Recommendations and Actions
Under the Administrative Procedure Act (APA), agencies are required to provide only a minimal opportunity for public comment before issuing regulations--generally, agencies must accept only written comments filed between issuance of the proposed and final rules. The agency then reviews these comments and responds to them when the rule is finalized. If affected interest groups or members of the public disagree with the rule, they can challenge it in court.
The traditional rulemaking model, particularly for controversial rules, can be very adversarial. For example, the Environmental Protection Agency (EPA) believes that 80 percent of its major rules are challenged in court.[Endnote 1] A court challenge may delay or hinder implementation of a rule because, during the year or more that it takes to litigate a case, challengers may not comply with the rule or, if the effective date of the rule is not stayed, challengers may do only that which is minimally required. Court remand of a rule can set a program back several years more.
The adversarial nature of the rulemaking process also hinders development of a rule. Parties may raise a host of objections just to preserve issues for appeal, and they may be unwilling to acknowledge the legitimacy of other parties' positions. Agencies may spend more time than is really beneficial preparing detailed rationales for rules and responses to comments to protect themselves in case of court challenges.
NEED FOR CHANGE
PUBLIC PARTICIPATION DURING THE RULEMAKING PROCESS.
Without exception, everyone from outside the government whom the National Performance Review (NPR) interviewed on the regulatory process--whether from industry or public interest groups--said they wanted earlier and more frequent opportunities to participate in the rulemaking process. Although granting this wish is not cost-free, there are many good reasons for agencies to do so. Earlier and more interactive public participation can help the agency develop innovative regulation and provides information otherwise unavailable to the agency. It can also build bridges among the agency and affected interest groups, and improve compliance with the rule by increasing acceptance, or lowering resistance, from some affected parties.
The traditional rulemaking model limits public participation in ways that dampen the type of interaction likely to lead to innovative solutions. First, by the time the agency proposes a rule, it has often committed much time, resources, and energy to the proposal. Therefore, although it may be open to changing the details of the approach, it may not be inclined to change direction significantly. (For example, if the agency has chosen a command-and- control approach, it is unlikely that the agency will shift to information disclosure or marketable permits.) This is particularly true if the agency is operating under a statutory or court-ordered deadline because, even if it had the inclination to change the approach, it is unlikely to have the time.
Second, public input under the traditional rulemaking model often does not include a real dialogue between the public and the agency or among different segments of the public. This makes it difficult to probe the reasons for a suggested change or to obtain comments if an approach is modified based on public comments. Solving problems, particularly with innovative approaches, is often an iterative process, i.e., a suggested approach elicits information, which causes a change in or clarification of the approach, which elicits additional information, and so on. A one-or- two shot opportunity for public comment is inconsistent with this type of process.
The traditional model tends to place the agency and affected interest groups in adversarial relationships. The possibility that a rule will be challenged in court may make interested parties hesitant to release information or recognize the validity of another party's point. Giving outside parties more meaningful opportunities for affecting the regulatory outcome can create more cooperative relationships among agencies and outside parties.
Agencies should improve regulatory programs by increasing public involvement in the rulemaking process and moving towards a more consensus-based model. However, there is no one method or level of public participation that is appropriate for all rules. Increasing the level of public participation can make it more difficult to achieve some of the objectives of the rulemaking process--it may take additional staff time or increase costs (e.g., for obtaining hearing rooms or publishing additional notices), and may delay issuance of the rule. Regulators must balance these costs of increased public participation with the benefits when they choose from the various methods to craft appropriate opportunities for public participation for each rule.
Agencies have a wide variety of methods for increasing public participation, including:
--policy discussion groups,
--more useful and accessible public meetings and hearings, and
--early requests for input.
Negotiated rulemaking ("reg neg") is a structured way to increase public participation through the assembly of all affected interest groups. Agencies have also used less formal mechanisms to increase public participation. These mechanisms offer some of the benefits of reg neg. For example, affected parties can learn from each other, and the agency can test hypotheses and tentative conclusions.
An agency can form a "policy discussion group," with membership very similar to a reg neg committee, and then call the group in at various times for advice on such things as agency options papers, draft proposals, and specific issues. The Occupational Safety and Health Administration (OSHA) has found it helpful to have such committees write "majority" and "minority" reports on disputed issues[Endnote 2] A policy discussion group has some benefits over reg neg. The formal convening process is avoided and the quest for consensus need not drive the process. If the agency is seeking to use the group as a source of consensus advice or recommendations, the group must be chartered as a federal advisory committee and meetings must be open to the public[Endnote 3] EPA used such a group for assistance in developing the acid rain program regulations.[Endnote 4] The Department of Transportation (DOT) used such a group for assistance in developing regulations under the Americans with Disabilities Act.[Endnote 5] A more formal use of outside policymaking bodies is required by the Magnuson Fishery Conservation and Management Act. Under the Act, regional fishery management councils are charged with developing regulations after extensive public input.[Endnote 6]
An agency can hold "public meetings" after it has selected an approach but before the details are worked out, or at other stages of the rulemaking process. A description of the agency's preferred approach, draft rule proposals, or options papers usually should be made available prior to or at the meeting so the agency can get comments from the public and answer questions. Public meetings would not require a federal advisory committee charter. The National Park Service and the Forest Service recently convened several symposiums where rock climbing enthusiasts, environmentalists, and land managers gathered for several days to listen to speeches and discuss the issues arising from rock climbing in national parks and forests.[Endnote 7]
Agencies can convene "focus groups" when they need quick, anecdotal information about how different approaches to or aspects of a regulation would work in practice. When used for that purpose, neither the Paperwork Reduction Act nor the Federal Advisory Committee Act should be triggered.[Endnote 8]
Agencies should experiment with ways to make public meetings and hearings more useful and accessible. Possibilities include:
--providing the public opportunities to ask questions of agency experts at public hearings or meetings about the proposed regulatory initiative. (DOT has made agency experts available for informal discussions one hour prior to the start of a hearing or meeting.)
--arranging meetings by topic so that presenters will have to stay, listen to, and learn from others' presentations rather than present testimony and leave.
--having roundtable discussions rather than formal presentations.
--holding some hearings after working hours.
--broadcasting proceedings or using teleconferencing.
Agencies can issue early requests for input or notices of impending agency action for rules, policy statements, or guidance documents. Agencies should use traditional means, such as publishing Notices of Inquiry or Advance Notices of Proposed Rulemaking in the Federal Register, or nontraditional means, such as using (or establishing) specialized computer bulletin boards to circulate requests for information or draft agency papers.[Endnote 9] Early public participation may pave the way for an agency's subsequent use of "direct final" rulemaking.
Agencies should consider providing funding for participants in reg neg committees or policy discussion groups where such funding is needed to ensure representation of all affected interests or improve the quality of the information presented. Funding could be limited to reimbursement for travel and other expenses, rather than for labor or time. Such funding would be less than what the government is now required to pay in attorneys' fees when a person or group successfully challenges a rule in court.[Endnote 10]
PUBLIC INVOLVEMENT DURING IMPLEMENTATION OF A RULE. Members of the public can be affected by the implementation of a rule either because they have to comply with it or because they are supposed to benefit from it. Agencies need to continue to communicate with the public after issuance of the rule to help people comply. At a minimum, agency policy statements, guidance documents, and other papers explaining how a program works must be made easily accessible to the public. This is not always the case now. As an example, in some program areas, EPA has numerous guidance documents that explain details of program implementation, but these documents are neither published nor collected in one place that is accessible to the public. Ombudsmen offices may also help implementation efforts. The IRS has established a high-level taxpayer ombudsman with a large and nationally dispersed Program Resolution Program Staff. The Food and Drug Administration (FDA) recently created an office of Chief Mediator and Ombudsmen, which has been lauded by the FDA Commissioner as "invaluable...an integral part of the agency."11 The newly appointed Comptroller of the Currency announced in June that he would appoint an ombudsman and establish a toll-free telephone number to provide banks and consumers a new channel for challenging regulatory decisions.[Endnote 12] Other agency ombudsmen have been created by the EPA (Hazardous Waste Ombudsman; Small Business/Asbestos Ombudsman) and Social Security Administration. The Administrative Conference of the United States has recommended the technique to other agencies and provided useful guidelines about the role and authority of the office.[Endnote 13]
Developments in information technology provide useful new tools to assist compliance efforts. DOT developed an automated system that provides the opportunity to obtain information on demand, via touch-tone telephone or modem connection, to help implement drug testing requirements for transportation workers. For a modest fee, small trucking firms and others can call in, receive assistance to determine their obligations related to drug testing, order documents to be delivered by fax or modem download, or leave a question or comment. Support materials are provided at no cost.[Endnote 14] EPA's Office of Air Quality Planning and Standards has set up a project to cover segments of clean air programs. It gives the public access to EPA databases and informs users of (and seeks comments on) upcoming policy statements and guidance documents. It is generally used as a means of providing information to EPA regional offices, the regulated community, state and local air quality authorities, and the general public.[Endnote 15]
Agencies also need to seek public input after the rule has been issued to determine how effective it is or what unintended problems it has caused. For example, when seat belt usage dropped to about 14 percent in 1979, the National Highway Traffic Safety Administration (NHTSA) conducted a public study asking drivers why they did not wear safety belts. [Endnote 16] After public response showed the decline in usage resulted from inconvenient, uncomfortable belts and doubts about seatbelt effectiveness, NHTSA responded with automatic restraint requirements and public education programs.[Endnote 17]
Seeking public input after a rule is issued is not common practice for agencies--in part because getting Office of Management and Budget (OMB) clearance for focus groups and customer surveys has been a barrier to seeking such information and because it is not viewed as a significant enough activity to warrant scarce resources.[Endnote 18] The value of such information will continue to increase with the passage of the Government Performance and Results Act of 1993 and increasing emphasis in the government on total quality management principles.[Endnote 19]
1. Increase public participation during the rulemaking process. (2)
The President should direct agency heads to provide opportunities for early, frequent and interactive public participation in a way that is transparent and open to all interested parties. This is consistent with the new regulatory review executive order. The administration should facilitate agency efforts by identifying and removing any administrative barriers. The President should direct the Chair of the Regulatory Coordinating Group (RCG) to promote and exchange information to assist agencies in implementing this direction.
Regulators need to realize that they have a variety of tools for getting public comments on a rule and to learn when it is appropriate to use which tool. Information should be exchanged on how to manage the process carefully to prevent abuses or perceived abuses. Although increased public participation is an important goal that should help improve the quality and acceptability of agency regulations, granting access behind closed doors to interest groups representing only one side of an issue creates major problems.[Endnote 20] Care must be taken to allow access by a wide variety of interests and to ensure that all truly affected groups are represented in formal or informal negotiations. Docketing of agency contacts with outside parties should also be addressed.
Agencies should be encouraged to use the following methods of interacting with the public in the rulemaking process in addition to methods required by the APA:
--policy discussion groups,
--more useful and accessible public hearings and meetings, and
--early requests for input.
2. Enhance public awareness and evaluation of programs. (1)
Heads of regulatory agencies should require their staffs to check the effectiveness and workability of their programs periodically. In addition to measuring results (e.g., reduced fatalities from car accidents), agencies should consult with the people who have to comply with the regulations. This could be done through the use of focus groups or customer surveys. The Administrator of the Office of Information and Regulatory Affairs should work with agencies to define the conditions under which surveys of regulated entities by regulators can receive accelerated approval.[Endnote 21]
Heads of regulatory agencies should provide assistance to entities that must comply with regulatory programs. Agencies should ensure that these entities are given the information necessary to comply. Informal guidance and policy statements should be collected in one place and be accessible to the public. Electronic access also should be provided. Agencies also should consider establishing an ombudsman office to assist compliance efforts.
3. Increase use of information technology. (4)
The application of information technology in rule development and implementation should be explored by agencies individually, through the RCG, and in coordination with existing information resources management groups. At a minimum, agencies should explore computerization of rulemaking dockets. DOT found that the cost savings in storage space would exceed the costs of implementing such a program. It would also give the public easier and more meaningful access to rulemaking and policy guidance documents. Agencies also should consider establishing computer bulletin boards or automated systems that could be accessed by interested parties.
CROSS-REFERENCES TO OTHER NPR ACCOMPANYING REPORTS
Department of Transportation, DOT03: Use a Consensus- Building Approach to Expedite Transportation and Environmental Decisionmaking.
Executive Office of the President, EOP01: Delegate Routine Paperwork Review to the Agencies and Redeploy OMB's Resources More Effectively.
Improving Customer Service, ICS05: Streamline Ways to Collect Customer Satisfaction and Other Information from the Public.
Reengineering Through Information Technology, IT03: Develop Integrated Electronic Access to Government Information and Service.
1. U.S. Environmental Protection Agency, "Important Characteristics of EPA Rulemaking," Regulation Development in EPA (1991 Training Materials), Chapter 1.
2. Memorandum for Lita Orefice, Special Assistant, Office of the Secretary of Labor, from David Zeigler, Acting Assistant Secretary, Occupational Safety and Health Administration, re: NPR Systems Paper, August 4, 1993.
3. Federal Advisory Committee Act, 5 U.S.C. App. (1988).
4. Telephone interview with Thomas L. Montgomery, Branch Chief for Permits and Evaluation, Acid Rain Division, Environmental Protection Agency, July 13, 1993.
5. Telephone interview with Robert Ashby, Deputy Assistant General Counsel, Regulation and Enforcement, Department of Transportation, August 6, 1993.
6. Memorandum to Jeffrey Lubbers, Team Leader, NPR Improving Regulatory Systems Team, from Gloria Gutierrez, Acting Chief Financial Officer and Assistant Secretary for Administration, Department of Commerce, August 5, 1993, p. 2.
7. Telephone interview with Anthony Sisto, Park Ranger, Ranger Activities Division, National Park Service, Department of Interior, August 20, 1993.
8. See discussion in the NPR Accompanying Report, Improving Customer Service, "ICS05: Streamline Ways to Collect Customer Satisfaction and Other Information From the Public."
9. See notes 14 and 15 and accompanying text.
10. Under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504, 504 note, 28 U.S.C. 2412, 2412 note (1988), certain parties are entitled to an award of attorneys' fees and other expenses if they successfully challenge certain agency rules. EAJA awards and litigation costs, however, would not be charged to the same account as would funding for participants in reg neg or policy discussion groups.
11. Telephone interview with Dr. David Kessler, Commissioner, Food and Drug Administration, July 12, 1993.
12. Bacon, Kenneth, "Banking Industry to Get Ombudsman for Rulemaking Appeals," Wall Street Journal (June 11, 1993), p. A12.
13. Administrative Conference of the U.S., Recommendation 90-2, The Ombudsman in Federal Agencies, 1 C.F.R. 305.90-2. See also Anderson and Stockton, Ombudsmen in Federal Agencies: The Theory and Practice, 1990 ACUS Recommendations and Reports, p. 105.
14. Fax to Magnolia Samadani, White House Intern, from Bea Vanderwalk, Director, Anti-Drug Information Center, DOT, August 11, 1993. Unfortunately, this system is under review for termination or reconsideration. The system has been operating for only five months and is not self-supporting. Telephone interview with Bea Vanderwalk, August 13, 1993.
15. U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Transfer Technology Network (North Carolina, September 1992).
16. Ziegler, Peter N. and Robert P. Knaff, Improving Safety Belt Acceptability to the Consumer (Warrendale, PA: Society of Automotive Engineers, Inc., June 1979), pp. 1-3.
17. The National Highway Traffic Safety Administration (NHTSA) initiated the popular public service messages with the Vince and Larry characters demonstrating the benefits of seatbelts. Telephone interview with Barry Felrice, Associate Administrator for Rulemaking, NHTSA, August 6, 1993.
18. The Paperwork Reduction Act, 44 U.S.C. 3501-3520 (1988), requires agencies to obtain clearance from the Office of Information and Regulatory Affairs for most information collection requests of 10 or more people. See note 8 above.
19. Pub. L. 103-62 (1993).
20. One of the major complaints against the Council on Competitiveness was that it selectively allowed back-door access for big business interests to influence the rulemaking process.
21. See note 8 above.
Who We Are |||Latest Additions |||Initiatives |||Customer Service |||News Room |||Accomplishments |||Awards |||"How To" Tools |||Library |||Web Links