PREPARING EFFECTIVE COMMENTS ON PROPOSED REGULATIONS

By Tom Odom, Esq.

It did not take very long after my posting on the rulemaking process applicable to recently-announced regulatory initiatives with respect to gun trusts before interested persons began to ask for guidance on how best to structure comments.

RegulationRoom.org is a project associated with Cornell University Law School that assists interested persons in shaping their thoughts into useful and effective comments.  While Regulation Room actively assists with only a very small number of rulemakings, it is not involved with the ATF proposal, so please do NOT impose on the good folks at that site.  Even though not involved with the ATF proposal, the site does contain useful general information.

Here is a link to the Regulation Room explanation of how federal rulemaking works:  http://regulationroom.org/learn-more/#show-more-1-content

Here is a link to the Regulation Room explanation for what makes for effective comments:  http://regulationroom.org/learn-more/#show-more-2-content Perhaps the most important tips one can glean from that explanation are the following:

•           “[T]he kind of public participation that really matters is when people explain not only what they think the agency should (or shouldn’t) do, but why.  One person with some new information or a really good idea will have more impact than 1,000 people who just give an unsupported opinion.”   Simply saying that you oppose a proposed rule is the least effective way to participate.  Rulemaking is supposed to be about reasoned decision-making, so provide ATF with reasons for your views.  Even when expressing your reasons, it is better to your own language rather than simply signing and sending in your own copy of a form letter.

•           “Give specific examples” — If you have a unique story to tell about how the proposed rule would impact your business, share it.  If you have an unusual situation that may not have been contemplated by those who drafted the proposed rule, explain it.

•           “Provide data if you know about any, or at least identify the kinds of information that would be important to have” — Particularly in a situation like this one where ATF apparently did not seek input from Federal Firearms Licensees (“FFLs”), small businesses, local law enforcement, or others, it is likely that there are many facts that those who drafted the proposed rule did not have in hand.

•           “[E]xpress thoughtful disagreement in civil terms.”  If you want your comments to be seriously considered, avoid name-calling, personal attacks, and the sort of rhetoric that will distract from your points.

You can visit the Regulation Room Website and look at specific examples of public comments they have flagged as good models.  Remember, if you do so, you are looking at comments on a different proposed regulation by a different agency.

The period for public comments has not yet opened.  ATF has not yet published the text of a proposed rule for consideration.  It is not too early, however, to begin collecting data or thinking about how you would support your views with facts, surveys, or published material.

As the rulemaking process moves forward, I will post additional information about preparing public comments.