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March 31, 2009

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One of the more remarkable aspects of our federal and state legislative systems is the right to comment on proposed rules as well as on non-statutory policies and guidelines.

But very few individuals in the regulated community take advantage of the opportunity to comment--either vocally in public hearings or in writing--on rules that may powerfully affect the future of their businesses. The low level of participation in public commenting is understandable. Reading and understanding a long, legally and scientifically complicated rule proposal, determining how the many parts will actually affect your company, and writing a thoughtful and persuasive comment are, realistically, beyond the means of most busy HR managers.

There are, of course, many good reasons managers should carve out time in their schedules to participate in the public comment process. For example, government staff who write proposals and rules are often a motley group, comprising lawyers, economists and individuals with academic experience, and, in a few cases, individuals who have actually worked in the sectors for which the rules are being written. Occasionally, rules are based on the knowledge gained by agency staff who visit some employers to understand how processes work and laws work in the "real world." But more often, the bases for rule requirements are derived from responses to surveys or information requests sent by agencies to employers. Decisions, moreover, are frequently driven by legal or individual case-based considerations that may have little connection to the majority of employers.

Educating rule writers

Under such a scenario it is likely that managers responsible for complying with employment laws and regulations can, in fact, educate rule writers about their subjects. Our experience in monitoring rule development indicates that comments from large companies on the specific impact of a proposed rule will be given serious consideration by rule makers. The same attention is often not given to individuals or managers of small companies unless the comment is exceptionally well-researched and written. But while one person presenting evidence that a rule will have dire consequences on his or her business may not persuade an agency to ratchet down requirements, a half dozen commenters singing the same tune have a good chance of making a difference.

In considering the possibility of commenting, it is essential to believe 100 percent in your right to express yourself. Refuse to be intimidated by the process. If you believe you have something important to say, you owe it to your profitability, your staff, and anyone else who is invested in the wellbeing of your company to do so. Agencies are legally bound by the federal Administrative Procedures Act and equivalent state acts to consider any comments that are not frivolous. Your perspective and experience are unique, and they may provide unique value to the process, even if all the technical and legal details are not entirely accurate. And remember, nothing can be gained by maintaining silence.

The basics of commenting

Neither should you be dissuaded by the fact that you have never commented and do not know how to go about it. Commenting is not a pressing need for every manager. You may, for example, rely on your industry association to look out for your best interests. Some industry associations are well funded, staffed with knowledgeable former agency personnel, and wired into virtually every move an agency makes. Agencies closely consider the comments of large national associations. If you believe that your association is well representing your immediate interests, it is probably unnecessary for you to comment individually. But if your professional association is small, occupied with other issues, or not knowledgeable about your specific concerns, it may be best to take matters into your own hands.

In her book "The Art of Commenting," Elizabeth D. Mullin provides hands-on advice about how to write comments that get attention. This short (100 page), easy-to-read, and upbeat book can help turn a manager who never even dreamed about commenting into an outspoken industry activist. Here are 11 tips on commenting gleaned from Mullin's book:

  1. Become involved in the rulemaking process before the proposal is written. Agencies publish proposals in state or federal registers and often give the public insufficient time (typically 30 days) to research the issue and write comments. Identify the individuals in state or federal offices who oversee your areas of concern. Query them patiently and persistently about upcoming rulemaking. Offer your opinion at an early stage and ask to be kept up-to-date on developments.

  2. Get legal and technical advice on the rule proposal. If you have in-house legal expertise, this may be done with little or no extra expense.

  3. Work with others in your sector in developing comments. Managers from different companies performing the same or related work often have complementary skills and areas of expertise. If you are a manager who is already active in industry functions, you have a head start in forming working alliances for comment submission.

  4. Do your homework. Your reading material will not be limited to the proposal itself. Additional reading may include legislation, other rules, commentaries, and agency policies and guidelines. If you have some dexterity in using Internet search engines, you can generally locate most if not all the material you need on the Web. If the subject is more esoteric, contact the relevant agency staff and ask them about the background material they are using.

  5. Evaluate the proposal. Mullin recommends that you envision the document or the parts that are pertinent to your operations the way they should be. Compare your version with the proposed version. The areas that are different will be the starting point of your comments.

  6. Be specific. Telling an agency that you are displeased with the proposal and that it will present an impossible burden to your business may elicit sympathy. But this approach does not have a chance of resulting in changes unless it is supported by specific analysis. One effective approach is to offer an alternative. Refrain from getting into extensive technical detail in the body of your comment letter or in your public presentation. This information can be handed in at a public meeting or included as an appendix to your letter. Mullin provides pointers on organizing and writing a cover letter.

  7. Acknowledge what's good. Even the most critical of well-written comments begin by complimenting the agency on its intentions if not its actual product.

  8. Be clear. There should be no ambiguity in the points you are making. If you oppose a requirement, do not say this "may" not be a good idea. Instead, state this requirement is wrong, here is why it is wrong, and here is how it can be fixed.

  9. Be aggressive. Mullin calls this "pounding the table." This type of approach falls into two categories. You can attack processes, for example, claiming that insufficient background materials were available for meaningful participation. Or you can attack people, for example, the wrong people were involved in writing the proposal. The second option is risky and may serve to cause the agency to become equally aggressive.

  10. Identify your references. Anyone who reads your comments should be able to access without difficulty the same background material you used.

  11. Give examples. Your real-world experience may be your greatest advantage over agency rule writers. Take opportunities to illustrate your points, but be certain that your examples are pertinent to specific requirements or alternative requirements.

The choice is yours

The work of commenting is not simple and should not be performed lightly or haphazardly. But managers who shoulder the effort and develop the needed skills will substantially expand their value to their companies. They will also, most likely, receive the recognition and respect from industry colleagues and agency staff.

KF 4-03

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Filed Under: Workplace Issues

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