This article was authored by Michael Sant'Ambrogio, Professor of law and Associate Dean for Research at the College of Law of Michigan State University, and Glen Staszewski, Professor of Law and the A.J. Thomas Faculty Scholar at the College of Law of Michigan State University.
This article first appeared in the Regulatory Review's series on "Guiding Agencies to Improve Transparency and Efficiency" that focuses on the ACUS Recommendations adopted at the December 2018 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
Public engagement in rulemaking improves the quality, legitimacy, and accountability of agency decision making. The notice-and-comment process frequently used by federal agencies to create administrative rules is often praised for its democratic character, but some scholars argue that this process may be dominated by certain sophisticated stakeholders.
The Administrative Conference of the United States (ACUS) commissioned us to prepare a report surveying the outreach tools and practices—beyond the required minimum of notice and comment—that federal agencies use during rulemaking. We focused in particular on agency efforts to enhance public understanding of rulemaking issues and to foster meaningful participation by traditionally absent stakeholders. We also identified best practices to help agencies invest resources to maximize the likelihood of obtaining high quality public information throughout the course of the rulemaking process.
ACUS had already produced important studies on related topics—including rulemaking petitions, negotiated rulemaking, advisory committees, social media, comment-and-reply periods, and plain language in regulatory drafting. For that reason, ACUS’s recommendation on public engagement in rulemaking focused on other supplemental tools that agencies can use to expand public engagement efforts.
Many existing studies focus overwhelmingly on the notice-and-comment stage of rulemaking. Agenda setting, early and advanced rule development, and retrospective review, in contrast, have received much less focused attention—which is why a broad examination of public participation in rulemaking is especially valuable.
The existing literature generally treats what happens before publication of a notice of proposed rulemaking as a “black box,” and suggests that rule development is primarily influenced by political considerations and pressure from well-organized interest groups.
Yet in conducting our research, we spoke with numerous agency officials who described significant efforts to engage the public during agenda setting and rule development too.
In most cases, agency engagement with the public begins long before the publication of a notice of proposed rulemaking. Because such efforts tend to be unstructured and ad hoc, however, agencies should devote more attention to strategic planning and consider other ways to better institutionalize public engagement with rulemaking. Affirmative, carefully structured efforts could encourage greater participation by traditionally absent stakeholders.
Since rulemaking novices face significant barriers to participation, ACUS’s recommendation on public engagement in rulemaking strongly emphasizes strategic planning, targeted outreach, and related efforts needed to reach beyond the usual suspects who comment on proposed rules.
The recommendation suggests that agencies should adopt “general policies for public engagement in their rulemakings” and should plan for public participation in specific rulemaking proceedings as early as possible. But the recommendation also recognizes that enhanced public engagement beyond notice and comment is not always necessary or appropriate, and it identifies various factors agencies should consider in assessing when such efforts are most likely to prove worthwhile.
One of those factors is the likelihood that enhanced or targeted public engagement efforts would provide useful information from “experts, individuals with knowledge germane to the proposed rule who do not typically participate in rulemaking, or other individuals with relevant views that may not otherwise be expressed.” The recommendation also suggests that “agencies should consider using personnel with public engagement training and experience to participate in both the development of their general public engagement policies as well as in planning for specific rules,” and they “should support or provide opportunities to train employees to understand and apply best practices in public engagement.”
The recommendation emphasizes that public engagement efforts “should generally occur as early as feasible in the rulemaking process, including when identifying problems and setting regulatory priorities.” It highlights three particular methods that agencies should consider using in appropriate circumstances to supplement the notice-and-comment process.
First, the recommendation urges agencies to consider using “requests for information” or “advance notices of proposed rulemaking” to request data, comments, or other information on regulatory issues before proceeding with a specific regulatory proposal. These devices are especially useful when agencies are seeking to evaluate the nature or scope of a regulatory problem, identify or evaluate alternative regulatory strategies, or develop and refine preliminary drafts of their proposed rules.
Second, because not everyone reads the Federal Register, ACUS’s recommendation suggests that agencies should implement targeted outreach efforts to facilitate participation by both experts and members of the public “who do not typically participate in rulemaking.” Those efforts should include proactive strategies to bring the rulemaking to the attention of traditionally absent stakeholders and provide them with readily understandable information about relevant issues.
Third, the recommendation suggests that agencies should consider convening meetings of diverse groups of interested persons to obtain useful feedback on potential regulatory alternatives and elicit information through a process of interactive dialogue. When conducting such meetings, agencies should provide readily understandable background materials to the participants and carefully consider the appropriate format and structure for the event.
The recommendation also emphasizes that agencies should consistently strive to make information about their rulemaking activities and opportunities to participate readily available to the public.
There are other tools that agencies can use to facilitate public engagement with rulemaking, many of which are discussed in our report underlying the ACUS’s recommendation. The recommendation is, however, an important step toward improving public participation in the regulatory process.
ACUS’s recommendation makes clear that agencies should think carefully at each stage about what information stakeholders may be missing and use the tools most likely to generate this information in a cost-effective manner. With careful planning and outreach, agencies can use different modes of public engagement at different stages of rulemaking to ensure that all of the relevant information and views are considered and thereby enhance efforts to more fully democratize the regulatory process.