.
- Be very clear about what the comment hopes to accomplish, but there is no need to propose
actual regulatory language. An expert will write the actual language. Then it will be reviewed
and changed many times before issuance. The regulatory agency has many experts in regulation
writing. Our value lies in understanding the actual work, explaining our needs and suggesting
better alternatives.
- Give a clear rationale that is as objective as possible. A clear rationale based on
field experience provides an expert perspective that regulators need and do not have.
“I don't like it,” is not a rationale.
- Data, published or unpublished, that supports a comment or rationale strengthens the
comment. Estimates may be helpful if you explain how you derived them.
- Consider the enforcement implications of a new rule. An inspector must have ways to
accurately judge compliance and we want to avoid capricious enforcement judgments. Accurate enforcement
benefits both the agency and the regulated community (that's us). If documentation is required, as it
usually is for inspectors who visit infrequently, try to identify data gathering and
reporting options that fit easily into present work practices. If you propose additional
flexibility, explain why environmental protection is not compromised and suggest
accurate methods to judge compliance.
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