Modernizing Regulatory Review: Perspectives from ACUS

This article was authored by ACUS Research Director Jeremy Graboyes and ACUS Attorney Advisor Jennifer Selin. The views expressed are those of the authors and do not necessarily represent the Administrative Conference or the federal government.

This article first appeared in the Notice & Comment "Symposium on Modernizing Regulatory Review." The original may be found here, and the Regulatory Review's entire series may be found here.


As others have discussed throughout this symposium, Executive Order 14094 makes several significant changes to the regulatory process. In addition to reforming the process by which the Office of Information and Regulatory Affairs (OIRA) reviews agency rules, the EO directs agencies to recognize distributive impacts and equity in their regulatory analyses and encourages them to affirmatively advance inclusive public participation in agency rulemaking.

Inclusive public participation and equitable regulatory analysis are interrelated objectives. As the Administrative Conference of the United States (ACUS) has recognized: “[b]y providing opportunities for public input and dialogue, agencies can . . . enhance the legitimacy and accountability of their decisions, and increase public support for their rules.” At the same time, enhanced public engagement enables agencies to “obtain more comprehensive information” about the potential consequences of their actions, including impacts on the health, safety, and wellbeing of underserved communities and their members.

Promoting more effective public participation in the rulemaking process is at the core of ACUS’s statutory mission. Through the years, ACUS has invited the views of policymakers, scholars, legal practitioners, community advocates, and others to identify promising best practices for promoting effective public participation in agency rulemaking, and ACUS has adopted many recommendations to advance its mission. 

Throughout this body of work, several important lessons emerge. Among them, agencies should:

  1. Facilitate public engagement in regulatory planning;

  2. Engage with the public early in the rulemaking process;

  3. Consider options for engagement beyond notice and comment; 

  4. Broaden engagement with historically underrepresented communities; 

  5. Use technology to reduce barriers to public participation; and

  6. Periodically reevaluate and collect data on their rules to assess their real-world effects, including those that disproportionately impact underrepresented communities.

Agencies would do well to consult ACUS’s many resources on public participation (and rulemaking more generally) as they work to implement EO 14094. These resources are intended to help agencies efficiently, equitably, and effectively provide opportunities for public input and dialogue in the regulatory process.

Facilitate Public Engagement in Regulatory Planning

The public can play an important role in developing regulatory plans, and agencies can obtain valuable information through well-managed public engagement. ACUS recommends that agencies strive to engage with the public “as early as feasible in the rulemaking process, including when identifying problems and setting regulatory priorities.”

The Administrative Procedure Act (APA) codifies a public role in regulatory planning by requiring agencies to give interested persons the right to petition for the issuance, amendment, or repeal of rules. The meaningfulness of that right depends, of course, on how agencies structure and implement their petition processes. To better inform regulatory planning, EO 14094 directs agencies to manage their petition processes clearly, effectively, and transparently. 

memo from OIRA Administrator Ricky Revesz encourages policymakers to consider best practices recommended by ACUS in 2014. (NB: Administrator Revesz was also a coauthor of the report underlying that recommendation.) Several agencies—including the Consumer Financial Protection Bureau and Commodity Futures Trading Commission—have already relied on these recommendations to facilitate meaningful public engagement in regulatory planning, and other agencies will find them useful in evaluating their own processes. 

Engage With the Public Early in the Rulemaking Process

When addressing a problem, agencies often must decide among different regulatory alternatives. Public engagement at this early stage of rulemaking can be especially beneficial. As ACUS has recognized, “[a]gency development of and outreach concerning regulatory alternatives prior to issuing a notice of proposed rulemaking (NPRM) on important issues often results in better-informed notice-and-comment processes, facilitates decision making, and improves rules.” 

Administrator Revesz’s memo encourages agencies, when appropriate, to “identify opportunities to increase public engagement early in the regulatory process, including when they are still considering regulatory options.” ACUS recommends that agencies use requests for information and advance notices of proposed rulemaking to gather information or data about the existence, magnitude, and nature of regulatory problems; evaluate potential strategies to address regulatory issues; choose between regulatory alternatives; and develop and refine proposed rules. Direct outreach and one-on-one communications may also be beneficial at this early stage, though agencies should follow best practices for transparency. 

ACUS has identified best practices to help agencies “tailor their outreach to ensure that they are soliciting input in a way that is cost-effective, is equitable, and maximizes the likelihood of obtaining diverse, useful responses.”

Consider Options for Engagement Beyond Notice and Comment

After an agency has already identified a problem, selected among regulatory alternatives, and formulated a proposed rule, the APA establishes a default public process for agency rulemaking, including notice of a proposed rule in the Federal Register and receipt of written data, views, and arguments from interested persons. While that process is an important one, its limitations have been readily acknowledged. For example, many people affected by agency rules are simply unaware of the notice-and-comment process or lack the resources or know-how to meaningfully engage in it. Additionally, the relatively static notice-and-comment process does not allow for flexible, ongoing dialogue among policymakers and the public. 

ACUS has long encouraged agencies to consider supplementing the public beyond notice and comment in appropriate circumstances—both to promote more robust public participation, especially from affected communities whose voices have historically been underrepresented in agency rulemaking, and to better inform agency decision making. Through recommendations, ACUS has identified options agencies can use to broaden public engagement for particular rulemakings. Options identified include requests for information, online forums, listening sessions, focus groups, advisory committees, and meetings with interested persons. 

Through panel discussions, ACUS has also invited government officials, academic scholars, community advocates, and other experts to share their perspectives on using innovative techniques and new technologies to supplement the notice-and-comment process.  Such strategies can enhance agency engagement with a wide range of interested persons, including affected groups that may suffer disproportionate harms from a proposed rule or are underrepresented in the administrative process.

Broaden Engagement with Historically Underrepresented Communities

Public engagement can promote participatory democracy and improve agency decision-making, but only if people interested in and affected by agency rules can share data, views, and arguments effectively. When rules affect communities that have historically been underrepresented in agency rulemaking, agencies may need to take affirmative steps to broaden engagement. 

EO 14094 directs agencies to design opportunities for public participation “to promote equitable and meaningful participation by a range of interested or affected parties, including underserved communities.” In practice, this often requires agencies to take affirmative steps to identify persons interested in and affected by their rules, ensure interested and affected persons have reasonable notice of opportunities for public participation, and address barriers that may impede meaningful participation.

To help agencies implement Executive Order 13985—which directed OMB and agencies to identify barriers that underserved communities and their members face in engaging with federal programs and strategies to address them—ACUS convened a forum in Fall 2021 to learn more about how agencies can improve participation by underserved communities and their members in administrative policymaking. 

Across six panels, several dozen government policymakers, community advocates, and academic scholars shared their perspectives on (1) identifying underserved communities, (2) improving engagement with underserved communities, (3) accounting for barriers that prevent underserved communities from participating in regulatory policymaking, (4) learning from past and present federal efforts to engage with underserved communities, (5) learning from state and local agencies’ efforts to engage with underserved communities, and (6) expanding on efforts to engage with underserved communities.

ACUS has also identified simple, cost-effective best practices to foster broader participation. They include drafting rules in plain language, preparing plain-language explainers, providing guidance on effective commenting, and using videoconferencing to reduce barriers to participation. The goal is clear: “The agency should endeavor to make participation by interested persons who have less time and fewer resources as easy as possible, particularly when those potential participants do not have experience in the rulemaking process.” 

Use Technology to Improve Notice of and Reduce Barriers to Public Participation

Technology has radically reshaped public participation in agency rulemaking, and ACUS has considered ways agencies can leverage new technologies to inform the public about engagement opportunities and improve access. Through basic technologies such as their websitessocial mediablogs, and email distribution lists, agencies can more effectively inform members of the public about regulatory developments that affect them and invite them to participate in agency rulemakings. Agencies can use videoconferencing to reduce the time and resources required to attend meetings and hearings. And of course e-rulemaking—addressed across many ACUS recommendations—has substantially increased the visibility of opportunities for public participation and dramatically reduced barriers to meaningful participation. 

EO 14094 directs the OIRA Administrator to “consider guidance or tools to modernize the notice-and-comment process, including through technological changes.” At the same time, EO 14094 recognizes that modernization may pose new management challenges for agencies. It specifically acknowledges challenges that may arise in managing mass, computer-generated, and falsely attributed comments. ACUS addressed that subject in a 2021 recommendation, which Administrator Revesz’s memo to agencies encourages officials to consider.

Periodically Reevaluate the Real-World Effects of Agency Rules 

ACUS has repeatedly encouraged agencies to develop a culture of retrospective review and seek opportunities to collect data to analyze the effects of their rules. When well-managed, retrospective review can “enhance the quality of agencies’ regulations by helping agencies determine whether regulations continue to meet their statutory objectives.” Emerging technologies, including artificial intelligencemay offer new opportunities for agencies to conduct more robust retrospective review in a cost-effective manner.

Retrospective review can also help agencies evaluate regulatory performance and determine the accuracy of the assessments underlying their regulations—including with respect to distributional impacts. Public engagement is particularly important here. Input from the public can help agencies identify the types of regulations that lend themselves to periodic retrospective review and can inform that review.

* * *

As agency officials and the public consider how best to modernize regulatory review, ACUS provides a useful source of evidence-based and consensus-driven best practices. ACUS continues to explore ways to enhance meaningful public participation in the regulatory process and identify best practices for regulatory analysis. Recommendations and other resources are available at www.acus.gov

 

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