February 21, 2013
Oddities in Administrative Rule-making: The Comment Period
Posted by Usha Rodrigues

For an upcoming project I've been delving into the public comments of an SEC proposed rule for the first time in a long time.  The rule in question, implementing Section 201 of Title II of the JOBS Act is "Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings" (and if anyone has thoughts about it, specifically with how the heck you take reasonable steps to verify that natural-person purchasers really are accredited investors, do let me know).

This post is about the public comments, however.  Kim Krawiec has a great piece on the sausage-making surrounding Dodd-Frank's Volcker Rule, wherein she catalogs the pre-proposal comments and agency meetings, and provides a terrific empirical account of how industry voices weigh in on statutory gaps. What has struck me so far in the comments, available here, is how varied they are in terms of who is commenting (crack-pots, industry groups, JDs with an opinion), the formality of the comments (ranging from emails with typos to memos on letterhead), and their understanding of what the SEC can do.

Here are excerpts of a few comments that struck me:

What strikes me at first blush, reading these comments, is that 1) some people will just dash off a thought and send it in; 2) commenters read respond to other commenters, and 3) some commenters don't understand the role of the SEC in implementing Congress's law, or want to voice opposition anyway.  It strikes me that another medium might better serve some of the purposes of the public comment, particularly given how they're being used now. Maybe something more...bloggy?

But maybe that's just my blog-bias talking. 


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