Rulemaking

Ideas for Improving Transparency, Participation, and Collaboration in the Rulemaking Process

1. To increase transparency, participation, and collaboration in the rulemaking process start telling the truth, the whole truth, about rulemaking on the government’s Regulations.gov website. The site, initiated during the Bush Administration, was a useful but limited step forward in making the rulemaking process more transparent and encouraging participation. The site incorrectly gives the impression that THE opportunity for people’s chance to participate is during the public comment period after the publication of an NPRM. Actually, sophisticated players in the process (e.g. lobbyists and large campaign contributors) have long taken advantage of opportunities to influence rulemaking decisions before an NPRM is published. Under the Obama Administration shouldn’t average citizens be provided with the information they need to participate early in the process -- just like lobbyists and big campaign contributors?

 

2. Make it easier to stay in touch with the status of rules under development. Encourage/require agencies to open dockets much earlier in the rulemaking process. Can dockets be augmented beyond just including documents necessary to legally support the rulemaking? Could information that would help the public understand and participate in the rulemaking such as press releases or Regulatory Agenda entries also be included? Alternatively, or in addition, let people sign up for notifications from Regulations.gov as soon as a rulemaking is added to a Regulatory Agenda or Action Initiation List. If operating a list serve for each rulemaking is too expensive, explore using an e-mail system with a dedicated box or boxes for subscribing to updates on particular rulemakings.

 

3. Improve and make broader use of existing tools such as Action Initiation Lists and Regulatory Agendas for informing people about regulations under development. Expand on EPA’s innovative Action Initiation List which it has been posting on Regulations.gov since April 2008 to make its rulemaking more transparent (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=EPA-HQ-OA-2008-0265). This list includes information about the Regulatory Agenda level actions recently approved for development by Agency management. It provides the title, abstract, contact person, projected publication timeframe, and Regulatory Identifier Number (RIN). EPA updates this list every month. If EPA leadership, which frequently was out of step with public opinion on the environment during the Bush Administration could be this transparent, what about matching, or topping the old level of transparency by spreading the Action Initiation List innovation to other agencies?

 

For citizens to participate effectively and efficiently early in the rulemaking process it is imperative that they have timely information. Monthly Action Initiation List updates are far timelier than semiannual Regulatory Agenda updates. And the disparity in timeliness is made greater because the monthly AIL updates are posted within a few days of when the information is developed while it is generally takes GSA and OMB two to three months to clear and post Regulatory Agenda data.

 

4. To increase participation and collaboration, if an agency thinks they would benefit from a particular type of expertise that they don’t have in-house, as part of the initial or at least an early notification about the rulemaking, invite people with that expertise to volunteer to be individually contacted (so FACA requirements wouldn’t be tripped) to get their input on specialized matters.

 

5. Start routinely providing more information about plans for stakeholder involvement during the rulemaking process. For example there could be a section in each entry in the Regulatory Plan specifically addressing planned stakeholder involvement. There also could be an optional section on plans for stakeholder involvement in Regulatory Agenda entries.

 

6. Currently the government provides easily accessible information in the Regulatory Agenda for about half of the rules under development. Somewhere (one or more of Regulations.gov; http://www.whitehouse.gov/omb/regulatory_affairs/default/; or Reginfo.gov), start providing some information and links about the other half that are not required to be in the Agenda. These actions are:

(1) Regulations or rules issued in accordance with the formal rulemaking

provisions of 5 U.S.C. 556, 557;

(2) Regulations or rules that pertain to a military or foreign affairs function

of the United States, other than procurement regulations and regulations

involving the import or export of non-defense articles and services;

(3) Regulations or rules that are limited to agency organization, management,

or personnel matters;

(4) Any other category of regulations exempted by the Administrator of OIRA; and

(5) Rules of particular applicability

(6) Regulatory Agenda level rules more than eleven or twelve months from proposal could be omitted (and OIRA directors have been encouraging agencies not to include them. Actually, the practice of not telling the public about these items in the Agenda should be ended immediately.)

 

7. Modify the Regulatory Agenda to encourage timelier, more effective participation in rulemaking. Until 1995 there was no “Long Term” category for Agenda entries that were more than a year away from publication – if a Notice of Proposed Rulemaking was the next publication the action appeared in the proposed rules section; if a final rulemaking was the next action to be published it appeared in the final rules section. Part of the political debate in Washington at the time centered on whether the Clinton Administration was doing too much rulemaking and there was a lot of throwing around of the number of rulemakings in the Regulatory Agenda in speeches and articles. To make it appear that there was less rulemaking, a new category “Long Term Actions” was created and it was lumped with “Completed Actions” in statistics on the number of rulemakings underway. This had the effect of greatly reducing the apparent number of actions under development.

 

An unfortunate result of the existence of the Long Term category is that it can influence people to hold off getting involved until the rulemaking is no longer in the Long Term category. Unfortunately if someone holds off from getting in touch with the contact person until a rule appears in the Proposed Rule stage in the Regulatory Agenda and it were then only five or six months from proposal it is very likely that they would be told that they were too late to get involved during the pre-proposal phase. The last steps of the process prior to proposal (Final agency clearance prior to OMB review, then OMB review, and then clearance of the signature package) would very likely have already started and external, non-federal input at this point in the process generally would not be welcomed.

 

Reverting to the pre-1995 categorization of rulemaking stages for the standard presentation of Regulatory Agenda information would simplify the Agenda and reduce the possibility that people would postpone getting involved. And if we added an option on Reginfo.gov for chronological sorting of entries by their upcoming Federal Register publication dates we would get a much richer, more useful chronolgical sort than is provided in the current Long Term category. Reducing the number of stages by one would have the additional advantage of reducing the number of pages in the Agenda published in the Federal Register and in the Agendas downloaded and printed from GPOAccess.gov and Regulations.gov by about 1% providing modest savings in public and private printing and waste disposal costs.

 

Bush's OIRA directors discouraged agencies from including in the Agenda actions under development that were at least twelve months away from proposal and since the Agenda has usually been published a month or two late they effectively were discouraging agencies from including information on actions that were at least ten or eleven months from publication. Here's what they'd say in their memoranda to Regulatory Policy Officers and Managing and Executive Directors:

 

"Unless your agency realistically intends to take action in the next twelve months, you can remove these items from the Agenda."

 

Remedying this situation is totally within the power of the director of the Office of Information and Regulatory Affairs at OMB. Will Director Sunstein encourage agencies to "hide the ball" as his predecessors did, or will he instruct agencies to include all of the regulations they are working on even if they are more than ten or eleven or twelve months from publication?

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Idea No. 593