The Whys and Hows of Commenting on Rules

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Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based.  Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome.  This Teleforum will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record.  It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation.  It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.


Prof. Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University

Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

Prof. Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University



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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Administrative Law & Regulation Practice Group, was recorded on Tuesday, February 11, 2020, during a live teleforum conference call held exclusively for Federalist Society members.


Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call.  This afternoon’s topic is titled “The Whys and Hows of Commenting on Rules.”  My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society. 


      As always, please note that all expressions of opinion are those of the experts on today’s call. 


      Today we are very fortunate to have with us Professor Susan Dudley, who is the Director for the George Washington Regulatory Studies Center and Distinguished Professor of Practice at the Trachtenburg School of Public Policy & Public Administration at the George Washington University.


Also with us is Karen Harned, who is the Executive Director at the National Federation of Independent Business Small Business Legal Center. And with us is Professor Brian Mannix, who is a Research Professor at the Regulatory Studies Center at the George Washington University. After our speakers give their remarks, we will have time for your questions. Thank you very much for sharing with us today. Susan, the floor is yours.


Prof. Susan Dudley:  Thank you, Wes. As probably most people on this call know, since 1946 the Administrative Procedure Act has required agencies to provide notice of proposed regulations, seek comment on those regulations, and base their final regulation on the administrative record that they’ve developed. Yet many people, even people who take the trouble to vote, seem to think that commenting on rules is difficult or futile, and they, therefore, don’t participate even if they care a lot about the outcome. So what Karen, Brian, and I would like to do today is just to walk you through why you might want to file a comment on a regulation and how you might do it.


So much of federal policy and law today is made by administrative agencies using broad delegation of power from Congress.  And as members of the public, we know we can’t exert much influence through voting and through our Congress, but we do get to comment on those regulations, sharing our insights with the administrative agency, not only the agency but also future courts. Any future review by court will examine the agency’s decision in light of the record they compiled. And that includes the comments that are filed on that.


And it’s actually pretty easy to comment, and you don’t need to be a lawyer or to hire a lawyer. The main requirement is to file your comment on time. And that’s usually within 60 days of the notice. But every federal register notice on a regulation will identify the length of the comment period. And they can be as short as 30 and sometimes 90 or 120 days. So it varies. And sometimes agencies, in response to requests, will extend that period, that comment period.


So the first time that you will have a chance, if you’re interested in a particular issue -- the first time that you’ll have a chance to see the full proposed regulation and the preamble and any justification that agencies have supporting it will be when it’s published in the federal register. But there are different ways to track what’s coming so that you can know in advance. And all of this is now something that’s doable online. So the semi-annual agenda of regulatory and deregulatory actions comes out, as you might guess from its title, twice a year. And that provides a summary of what the agency -- the problem the agency’s attempting to solve, the statutory authority that they have, and a brief few sentence description of how they plan to solve it, as well as a timeline for when they expect to publish that proposed regulation and the subsequent analyses.


You can also go to where you can see what’s open, and you can look -- search in a lot of different ways for what’s available for public comments. So you can search by area of interest that you might have, what’s closing for comment soon, which ones are getting a particularly large number of comments. So there’s a lot of information on those websites. And there are, on some regulations, there’ll be thousands of -- and sometimes tens or even hundreds of thousands of comments. And on others there may be just a handful.


So especially on the ones that have thousands of regulations, you might think, “Well, what’s my voice going to do?” But in fact, those mass comment campaigns, which tend to be -- we used to call them when I was first in the regulatory process, postcard comments. They tend to be organized campaigns that repeat the same very brief -- usually a position on whether you think the regulation is good or bad. So it’s a position statement. One of our colleagues here at the George Washington University in the political science department has studied those mass comment campaigns. And he finds that actually they don’t really influence the final rule much at all.


So they’re a vote, and comments are not about -- they’re not a referendum on what the public thinks about a regulation. So in fact, a thoughtful substantive comment that raises new information or, you know, say if you have some data that the agency might not have or if you have a way of analyzing their data that might yield some new insight or if you have some experience that has some insights on how their proposed approach might actually work and why it might not work the way they suggest, and especially if you have an alternative approach that might achieve the desired outcomes using a different method, I think those are all things that can be very influential on the comment process -- in the comment process.


And as I said, even if you’re writing to an agency that has clearly made up its mind, they are not your only audience. You should also be thinking about others in the broader regulatory and policy community, legislators, and subsequent decisions in courts where your comment will also -- could also prove valuable. So with that quick intro, I will turn things over to Karen.


Karen Harned:  Thanks, Susan, and thanks everyone for being on today. So yes, I represent small businesses across the country. And that really is an important voice from agency -- for agencies to hear from, but not just small businesses, big businesses, anybody that is, as Susan said, going to be impacted by regulations. For the average American, though, and particularly small businesses that I represent, it is still somewhat hard for them to figure out when a regulation is even out there for comment. So good ways to find that out are through your industry, if you’re part of an industry trade group or a business group. Like NFIB will often alert their members. Also, if you go to this independent office at the Small Business Administration, the Office of Advocacy—it’s—they have a section on their regulatory alerts.


And you can even sign up for emails so that you know what’s coming out that might impact smaller entities in particular. And then even if you’re listening to the news and hear Congress passing a new law, if it’s something that you think is going to potentially impact you as a citizen or a business person, regulations are shortly to follow. So that should, you know, at least put you on notice that more is likely to come there and opportunities to comment are going to be available.


To what Susan also just talked about, it’s so critical, regardless if the agency already as a practical matter has their mind made up on what they want to do, the comment process is really important because it helps identify issues for not just the agency but if they’re not going to -- if they ultimately don’t make any changes, you’re notifying Congress, people that can do something about these regulations through legislation. In addition, we sue on primarily regulatory violations.


So we are often, when we’re commenting, talking about potential weaknesses in what the agency is proposing even procedurally, like not following all the rules. There’s a lot of regulatory flexibility act that requires agency to assess whether or not an end regulation is going to impact a substantial number of small entities. They have to at least certify one way or another. If they certify it does not impact that many, then that’s their decision. But that can be something that you would challenge in court if you disagree. If they certify it does impact a substantial number of small entities, there’s a bunch of things that they’re going to have to do, including looking at alternatives that are going to be less burdensome to small entities and the like.


And all of those are things that can be raised in the comment process. But as Susan also mentioned, you know, the big thing is it’s great that organizations like NFIB and GW and all these other, you know, bigger organizations are commenting. But what really is helpful is if individuals, small businesses, big businesses, individually are filing comments, too, to tell their particular story because no regulation is going to impact everybody the exact same way. And on that, you know, another thing that bigger businesses can do when they see a regulation coming that they don’t like is make sure their subcontractors and their suppliers and those farther down the food chain of their business model know because, you know, those comments -- they could help, you know, generate individual stories there in comments that could help tell the story of, you know, the lasting impact and the down, you know -- downstream impact that a small -- that a regulation could have on smaller businesses in particular because, quite frankly, they’re more sympathetic to the regulators often.


But also, from the small business perspective or even the individual perspective, if it’s a regulation that’s going to impact you, starting at the beginning and letting the agency know that, “Hey, I’m the person that’s going to read this regulation, have to come up with a compliance plan for it, or hire a consultant or a new employee to do that for me and that’s how much it’s going to cost,” just even making sure that they understand that there’s a cost involved in learning about the regulation and coming up with a compliance plan for it. And not surprisingly that cost is going to be a lot more substantial for smaller entities and individuals. And then to the extent you can provide information on what costs you’re going to incur – time away from your business, people that you might have to employ or bring in to help you comply with it -- you know, we just had a new Department of Labor rule roll out that increases the salary threshold for who gets overtime and who does not.


Well, in the comments that we submitted under the Obama proposal of that rule that would have been almost doubled that threshold we had a member that shared the story of “This means that I’m now going to have to fire, you know, X employees -- you know, X number of employees and put these employees on, you know, salary. And this is going to case a lot of consternation because they’re proud that they’re exempt” and really told a wonderful story of the practical effects of what that regulation was going to do to his business. That is the kind of thing that is just very, very impactful in these comments.


And then what we’ve seen, especially in past administrations, is sometimes a new regulation’s asking you to use a certain test – testing kit or way of testing something. This is particularly problematic at agencies like EPA, Environmental Protection Agency. And there’ve literally been instances in which the tests they’re asking the regulated entities to use doesn’t exist. Well, that would be something that you would want to say in a comment. Like “How am I supposed to do this? I know for a fact this test doesn’t exist.” And raising that there would be really helpful. And then to the extent you look at the comments, I mean the goal of regulations is presumably to help alleviate a harm that’s not currently being remedied through the market.


And typically, the government really will overreach or just -- they always just go for the easiest. “Well, we’re just going to regulate everybody, and we’re going to regulate everybody the same.” I mean, if you have a good idea on, you know, if this is what you’re trying to fix, why not just do this because this is going to impact a lot less -- whatever your solution is. This is going to impact a lot less people and still get the job done. And any data you have behind that, obviously, would be helpful. But raising that also is important again, if the regulation was ever to go into litigation, because you’re raising alternatives. Did the agency ever consider those alternatives is one of the grounds that people can sue on if they don’t check that box, so to speak.


So that’s my pitch for why it’s really helpful for not just organizations but also individuals and businesses to individually comment on these regulations because everybody’s story is different. And I find so often with the government workers they do often mean to do well. But they don’t understand what’s going on in the real world. And so to the extent you’ve got people telling that real world story from the seat they’re sitting in, it just has so much more impact and really can make a difference long term. And with that, I will turn it over to Brian.


Prof. Brian F. Mannix:  Thank you, Karen. One of the things we do at the GW Regulatory Studies Center that’s a little different is we encourage the filing of public interest comments or PICs. And I need to explain that because it’s something distinct from a comment filed by a public interest group. There are a great many such groups doing advocacy on behalf of those who are homeless or undocumented or imprisoned or otherwise disadvantaged. There are also public interest groups who advocate for a cleaner environment or for education or other public goods. And those are all worthy causes that need advocacy, and they need advocacy in administrative forums no less than in the courts and in the legislatures. And they qualify as pro bono publico advocacy in the public interest.


But what we try to do in the public interest comments that we file, or that our authors file, is a little different because we ask the authors to try to step into the shoes of the agency in wrestling with all of the competing considerations that need to shape the agencies decisions because people have very different interests in the results of a regulatory proceeding. The agency is being pulled in different directions, and they have to figure out how to resolve those things and come to a conclusion.


So typically the tool that agencies use and that we ask our authors to use is benefit-cost analysis. And so often we use economists to author those public interest comments.


We also look at the things listed in Executive Order 12866 because that’s the rubric that agencies have to follow when they’re doing a regulation. It requires them to do a regulatory impact analysis on major rules. It requires them to state what their authority is and what problem they’re trying to solve: why is it exactly that markets aren’t solving this problem, and how is regulation going to help; what alternatives are available; what different forms of regulation?


So all of those things we try to address in a public interest comment and then use benefit-cost analysis to try to put weights to the different competing considerations and arrive at a reasonable optimizing result. The ideal commenter -- and because there’s only 60 days typically to file a comment, we look for commenters who are academics who have the expertise to write something useful in 60 days but also who don’t have clients because we’re looking for someone who can, as I said, step into the agency’s shoes, take that broader public interest perspective, and do it not on behalf of any particular interest. The Regulatory Studies Center itself does not take positions on rules. The authors’ views are their own, and we’ve had cases of authors filing in the same proceeding and taking different positions, which is fine.


But these public interest comments are helpful to an agency. We find agencies generally like to receive them. And I’ve had good responses. I filed one with a co-author. Within 48 hours, the agency had announced they were changing the rule -- that they were abandoning that rulemaking. And they cited our comment as the reason. So it’s great when you see when an agency acknowledges that they’ve been influenced by a comment.


But one of the things that’s helpful about our public interest comments, I think, is that it serves as an academic peer review for the economic analysis done by the agencies. There are lots -- I’ve worked in an agency. I worked at the Environmental Protection Agency and supervised a number of economists working there doing regulatory impact analysis. And I encouraged them also to engage with the academic journals, to publish papers, and to stay up to speed on what’s going on in their profession. And so similarly, the public interest comments serves as a kind of peer reviews that the risk assessors and the economists doing the regulatory impact analysis in support of a rulemaking -- they can’t just make things up and expect to get away with it.


They know that there’re going to be professionals who are holding them to the standards of the profession commenting on their analysis, not quite the same as a peer review if they were publishing in an academic journal. But it does keep them engaged and accountable to the standards of the profession of economics or risk assessment. And I think that helps improve the analysis and improve the outcome of rules. So with that I guess, Wes, we’ll ask if the audience has any questions or comments.


Wesley Hodges:  Looks like we do have one question so far. Let’s go to the first caller.


Caller 1:  So in general, a rule has a comment period. How about federal notices that have an action that have the same appearance as a rule? Do they take that same -- or do they still have that requirement for some type of a comment process?


Prof. Susan Dudley:  That’s a very topical question because one concern is that sometimes agencies may skirt the notice -- the APA notice and public comment process by issuing something as a guidance. I think agencies -- and agencies vary on that. They are increasingly seeking comment on guidance documents as well. So some agencies have been starting to do that for significant guidance documents. There’s been a requirement since 2007 to do that. And President Trump issued actually an executive order within the last six months I think that does require that. So you could see notices that are not proposed APA regulations that do seek comments.


Prof. Brian F. Mannix:  And sometimes agencies will publish an advanced notice of proposed rulemaking, which is sort of an early heads up that it’s not going to be followed by a final rule but they’re just wondering what the public has to say. Sometimes they’ll do a notice of inquiry saying this a topic that’s come up and we’re not sure what to do. And please give us your advice. At the other end of the spectrum, sometimes agencies will use a direct final rule, and they’ll go directly to a final rule without preceding it by notice and comment. And sometimes there are legitimate reasons to do that if something urgent has arisen.


But they will still -- even though the rule is final, they will still take comment and consider revising it, if it’s an interim final rule. And every once and a while you’ll see them do something that they should have taken comment on and didn’t. And that’s when you can request comment and call in the NFIB or call in your lawyer if the agency is really making both a substantive and a procedural mistake. Then they need to be called on it.


Wesley Hodges:  So far we have one more question in the queue, so let’s go to our next caller.


Lenora Ostrowsky:  This is Lenora Ostrowsky. I work for a very small federal agency that does policy work only. It has no enforcement powers. I wanted to just add something to what Susan said, which is that Executive Order 13891 is being interpreted and applied to Executive Branch agencies very strictly. For instance, the language of 13891 talks about regulations and intentions and guidance as applied to regulated entities. Well, our agency has no regulated entities. Nonetheless, we are being required to issue regulations that bring us under this rule, meaning that whatever policy announcements or reports that we make need to provide a period of comment both before and after, if one is being strict about the requirements.


So my encouragement -- I am encouraging people who are listening who may fall under this, the Executive Branch agencies, and for anyone who has dealings with an agency, even if it is just a policy agency that issues reports expressing views, it is perfectly legitimate to request, even demand, the opportunity to make comments before a report is being issued.


Now, this may sound a little murky. I’d rather not identify my agency because this is ongoing. But I am just pointing out that this has legs. And anyone who falls under the -- let’s call it the suggested regulated entities, even if they’re not formally regulated, should make noise and make noise in the form of demanding an opportunity to be heard before the particular policy is rolled out.


Prof. Susan Dudley:  Thanks for that insight.


Wesley Hodges:  Let’s go to our next caller.


Brian Sparks:  Hello. Thank you for doing this program today. It’s very interesting. My name is Brian Sparks, and I’m a tax lawyer. And I’m curious when an agency, in my case the one I deal with all the time, the Internal Revenue Service, promulgates regulations proposed, let’s say, and they invite comment. And then as you described earlier, there’s a flood of comments ranging from the postcard type to the more extensive. And in my field, you might get comments in from the AICPA or ACTEC or the American Bar Tax Section and so on. How do the agencies go about processing a flood, let’s say tens of thousands even of comments, many of them fairly lengthy and substantive? What do they do? How do they process that volume?


Prof. Susan Dudley:  Well, this is Susan. And I think different agencies vary in how they do it. I’ll let Brian actually talk about EPA because he’s got experience there. But first let me say that it’s pretty easy to go through the mass comments, the postcard comments, in that they’ve got AI that can just sort through it. And they’re able to say X percent of these had expressed the following sentiment. So that’s the easy part. It is these more substantive comments. And some agencies actually hire consultants. So the person at the agency may actually not see your comment itself but may see a consultant’s summary of it. Whereas others, the staff go through it.


Prof. Brian F. Mannix:  Yeah. This is Brian. That’s true that some agencies that get very large comment campaigns they contract out to have the comments read by consultants who hire young folks willing to work -- to read comments at relatively lower wages and summarize them. I worry about that sometimes because sometimes the message can get garbled going through a consultant. But the agencies, they have a legal obligation to make the decision on the record and to respond to the argument, the substantive arguments on the record.


So they have gotten pretty good at sorting through the mass comments, finding the substantive arguments, and reading them and addressing them. Some agencies are better than others. The IRS in particular has had a very difficult last couple of years. They obviously have deadlines that are very compelling. They have statutory changes that need to be implemented quickly. And people are very anxious to know what the tax code will require. And so I have a lot of sympathy. I mean, people get angry at that IRS. I actually have a lot of sympathy for what they’ve gone through in terms of complicated rulemaking in recent years.


Wesley Hodges:  Next caller, you are up.


Mike DeGrandis:  Hi, this is Mike DeGrandis with the New Civil Liberties Alliance. We’re a public interest group that has provided a number of comments. And I was just hoping for a little clarification on something that Professor Mannix said. I think you had indicated that if you identify substantive and procedural mistakes you need to address those with the agency. And I’m just wondering, you know, because we obviously run across that a lot, whether the proper avenue for addressing those procedural mistakes that you’re trying to identify is through a comment or whether there’s another vehicle that we should be exploring during the comment phase that may be able to throw a wrench into the system so to alert the agency that just procedurally they’re moving in the wrong direction. They should withdraw and reconsider.


Prof. Brian F. Mannix:  Yeah. I think you’re right that, if an agency is not checking the right procedural boxes, as a courtesy, I would let them know. But also there are other forums. And in particular you can -- if they’re violating the Administrative Procedure Act, you can take them to court. It will vary depending on the agency. It may be a federal district court or a circuit court. But yeah. You do have recourse. Congressional oversight is also a mechanism when an agency is not following the right procedures that can be effective.


Prof. Susan Dudley:  Karen may have more to add on that question, too.


Karen Harned:  Well, I think Brian’s identified them. I mean, that really, you know -- Congress and the courts are good. And then what we’ve seen more recently, especially under the Obama administration, was, whereas we typically had to wait until a regulation is finalized before we can sue, courts have been more open as of late—and actually we see it a lot under this administration—to shut down a rule and stay a rule from taking effect when somebody raises what the courts’ think is a legitimate procedural violation. So that’s actually a good thing because then you’re not having to wait until the end to bring those claims. You don’t have to wait until you have to comply with it.


Wesley Hodges:  Let’s go and move along to our next caller.


Eric Higus (sp):  Hello. My name’s Eric Higus. I’m a staff member on Capitol Hill. And I was wondering if you have any tips for filing comments, both for federal and state legislators.


Prof. Susan Dudley:  Oh, that’s interesting. So I think, you know, the tips would be similar to what we would guide others, and particularly thinking about Brian’s points about how do you think about the public interest. And so as a legislator at the federal level, you’re thinking about your constituents and how this regulation might affect where you are -- affect your constituents perhaps differently. And I think that’s a very important point to make because regulations, by definition, are -- they cover the whole country and often with one-size-fits-all when one size does not fit all.


And so the ability to say, “In my community, these are the constituents that I represent. These effects will be different, and it’s harmful.” So I think that’s important. And I think state level could do the same approach. The other thing I would say is that you also have an opportunity to suggest alternatives, methods, mechanisms of achieving because often I think you’re going to be agreeing with the goal. It’s just how you’re achieving that goal and being able to do that in a way that I think can be very effective.


Prof. Brian F. Mannix:  Yeah. I think that’s right. As a legislator, federal or state, you do have a claim to be representing the public that the rest of us don’t have. And it’s helpful to emphasize that in commenting to an agencies. I remember one rule I commented on -- this was when I was commenting for a private client, an Interior Department rulemaking. We actually said we’re going to sue for compensation if you go through with the rule as drafted and worried that that message wouldn’t get through, that it would be lost. This was the spotted owl critical habitat designation, which private lands were being swept in and timber cutting was being prohibited.


And so the client threatened to sue but thought that, look, there were so many comments in this docket it’s not going to get through. But then the state of Washington filed a comment on state of Washington letter head saying, “And by the way, we’ll sue you, too.” It was a very short comment. It got the agency’s attention because it was coming from a state threatening to sue the Secretary of Interior. And so they read that comment and then read our comment and revised the rule accordingly, the final rule accordingly. So it’s very helpful to have the voice of a legitimate -- an elected representative of the public commenting on an agency rule.


Prof. Susan Dudley:  Let me add one more thing. This is Susan again. I think it is useful for legislators to file comment on the record because, as I think both Karen and Brian explained, what’s on the record really matters in the end. They also have other avenues -- or you have other avenues for communicating your concerns. So filing the comment but then also using your ability to reach other people to express what you think -- what your concerns are, including the agencies themselves because the ability -- Congress can hold hearings, can write letters, and all those things, probably are, as individual actions, influence agencies more than individual comments do.


Karen Harned:  Right. And actually, the appropriations process is an area in which those hearings -- lots of times concerns about some of the regulatory work an agency work might be doing tend to get aired in those hearings. And that’s very effective because you’ve got the agency head right there wanting something from you. So it’s helpful -- that’s a good time to strike, so to speak, if you’re not pleased with certain behavior.


Wesley Hodges:  Here is our next caller.


Cliff:  Hi, my name is Cliff. I work for a think tank, and I do government affairs mostly. But I am a lawyer, and I do both some -- I’ve done some administrative comments. And I’ve also done some FOIA litigation. And that’s sort of leads to my question. Based on some of the Freedom of Information Act work I’ve done in the past in examining emails going to agencies—and you alluded to this earlier—but there are times where the agency has sort of already made up it’s mind. And it’s pretty clear to me, at least in some cases, not always or anything -- I’m not trying to say that. But it’s a question of, okay, here’s where I want to go. Get me here.


When you’re facing a situation like that, other than the fact that you can sue on the regulation if you comment—I understand that—is there any other utilities to commenting or any ways of commenting that you think can actually be beneficial if perhaps you maybe disagree with the rule or you agree with the rule but you want it to be stronger or weaker -- anyway. Just you think that -- you know, if you’re dealing with an agency that you’re fairly sure has made up its mind, is there any strategies to sort of influence the process that you think would be useful?


Prof. Brian F. Mannix:  If you do find something through a FOIA request you think shows the agency pre-judged the outcome, then I guess it would be useful to file that and put it in the record. Even if you don’t think it’s worth suing over, the court will be thinking about “Does this make us vulnerable? Do we have to stop and think this through again and demonstrate that we did not pre-judge the outcome?” So putting those sorts of things on the record might be useful.


I’ve done things like when I had -- I’ve had an academic journal article that I thought was relevant to a rulemaking, but it wasn’t in print yet in order to make -- so it wasn’t public. So I filed it as a comment so that it was available to the public and available to the agency to include in their considerations. And I didn’t think the journal would mind getting scoped in the agency rulemaking record. So things like that that you can put in may be influential. And again, the agency is not supposed to make up its mind until it’s reviewed the record. So if you catch them on that, by all means make a note of it on the record and see if the agency can be made to reconsider.


Prof. Susan Dudley:  Susan here. One thing that you said I think I may have mislead. And maybe this is not what you said. But I just want to be clear that you can bring litigation even if you didn’t file comments on the record. So filing comments on the record puts something on the record that others can litigate or that you can litigate. But you don’t have to have been part of that public comment process in order to litigate.


Prof. Brian F. Mannix:  As long as you’re aware that a court may exclude arguments. If you make arguments in court that should have been made before the agency, the court may decide just to ignore them.


Prof. Susan Dudley:  Exactly.


Wesley Hodges:  Caller, you are up.


Mike DeGrandis:  Hi, sorry. This is Mike DeGrandis from NCLA again. I just would like to pursue that the issue of bringing litigation a little bit. Isn’t there some concern, especially from our perspective as a public interest organization, regarding standing? Is there something of which I’m not aware that would enable us without representing someone within the zone of interest of a particular regulation to step forward, either saying this is procedurally invalid under the APA or some other reason? I just worry that a court might not want to hear that. Am I off base with that?


Karen Harned:  Well, this is Karen. I mean standing is an issue. I’m not going to lie. I mean, we see it a lot with this type of litigation where you tend to have to fight that battle. What we always try to do is at least have somebody that we can point to that has signed an affidavit. They don’t have to be named as a plaintiff -- but just to point to somebody. It really depends, honestly, on what court you’re in. Some are stricter than others on that issue. But it is -- even with the comments, it does sometimes tend to be an issue. If you’re doing them primarily on procedural, you probably have a better shot.


But honestly, standing is often just in the eye of the beholder, and that’s whatever judge you typically get. Some have stricter standards than others. So if there is a way that you can point to somebody, at least get an affidavit from somebody that was impacted, that would go a long way in helping just make that issue a non-issue in litigation.


Prof. Susan Dudley:  I was maybe making a slightly different point that you do not need -- there’s no such thing as needing standing in order to file a comment. So anybody can file a comment, and you can file a comment that, if it produces serious and relevant material, agencies may respond to it. I have a question, though, probably for -- I mean, definitely for Karen and maybe if Mike is still on. Does having filed a comment on the record -- would that in itself give you standing or support standing?


Karen Harned:  Yeah. I mean, as far as for the association, I think -- so what we find, you know -- and a lot of these challenges -- and quite frankly, I’ve got other associations with which I worked that seem to have this issue more than we do. We’ve been lucky in that that has not really been an issue for us -- is that sometimes they still want to know that it’s not an emperor-has-no-clothes situation and that you are actually speaking for somebody for whom you’re representing. Does that make sense? And so they want -- they might, you know, kick it for standing if they think that -- that you can’t point to anybody, I guess, is what I would say. It’s not always. It’s very honestly -- I feel like it is very much based on what judge you get on a lot of these.


Mike DeGrandis:  And what we’ve done, just to chime in there from our perspective at NCLA, our comments -- they tend to be broader principled issues regarding constitutionalism and proper role of the administrative state and so on and so forth. And so they are picking on particular proposed rules because these are the rules that are proposed. But the problems we find with those rules are problems we find in many different instances across the administrative state. So while our comments are always obviously specific to the proposed rule, ultimately it’s not that we’re representing an individual. We’re representing a principle.


So that’s where we’ve got some standing concerns and would like to figure out ways in which we can assert these principled arguments in courts without having to find someone in the zone of interest, if that’s at all possible. And I don’t know that it is.


Prof. Susan Dudley:  I just wanted to reinforce something that Karen said in her opening remarks. And that is that the regulatory agencies are well meaning, but they don’t always have experience with the things that they’re doing. And I just have an anecdote. Somebody who came to the George Washington University in a staff position after she’d spent eight years in a government agency writing regulations -- so she came to GW to be in charge of enforcing those to compliance. And she reached out to me when she saw that we had a regulatory study center.


And she said, “No one who was working on drafting those regulations had actually had experience in a university workplace. They didn’t understand.” And now that she was having to ensure compliance with them, she saw all the unintended consequences that actually were counter -- made them behave in ways that were counter to the objectives of the regulation. So having that kind of information in advance can be really valuable to these agencies.


Wesley Hodges:  Excellent. Well, thank you, Susan. I want to turn it back to the three of you to see if you have any additional thoughts or any thoughts to close today.


Prof. Susan Dudley:  I’ll just say one of the key takeaways for me listening to Karen and Brian is the agency is not your only audience. And so thinking broadly about your audience I think is valuable.


Karen Harned:  My only thing that I would add or just restate is that, you know, when you’re thinking about a regulation, particularly as somebody that’s being directly regulated, to not just immediately go straight to -- I mean, you want to go to where the compliance is. But also remember all the frontend work educating the agency on how much it’s going to take time away from you or business or cost you or your business or yourself to come up with a compliance plan.


Make sure -- it’s always helpful for the regulators to know because so often they’re dealing with more resourced organizations that, when you’re not a well-resourced organization that it’s you doing this because that could also drive other things like even how regulations are finally written, more in plain English, things like that that really should go to democratize, if you will, the regulatory process more.


Wesley Hodges:  Thank you, Karen. And Brian?


Prof. Brian F. Mannix:  I guess the one thing that I’d add, and I guess this is me speaking as someone who has been a regulator and has signed a lot of rules, I think the most influential comments are the ones that address the agency respectfully and recognize what a difficult problem they’re trying to solve and provide helpful guidance on how to get to a good outcome.


Wesley Hodges:  Well, fantastic. On behalf of The Federalist Society, I’d like to thank each of you for the benefit of your valuable time and expertise. Thank you everyone for joining and participating today. You can submit feedback email at [email protected]. Thank you all for joining us for the call. We are now adjourned.


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