Tips and Tricks for Interacting with Government Agencies

Many of you reading this may have already been involved in the regulatory process or have already encountered an enforcement action by the government. The purpose of this article is to provide some tips and tricks to be effective and more influential in your interactions and communications with federal and state agencies.

1. Commenting on Rules and Regulations

The rulemaking process is the procedural steps agencies take to create new regulations. Generally, agencies follow these steps when creating a rule or regulation:

1. Identify the problem that needs solving.
2. Draft regulations.
3. Gather initial stakeholder feedback.
4. Present draft regulations.
5. Collect public comments and feedback from stakeholders (including industry interest groups, individual farmers and ranchers, and other interested parties).
6. Hold a public hearing at which agencies will accept additional comments.
7. Revise recipes based on comments.
8. Finalization of the regulation and adoption of the regulation.

While some may feel overwhelmed or discouraged from participating in the process, it is important to recognize that it is the people on the ground—in the fields and working with livestock every day—who bring tremendous value to policy discussions. Knowing where your voice can be heard and how to structure your concerns or positions will make you effective and influential in communicating with agencies. A farmer or rancher can take steps to ensure that his or her voice is heard in the policy process by engaging with the agency and providing feedback in Steps 1, 3, 5, and 6 above. A farmer or rancher can bring issues he or she and others feel need to be addressed to the agency, or he or she can be a go-to person during the development of the regulations. Before writing a comment, read the regulations to better understand the implications and intent of the proposed regulations. Then identify areas that you support, areas that you are concerned about, and areas that are not working for your operation. State the reasons for these positions. Once you have a handle on the proposed recipes and know which parts affect you, you can start writing your recipe comments. There is no minimum or maximum word count, as your comment can be as long or as short as you need it to be. Remember, however, that brevity will make your comment more impactful, and measured brevity is appreciated.

Here are some tips for writing comments: First, make sure you identify yourself and your interests at the beginning of your comment. Include your name, what part of the state or country you’re from, describe your business, and how the regulations will affect your business (e.g., increase or decrease costs, limit or improve your ability to operate on your property, etc.). This will personalize your comment and build your credibility in the eyes of the reader.

Second, state your position at the beginning and end of your comment (e.g., I support, oppose, or want to see changes made). This will help the reader better understand the context of your opinion when reading your comment.

Third, provide your feedback on the regulations in an organized manner. This will be the body of your comment. Organize your comment chronologically, addressing each section of the regulations or grouping them under some important topics (e.g., Sections 1 and 4 or cost impacts and impacts on operations), and use paragraphs to distinguish each comment from a topic.

As a suggestion, here are some facts to include in each paragraph:

1. Present your position on the relevant provision.
2. Quote the important passages that you highlight in your comment.
3. Explain how and why the regulation affects you.
4. Propose alternative approaches to regulation (e.g. do not go forward, take a different, practical approach to solving the problem, or support this approach, etc.).

It is incredibly important to propose your own changes because it helps agencies provide new ideas or articulate why an approach won’t work. You may refer to something they hadn’t initially considered, but the new information may change their approach for the better. You never know, the language you propose may be incorporated after the agency considers your comment. Be sure to include relevant information and provide credible sources of data and facts about how the regulation could or will affect you. Tangible data also helps inform agency considerations.

Finally, conclude your comment by restating your position and making a brief “request” (e.g., “I ask that you reconsider, amend, or adopt these regulations for these reasons…”). If you would like to provide contact information, you can state that you are available to answer any questions and provide information on how to contact you.

Once you have written your comment, you can ask a friend to review it. If you are a member of a trade association—such as a state merchandise association, a livestock association, a Farm Bureau, a farmers’ association, etc.—you can contact their office to ask for advice or to have them review your comment. Once you have finalized your comment, you will submit it through the required channel (e.g., online submission to the agency website or mailing it to the agency). If you wish, you may also speak during the public comment period when the public hearing is held. Be sure to emphasize your most important points, but you do not need to reread your written comment. All information regarding the proposed regulation can be found on the agency website.

2. Administrative activities

Moving from the rulemaking phase to the enforcement phase, agencies enforce their regulations through citations for violations or enforcement actions. This occurs when a licensee violates a statute or regulation that the agency is authorized to enforce, such as using water in excess of its water rights allocation or pesticide drift issues. It is important to remember that these issues are governed by state administrative procedures statutes or judicial review statutes, and each state has its own version of these statutes. Therefore, this article provides general advice on how to deal with agencies and their legal departments.

Your heart rate quickens and your blood pressure rises as you open the envelope addressed to you by the agency. You read the title, “Order Establishing Civil Penalty,” “Expedited Order,” or something similar. Your heart sinks as you read the order describing the violation and penalties. Don’t lose hope, because here are some tips!

First, stay calm and read the order. The order should include the facts, applicable law, conclusions of law (which will highlight which actions violated which statute or regulation), penalties, and notice of how to proceed with the case.

Second, reread the notice sections of the order to understand what your rights and obligations are under the order. This section usually includes information about who to call if you want to pay the fine or what steps you need to take to appeal the case to an administrative hearing.

If you decide to appeal, the following suggestions will help you better handle your case. First, remember that many states allow an informal conference hearing between the agency and the party to determine whether there are extenuating circumstances or legal issues that the order may not have addressed. This informal conference is your opportunity to try to resolve your case as early as possible, so be sure to ask if an informal conference or settlement conference is available. In preparation for an informal conference or hearing, gather all records, documents, and other evidence that support your version of the case (e.g., pumping records, communications with officers or employees, time sheets, maps, photographs, etc.).

During the conference, you will have the opportunity to explain your side of the story. Be sure to discuss all issues in an orderly manner and be sure to include any mitigating actions you took before or after the violation. Showing remorse or sincere efforts to improve your practices can help reduce penalties or reduce the violation to a lesser offense. Also, practice your request before the meeting. Whether it is a reduction in penalty or a change to the order by offering additional measures to ensure future compliance, it can show the agency that you have thought about the matter and can be a starting point for negotiations. A party willing to work with the agency and ensure future compliance will greatly encourage the agency to negotiate with you.

If you intend to appeal to an administrative judge or court, it is highly recommended that you consult with an attorney who has experience dealing with agency actions. Attorneys will take a lot of the stress off of you, will know how to best approach your case, and will have a better chance of achieving the desired outcome or leniency. You can contact the advocacy organizations in your state listed above for assistance in referring you to an attorney.

3. Motivational programs

Finally, remember that state agencies not only enforce laws and regulations, but also provide many opportunities for ranchers to participate in co-financing and promotional programs. Co-financing programs are typically programs in which a landowner agrees to implement a specific practice on their ranch in exchange for a monetary payment or assistance in covering the costs of implementing the practice (e.g., stabilizing stream banks, planting buffer strips, allowing limited hunting or fishing, etc.). There are also programs that help ranchers promote and market the products they grow, produce, and manufacture on their ranch and then sell directly to consumers (e.g., produce stands, leather goods, handicrafts, soaps, etc.).