A CITIZEN S GUIDE TO INFLUENCING AGENCY ACTION
Table of Contents Foreword... 1 I. How Do Agencies Make Rules?... 3 A. Notice-and-Comment Rulemaking... 4 1. Notice of Proposed Rulemaking... 4 2. Judicial Review... 6 3. Exceptions to Notice-and-Comment Rulemaking... 6 B. Formal Rulemaking... 6 C. Interpretive Rules, Guidances, and Policy Statements... 7 D. Negotiated Rulemaking... 8 E. Direct Final Rulemaking... 8 F. Rulemaking by Adjudication... 9 II. How Can You Get Involved?... 9 A. Identify a Problem... 9 1. Finding Your Issue... 9 2. Has the Agency Done Anything About It?... 10 3. Is the Agency Planning on Doing Something About It?... 10 4. Contact the Agency... 11 B. Comment... 11 1. Finding a Proposed Rulemaking... 11 2. Submitting a Comment... 11 C. Petition... 12 III. Communicating with the Agency: The Specifics... 12 A. General Writing Tips:... 14 B. Standing Out in the Comment Crowd... 17 IV. What to Expect... 18 A. What Agencies Can Do... 18 1. Comment... 18 2. Petition... 19 B. What Agencies Cannot Do... 19 V. Seeking Professional Legal Help... 20 A. Factors Limiting the Effectiveness of Comments and Petitions Drafted by Non-Lawyers... 21 B. Finding a Lawyer... 22
FOREWORD The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. U.S. Constitution, Article I, 8. When Congress passes a law, you may think that government s work is done. Right? Wrong! The real work is just starting. Though the founding fathers could not have imagined how large the United States would become or how complicated our society would be, they knew that Congress would need the power to respond to changing times. Congress passes many laws to deal with new social problems, changing technology, good economies, bad economies, and crises big and small. But if you look at any law, you will find that Congress leaves a lot of details open. This is where administrative agencies come in. These agencies were not included in the Constitution; some call them the fourth branch of government. But these agencies are just as essential to the U.S. government as the President, the Congress, or the Supreme Court. Agencies take the laws that Congress writes and figure out how to apply them to the real world through regulations. Yet Congress also knew that government power unaccountable to the people is a recipe for injustice, and it wrote laws to make sure that the agencies that interpret and apply laws have to listen to the people first people like you. Whether you re a scientist, an expert in an industry or field, a consumer, or even just someone who sees a problem and says Somebody should make a rule about that! you can make a valuable contribution. This guide is meant for the outsiders those without contacts, lawyers, or lobbyists: just average people. This guide tells you how to influence agencies through comments during the noticeand-comment rulemaking process and petitions for agency action, which is how most regulations are made. Agencies and their regulations affect every part of our lives. This is how you affect them. 1
An Introduction to Legal Citations This guide explains how to find laws and regulations in the United States Code, the Code of Regulations, and the Federal Register and provides an example citation from each publication. Federal The United States Code (U.S.C.) is the official collectionn of federal statutes and is organized by subject matter. The official volumes of the U.S.C. are published every six years; a supplement featuring updates to the Code is published every year. An example of a citation to the U.S.C. is The Code of Federal Regulations (C.F.R.) is the official collection of federal regulations and is organized by subject matter. The official volumes of the C.F.R. are updated andd published every year. An example of a citation to the C.F..R. is The Federal Register is the official daily journal of the U.S. federal government. The Federal Register is published every weekday, excluding federal holidays, and gives public notice of government action. An example of a citation to the Federal Register is Supreme Court cases are published by the U.S. government in the United States Reports (abbreviated U.S. in legal citations). An example of a citation to a Supreme Court case is 2
I. HOW DO AGENCIES MAKE RULES? Federal administrative agencies are formed by an implementing statute that is passed by Congress and located in the United States Code (U.S.C.) where all federal laws are collected and organized. The implementing statute sets general goals the agency must pursue. Congress can also add, remove, and modify these goals through subsequent legislation. The agency, through the rulemaking process, creates regulations to accomplish the goals outlined by Congress. For example, Congress may pass a law mandating the establishment of standards for safe air transportation, and then authorize the Federal Aviation Administration to say what those standards are. The laws Congress passes are usually broad in scope and only lay the foundation for how the law should work. It is the job of agencies to collect facts and opinions and to use that information to implement laws through regulation. Federal administrative agencies write regulations through a variety of methods. Regulations promulgated by agencies have the same effect as laws passed by Congress. Regulations, or rules, established by federal agencies generally appear in the Code of Federal Regulations (C.F.R.) which has fifty volumes representing broad subject areas. Aside from lobbying Congress, taking part in agency rulemaking is a powerful way for citizens to influence how our nation is governed. The Administrative Procedure Act (APA) is the federal law governing how agencies can make rules. The main way that agencies make rules is (1) notice-and-comment rulemaking. However, agencies can make rules using (2) formal hearings; (3) interpretive rules, guidances, and policy statements; (4) negotiated rulemaking; (5) direct final rulemaking; and (6) rulemaking by adjudication. All types of rulemaking that are not formal rulemaking are considered to be informal rulemaking. 3
Informal Rulemaking Flowchart The agency determines whether a rule is needed. The agency prepares a proposed rule. The agency publishes the proposed rule inn the Federal Register. The agency provides the public with an opportunity to submitt comments for the agency's consideration. The agency prepares a final rule, interim rule, or direct final rule. The rule is reviewed by Congress and other authorized governmental bodiess before it can take effect. The agency publishes the rule in the Federal Register and the Code of Federal Regulations. A. NOTICE-AND-COMMENT RULEMAKING make Notice-and-comment rulemaking, the most common informall method agencies use to rules, is a rulemaking method during which an agency publishes a proposed regulation in the Federal Register, allows time for public comment on that proposed regulation, and issues a final regulation based on the comments. The APA sets procedure that agencies must follow when conducting rulemaking. 6 U.S.C. 551 559 (2006). The APA calls notice-and-comment rulemaking informal rulemaking, but this type of rulemaking is structured and provides citizens thee opportunity to have meaningful input into final rules. 1. NOTICE OF PROPOSED RULEMAKING In the first step of notice-and-comment rulemaking, the agency publishes the proposed rule in the Federal Register. Increasingly, agencies also post proposed rules on their Web sites and on 4
www.regulations.gov. Congress actually requires agencies to publish proposed rules in many places to promote public participation in the rulemaking process. 1 The APA also requires that the published notice contain information about the rulemaking proceedings. A rulemaking notice will tell you the dates during which the agency will accept comments. If an oral hearing is planned for that rulemaking, the notice will include the time and location of the hearing. The notice will also contain the address to which people should send comments (although comments can often be submitted online). Because agencies are not allowed to act outside of the authority given to them by Congress, the notice will tell you the agency s legal authority to create the rule by including a citation to the United States Code (U.S.C.). Finally, the notice will contain the agency s explanation of what it is trying to accomplish with the proposed rule and an explanation of the proposed rule s language. The APA requires the agency to give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments. 5 U.S.C. 553(c) (2006). Although oral hearings are not required in notice-and-comment rulemaking, many agencies choose to hold them anyway. Agencies may decide individually for how long they will receive comments, but many agencies set a minimum period of thirty days for receipt of comments. For complex rules, however, the comment period is usually longer. After considering all the public s comments and suggested revisions to a proposed rule, an agency must publish a final rule in the Federal Register. That final rule will contain a summary of the comments the agency received concerning the proposed rule, an explanation of what the agency hopes to 1 E-Government Act, 44 U.S.C. 3501 3521 (2006). 5
achieve by enacting the new rule, the text of the final rule, and the date that the final rule will become effective. Most rules must be published in the Federal Register for at least thirty days before they go into effect, giving the public time to learn about the new rule and start complying with it. If an agency can show good cause for the rule to take effect in less than thirty days national emergency, urgent need, etc. the agency can waive the thirty-day deferral. 2. JUDICIAL REVIEW The APA grants federal courts the authority to review the decisions made by administrative agencies. 5 U.S.C. 701(a) (2006). Courts can decide whether the rule exceeded the authority Congress granted the agency, whether the agency s statement of its basis and purpose for the rule was adequate, whether proper rulemaking procedures were followed, and whether the notice of the rule or hearings was adequate. This review serves as a check on the agency s power to promulgate regulations. 3. EXCEPTIONS TO NOTICE-AND-COMMENT RULEMAKING The APA exempts the following from the notice-and-comment process: interpretive rules general statements of policy rules of agency organization, procedure, and practice The APA also has a good cause exception that exempts a rule from the notice-and-comment requirements when the agency finds for good cause that the notice-and-comment process is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b) (2006). Still, notice-and-comment rulemaking is the most common way agencies make legally binding rules. Although this Guide focuses on ways that citizens can get involved in notice-and-comment rulemaking, there are other procedures agencies use to make rules that you should know about in case the issue you are concerned about is not being addressed in a notice-and-comment rulemaking. B. FORMAL RULEMAKING Formal rulemaking follows the same steps as notice-and-comment rulemaking, but with one big difference: Before it makes a rule, the agency must hold a hearing where people and groups affected by a rule can come to speak and present evidence about how the rule will affect them. These 6
hearings resemble courtroom trials. Agency officials act as judges by conducting the hearing and deciding what testimony is allowed; they can issue subpoenas requiring people to testify at the hearing or to turn over documents or other evidence to the agency. Everyone involved in a formal rulemaking is entitled by law to make his or her own case to the agency, to offer his or her own evidence, and to cross-examine any witness in the hearing. This makes formal rulemaking complex, time-consuming, and expensive. Because of this, courts have said that only two situations require an agency to use formal rulemaking. First, if a federal law explicitly requires an agency to hold hearings before making rules on a subject, there must be a formal rulemaking. Second, if the law requires the agency to issue rules once there has been a hearing on the record, courts say that this also requires a formal rulemaking. Thus, although formal rulemaking is rare, it still happens, particularly in cases involving air or water pollution standards. 2 C. INTERPRETIVE RULES, GUIDANCES, AND POLICY STATEMENTS When rules themselves are not clear, or an agency wants to let people affected by rules know how those rules will be enforced, an agency can issue interpretive rules without first hearing public comments. These documents go by many other names guidances, policy statements, advisories, regulatory guides, bulletins, manuals, etc. but they are all meant to be statements of what the agency believes its rules mean. Normally, these interpretations are meant to help the public better understand a rule. Sometimes, however, an agency will publish a document that it claims is an interpretive document but that actually changes the substance of a rule. The law does not 2 Agencies that must use formal rulemaking in some or all of their work include the Federal Trade Commission, the Federal Communications Commission, the Department of Interior, the Environmental Protection Agency, and the Drug Enforcement Administration, though not every rule these agencies issue requires a formal rulemaking. If you are not sure, check the law the agency says it is acting under and look for the phrase on the record. If that phrase appears, according to the Supreme Court s decision in United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), it means the agency must use a formal rulemaking. 7
allow agencies to change rules like this without allowing public comments, either in writing or through a hearing. When an agency tries to change rules made through another process in an interpretive document, anyone affected by the change can sue the agency in federal court. D. NEGOTIATED RULEMAKING Another type of rulemaking is negotiated rulemaking otherwise known as reg neg. In a negotiated rulemaking, the agency asks people who would be affected by a rule to meet and work out a compromise rule that everyone can agree on. In theory, if people affected by a rule participate in writing the rule, they will be more likely to follow it. Congress passed a law in 1990 to encourage the use of negotiated rulemaking. 3 An agency is generally not required to use the negotiated rulemaking process. However, if the agency thinks that there are a small enough number of people or groups affected and that people are willing to bargain in good faith, it will publish a notice of a negotiated rulemaking in the Federal Register inviting people or groups affected to join a negotiation committee. The agency will appoint its own representatives to the committee, but these representatives cannot impose a rule on the other participants. The whole committee will then choose a facilitator whose job it is to lead the negotiations, encourage compromise, and keep notes of the meetings. If all goes well, the committee will write a proposed rule and present it to the agency for enactment, though the rule must still go through a notice-and-comment period before it becomes final. 4 E. DIRECT FINAL RULEMAKING If an agency needs to enact or change a rule on short notice that it believes will not be 3 Negotiated Rulemaking Act, 5 U.S.C. 561-570 (2006). 4 Among the agencies that have successfully used negotiated rulemaking are the Environmental Protection Agency, and the Departments of Education, Housing and Urban Development, Health and Human Services, the Interior, Labor, and Transportation. 8
controversial, it can issue a direct final rule without holding a comment period or a hearing. However, if the agency receives even one negative comment on a direct final rule, the agency must withdraw the rule and start over with a notice-and-comment rulemaking. Nevertheless, many agencies use direct final rulemaking for everything from product labeling rules to instructions for air and water navigation. F. RULEMAKING BY ADJUDICATION Finally, agencies may create rules by adjudication. In the same way that courts create law by deciding cases and using their decisions as precedents for later cases, agencies can create interpretive rules through their decisions in administrative enforcement hearings by using their past decisions as precedents. 5 Some courts, however, have said that this process is unfair; those affected by an agency s action may have no way of knowing what rules apply to them. 6 Also, since rules announced in agency adjudications are not announced in advance, there is no opportunity for public comment. Even so, rulemaking by adjudication is still permitted by the APA. II. HOW CAN YOU GET INVOLVED? A. IDENTIFY A PROBLEM 1. FINDING YOUR ISSUE Before you can get involved in the rulemaking process, it is important to identify a problem. Is there a particular issue that you are passionate about? Will the issue negatively affect you, your family, or your business? You should narrow down the issue as much as possible so that you can easily figure out the subject matter involved. For example, are you worried about a new pesticide that has proven effective 5 The National Labor Relations Board (NLRB), for example, makes most of its rules through its adjudication of labor disputes between workers and their employers. 6 For example, in National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759 (1969), the Supreme Court said that the NLRB s decision in a previous case was not enough justification for its action in a later case. 9
against the bugs wreaking havoc on your community s agricultural system but that is dangerous to humans? In that case, you might narrow down your issue to the emergence of this pesticide. Once you have pinpointed your issue, you should identify the agency that could be in charge of regulating that issue. Note, however, that multiple agencies might regulate a subject, with small differences in the scope of their power over that area. With the pesticide example mentioned above, both the Environmental Protection Agency (EPA) and the Department of Agriculture (USDA) could have authority to regulate that issue. For help locating an agency, the best resource is www.usa.gov, which includes all federal government agencies searchable by agency name or by topic area. Each agency approaches the regulation process differently, so it is critical to identify a few key agencies that might be responsible for regulating your issue area before writing your comment. Another way to approach the regulatory process is to locate a proposed rule on www.regulations.gov using the search function. But Regulations.gov is not ideal because it does not list every proposed rule and is not used by every agency. Therefore, searching Regulations.gov is not as reliable as going directly to the agency responsible for your issue area. 2. HAS THE AGENCY DONE ANYTHING ABOUT IT? Before you can draft your comment, it is important to find out if the agency has already acted. There are several ways to learn whether the agency has acted, like searching the agency s Web site for final rules, guidance documents, or other agency actions, contacting the agency, searching Regulations.gov, or searching the Federal Register. 3. IS THE AGENCY PLANNING ON DOING SOMETHING ABOUT IT? A compilation of what rules federal agencies intend to make during the following six months called the Unified Agenda of Regulatory and Deregulatory Actions is published in April and October of each year. One way to see if an issue you are concerned about is likely to be addressed through rulemaking in the near future is to search the Unified Agenda by agency at www.reginfo.gov/public/do/eagendamain. The Web site contains a glossary and user guide to make your search more efficient. Another helpful site to aid your use of the Unified Agenda is the OMB Watch Regulatory Resource Center at www.ombwatch.org/regresources. 10
4. CONTACT THE AGENCY After finding your issue, identifying the responsible agency, and learning the current regulatory status, you should contact the agency directly. Because each agency s rulemaking procedure is different, your participation will be more effective if you understand how to tailor your comment to meet the agency s needs and preferences. Agency Web sites always list contact information, but a phone call is the best way to reach an agency representative. Although agency Web sites are a good way to obtain information about the agency s rulemaking process, be aware that some agency Web sites are unreliable and confusing. When you contact an agency, find out the specific details and requirements for submitting a comment. What form should it take? How long should it be? What must it include? How can it be submitted? Answering these questions will help you when you are drafting your comment. B. COMMENT 1. FINDING A PROPOSED RULEMAKING Since all federal agencies are required to publish notices of proposed rulemaking, proposed rules, final rules, and all other notices in the Federal Register, any agency action you are looking for can be found in this daily publication (For example, even the full Unified Agenda is published in the Federal Register biannually.). Because of the comprehensiveness of this publication, you can use the Federal Register to find any relevant rulemaking or other agency action. More importantly, once you have found a proposed rule on which you would like to comment, you should consult the Federal Register to make sure you have all the necessary information and follow the agency s required comment procedure. The Federal Register also provides specific agency contact information so you can contact an agency representative with questions on the comment submission process for a specific proposed rule. A good site for browsing the Federal Register by issue or agency is www.federalregister.gov. Alternatively, you can search the electronic version of the Federal Register at www.gpoaccess.gov/fr, or you can browse indexes and sign up for e-mail updates at www.archives.gov/federal-register/the-federal-register/indexes.html. Another way to find a proposed rulemaking is by searching Regulations.gov; however, not all agency actions appear in dockets on this site, so it is a good idea to be thorough by also examining the Federal Register, searching the agency Web site, and contacting the agency with questions. 2. SUBMITTING A COMMENT 11
Agencies will generally direct you to www.regulations.gov, which has been the primary vehicle for public participation in federal regulatory action since 2005, to submit a comment on a proposed rule. It is helpful to know the docket number, which provided in Federal Register notices associated with the rule, so that you can navigate directly to the proposed rule in which you are interested. For an example of a Federal Register docket number, see section III. The Web portal will accept comments in several different file formats. Directions on how to use the site, including instructional videos and frequently asked questions, can be found at the www.regulations.gov help page. C. PETITION Notice-and-comment rulemaking is not your only option. If you are interested in an issue but an agency has not indicated it will address it in the near future, you can petition the agency to issue, amend, or repeal a rule. Petitioning is an important way to try to spur the agency into action or bring attention to your issue. The APA requires all federal agencies to receive and respond to petitions in a timely manner. See 5 U.S.C. 555(e) (2006). Although an agency usually will not begin a rulemaking immediately after receiving a petition, petitions are an important vehicle for the public to influence regulatory considerations. The preferred procedure and necessary information will be different from agency to agency, so you should search individual agency Web sites for information on how to file a petition. Some agency Web sites are more informative than others, so if you have any questions about the required process you should contact the agency directly to make sure you follow the proper procedure. The OMB Watch Regulatory Resource Center provides a good explanation of the petitioning process at www.ombwatch.org/regresources. You may find it helpful to search the agency Web site, the Federal Register, and Regulations.gov to learn if the agency has already received and responded to one or more petitions on your issue. You can also perform such a search to find and examine prior petitions and petition responses for guidance on how to format your own petition. III. COMMUNICATING WITH THE AGENCY: THE SPECIFICS Agencies are given the power to write regulations that explain in great detail the legal, operational, and technical details necessary to implement laws passed by Congress. To ensure your 12
contributions during the notice-and-comment phase of rulemaking (NCRM) are taken seriously by the agency, you recommendations should reflect the regulatory language and format typical of that agency. Because the purpose of NCRM is to provide a forum for public participation in the rulemaking process, any comments you make on the proposed rule become part of the public record for that rule and are made available to anyone either online or through a Freedom of Information Act (FOIA) request. Timing: Be sure you submit your comments on the proposed rule during the posted comment period. Format: Clearly identify the proposed rule you are commenting on by its Docket Number, as listed in the Federal Register. 13
State your position of the proposed rule simply and clearly. Be sure to answer the following questions: 1) Do you agree or disagree with the rule or a part of the rule? 2) Which part do you agree or disagree with? 3) Why do you agree or disagree with it? 4) What action are you asking for? Do you want the agency to revoke, implement, or modify the rule? If you want a modification, what should the regulation say? Be specific! o Suggest the exact regulatory language you want in the final rule. o Include credible supporting material (official reports, scientific studies, and materials) that you rely on in making your suggestions, but ensure that any personal or private information is removed. o Always check with the agency Web site for guidance on how to submit your comment. Often, agencies will list specific requirements for mail-in and electronic submissions. A. GENERAL WRITING TIPS: The American Bar Association urges agencies to use plain language in writing regulations, as a means to promoting the understanding of legal obligations. American Bar Association Adoption by the House of Delegates, PlainLanguage.gov (August 9, 1999), http://www.plainlanguage.gov/populartopics/ regulations/aba.cfm. You do not need to write in legalease to get your point across. Be concise. More is not always better. Do not use indefinite pronouns. Use pronouns only when the noun being referred to is clear. In the example below, it might be discussing Internet or agency. o Incorrect: The agency recognizes the Internet as a form of communication even though it is not always consistent. 14
o Correct: The agency recognizes the Internet as a form of communication even though the agency has not always been consistent in its definition. Do use the following: Consistent terms. Once you identify something as a vehicle, do not refer to it as automobile. Positive statements. Instead of using the negative of a word, find an antonym of the word that would be equally effective. o Examples: Use violated instead of did not comply. Use lied instead of did not tell the truth. Simple transitions. o Use but to state a qualification or limitation. o Use except for an exception. o Use if for a condition. 15
Sample Comment Letter: [COMPANY OR PERSONAL LETTERHEAD] Date Agency Name Agency Address Re: Docket Title and Number Dear [Name], Opening Paragraph: Introduce yourself and whom you represent. Summarize your proposal briefly, including whether you are proposing an addition or requesting that something be removed from the regulation. Body: Detail which aspects of the current regulation affect you and what recommendations you are making to the agency. Give specific examples of regulatory language that should be added or removed from the current rule. Be sure to estimate any costs of compliance the agency may need to consider when implementing the rule that you propose. Conclusion: Restate your proposal briefly. Be sure to thank the agency for the opportunity to comment on this particular regulation. Lastly, provide contact information (phone number, address, and e-mail). Sincerely, [Signature] [Name] 16
following Web sites: Some helpful sources and guidance on communicating with agencies can be found at the General suggestions set out by the American Bankers Association: http://www.aba.com/compliance/comply_effectivecl.htm#why Guidance on drafting Legal Documents: http://www.archives.gov/federalregister/write/legal-docs/ B. STANDING OUT IN THE COMMENT CROWD Some general pointers on greater visibility include the following: Consider writing on behalf of an organization or institution. Find like-minded people and submit a joint comment or petition. Support your position with credible and reliable evidence. There are two forms of comment submissions: Electronic via regulations.gov Paper mail sent directly to agency Electronic Submission: Submissions are made through regulations.gov, allowing a user instant access to proposed rule currently open for public notice and comment. Pros Cons Fast and easy No postage required Agencies may receive thousands of comments per proposed rule Paper or Mail Submission: The traditional method, an individual can send his or her comments on the proposed rule directly to the agency. Pros Cons More personalized No instant visibility and feedback 17
Some alternatives more likely to get the attention of an agency: Petitions: Just because an agency isn t actively considering creating a rule on a certain topic does not mean you are out of luck. Petitioning provides a way for the public to request that an agency take some form of rulemaking action, either to develop a new rule or change or revoke a current one. Procedures on petitioning an agency are covered in Part II. Adjudication: If you think a current rule has unfairly affected you as an individual, you may have a right to adjudication on the merits. Adjudications are run by Administrative Law Judges, who are experienced lawyers in the agency s field. Procedures on adjudications are covered in Part I.F. IV. WHAT TO EXPECT This Section provides guidance on what you should expect an agency to do based on your comment on rulemaking or your petition for rulemaking. A. WHAT AGENCIES CAN DO 1. COMMENT The power of a government agency to act based on citizens comments or petitions is limited by Congress. Each agency derives its power from laws issued by Congress. Some agencies have more freedom to act within their own discretion, while others are required to confine their actions to a narrow set of circumstances. When you submit a comment in the rulemaking process, the agency must examine the comment within the framework of the power given to the agency by Congress. Once an agency receives your comment, the agency will consider it along with comments from other citizens, members of nonprofit or trade organizations, and industry representatives. Since the comment process is open to anyone, agencies will receive a variety of comments. Comments from individual citizens usually are based on personal interest in the issue or firsthand experience. Comments from members of nonprofit or trade organizations usually feature common language or themes that support the goals of the group. Comments from members of industry usually center on promoting the 18
policies that are beneficial to the industry as a whole or to a particular company. The agency will collect all of the comments received during the notice-and-comment period and review them. The agency will look for persuasive arguments why it should take one action over another. The agency will need a rational basis for a rule. It will use the comments gathered in the noticeand-comment process to analyze and justify the action it will take. For example, if the Department of Transportation (DOT) is considering prohibiting truck drivers from texting while driving, they may consider comments from truck drivers, members of trade organizations, public safety organizations, family members of people who have died in trucking collisions, and average drivers who have strong feelings about texting while driving. The DOT will consider these comments for or against the texting ban to help determine the best course of action. After considering all of the comments, the agency will issue a final regulation. The regulation will be published in the Federal Register and will contain a statement of the agency s reasoning for the regulation. The agency s reasoning may be based on many different sources, including scientific studies, empirical data, effects on other regulations, or anecdotal evidence from individual citizen experiences. If the agency s reasoning is not sound, a court may order the agency to begin the rulemaking process again. 2. PETITION Section 553(e) of the APA allows people to petition agencies. If you would like an agency to issue, amend, or repeal a rule, you may petition the agency. Although it is not common for an agency to make a change based on a single petition, multiple petitions from different citizens may move the agency to act. If an agency made a significant change to a rule based on one person s request, it would be counter to democratic principles. If your petition is successful, the agency will begin the process of making a rule on that issue. A notice of proposed rulemaking (NPRM) will appear in the Federal Register, and it will request comments from others to help determine what to do. B. WHAT AGENCIES CANNOT DO Agencies can only act based on the power given to them by Congress in their implementing statute. Every agency has a limit on what it can regulate and how it can regulate. The EPA can issue 19
regulations about air quality, but it cannot help you protest the noise pollution created by planes landing on a runway near your home. For this example, you would need to look to the Federal Aviation Administration (FAA) in the DOT because it concerns air traffic, a topic that falls within its congressional mandate. Because Congress gives agencies limited power over specific areas, agencies cannot act outside the scope of their power. If a citizen s petition asks an agency to make, change, or repeal a regulation that is outside the agency s power, the agency will deny the petition. If the petition is denied, the agency will issue a notice for the denial. This notice may come directly to the petitioner, may be posted on the agency Web site, or may appear in the Federal Register. In addition, there are certain matters that are beyond the scope of traditional citizen-influenced rulemaking procedures. The most common example is a matter related to national security. If you disagree with a war, you cannot petition the Department of Defense to institute a rulemaking on the war. Matters like national security are left to the discretion of the Executive Branch. Citizens may influence decisions by voting for a different President, but they cannot use the administrative process to regulate a national security matter. Agencies generally will not make an immediate decision to issue, change, or repeal a regulation based on petitions from citizens. A successful petition will start the process of making a change, but the agency must still follow the rulemaking process. To maintain a democratic balance of power, agencies seek input from citizens in the rulemaking process for many types of regulations. Although the agency rulemaking process can be slow, it is designed to ensure regulations are made in the most democratic way possible. V. SEEKING PROFESSIONAL LEGAL HELP Individuals can make real differences in agency rulemaking without the help of a lawyer, but some people may decide they want a lawyer s advice on how to deal with an agency. For example, filing a comment to an agency s proposed rule can be as simple as writing a letter, but filing a petition asking an agency to make or amend a rule can be much harder. This Section discusses how and why you might get 20
a lawyer to help you. A. FACTORS LIMITING THE EFFECTIVENESS OF COMMENTS AND PETITIONS DRAFTED BY NON-LAWYERS Lawyers are experts in using the law as a tool to get things done for their clients. The law is more than what is written in statutes or regulations; it is an idea, a process, and a language. Though nonlawyers are often effective in their efforts to impact regulations through comments, petitions, and other kinds of rulemaking, their efforts are sometimes limited by lack of expertise in legal processes and the substance of the law. Process Expertise. The federal Administrative Procedure Act (APA) (5 U.S.C. 551 559, 701 706) describes the big picture of how agencies can make rules that have the power of law, but it is vague and leaves agencies a lot of room to create their own specialized procedures. For instance, regarding rulemaking initiated by citizens petitions, the APA states only that Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 5 U.S.C. 553(e). The statute does not explain how to submit a petition, what format a petition must be in, or what process an agency must follow once it receives a petition. Those procedural details are left to the agencies to establish, and their petition processes vary widely. A lawyer can help clarify and interpret what an agency s rulemaking procedures are and advise you on how to make sure your input will be heard. Legal Expertise. Though some federal agencies are governed by only a single statute and a small number of rules, most agencies operate under multiple statutes and have issued hundreds if not thousands of rules. Additionally, courts interpret and clarify statutes and regulations, adding another layer of law case law to what is written in the United States Code and Code of Federal Regulations. Agencies also create internal policies, issue guidance documents, and make rulings that affect how a statute or regulation is enforced. All of these things, together, constitute the law. When you suggest a solution like changing a regulation, it is important to understand how all of these parts of the law interact and what they might mean to your proposal. For example, if you want to comment on the Environmental Protection Agency s (EPA s) recently proposed revisions to the 21
Sacramento Metropolitan Air Quality Management District's portion of the California State Implementation Plan, which addresses nitrous oxide emissions from the Kiefer Landfill, you could just read the EPA s proposal summary in the Federal Register, where it tells you where and to whom you can send comments. See 75 Fed. Reg. 61,366 (Oct. 5, 2010). But the proposal is very technical, and before taking action, you might need to know about the Clean Air Act, EPA regulations implementing the Act, court decisions concerning the Act and the landfill, agreements between California and the federal government on how they will work together to address nitrous oxide emissions, and the reasons for prior revisions to the plan. Lawyers have access to specialized legal resources and training in how to interpret laws, regulations, and court cases. A knowledgeable lawyer can give you this information and advise you on the best way to achieve your goal, whether that is submitting a comment, filing a lawsuit against the agency, lobbying lawmakers, or taking some other action. B. FINDING A LAWYER Finding a lawyer is not hard; you will find hundreds of lawyers in the Yellow Pages or by searching Google.com for lawyer and your city name. But lawyers time is generally very expensive the biggest barrier to using one and lawyers tend to specialize in some specific area of law. So how can you find a lawyer whose services you can afford and who specializes in the area of law relating to the agency you are trying to influence? You will want to search for pro bono (free) or low-cost legal services, legal clinics, and advocacy firms that might help. Pro Bono and Low-Cost Lawyers. As a profession, lawyers have a commitment to provide pro bono legal services to those in need. This is not to say that all lawyers volunteer their services, but many lawyers understand that their profession is a public service and take this commitment seriously. Most law firms encourage their attorneys to spend time on pro bono cases, and many large firms have dedicated pro bono practice groups. What this means for you is that some lawyers will help you file a rulemaking petition, submit a comment, or pursue some other way of influencing an agency for little or no cost. For example, say you live in Sacramento, California, near the Kiefer Landfill and want to file a response to that proposed 22
revision by the EPA. A Google search of Sacramento environmental lawyer turns up at least 37,000 results, and it lists lawyers in both small and large law firms. You could contact those attorneys and ask them if they would be willing to provide you with pro bono legal services to help you file your comment. Though many of those attorneys will decline, someone would eventually accept. And even those who say no will, if you ask them, tell you the name of an attorney, law firm, or legal clinic that might be willing to take your case. Legal Clinics and Advocacy Law Firms. Law students and lawyers committed to public service often pursue their advocacy agendas in law school legal clinics and advocacy law firms. For example, Stanford University Law School has an Environmental Law Clinic where law students supervised by experienced attorneys provide free services. The Environmental Law Clinic might be willing to help you impact EPA decisions about the Keifer Landfill. Most law schools have legal clinics, and they put information about them on their Web sites, including their specialty and how to contact them. Non-profit advocacy law firms, supported by private donations, often provide free or low-cost legal services to those in need. Though many of these firms focus on lawsuits, some are interested in changing agency regulations, and they may agree to advise or help you propose or change an agency regulation. www.findlegalhelp.org. The American Bar Association, the professional association of lawyers, has information on how to locate an affordable attorney at its Web site, www.findlegalhelp.org. The Web site lists both national and local legal resources, including lawyers who offer low or no-cost services. 23