Beyond the Usual Suspects: ACUS, Rulemaking 2.0 and a Vision for Broader, More Informed and More Transparent Rulemaking
55 Pages Posted: 25 Sep 2012
Date Written: August 1, 2012
In an ideal world, administrative agencies would develop regulations in an informal rulemaking process that was transparent, efficient, and included broad input from the public, or an entity advocating for the public, as well as the regulated community. Instead, critics assert that the informal rulemaking process is opaque and is dominated by regulated entities and industry groups, rather than public interest groups. The process does not encourage a dialogue among the commenters or between the commenters and agency. Although the Administrative Procedures Act only imposes minimal public participation requirements on the informal rulemaking process, broader, more informed and more transparent public participation in rulemaking could provide significant benefits to agencies, as well as the public. Such participation is not, however, costless. Reforms are likely to make the rulemaking process more expensive and less efficient for agencies.
This article examines two avenues of rulemaking reform that could yield broader, more informed and more transparent rulemaking. First, the article focuses on “e-rulemaking” efforts and the migration of the informal rulemaking process to the Internet. So far, those efforts have been slow and have provided marginal improvements in public participation. The next generation e-rulemaking proposals (Rulemaking 2.0), such as the Regulation Room Project developed by the Cornell eRulemaking Initiative with the Department of Transportation, are more ambitious, but may result in significant costs and delays in the rulemaking process if implemented on a wide scale.
At the same time that agencies are implementing technological changes in the rulemaking process, a resurrected Administrative Conference of the United States (ACUS) has issued recommendations for structural changes to the informal rulemaking process, including encouraging agencies to provide adequate time for public comments, to post comments on the Internet in a timely manner, to use reply comment periods, where appropriate, and to provide the public with guidance regarding effective commenting. ACUS has also issued recommendations regarding e-rulemaking that are designed to reduce resource demands on agencies when adopting rules through electronic means. ACUS does not recommend any changes to the APA, though, and, on the whole, the Conference’s recommendations are modest. It is likely, therefore, that the benefits that they produce will be similarly modest. More significant reforms are necessary to achieve broader, more informed and more transparent public participation, so this article also focuses on some of the other reforms that have been suggested by academics and policymakers.
Keywords: e-rulemaking, ACUS, notice and comment, public participation, informal rulemaking, rulemaking 2.0, effective comenting, reply comment period
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