nother lurker has a valuable diary up regarding an atrocious rule proposed by National Park Service: Plan to Drastically Curtail Protests in D.C. Unfortunately, the deadline for close of the comment period is Monday, October 15. Sure, you can whip off a curse laden, fascist heavy comment you would write on DKos, but that is not a comment worth reading regarding proposed rules. First, the agency doesn’t bother taking your angst into consideration and second, that type of comment is completely unhelpful to the non-profits who are readying themselves to sue once the rule is posted as final.
This diary is by no means a full guide to commenting on proposed rules — but just some helpful hints and links using the National Park Service proposed rule.
1. Federal Register Public Inspection: Ask yourself what your particular interests are and what agency would affect changes regarding your interests. As often as possible during the Monday through Friday work week, open the above link. It will open at the current day’s page on/after 8:45 a.m ET. You will find Notices, Proposed Rules, Rules, Executive Proclamations and such. This tool is very non-expert user friendly.
At the top you will see Special Filings followed by how many of them there are listed by category. A Special Filing is basically a notice that a document will be filed at some future date in the next few days, generally and then be published the day after filing. It will appear on the Regular Filings docket at that time.
Across from Special Filings you will find Regular Filings which are notices that the listed documents will be filed the following day.
Scroll down and you will see that the Special Filings are first and listed alphabetically by agency. Not until the document is actually filed in the Federal Register under Regular filings on the date specified is the document final. Changes can be made. Filings and proposed rules can be withdrawn and re-submitted.
Next you will see the Regular Filings listed alphabetically by agency. Scrolling down today’s listings, there are a lot of notices — which aren’t rules; rather notices of meetings, information, guidance, etc. “Guidance” is not a rule. I know this specifically because the Connecticut DEP was lax on that issue for years until Gina McCarthy took over and basically told them to cut the crap and make a distinction between guidance and rules.
Once the agency determines it will finalize the proposed rule it issues a notice of final rule. Rule is tricky in that it can be a Direct Final Rule:
A direct-final rule is published first as a final rule (without previous publishing as a proposed rule with a notice and comment period). The rule takes effect within a specified number of days unless adverse comments are received.
Or an Interim Final Rule:
Interim Final Rule: When an agency finds that it has good cause to issue a final rulewithout first publishing a proposed rule, it often characterizes the rule as an “interim final rule,” or “interim rule.” This type of rule becomes effective immediately upon publication.
I honestly can’t think of examples of either, especially the interim rule but am surprised this Administration doesn’t use that all the time — like for caging children.
Of course, any of these final rules can be challenged in court. Here is where the comments are supposed to assist those who have taken on the legal complaint. Challenging Regulatory Actions is a helpful and very abbreviated guide to the process from the proposed rule through the challenge in court or Congress.
I’ve commented in nother lurker’s diary providing links to helpful sites regarding how to write a comment which doesn’t include fucker, motherfucker, nazi, fascist, asshole, etc.
Step by Step Guide to Writing Comments
Taking the Mystery Out of Writing Comments
Tips for Writing Effective Comments (pdf)
When you click the link to a proposed rule — e.g. the one linked in nother lurker’s diary — you will see a hyperlink at the top to the docket file. Click that link and it brings you to the comments. You will see several that won’t even be addressed by anybody. The angst comments. I think there were over 7k comments so you can dig a bit to find a good template.
Arguments for challenging include:
- The agency failed to follow the procedures outlined in the Administrative Procedures Act, rendering the new rule invalid;
- The new rule exceeds the authority granted to the agency by Congress; or
- The new rule violates some other constitutional or statutory right of the plaintiff
Standard of Review includes whether or not the action was arbitrary and capricious.
Using the proposed National Park Service rule, read the rule — never just settle for the summary. At the end of the summary, however, is the comment period which provides a date certain when comments will close. When reading the rule, have in mind what criteria you want to use from the arguments and standard of review. Mark sections in your own code which indicate something like unconstitutional, first amendment, arbitrary and capricious — which is basically the first two arguments plus the “makes no goddamned sense” criterion.
Then look at one of the guides above or a good comment and craft your own. It doesn’t have to be long but it does have to be helpful.
I welcome any correction since I’m writing this quickly and it probably won’t actually be read as in tl; dr.
I have to go stuff some tomatoes and bake and make a salad for dinner but will be back later.