Forum on Public Input in Agency Rulemaking (ACUS Update)
ACUS is hosting a Forum on Enhancing Public Input in Agency Rulemaking tomorrow, December 1, from 1–4 pm ET.
This forum grows out of several conversations that took place during ACUS committee meetings and other forums this year. In the spring, ACUS adopted Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments. The recommendation—largely based on an excellent report from an ACUS expert consultant team—gives agencies general guidelines for how to manage mass, computer-generated, and falsely attributed comments.
But big questions remain. Chief among them is how exactly agencies should respond when they receive large numbers of identical or nearly identical comments, a question that raises larger issues about what role public input should play in agency rulemaking.
Some, like Dick Pierce, argue that these mass comments should be discouraged outright so as not to encourage “comment wars” where the number of comments filed for or against a proposed rule might influence or perceive to influence an agency’s final decision. In contrast, others, like Nina Mendelson, argue that mass comments can contain helpful information about public values, can help the government gauge accurate feedback on the regulation, and may retrieve missing information that agency staff may not have otherwise considered.
(For more on how the courts are treating this question, see Ricky Revesz and Natasha Brunstein’s recent article on the subject.)
Over the past month, ACUS has also hosted a forum addressing how agencies can better engage with underserved communities in the regulatory process. This six-part forum brought together governmental policymakers, community advocates, and academic experts in a variety of fields to discuss how agencies can identify and include those that may be underserved in agency processes and the challenges to doing so in the face of vast and historic structural inequities.
For this final forum for the year, ACUS will build on these conversations to consider the important role of public input in agency rulemaking. Speakers will consider what types of public input might be most valuable and how agencies can structure the rulemaking process to receive this input.
You will see some familiar faces and some new ones.
Professor Cary Coglianese, Professor and former OIRA Administrator Sally Katzen, OIRA Senior Counsel Sabeel Rahman, Director of Governmental Affairs for the U.S. Senate Committee on Homeland Security and Governmental Affairs Amanda Neely, and Professor Nina Mendelson will identify different forms of public input and how this input can be useful in crafting agency rules. Speakers will explore what it means for the public to provide “input” to an agency. What is the purpose of such input? What types of public input do agencies, courts, or the public perceive to be useful?
Next, Carnegie Endowment for International Peace President and former California Supreme Court Justice, Mariano-Florentino “Tino” Cuéllar, will provide remarks.
Finally, Professor Kate Shaw, Professor Eduardo Martinez, ACUS Research Director Reeve Bull, USDA Senior Advisor for Racial Equity to the Secretary of Agriculture Dewayne Goldmon, and Democracy Forward Senior Counsel Karianne Jones, will address specific ways agencies might enhance public participation in the rulemaking process, such as by using citizen juries, wiki surveys, and other methods. Panelists will explore whether new technologies or tools may facilitate this process.
These conversations come at a crucial time. E-rulemaking—the government’s effort since the mid-1990s to move the notice-and-comment process online—has vastly expanded the ability of the public to participate in the government’s rulemaking process, enhanced transparency into an agency’s rulemaking docket, and amplified the voices of those who may have otherwise been underserved. But questions and concerns remain.
In bringing together these different conversations, ACUS hopes to consider the future of public input in agency rulemaking and address the most crucial question of all: What next?
This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.
Dani Schulkin is an Attorney Advisor at the Administrative Conference of the United States. The views expressed are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.