Enhance Public Awareness and Participation

Enhance Public Awareness and Participation

BACKGROUND

Under the Administrative Procedure Act (APA), agencies are required to
provide only a minimal opportunity for public comment before issuing
regulations--generally, agencies must accept only written comments filed
between issuance of the proposed and final rules. The agency then
reviews these comments and responds to them when the rule is finalized.
If affected interest groups or members of the public disagree with the
rule, they can challenge it in court.

The traditional rulemaking model, particularly for controversial rules,
can be very adversarial. For example, the Environmental Protection
Agency (EPA) believes that 80 percent of its major rules are challenged
in court.[Endnote 1] A court challenge may delay or hinder
implementation of a rule because, during the year or more that it takes
to litigate a case, challengers may not comply with the rule or, if the
effective date of the rule is not stayed, challengers may do only that
which is minimally required. Court remand of a rule can set a program
back several years more.

The adversarial nature of the rulemaking process also hinders
development of a rule. Parties may raise a host of objections just to
preserve issues for appeal, and they may be unwilling to acknowledge the
legitimacy of other parties' positions. Agencies may spend more time
than is really beneficial preparing detailed rationales for rules and
responses to comments to protect themselves in case of court challenges.

NEED FOR CHANGE

PUBLIC PARTICIPATION DURING THE RULEMAKING PROCESS.  Without exception,
everyone from outside the government whom the National Performance
Review (NPR) interviewed on the regulatory process--whether from
industry or public interest groups--said they wanted earlier and more
frequent opportunities to participate in the rulemaking process.
Although granting this wish is not cost-free, there are many good
reasons for agencies to do so. Earlier and more interactive public
participation can help the agency develop innovative regulation and
provides information otherwise unavailable to the agency. It can also
build bridges among the agency and affected interest groups, and improve
compliance with the rule by increasing acceptance, or lowering
resistance, from some affected parties.

The traditional rulemaking model limits public participation in ways
that dampen the type of interaction likely to lead to innovative
solutions.  First, by the time the agency proposes a rule, it has often
committed much time, resources, and energy to the proposal. Therefore,
although it may be open to changing the details of the approach, it may
not be inclined to change direction significantly. (For example, if the
agency has chosen a command-and- control approach, it is unlikely that
the agency will shift to information disclosure or marketable permits.)
This is particularly true if the agency is operating under a statutory
or court-ordered deadline because, even if it had the inclination to
change the approach, it is unlikely to have the time.

Second, public input under the traditional rulemaking model often does
not include a real dialogue between the public and the agency or among
different segments of the public. This makes it difficult to probe the
reasons for a suggested change or to obtain comments if an approach is
modified based on public comments.  Solving problems, particularly with
innovative approaches, is often an iterative process, i.e., a suggested
approach elicits information, which causes a change in or clarification
of the approach, which elicits additional information, and so on. A
one-or- two shot opportunity for public comment is inconsistent with
this type of process.

The traditional model tends to place the agency and affected interest
groups in adversarial relationships. The possibility that a rule will be
challenged in court may make interested parties hesitant to release
information or recognize the validity of another party's point. Giving
outside parties more meaningful opportunities for affecting the
regulatory outcome can create more cooperative relationships among
agencies and outside parties.

Agencies should improve regulatory programs by increasing public
involvement in the rulemaking process and moving towards a more
consensus-based model. However, there is no one method or level of
public participation that is appropriate for all rules. Increasing the
level of public participation can make it more difficult to achieve some
of the objectives of the rulemaking process--it may take additional
staff time or increase costs (e.g., for obtaining hearing rooms or
publishing additional notices), and may delay issuance of the rule.
Regulators must balance these costs of increased public participation
with the benefits when they choose from the various methods to craft
appropriate opportunities for public participation for each rule.

Agencies have a wide variety of methods for increasing public
participation, including:

--negotiated rulemaking,

--policy discussion groups,

--public meetings,

--focus groups,

--more useful and accessible public meetings and hearings, and

--early requests for input.

Negotiated rulemaking ("reg neg") is a structured way to increase public
participation through the assembly of all affected interest groups.
Agencies have also used less formal mechanisms to increase public
participation. These mechanisms offer some of the benefits of reg neg.
For example, affected parties can learn from each other, and the agency
can test hypotheses and tentative conclusions.

An agency can form a "policy discussion group," with membership very
similar to a reg neg committee, and then call the group in at various
times for advice on such things as agency options papers, draft
proposals, and specific issues. The Occupational Safety and Health
Administration (OSHA) has found it helpful to have such committees write
"majority" and "minority" reports on disputed issues[Endnote 2] A policy
discussion group has some benefits over reg neg. The formal convening
process is avoided and the quest for consensus need not drive the
process. If the agency is seeking to use the group as a source of
consensus advice or recommendations, the group must be chartered as a
federal advisory committee and meetings must be open to the
public[Endnote 3] EPA used such a group for assistance in developing the
acid rain program regulations.[Endnote 4] The Department of
Transportation (DOT) used such a group for assistance in developing
regulations under the Americans with Disabilities Act.[Endnote 5] A more
formal use of outside policymaking bodies is required by the Magnuson
Fishery Conservation and Management Act. Under the Act, regional fishery
management councils are charged with developing regulations after
extensive public input.[Endnote 6]

An agency can hold "public meetings" after it has selected an approach
but before the details are worked out, or at other stages of the
rulemaking process. A description of the agency's preferred approach,
draft rule proposals, or options papers usually should be made available
prior to or at the meeting so the agency can get comments from the
public and answer questions. Public meetings would not require a federal
advisory committee charter. The National Park Service and the Forest
Service recently convened several symposiums where rock climbing
enthusiasts, environmentalists, and land managers gathered for several
days to listen to speeches and discuss the issues arising from rock
climbing in national parks and forests.[Endnote 7]

Agencies can convene "focus groups" when they need quick, anecdotal
information about how different approaches to or aspects of a regulation
would work in practice. When used for that purpose, neither the
Paperwork Reduction Act nor the Federal Advisory Committee Act should be
triggered.[Endnote 8]

Agencies should experiment with ways to make public meetings and
hearings more useful and accessible.  Possibilities include:

--providing the public opportunities to ask questions of agency experts
at public hearings or meetings about the proposed regulatory initiative.
(DOT has made agency experts available for informal discussions one hour
prior to the start of a hearing or meeting.)

--arranging meetings by topic so that presenters will have to stay,
listen to, and learn from others' presentations rather than present
testimony and leave.

--Having roundtable discussions rather than formal presentations.

--holding some hearings after working hours.

--broadcasting proceedings or using teleconferencing.

Agencies can issue early requests for input or notices of impending
agency action for rules, policy statements, or guidance documents.
Agencies should use traditional means, such as publishing Notices of
Inquiry or Advance Notices of Proposed Rulemaking in the Federal
Register, or nontraditional means, such as using (or establishing)
specialized computer bulletin boards to circulate requests for
information or draft agency papers.[Endnote 9] Early public
participation may pave the way for an agency's subsequent use of "direct
final" rulemaking.

Agencies should consider providing funding for participants in reg neg
committees or policy discussion groups where such funding is needed to
ensure representation of all affected interests or improve the quality
of the information presented.  Funding could be limited to reimbursement
for travel and other expenses, rather than for labor or time.  Such
funding would be less than what the government is now required to pay in
attorneys' fees when a person or group successfully challenges a rule in
court.[Endnote 10]

PUBLIC INVOLVEMENT DURING IMPLEMENTATION OF A RULE.  Members of the
public can be affected by the implementation of a rule either because
they have to comply with it or because they are supposed to benefit from
it. Agencies need to continue to communicate with the public after
issuance of the rule to help people comply. At a minimum, agency policy
statements, guidance documents, and other papers explaining how a
program works must be made easily accessible to the public. This is not
always the case now. As an example, in some program areas, EPA has
numerous guidance documents that explain details of program
implementation, but these documents are neither published nor collected
in one place that is accessible to the public.  Ombudsmen offices may
also help implementation efforts. The IRS has established a high-level
taxpayer ombudsman with a large and nationally dispersed Program
Resolution Program Staff. The Food and Drug Administration (FDA)
recently created an office of Chief Mediator and Ombudsmen, which has
been lauded by the FDA Commissioner as "invaluable...an integral part of
the agency."11 The newly appointed Comptroller of the Currency announced
in June that he would appoint an ombudsman and establish a toll-free
telephone number to provide banks and consumers a new channel for
challenging regulatory decisions.[Endnote 12] Other agency ombudsmen
have been created by the EPA (Hazardous Waste Ombudsman; Small
Business/Asbestos Ombudsman) and Social Security Administration. The
Administrative Conference of the United States has recommended the
technique to other agencies and provided useful guidelines about the
role and authority of the office.[Endnote 13]

Developments in information technology provide useful new tools to
assist compliance efforts. DOT developed an automated system that
provides the opportunity to obtain information on demand, via touch-tone
telephone or modem connection, to help implement drug testing
requirements for transportation workers. For a modest fee, small
trucking firms and others can call in, receive assistance to determine
their obligations related to drug testing, order documents to be
delivered by fax or modem download, or leave a question or comment.
Support materials are provided at no cost.[Endnote 14] EPA's Office of
Air Quality Planning and Standards has set up a project to cover
segments of clean air programs. It gives the public access to EPA
databases and informs users of (and seeks comments on) upcoming policy
statements and guidance documents. It is generally used as a means of
providing information to EPA regional offices, the regulated community,
state and local air quality authorities, and the general public.[Endnote
15]

Agencies also need to seek public input after the rule has been issued
to determine how effective it is or what unintended problems it has
caused. For example, when seat belt usage dropped to about 14 percent in
1979, the National Highway Traffic Safety Administration (NHTSA)
conducted a public study asking drivers why they did not wear safety
belts.  [Endnote 16] After public response showed the decline in usage
resulted from inconvenient, uncomfortable belts and doubts about
seatbelt effectiveness, NHTSA responded with automatic restraint
requirements and public education programs.[Endnote 17]

Seeking public input after a rule is issued is not common practice for
agencies--in part because getting Office of Management and Budget (OMB)
clearance for focus groups and customer surveys has been a barrier to
seeking such information and because it is not viewed as a significant
enough activity to warrant scarce resources.[Endnote 18] The value of
such information will continue to increase with the passage of the
Government Performance and Results Act of 1993 and increasing emphasis
in the government on total quality management principles.[Endnote 19]

Cross-References To Other Npr Accompanying Reports

Department of Transportation, DOT03: Use a Consensus- Building Approach
to Expedite Transportation and Environmental Decisionmaking.

Executive Office of the President, EOP01: Delegate Routine Paperwork
Review to the Agencies and Redeploy OMB's Resources More Effectively.

Improving Customer Service, ICS05: Streamline Ways to Collect Customer
Satisfaction and Other Information from the Public.

Reengineering Through Information Technology, IT03:  Develop Integrated
Electronic Access to Government Information and Service.

Endnotes

1. U.S. Environmental Protection Agency, "Important Characteristics of
EPA Rulemaking," Regulation Development in EPA (1991 Training
Materials), Chapter 1.

2. Memorandum for Lita Orefice, Special Assistant, Office of the
Secretary of Labor, from David Zeigler, Acting Assistant Secretary,
Occupational Safety and Health Administration, re: NPR Systems Paper,
August 4, 1993.

3. Federal Advisory Committee Act, 5 U.S.C. App.  (1988).

4. Telephone interview with Thomas L. Montgomery, Branch Chief for
Permits and Evaluation, Acid Rain Division, Environmental Protection
Agency, July 13, 1993.

5. Telephone interview with Robert Ashby, Deputy Assistant General
Counsel, Regulation and Enforcement, Department of Transportation,
August 6, 1993.

6. Memorandum to Jeffrey Lubbers, Team Leader, NPR Improving Regulatory
Systems Team, from Gloria Gutierrez, Acting Chief Financial Officer and
Assistant Secretary for Administration, Department of Commerce, August
5, 1993, p. 2.

7. Telephone interview with Anthony Sisto, Park Ranger, Ranger
Activities Division, National Park Service, Department of Interior,
August 20, 1993.

8. See discussion in the NPR Accompanying Report, Improving Customer
Service, "ICS05: Streamline Ways to Collect Customer Satisfaction and
Other Information From the Public."

9. See notes 14 and 15 and accompanying text.

10. Under the Equal Access to Justice Act (EAJA), 5 U.S.C.   504, 504
note, 28 U.S.C.   2412, 2412 note (1988), certain parties are entitled
to an award of attorneys' fees and other expenses if they successfully
challenge certain agency rules. EAJA awards and litigation costs,
however, would not be charged to the same account as would funding for
participants in reg neg or policy discussion groups.

11. Telephone interview with Dr. David Kessler,
 Commissioner, Food and Drug Administration, July 12,
 1993.

12. Bacon, Kenneth, "Banking Industry to Get Ombudsman for Rulemaking
Appeals," Wall Street Journal (June 11, 1993), p. A12.

13. Administrative Conference of the U.S., Recommendation 90-2, The
Ombudsman in Federal Agencies, 1 C.F.R.   305.90-2. See also Anderson
and Stockton, Ombudsmen in Federal Agencies: The Theory and Practice,
1990 ACUS Recommendations and Reports, p. 105.

14. Fax to Magnolia Samadani, White House Intern, from Bea Vanderwalk,
Director, Anti-Drug Information Center, DOT, August 11, 1993.
Unfortunately, this system is under review for termination or
reconsideration. The system has been operating for only five months and
is not self-supporting.  Telephone interview with Bea Vanderwalk, August
13, 1993.

15. U.S. Environmental Protection Agency, Office of Air Quality Planning
and Standards, Transfer Technology Network (North Carolina, September
1992).

16. Ziegler, Peter N. and Robert P. Knaff, Improving Safety Belt
Acceptability to the Consumer (Warrendale, PA: Society of Automotive
Engineers, Inc., June 1979), pp. 1-3.

17. The National Highway Traffic Safety Administration (NHTSA) initiated
the popular public service messages with the Vince and Larry characters
demonstrating the benefits of seatbelts. Telephone interview with Barry
Felrice, Associate Administrator for Rulemaking, NHTSA, August 6, 1993.

18. The Paperwork Reduction Act, 44 U.S.C.  3501-3520 (1988), requires
agencies to obtain clearance from the Office of Information and
Regulatory Affairs for most information collection requests of 10 or
more people. See note 8 above.

19. Pub. L. 103-62 (1993).