White House: Regulations shall be adopted through a process that involves public participation

President Barack Obama signs H.R. 2751, the “FDA Food Safety Modernization Act,” in the Oval Office, Jan. 4, 2011. (Official White House Photo by Pete Souza)

President Barack Obama in the Oval Office, Jan. 4, 2011. (Official White House Photo by Pete Souza)

President Barack Obama issued an executive order today focused on reforming regulation regulatory review.

There are a number of details in this order that deserve further consideration and analysis from the open government community. One element is notable: public participation in the regulatory process.

Sec. 2. Public Participation. (a) Regulations shall be adopted through a process that involves public participation. To that end, regulations shall be based, to the extent feasible and consistent with law, on the open exchange of information and perspectives among State, local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole.

(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.

(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking.

This order is part of a larger effort towards e-rulemaking by the administration and, as the Wall Street Journal reports, the regulatory review is a nod to concerns in the business community about excessive regulation hampering investment and job creation as citizens struggle to recover from the effects of the Great Recession. In that context, The president penned an op-ed in the Wall Street Journal about moving towards a 21st century regulatory system:

…creating a 21st-century regulatory system is about more than which rules to add and which rules to subtract. As the executive order I am signing makes clear, we are seeking more affordable, less intrusive means to achieve the same ends—giving careful consideration to benefits and costs. This means writing rules with more input from experts, businesses and ordinary citizens. It means using disclosure as a tool to inform consumers of their choices, rather than restricting those choices. And it means making sure the government does more of its work online, just like companies are doing.

We’re also getting rid of absurd and unnecessary paperwork requirements that waste time and money. We’re looking at the system as a whole to make sure we avoid excessive, inconsistent and redundant regulation. And finally, today I am directing federal agencies to do more to account for—and reduce—the burdens regulations may place on small businesses. Small firms drive growth and create most new jobs in this country. We need to make sure nothing stands in their way.

The order can also be considered in the context of FCC open Internet rules and net neutrality, where OpenInternet.gov was used to collect public feedback for proposed rules. The full version of the final rules, however, were not shared with the public until days after they were voted upon.

As always, determining what “public participation” in regulatory review and the process of regulation created will be the nut of the issue. The question of whether Congress codifies such an executive order with legislation is also a consideration, given that another administration could roll back the order. That said, this order does appear to be a step forward for more open government in a dry but important area.

UPDATE: The University of Pennsylvania law school’s regulatory blog has weighed in on the executive order promoting public participation:

The order reaffirms many core principles of regulatory policymaking reflected in prior executive orders dating back to the Reagan Administration. It also keeps in place the existing structure of White House review of new regulations that had been established by President Clinton.

But consistent with the Obama Administration’s emphasis on open government, today’s order also makes some significant new strides toward improving the role the public plays in the regulatory process. Section 2 states that new “regulations shall be adopted through a process that involves public participation.” By itself, this command is not remarkable, as agencies are already required by law to give the public an opportunity to comment on proposed rules.

Yet, requiring that the public have an opportunity to comment does not mean that this opportunity is always meaningful, especially when it is hard for members of the public to review the data and documents underlying agencies’ regulatory proposals. As noted in 2008 by a nonpartisan presidential transition task force chaired by Penn Law Professor Cary Coglianese, for some agencies

“important data might not be included in a rulemaking docket until late in the comment process, or the data might be buried in voluminous records that are not available electronically. The lack of meaningful access to important information detracts from the public’s ability to contribute to the formulation of better rules.”

That same task force report recommended steps to improve the timely, online availability of information underlying new regulatory proposals.

In today’s executive order, President Obama announced a significant new effort to improve the public’s access to government information about agency proposals. The executive order calls for agencies to make their regulatory dockets available online in a “timely” manner so that the public can comment on “all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.”

Although many federal agencies do provide such information online, far too many still do not provide this information in a timely and complete manner, even in today’s digital era. If President Obama’s order is implemented faithfully and consistently across all federal agencies, it will go a long way toward advancing the goal of a more open federal government.

As usual, when it comes to compliance with open government mandates, that’s a big “if.”

UPDATE: Nancy Scola has more on a move towards 21st century bureaucracy at techPresident:

The notion of right-sizing government has, of course, been with us for years. (Though there has historically been a dearth of people who have come out in favor of government too big, or too small.) And New York Governor Andrew Cuomo went back to that well during his new year’s day inaugural address. But there are sections of Obama’s op-ed that seem like they could have easily been written by Darrell Issa, the new Republican chair of the House Oversight and Government Reform Committee. “If regulators imposed consistent data formats for regulatory information,” wrote Issa in the Washington Examiner back in October, for example, “then watchdogs, bloggers, and the public could perform their own oversight, illuminating which regulatory systems are well-designed and which are too complex.”

Obama and Issa seem of one mind on a technologist’s technocratic twist on right-sizing government: the thinking that standardized government rules and the publically parsable datasets they produce is one path to a bureaucracy of just the perfect bulk. The idea seems to, in practice, require a great deal of the American public at the granular level of bureaucratic practice. But in rough form at least the notion seems to be particularly “of the moment” at the moment in Washington.

UPDATE: Anthony D. Williams makes a case for why regulatory innovation is the next frontier for open government:

The promise of increased stakeholder participation is that more transparent and participatory forms of regulation will help deliver concrete social outcomes without imposing disproportionate costs on either industry or taxpayers. Systems of regulation will become for fluid and timely, responding both to the evolving needs of societies and the capacity for improvement in industry. Citizens will be more informed to make smart choices and more empowered to protect their family, friends, and communities from harm.

Of course, there are risks too. Governments could cede control of the policy agenda to unelected interest groups or fail to adequately scrutinize the effectiveness of these alternative regulatory frameworks, leaving them vulnerable to gaming or insufficient enforcement.

But the greatest risk is that insufficient innovation in regulatory strategies will undermine the legitimacy and effectiveness of policy and undermine economic performance. Worse, systemic regulatory and market failures (comparable in impact to the financial crisis) could unleash detrimental changes in social, economic and political order that will further erode global stability. Harnessing expertise and resources from emerging networks in the private sector and civil society will be an essential part of developing effective and forward-looking policy responses.

5 thoughts on “White House: Regulations shall be adopted through a process that involves public participation

  1. Alex, I’m far from an expert in administrative law, but I think the real key word in this whole situation is: “meaningful.”

    I encourage you to study the conclusions of Cornell’s recent report on their Rulemaking 2.0 report (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702491). As they note, “Through a combination of statutes and
    judicial decisions, stakeholders and the general public are already entitled to get information about and participate directly in the process…As a result, in
    terms of its formal legal structure, rulemaking is probably the most transparent and participatory decisionmaking process used in any branch of the federal government.”

    The question remains how best to engage the public at each stage of the rulemaking (ANPRM, NPRM, Final Rule, Implementation). Each stage lends itself to a variety of different participatory models.

    But the trick is the attention span required to follow a rule through its lifecycle, which is YEARS in duration. The feedback loop is disjointed and broken. There is no shortage of scholarly work focused on this issue.

    What the Executive Order lacks, in the true spirit of Open Government, is a Call to Action to bring the right tools to bear in the rulemaking process to make participation meaningful.

  2. Pingback: President’s Executive Order Improving Regulation and Regulatory Review « Rulemaking

  3. Pingback: Rethinking regulatory reform in the Internet age - O'Reilly Radar

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