Public Engagement in Rulemaking

Public participation in the rulemaking process is vital for agencies in developing their rules. Trade associations, non-profit groups, and individual commenters often have unique experiences and additional objective data and information that can help agencies shape and improve their regulatory proposals. The Administrative Procedure Act requires that agencies seek comment on their regulatory proposals. Though anyone can participate by submitting comments, meaningful participation requires commenters to present certain information and arguments in certain ways. Larger, more sophisticated entities often dominate the commenting process because they have the resources and experience to provide the agency with the information and arguments it seeks in ways that persuade the agency. As a result, other entities that rarely comment lack the experience necessary to participate meaningfully. When large segments of the public have difficulty participating in the process, final rules can be less effective.

Though notice-and-comment procedures are the primary means through which agencies obtain information from the public, agencies use a variety of other methods to facilitate public participation in the rulemaking process. Recently, ACUS has studied some of these methods, including negotiated rulemaking and rulemaking petitions, and has adopted recommendations encouraging their expanded use. ACUS’s current project, Public Engagement in Rulemaking, seeks to build on these and other recommendations and further explore other means through which agencies can engage the public in rulemaking, particularly those individuals and entities that do not participate often. The consultants surveyed many agencies regarding their outreach efforts and found that agencies use a variety of methods, including focus groups, hotlines, requests for information, advisory committees, and rulemaking petitions, to set their regulatory agendas, hone their regulatory proposals, and identify areas warranting further review and improvement. Their report highlights how these and other methods can help agencies in their agenda setting, rule development, solicitation of public comments on proposed rules, and retrospective review.

ACUS’s Committee on Rulemaking is considering draft recommendations for agencies to enhance and expand their public engagement efforts. Following consideration by ACUS’s Council, it is anticipated that the Committee’s draft recommendations will be discussed and voted on by the ACUS Assembly at the 70th Plenary Session this December.