*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here.
President Biden’s Modernizing Regulatory Review Executive Order (Modernizing E.O) changes the way agencies must think about—and engage in—notice-and-comment rulemaking. The Administrative Procedure Act (APA) imposes no duty on agencies to facilitate participation in rulemaking beyond providing notice of the proposed rules. In the later decades of the twentieth century, many agencies did little to publicize their proposals or engage the public beyond giving the public notice of their proposals. As this passive model of participation became a conventional one, predictable results followed. In most rulemaking, regulated industry provided the most engaged participation, and in many rulemakings, no comments are filed at all by citizens or public interest groups.
President Clinton’s 1993 Regulatory Planning and Review Executive Order began to disrupt this passive model of participation in notice-and-comment. Notably, his order obliges agencies to proactive seek the involvement of regulatory beneficiaries and the regulated in advance of proposing a rule—in addition to duties to seek the views of State, local, and tribal officials. § 6A. Despite this admonition, little changed. A powerful strain of scholarship from Wendy Wagner, William West, Thomas McGarity, Susan Webb Yackee, Jason Yackee, Michael Sant’Ambrogio, Glen Staszewski, and Kim Krawiec, among others, demonstrates that even after President Clinton’s order, actual participation in notice-and-comment remained not merely unbalanced, but unrepresentative. The lack of representation from interests benefited or harmed by regulations undermines core justifications for notice-and-comment. The goal of providing the agency with higher quality information, for instance, cannot be achieved if information only flows from one direction or viewpoint. For those who believe that rulemaking should have some democratic quality, the lack of representation cuts even deeper.
The provisions on participation in the Modernizing E.O. build on a decade of reforms—most significantly, the Public Engagement in Rulemaking recommendation of the Administrative Conference of the United States—to require agencies to take a more proactive role. Under the new executive order, the agency now “should be informed by the input of interested parties and affective communities” and must “design opportunities for equitable and meaningful participation.” Moreover, in the development of regulatory plans, agencies must now “proactively engage interested and affected parties, including members of underserved communities.” The model of the agency’s engagement has shifted from passivity to proactively seeking out those potentially affected by the agency’s plans.
How should agencies implement these duties of engagement? OIRA’s guidance does not yet address these issues. OIRA has taken the laudable step of requesting comment on how it should implement the Modernizing E.O.’s provision (in § 2(e)) for facilitating meeting requests to OIRA from participants who have not historically requested such meetings. But OIRA should not stop there. OIRA should take the next step of opening a comment docket to help it draft guidance on implementing agencies new duties of proactive engagement in notice-and-comment as suggested in Sections 2(a)-(c) of the Modernizing E.O.
In developing that guidance, the logical place for OIRA to start is with ACUS’s Public Engagement in Rulemaking recommendation, which provides a detailed guideline for what agencies should consider and what policies they should adopt to facilitate, not merely invite, public participation. In a forthcoming paper, Representative Rulemaking, Jim Rossi and I defend two further reforms to help make rulemaking more representative. First, to incentivize agencies to identify relevant parties and to follow through on engagement efforts, the agency should be required to articulate, at the outset of the rulemaking or set of rulemakings, its expectations for participation by all affected parties—a “representation floor.” This representation floor, once articulated, would a create a participation baseline against the agency, and others could evaluate and compare the agency’s expectations against the actual participation in the regulatory process. Second, when, despite the agency’s efforts, some affected interests are systematically absent from the agency’s process, the agency could facilitate the appointment of a proxy representative—through a competitive process—to represent those interests. For instance, an agency could put out a request for proposals for private interest groups to comment on behalf of certain interests across rulemakings under particular statutes. Alternatively, as Sant’Ambrogio and Staszewski suggest, the agency could appoint a government representative for those interests.
President Biden’s Modernizing E.O. moves all agencies from passive notice to a targeted notice and facilitating engagement model of notice-and-comment. This promises to improve representation in agency rulemakings, but the key, as always, will be how far agencies go in implementing these new obligations. OIRA has a critical role to play. It should demonstrate how seriously it takes these obligations by opening a comment docket for new guidance on how agencies should implement the Modernizing E.O.’s provisions in notice-and-comment.
Jim Rossi is Judge D.L. Lansden Professor of Law and Kevin M. Stack is the Lee S. and Charles A. Speir Professor of Law, both at Vanderbilt Law School.