Key Concept: public input on rulemaking
Too few people take advantage of an opportunity to set the standards and write the rules by which law is administered and enforced. When a government agency seeks public comment on proposed regulation, your response might make a difference. This reading shows you how to write a formal public comment in rule-making and adjudication procedures.
The Rule-making Process
In federal government, after a law is enacted, an executive branch agency begins rule-making to implement the law. This involves developing standards and regulations for administering and enforcing the law. As required by the Administrative Procedures Act as well as other laws and executive orders, the agency must seek public comment on the proposed standards and regulations before they can be put in force. Sometimes, oral hearings are held; typically, written comments are requested.
While federal agencies are required to seek public comment, they have discretion regarding the use of comments received. In federal and many states’ rule-making procedures, agencies may choose or choose not to describe whether and how they modified the proposed regulation in response to the comments received. For example, in the milk labeling case, the Pennsylvania Department of Agriculture (PDA)’s Bureau of Food Safety and Laboratory Services described a modification this way: “PDA has received a great deal of input on the standards set forth in [the new standard on milk labeling announced on October 24, 2007] and previously decided to inform you on November 21, 2007 that certain deadlines stated in that document were being changed from January 1, 2008 to February 1, 2008. We are now in a position to inform you further as to the results of reviewing the input we received. Enclosed please find a new document titled “Revised Standards and Procedures for the Approval of Proposed Labeling of Fluid Milk dated January 17, 2008. . .Please review this document carefully and govern yourself accordingly.”
In state and local governments, public comment is not sought as routinely as in federal government. However, states must seek public comment in regulatory procedures for granting, revoking, or renewing permits for activities that affect public life.
Regrettably, few citizens know about this opportunity to provide input, and few engage it. As a result, narrowly interested groups dominate the rule-making process. Broader participation is needed.
Federal, state, and local agencies welcome any type of comment that can help them make and justify their decisions. The comment might be a technical analysis, a philosophical argument, an opinion based on personal experience, advocacy, or a request to hold a public meeting on the proposed action. Responsible agencies review all written comments. They take seriously well-prepared comments that suggest realistic and feasible alternatives.
Public comment is important because public policy broadly affects present and future life in society and ecosystems. A call for public comment invites any member of the public—individuals, communities, organizations—to influence the standards and regulations that affect real lives, livelihoods, and environments. As an influential genre, written public comment is under-utilized. That’s regrettable because public comment is easy to do. Anybody can write a useful comment. The more who do so, the better the likelihood of good government.
Example 1 on auto safety and Example 2 on stream water quality show evidence of public support for their claims not by opinion polls but, rather, by invoking federal motor vehicle safety standards and state environmental protection regulations. Example 3 invokes the authority of “sunshine” mandates for public participation in a government decision about activity affecting their town.
Examples 1 and 2 are detailed and technical. Although the contents are organized and subheadings are provided to aid comprehension, some of the details might be moved to an appendix. However, the choice to use that option should depend on the writer’s knowledge of the circumstances in which the documents will be read and used. As noted in the commentary on earlier examples, writers should be certain that all readers can access the entire document before deciding to move crucial details to an appendix.
Taken together, the three examples suggest the robust potential of the genre, formal public comment.
Summary and Looking Forward
It is surprising that few of us comment on action government intends to take when the responsible agencies directly ask us to do so. The readings in this section aims to encourage and enable the practice. Democratic self-governance depends on our willingness to intervene in the process.