THE PROBLEM

The primary vehicle for public participation is the comment period directly following publication of a notice of proposed rulemaking (NPRM). What the public does not fully appreciate, however, is that notice of a proposed rulemaking comes quite late in the rule development process. Agencies often decide the general framework for regulatory actions during the pre-rule stage (before the publication of the NPRM). Therefore, participation during the standard comment period provides post hoc reactions to largely predetermined policy choices, and those earlier policy choices have not been made in an open, inclusive, or transparent process.

The participation that occurs either in the pre-rule stage or during the comment period is one in which interested parties give feedback to government officials but where there is no clear process for regular interaction between agency officials and the public. As a result, the participation that actually impacts agency decision making is limited to those with the knowledge, resources, and access that enables them to contact decision makers informally at key points in the process.

Public participation in the rulemaking process is important for both the public and for federal agencies developing rules. The public has a right to participate in the rulemaking process, and doing so enhances both civic engagement and understanding. The rulemaking process does not, and should not, operate as plebiscite or referendum. However, the ability of citizens to have a voice in the policymaking process is a central tenet of our representative democracy, even if that voice is not determinative. Agencies benefit, too. Meaningful public participation can provide decision makers with valuable insight into how a policy proposal will actually be implemented, what its real world impacts may be, or simply how it will be received in the court of public opinion.

The “public” can include experts and people who are not directly interested in the rule and might not otherwise participate, but who bring vast knowledge and experience, directly or indirectly, with the issues raised by the rulemaking. In the past, it was difficult or impossible to include these people because they were geographically dispersed. In addition, there are laws that allow certain stakeholders (for example, state and local governments, small business representatives) affected by rules to have access to the rulemaking process prior to the time when the experts and other knowledgeable segments of the public have access. Online commenting opens new possibilities for reaching out to these people, bringing them into the regulatory process, thus leveling the playing field and drawing on their knowledge and insight to craft a better rule. If federal officials incorporate such insights into their thinking as they craft the proposed and final rules, the result will be rules of greatly improved quality that better serve the public.

Another problem with the process as currently structured is that the comment period does not easily allow for a dialogue among commenters. Commenters often file on the last day of a period partly because they have used the entire comment period to prepare and polish their submissions, and partly so as not to reveal their arguments to those holding opposing views. Interested stakeholders can and do use their comments to refute what they anticipate will be the arguments of their opponents, but this approach is not as helpful as replies to actual comments through dialogue or debate. The absence of a debate underscores the need for a comment process that can generate an actual dialogue about a proposed rule.

Ultimately, the objective should be to bring to the process a broad range of relevant expertise, interests, and perspectives, and then improve the quality of the dialogue between the public and the agency so that regulatory outcomes are of the highest quality possible and are perceived as fair, open, and legitimate. Given the technical nature of rulemakings, numerous challenges present themselves. First, even experts may have limited understanding of the rulemaking process and may not be aware that a rule of potential interest is being developed. Second, the public may not understand complex rules, but may still be able to provide helpful input on the substantive issues in proposed regulations. Third, when the public has value to add, it may not possess the means or time to do so. Fourth, there is a tendency for the regulatory process to become captive to narrow audiences that may not adequately reflect the broader public perspective.

These problems have always been with us and will afflict any regulatory process. The rise of electronic communication offers new possibilities for reforming the rulemaking process to include a wider range of experts and stakeholders in a process that, for the first time, is truly open, interactive, and well informed. It is too soon to prescribe specific methods and procedures for how electronic rulemaking should work, but agencies have begun to experiment with new procedures. The president should strongly encourage agencies in such experiments – both by directive and by funding such pilots in agency budgets.

SUMMARY OF RECOMMENDATIONS

Public participation in the rulemaking process should involve more constructive communication between federal officials, the public at large, and outside stakeholders. Federal agencies should experiment with new techniques that allow for an exchange of ideas between interested parties and the government and among interested parties with diverse views. New techniques should create opportunities for participation in the pre-rule stage while policies are still under development. 

DETAILED RECOMMENDATIONS

E.1.   The federal e-rulemaking initiative needs to be reformed and accelerated to strengthen public engagement in the rulemaking process. Regulations.gov is a government-run website, the primary purpose of which is to provide the public and other agencies with a central location to find, view, and comment on proposed rules. Regulations.gov displays the text of proposed policies and the text of comments. It can also allow users to search for and read supporting material that serves as the basis for rulemakings.

Regulations.gov has made pioneering strides in making the rulemaking process more accessible in the Internet age, but it has not lived up to expectations nor to its full potential. The site is difficult to use, and finding regulatory proposals or other information can be tedious. For example, the site does not allow users to easily search for dockets – the collection of documents related to a specific rulemaking.

Changes to Regulations.gov should allow the website to better serve the public’s need for access to rulemaking dockets. (See Recommendation D.1.) A top priority should be to improve the website to make it easier for the public to find regulations of interest and to comment on them.

To engage the public earlier in the process, agencies should open dockets as soon as they make the decision to undertake a rulemaking and regularly post information on developments occurring before publication of the NRPM. For example, contact information for agency officials, updates on regulatory planning included in the semiannual Unified Agenda, and the posting of key studies could all be included in the online docket before the NPRM is finished and posted.

Regulations.gov should also be a mechanism for allowing both user and agency experimentation in order to improve the regulatory process. It could provide the platform for assessing and supporting greater information technology capabilities and resources within agencies and among stakeholders. It could allow, for example, the public and regulated communities to have the option of using either the central website or agency sites to get needed information. Having multiple pathways to regulatory information in today’s world of distributive databases would mean that the same core data are available to the public no matter which approach is used to find information. Visiting agency websites, however, the user might find other value-added information; if visiting Regulations.gov, the user might find more comparative information across government.

The Office of Management and Budget (OMB) should make improvements to e-rulemaking a high priority, working closely with the appropriate agencies, to formulate and implement a plan of action. Here are two ways OMB can be helpful. First, it should request resources from Congress to adequately fund the e-rulemaking initiative. Currently, federal agencies are required to divert resources from other programs to fund the initiative. This requirement may be a disincentive to encourage participation. Second, OMB should seek resources to strengthen agency information technology capacity so that they further expand the objectives of the e-rulemaking initiative.1

E.2.   Agencies should be encouraged to experiment with interactive technology to solicit stakeholder input. Agencies should be encouraged to try new ways of stimulating public participation, such as using pilot programs to experiment with interactive technology. For example, agencies could experiment with making field hearings open to broader audiences than ever before by using online and teleconference tools. Just the same, technological innovations cannot completely preclude real-world practical concerns: a recent Mine Safety and Health Administration hearing on drug and alcohol testing for miners was set up as a teleconference, but MSHA did not provide for large-enough spaces for the public to attend and participate in the teleconference. These experiments should be evaluated and the tension between expediting the rulemaking process and improving participation should be balanced before full-scale approaches are adopted.

E.3.   Agencies should experiment with new ways to encourage participation by the public and stakeholders even prior to proposed rulemaking in order to level the playing field. Either by statutory requirement or executive prerogative, agencies seek input even before the rule enters the formal notice-and-comment stage. Unfortunately, this involvement in the pre-rulemaking stage is selective to certain stakeholders, building unfairness into the rulemaking process.

We need to find new ways to engage the public. To facilitate improved participation in the pre-rule stage, agencies should notify the public of its plans to undertake a rulemaking and then provide regular updates. For example, improved tracking capabilities would allow the public to follow the rule as it develops and comment at any critical juncture that may set the course of the new policy. Allowing the public to voice concerns in a timely way permits the agency to respond to concerns in conjunction with making a decision instead of long after. See Recommendation D.2 for how to improve rule tracking.

Examples of other mechanisms with which agencies might experiment to solicit diverse views about a rulemaking could include:

• Creating an interactive website similar to the European Union’s Your Voice in Europe site (see http://ec.europa.eu/yourvoice/index_en.htm);
• Employing public health/environmental analysts to help explain technical issues to the public;
• Creating an ombudsman/public interest advocate similar to one that exists for small business;
• Funding outside groups on a rule-by-rule basis similar to the community advocate funding provided under Superfund legislation; and/or
• Hosting online meetings/communications using interactive technologies. 
   

E.4.   Agencies should make better use of advisory committees to serve as vehicles for hearing the views of stakeholder groups and the public at large, especially in the pre-rule stage. Federal agencies should use federal advisory committees (FACs) more frequently to elicit public, scientific, and stakeholder views, including during the pre-rule stage. Agencies may form standing FACs to address scientific issues that are likely to remain of national concern, such as climate change or import safety. Agencies may also wish to form ad hoc FACs when they decide to undertake a specific rulemaking. These FACs can run a parallel course to the agency’s efforts to develop rules; panel members could weigh in on questions, determinations, or evidence in the pre-rule stage as they arise. In any case, the committees should be used to solicit information important to forming effective options and alternatives before policy decisions are made.

The Federal Advisory Committee Act (FACA) requires, with limited exception, that advisory meetings be open to the public. The act also requires FACs to be “fairly balanced in terms of the points of view represented.” Taking those two points into consideration, FACs can be a vehicle to hear the views of stakeholder groups and the public at large on pressing issues – especially in the pre-rule stage before an agency narrows policy into one or more regulatory options.

To realize the promise of advisory committees as participation vehicles, provisions requiring both openness and balance must be met. Currently, FACA meetings are not as open as Congress likely envisioned. In 2007, only 30 percent of FACA meetings were fully open to the public.2 Agencies must open more meetings to the public and provide time for comments or questions, especially for meetings related to a rulemaking. Agencies must also make concerted efforts to inform the public of upcoming meetings. Specific recommendations about strengthening the workings of federal advisory committees are in recommendation B.3 and B.4.

ENDNOTES

1. American Bar Association, Achieving the Potential: The Future of Federal E-rulemaking.
2. According to the General Service Administration’s FACA database, 6,940 meetings were held in FY2007. Of those, 2,109 were open, 4,541 were closed, and 290 were partially closed. Available at http://www.fido.gov/facadatabase/public.asp, last accessed October 6, 2008.