Public Input in Rulemaking

The notice and comment process was designed—and over time has been understood and touted as a means—to engage those affected by regulatory decisions in their development. But does it?

All available indications show that regulated entities take advantage of the opportunity to contribute to the decision-making process, mostly for the good. But do the intended beneficiaries participate? Not so much. Why is that, and what can be done differently?

Any discussion of public input in notice and comment rulemaking should start with section 553 of the Administrative Procedure Act, which is fairly simple and straightforward: agencies are to provide notice of what they intend to do—which is only fair to those affected—and afford interested persons an opportunity to comment, which makes sense because those “on the ground” may have something to contribute to the decision-making process.

Over the years, the courts have fleshed out—or dramatically expanded—these skeletal requirements. Now, the notice not only has to say what the agency is thinking of doing, but also why it wants to take that action, including the data or analyses that it is relying on to support its proposed course of action. The rationale for this requirement is that, with this additional information, commenters would be better able to critique the basis for the agency’s work. Commenters might affirmatively support or corroborate  the proposal by providing additional data or studies. Alternatively, they might dispute the agency’s rationale by, for example, challenging the methodology it used or providing different data or studies.

As the nature of agency notice changed, so too did the nature of the comments submitted. It became the norm for commentators to submit longer and more detailed filings, often with voluminous reference materials or independently commissioned studies attached.

In one respect, this was a good development. One of the purposes of the notice and comment process is to educate the agency, and this more detailed material can provide additional resources for its consideration.

Another purpose is to encourage buy-in. Commentators may feel they have been heard and are more likely to accept the agency’s decision if they participate in the discussion and the agency is required to consider their arguments and explain why it accepts or rejects them. This buy-in is important because there is not an enforcement officer on every block assuring that regulated entities are fulfilling their responsibilities.

But not all those affected by a proposed rule have the incentive or, more importantly, the capacity to prepare and submit detailed and well-documented comments, which are costly and time-consuming to produce. This might be especially true for the intended beneficiaries of the proposal. There are some non-governmental organizations that do a very good job of stepping in with persuasive comments, but the man or woman “on the street,” or those who live or work next to the factory, have been conspicuously missing from the table.

Somewhere along the line, someone got the bright idea of generating public support or opposition via postcards and copies of form letters expressing enthusiasm or outrage. These manifested themselves later in mass comments to the docket. But are these comments real and representative of public opinion?

These issues have sparked an interesting and important debate about the essence of rulemaking. What role do comments play? What do they and what should they contribute to the process? Some have objected to what might be termed “naked” expressions of support or opposition without analysis, data, or sometimes even any reasons. Rulemaking, they argue, should be substantive and data driven. Rulemaking, they claim, is not a plebiscite: agencies are not taking a vote!

True, rulemaking is not a plebiscite, but these cards, letters, and emails—and the people who are motivated to send them—may have something important to contribute to the process. The data-rich analyses of regulated entities and the possible resulting “buy-in” are useful to good decision-making, but they are not sufficient.

A corollary of understanding and acceptance by regulated entities is understanding and acceptance by the public. If the intended beneficiaries do not perceive—or do not have confidence—that the proposal will solve the problem, then it might never get off the ground. The Department of Transportation’s ignition interlock rule for seat belts, for example, died a quick death in public opinion and shortly thereafter in Congress. Today, mask mandates offer a similar example.

I believe that agencies should want to know—along with all the other available data and analyses—if the intended beneficiaries of a regulatory proposal think that the proposal misses the mark or is not welcome in their communities. Surely there is a lot of space between data-rich comments and a plebiscite, and surely there are opportunities in the rulemaking process, other than through notice and comment, to accommodate increased public participation.

Agencies should think about pre-notice of proposed rulemaking consultations—which are required under Small Business Regulatory Enforcement Fairness Act for certain types of rulemaking. Think also about community listening sessions during the comment period. Think creatively. But do think about engaging everyone affected by regulations. It is important.

Sally Katzen is a professor of law and distinguished scholar in residence at New York University School of Law and a former administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget.