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January 26, 2011

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Cliff Tyllick

Sounds promising. I wonder, too, how the Plain Writing Act of 2010 will affect rulemaking. It seems to me that it could reduce misrepresentation of a rule's intent, for one thing, and help people potentially affected by a proposed rule better understand its impact on their lives.

I do have one concern about the details of the process you propose. In choosing the questions, the agency coordinating the rulemaking process can manage the discussion. The chosen set of questions can miss topics that need to be discussed, but that the rule writers either overlooked or, unfortunately, simply would rather not deal with. So in addition to a set of questions, there still needs to be an opportunity for general comments.

After all, if we're on the road to hell and asking about the choice of pavement, somebody ought to have the chance to redirect the discussion.

Noel Dickover

Love the post, and agree that including the long tail of citizens interested in particular topics to be able to participate on Federal rulemaking initiatives through social media. I also think the ExpertNet approach is definitely worth building the right platform around (BTW, check your link for Expertnet above).

But I think this is part of the picture. The place where statutes originate, Congress, also should have easy methods for citizens to engage with subcomittees tasked with writing new legislation. Once the Statute is written, the Executive branch is limited in how it can interpret and implement the law. Innovation and open dialogue on what is now a very opaque process on the Legislative side (citizens can only talk with their elected representatives, but most policy is written by subcommittees, which are generally sequestered from the public). Opening this up to allow the average citizen (although like the Federal rulemaking, we are really interested in the very informed citizen who is fluent in a particular area) might contribute innovations and problem solving expertise when they matter most.

While the high profile legislative ideas would get too bogged down to make this approach realistic, I'd argue that the vast majority of proposed Bills wouldn't capture the general public's interest - this is good in that only those interested would be participating in a transparent fashion.

Petermshane

Great to see *Professor* Beth Noveck back in action! This is an excellent post.

Beth Noveck

Enjoying being back in action, Peter, that is, until it's time to grade. Thanks for the good wishes.

Gary Bass

The three ideas for reforming participation in the rulemaking process in Beth’s blog post may or may not be useful. They certainly can and should be tested empirically. But the focus on these participation issues must be complemented by reform of the rulemaking process itself.

There are numerous problems with the process. A mainstay of our current rulemaking approach involves comparing costs and benefits. Yet most often, federal agencies end up relying on the regulated community’s estimate of its compliance costs. When cost estimates originate from the regulated community, they are likely to have biased outcomes – especially when there is no way to verify them. Since all decisions about the regulation start with these numbers, we are building a house on a faulty foundation. Moreover, these cost estimates are never tested once the regulation is put into place, even though there is ample evidence that implementation costs go down with technological innovations and other market-based solutions.

If rulemaking is guided by cost and benefits, why is there no assessment for the cost of delay? Not looking at the cost of delay harms the public but benefits the regulated community. If we don’t look at the cost of delay, there is little incentive for action.

Under today’s rulemaking approach, participation is skewed. Small businesses and state/local/tribal governments get special access to discuss proposed rules before the public does. When there is an opportunity for selected audiences to interact with agencies at the expense of other audiences, such as beneficiaries, it raises questions of fairness. It also contributes to a perception that special interests have taken over the rulemaking process – and if not a takeover, then certainly a cozy relationship, such as the relationship that existed between the former Minerals Management Service and the energy industry.

The amount of analysis and paperwork associated with a rulemaking that an agency must go through has become absurd. Through organic statutes, Congress often requires analyses – and each administration tends to add more analytical requirements (often without eliminating old ones). The result is what some experts call “paralysis by analysis,” which, of course, tilts the regulatory playing field in favor of inaction.

I could go on listing the problems with the rulemaking process, not to mention the lack of public education in our schools about administrative government and civic participation. Technology may play some role in making things better, but fundamental policy reform is even more essential.

Additionally, technology solutions skirt the reality that politics play in rulemaking decisions. During the Bush administration, EPA received more than 125,000 comments opposing efforts to reduce data collection under the Toxics Release Inventory (TRI) and only a handful supporting EPA’s effort. Yet EPA moved forward with its proposed gutting of the TRI program. Why participate in a rulemaking process that may be rigged from the start? It fosters disenchantment and discourages meaningful participation.

Beth’s third idea raises concern about who would participate in providing alternative ideas with empirical data to support the idea. Certainly average citizens do not have the technical expertise for such efforts, and most nonprofits don’t either. Most likely, it would be Big Oil, Wall Street, and other regulated special interests that would have the resources to provide the empirical support for ideas. They already do that now. While there should be pilot projects to test Beth’s ideas, let’s not get giddy about technology suddenly changing all power dynamics. Technology may provide tools to help, but it is not necessarily the solution.

Maybe it is coincidental that 2012 is an election year, and it appears that President Obama is suddenly using the rulemaking process as a tool to reach out to the business community. But since last week’s new regulatory policy directives that Beth describes, we’ve seen decisions on regulations that seem to benefit corporate interests. For example:

• On Jan. 18, rules under the H-2B Visa Program, a program that improved the process for setting wage rates employers must pay to temporary foreign workers, came out. But the implementation was delayed until at least 2012.

• On Jan. 19, OSHA backed off a proposed workplace noise rule in response to complaints from major business groups.

• On Jan. 21, FDA withdrew its draft guidance on menu-labeling regulations and instructed states and localities to hold off on enforcement until a final federal rule is published.

• On Jan. 25, OSHA suspended its proposed rule to restore a tracking mechanism on employer injury and illness logs for work-related musculoskeletal disorders.

In each of these cases, there may be legitimate – even rational – reasons to slow down or scotch the regulation. But if a perception grows that the Obama administration is capitulating to business interests over public interests, the best public participation approaches in the world are not going to result in a stronger democracy.

Stuart Shapiro

These are all potentially wonderful ideas and I would certainly support their adoption. They all assume however that agencies and their political bosses would accept input. Notice and comment was hailed as the greatest invention in democratic governance when it was created. Indeed it is a good thing but it has always been far less than imagined by its creators. Process alone will never solve problems of substance. Like I said however, these all have potential to be helpful in the right circumstances.

Dave

Stuart - isn't one of the purposes of this to use process to create better substance?

Stuart Shapiro

I just think that people put too much hope in process reforms. If what we expect are very modest changes in substance and a greater sense of participation among those who participate then reforms like this can be deemed successes. If we expect very different regulations to come out of changes like we set the reforms up to be considered failures.

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Enjoying being back in action, Peter, that is, until it's time to grade. Thanks for the good wishes.

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