Alternative methods of outreach to agencies can garner useful feedback and reduce pressure on the notification and comment process.
When the US Congress passed the Administrative Procedure Law (APA) in 1946, one of its most innovative aspects was the opinion and commentary to treat. Informal rule-making itself was a new approach to policy-making at the time, as many agencies had previously produced policies iteratively through decisions made in individual cases. And the idea of ââallowing interested stakeholders to contribute to the agency that it was legally obliged to take into account was perhaps the most unique feature of this new approach.
But the APA editors don’t seem to have given much thought to the specific purposes the commentary process would serve. On the one hand, on the basis of a review of the legislative history, it appears that the drafters destined the commenting process to provide useful information technical contribution to the agency.
On the flip side, maybe the editors also wanted him to provide some sort of democratic legitimacy by allowing the public to influence the actions proposed by an agency. After all, the New Deal has largely extended the federal state of regulation and bestowed extraordinary legislative powers on unelected agency officials, so notification and commentary could have been a possible fix that restored at least some of the policymaking power to the people.
But the APA is ultimately unclear what role, if any, public opinion should play in the rule-making process.
This fundamental tension between the technical and democratic aspects of rule-making has remained at the heart of the advice and comment process throughout its history. Is public comment intended to lead to more technically sophisticated rules, to give the general public the opportunity to influence the agency’s decision, or both?
That tension sat dormant for many decades, as advice and commentary was, and largely remains, an esoteric exercise known primarily to a handful of Washington insiders. Virtually all of the comments came from law firms, business groups, businesses and NGOs, especially environmental organizations. As a result, the technical distinction from democracy was largely an academic distinction, as the only comments that really mattered were those that offered useful information to the agency.
In recent years, however, that dynamic has started to change. Due to technological developments, the review and comment process has to become better known, and e-rulemaking made it easier to post a comment. Of course, most of the rules remain to design very limited participation. But a handful of high-profile rules, including the Federal Communications Commission (FCC) ‘s recent set of net neutrality rules, have drawn a massive public response involving millions of comments.
Looking at these high-profile rules, a clear divide between agency and general public views on the notice and comment process is apparent.
In a recent report For the United States Administrative Conference (ACUS), of which I was a co-author, interviews with agency heads made it clear that agencies view the commenting process exclusively or almost exclusively through a technical lens . Our interviewees unanimously noted that the opinion and the comment do not constitute a vote and that, to be useful, the comments must contain actionable information and not mere expressions of opinion.
Considering the public perception of net neutrality rules, on the other hand, it is clear that the general public comes to the opposite conclusion.
So where does that leave the notice and comment process? Will one prospect or the other win? Or will government agencies just continue to fend for themselves, with all parties increasingly dissatisfied?
If agency policymakers take a step back, they might come to see this challenge as an opportunity to use technological developments to their advantage.
Technically, the review and comment represent a legalized version of a suggestion box, which is often the ideal mechanism for collecting scattered information. Politically, it is difficult to imagine a worse approach to knowing public opinion. No PR company, for example, would design a poll that most of the intended recipients don’t know exists and participation is entirely on an opt-in basis. At least for the purposes of determining public opinion, the notice and comment process is tailor-made to ensure that the most extreme and unrepresentative opinions are the only ones recorded.
The APA editors, however, were not mistaken in adopting the advice and commentary. It was the best approach imaginable at the time. And even now, in the vast majority of rules, this will represent the optimal approach in light of the limited resources that can be devoted to the problem. But for some rules, it may be a good idea to supplement reviews and comments.
Agencies already have a wide range of additional outreach tools. These include the advance opinion proposed regulation, Federal Council committees, stakeholder workshops, direct contact with affected groups, social media sensitization, negotiated regulation (often called “reg neg”), “reg neg liteâAnd many other options.
International practice also provides a useful precedent. The European Commission, for example, commits a process similar to reg neg lite when considering a new bill: it invites key stakeholders into the room, fosters a conversation, and then takes that input into account when drafting the law. China has, in some cases, summoned a citizens’ council to hear the comments of the citizens concerned when new regulations are proposed.
Most of these options will be inappropriate for use in most rules. In deciding what additional outreach, if any, it should undertake, the agency must be mindful of what it is trying to accomplish with the rule and what âaudienceâ it is seeking to involve.
While the rule is very technical, undertaking broad outreach to the general public is likely to be redundant or worse, counterproductive, especially if it creates unrealistic expectations on the part of public participants. A simple notice and comment can be ideal for these types of rules.
In other cases, the agency may want to extend its reach to technical experts. For example, if there is a debate among experts, the agency may wish to form an advisory committee. At the very least, he could consider reaching out to leading experts for informal feedback before developing a rule. New technologies such as video conferencing platforms are making this type of outreach much easier and cheaper than it was in the past.
If, on the other hand, a proposed rule is likely to generate broad public interest, the agency may consider undertaking some form of outreach that will provide an accurate picture of public opinion. To do this, the agency must be creative and careful. Tweeting about his proposed policy and seeing how the Twitterverse reacts, for example, is likely to be as uneducating as counting comments.
A more productive approach might involve a crowdsourcing program such as Idea Scale, which allows users to engage with each other in online deliberation and provides a way for users to prioritize the different options that present themselves.
Convene a citizens’ advisory group, as I have offers elsewhere, would be even more useful, as it would give the agency an idea of ââwhat well-informed citizens think. Any advisory group would be subject to the Federal Advisory Committee Act (FACA) and create costs for the agency, but video conferencing software promises to reduce these costs.
Alternatively, the agency could use some form of reg neg lite in which it identifies segments of the public most likely to be affected and then obtains their informal input, which avoids triggering the FACA.
By pursuing these forms of additional targeted outreach, the agency would gather more useful feedback and alleviate some of the pressure on the notice and comment process. Since feedback is the primary mechanism for influencing agencies during the rule-making process, participants are encouraged to maximize their influence, which has resulted in a system that is neither optimal for stakeholders nor for stakeholders. for agencies.
Stakeholders are frustrated by their lack of influence in what they see as a democratic process. Agencies are frustrated with the high volume of contributions they receive, which often offer little value in a process they see as largely technocratic.
By pursuing reforms along the lines of those described above, agencies may be able to elicit more meaningful public input while simultaneously ensuring that individual members of the public have the opportunity to participate and be heard. And ideally, these reforms will also help the agency reduce the number of comments filed just to attempt to register a vote.
The opinions expressed are those of the author and do not necessarily represent those of the Administrative Conference of the United States or of the Federal Government.
This essay is part of a six-part series entitled Mass comments in the development of administrative rules.