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The White House just released With The People, For The People: Strengthening Public Participation In The Regulatory Process. In this report, the Office of Information and Regulatory Affairs (OIRA) laid out four priorities in improving public participation in federal rule making, and then provided examples of agency activities that reflect those activities.
We at the UCS Center for Science and Democracy work to make sure that government decisions are informed by the best possible science and evidence, free from political interference, and responsive to diverse community voices. We applaud this focus on public participation and engagement in rulemaking, as we have a history in developing products and analyses on this important topic. Furthermore, there are many instances where OMB guidance and the OIRA report reflect UCS recommendations. I will point out some of our specific recommendations and concerns along the way.
The Administrative Procedure Act requires—with some exceptions—that agencies provide the public with an opportunity to submit comments on proposed federal rules. You can find more information about the process of submitting public comments here. Interestingly and accurately, the OIRA started its report with the simple sentiment that public participation makes better regulations. Yes! UCS agrees, which is why we’ve been writing about the potential harm caused by the Supreme Court overturning Chevron deference here, here, and here. If a rule is informed by a robust public participation process, and a single judge overturns that rule, this is the opposite of a strong, open, and democratic process. Let’s go through what makes a strong public participation and engagement process.
Good public engagement is early engagement
The White House report emphasizes the importance of early engagement for improved public comments. Once a rule is drafted, smaller decisions have already been made, for example about the level of certainty used in the rule language, like using the word “shall” vs. “may.” One way agencies let the public know about an upcoming rulemaking is through an Advanced Notice of Public Rule Making, or an ANPRM. Agencies are required to publish these notices on the federal register. But this system requires the public to monitor the Federal Register, and it is challenging to screen the notices for how upcoming rules might impact specific communities (and which ones!). The OIRA report gave an example of early engagement around a Fish and Wildlife Service rule that revises permits for the disturbance and taking of eagle nests. They knew that the rule would impact Tribal communities, and so they sent direct communication and notices to Tribes about the proposed rule revision.
Researchers in this space have also found that while implementing early public participation, a shared learning or a “learning together approach” improves engagement and participation. This is where the public is asked about topics they need to better understand, and both the agency and the public watch webinars about the requested topics and additional topics that help the public and the agency better understand the content and the process. We found that state agencies use this approach in cumulative impacts rulemaking.
Robust support during the public comment process
One gap in the requirements for public participation and engagement during rulemaking is that there are not many requirements for the type of information available about the rulemaking process, or the content of the proposed rule. The White House Report discussed several best practices in how and what to communicate about proposed rules, including:
- that it is useful to post rules that are connected by location and/or topic in one location;
- the utility of plain-language fact sheets and other information to better communicate about the rule process and content, and;
- holding public hearings so that people can make formal public comments either in writing or verbally.
A ‘learning together approach’ that agencies have used is holding webinars and listening sessions about the content and process of the rule, along with listening sessions for members of the public to talk through their understanding and concerns about the proposed rule. The Department of Housing and Urban Development (HUD) used this approach during their rulemaking around protecting communities from the impacts of climate change in HUD-assisted housing projects. Another way the federal government communicates about upcoming rulemaking is through the Unified Regulatory Agenda, which is published quarterly and outlines upcoming regulatory activities.
Regulations need input from affected communities, including underserved communities
The White House report especially highlights the need for public comments and engagement from communities most impacted by rulemaking, especially underserved communities. These may be communities who do not use English as a first language, and need translated materials, or who may need hearings to be held outside of typical office hours. UCS has commented on this need multiple times with respect to environmental justice communities’ abilities to meaningfully access a decision-making process, and the need for plain-language summaries. The OIRA report brings up that the best messengers are not always government officials, and sometimes a trusted partner or relevant intermediaries could better serve this purpose.
The OIRA report described an example of how the EPA identifies communities that are likely to be interested in the rulemaking process, or may be affected by an upcoming EPA action. They have found that useful support includes demographic characteristics and finding any intermediaries that could liaise with these communities. Second, the EPA team considers whether assistance may be needed to effectively engage with the public, including whether assistance may be helpful to communicate complex technical issues to a broad public.
Communities need to know they can influence rules
If the public participation and engagement processes are carried out as a ‘check the box’ activity and regular people have no actual influence over the rule outcome, this wastes everyone’s time. Case law is interpreted such that agencies are required to provide information about whether and how they accepted or rejected public comments. Sometimes agencies publish tables including the commenter, the comment, and a response. If there are hundreds or thousands of comments, these are aggregated into themes. This is probably the most important point in these recommendations, since communities spend their valuable time and resources learning about a rule, how it might impact them or their communities, and then comment. Sometimes communities hire consultants to support this work for them.
This joint analysis between UCS and Tufts University Urban and Environmental Planning Field Projects team brings up the importance of a clear response to comments. It also highlights a really important final point for this post: Once public engagement is completed, and a final rule is enacted, the agency needs to sit down and evaluate what went well and what requires change. Then they need to commit to making those changes.
Ongoing learning is needed in how to better engage affected communities since our only constant in life is change—including our modes of communication and how we find information, the ways communities organize, and even the subject contents of rules themselves (nanoplastics, anyone?). The OIRA report starts with the sentiment that rules are better when there is public participation. This is true, and rules and regulations can only be better when all of this work on the part of communities is genuinely considered and incorporated.
