Regulatory Engagement is Due for an Upgrade

A recent panel hosted by the Administrative Conference of the United States explored reforms to improve public participation in the rulemaking process. One topic was how to increase the number and expand the type of commenters in a given rulemaking.

That topic, of course, raises competing concerns about mass comments and the workload associated with the occasional rulemaking docket that attracts tens of thousands of comments.

In analyzing these issues, agencies should consider that not only is robust public participation in the rulemaking process essential to our democratic values—it is also practically valuable. Public engagement is how agencies learn what regulatory changes are needed, identify weaknesses in regulatory proposals, and garner a factual record to support rule changes.

Yet public participation is often lopsided. Regulated entities, trade associations, and sophisticated advocacy groups monitor Federal Register notices relevant to them and submit their views. But other voices are too frequently absent, including the voices of many people directly affected by a rule and the voices of subject-matter experts.

A range of studies have examined the disparity of input in the rulemaking process. One study in 2011 found that 81 percent of comments submitted to the U.S. Environmental Protection Agency (EPA) on its hazardous air emissions rulemakings came from industry groups. Another study reported that 73 percent of the Office of Information and Regulatory Affairs’ time reviewing rulemakings was taken by industry representatives rather than representatives of the public interest.

In a 2020 paper, authors Todd Tucker and Raj Nayak commented that “notice-and-comment rulemaking remains a process focused on insiders.” Others have noted that, although “corporations, workers, consumers, environmentalists, and other progressive interests may all have the same rights under the Administrative Procedure Act to participate in the regulatory process, the reality is that corporations have an outsized influence on the process.”

Agencies are not, by and large, hearing from the people who will be affected by, or have useful expertise on, the subjects of proposed rules. That is not how it should work.

For Medicaid rulemakings, the voices of Medicaid recipients, and the social workers or other professionals who assist them, should be heard. When EPA seeks to rewrite rules about hazardous emissions, the communities that will be impacted—often communities of color—should not have to rely on the Federal Register for the notification of their opportunity to inform the rulemaking process.

Better information leads to better regulation. Obtaining that information requires improving public access to the regulatory process. At least two critical changes in how the government engages with the public should receive immediate attention.

First, agencies need to take affirmative steps to solicit participation from relevant constituencies.

Agencies must identify constituencies beyond the regulated parties. Who is the rule meant to protect? Whose job tasks will be affected by a proposal or rule change? Who might have knowledge or data that would be useful to the agency?

Agencies must also give these constituencies a sense that their contributions will be useful and that they will be heard. Indeed, perhaps the most important steps an agency can take are to tell people what kind of information will be useful and then demonstrate a good-faith willingness to listen to the information provided.

Taking affirmative steps to solicit participation also means meeting people where they are. Although the usual commenters may monitor federal websites for comment opportunities, most people, even people who want to comment, do not.

At Democracy Forward, we regularly conduct outreach about regulatory engagement and frequently find that organizations are not aware of comment opportunities relevant to them. In a recent example, we heard from an organization of civic engineers and experts who erroneously believed a Request for Information (RFI) they wanted to respond to was never issued simply because they had not seen it posted. Although the RFI had been published in the Federal Register, it had not been posted anywhere readily accessible to the organization.

Agencies need to cross-post comment solicitations in forums likely to be read by interested parties. With social media, doing so has never been easier.

Second, the eRulemaking Program at the U.S. General Services Administration (GSA) needs to turn Regulations.gov into a functioning public platform for rulemaking engagement. GSA administrator Robin Carnahan has famously made it her mantra that she will “fix the damn websites” of the federal government. It is time that Regulations.gov made the list.

As we explained in a detailed letter to GSA, the new version of Regulations.gov, conceived and implemented primarily during the prior administration, represents a significant retrenchment in public access to rulemaking dockets.

The website is confusing, difficult to navigate, and in some instances completely nonfunctional. Rulemaking dockets are difficult to locate, even with the often partial docket numbers listed in the Federal Register. It is impossible to browse already public comments without a cumbersome process of clicks and downloads because the site does not list basic metadata and uses outdated and technologically flawed navigation.

To exacerbate the issue, GSA has provided no standards that agencies can use to ensure that their rulemaking dockets are accessible and navigable to ordinary users. The result is that the burden of participating in the rulemaking process is unreasonably high for the ordinary person. It does not have to be this way.

Not only is the current design of Regulations.gov unacceptable under modern web design principles, but also it is unacceptable under best practices guidance published by GSA itself and circulated by other agencies.

GSA should learn how public users understand and use the site through user experience research and should redesign the site according to standard usability metrics, such as the number of clicks necessary to complete a task or the accessibility of information most frequently searched.

In this regard, a recent executive order from President Joseph R. Biden requires agencies to make customer experience a fundamental priority and to “systematically identify and resolve the root causes of customer experience challenges.”

To improve public participation in a rulemaking process, GSA must finally place public users at the center of its decision-making and create a human-centered Regulations.gov. It should seize this opportunity to make the website functional and to reach those people with real expertise and lived experience who are now functionally excluded from the rulemaking process.

Samara Spence is senior counsel at Democracy Forward.

Robin Thurston is managing senior counsel at Democracy Forward.