How Agencies Should Communicate During Notice-and-Comment Rulemaking

by Chris Walker — Thursday, Feb. 1, 2018@chris_j_walker

As Elizabeth Porter and Kathryn Watts noted in their contribution to this symposium on how agencies communicate (as well as Michael Herz in his contribution), federal agencies have begun to utilize social media and other channels to explain and promote their preferred regulatory outcomes. Sometimes such communications take place during the public comment period on a proposed rule. Porter and Watts argue that “visual rulemaking” has the potential to increase transparency, public participation, and thus democratic accountability in the rulemaking process, but that it also risks introducing distorting, anti-democratic effects.

Perhaps to address these concerns of undue agency influence during the public participation stage of rulemaking, the Portman-Heitkamp Regulatory Accountability Act, if enacted, would amend the Administrative Procedure Act to prohibit certain advocacy activities by the agency, any individuals speaking in an official capacity on behalf of the agency, and any person who receives federal funding from the agency (from using that federal funding in such communications) after the notice of proposed rulemaking. In particular, it would prohibit those actors from engaging in certain communications during the comment period “through written, oral, electronic, or other means, to the public with respect to the proposed rule.”

Prohibited communications would include any that

  1. “directly advocates, in support of or against the proposed rule, for the submission of in-formation that will form part of the record for the proposed rule”;
  2. “appeals to the public, or solicits a third party, to undertake advocacy in support of or against the proposed rule”; or
  3. “is directly or indirectly for the purpose of publicity or propaganda within the United States in a manner that Congress has not authorized.”

Importantly, the legislation would exempt “a communication that requests comments on, or provides information regarding, a proposed rule in an impartial manner.” Similarly, as quoted above, this advocacy restriction on persons receiving federal funding applies only to the use of that federal funding for such communication activities, not to the use of other funding to engage in such communications during the public comment period.

Last year in The Regulatory Review, Daniel Walters criticized this provision of the Regulatory Accountability Act, arguing that it would result in “proposed rules going undefended from attack from increasingly sophisticated ‘propaganda’ campaigns initiated by certain limited segments of the general public.” Here’s a snippet from his critical review:

The communications provisions in the Regulatory Accountability Act would foreclose even that kind of careful, well-identified public engagement via social media. Under the terms of the bill, it would not matter whether EPA honestly identified itself in communications with the public. Framed as it is, the provisions seem to envision a world where agencies engaged in rulemaking act more like courts than policymakers—that is, as passive observers and neutral arbiters. Perhaps in certain contexts this would make sense, given the bill’s more general push to reinvigorate the Administrative Procedure Act’s trial-like formal rulemaking procedures. But, in fact, the provisions would apply even when agencies engage in ordinary notice-and-comment rulemaking, which has long been praised precisely because of the opportunity it affords agencies to interface freely with the public.

Walters’ take is thoughtful and worth careful consideration, but I think these fears are misplaced. The agency gets the first word in its notice of proposed rulemaking and the final word in its final rule (subject to judicial review or congressional override). At those times, it can advocate its preferred policy position aggressively and creatively through both traditional and social media. The agency can and should combat “increasingly sophisticated ‘propaganda’ campaigns” with facts, data, logic, and policy justifications in its final rule.

But the public comment period is—as the term suggests—for the public, not the agency, to provide its input on the proposed rule. To be sure, that does not mean the agency must remain silent during the comment period. The Regulatory Accountability Act contemplates that the agency can (and, in my view, should) engage in any “communication that requests comments on, or provides information regarding, a proposed rule in an impartial manner.” The important point is that the public comment is for the public to advocate, criticize, and praise and for the agency to listen with care and an open mind.

Walters is surely right that agencies engaged in notice-and-comment rulemaking are not judges. But they are also not elected policymakers. Because agencies are policy implementers that have democratic deficits, it is all the more important that they strive to be receptive, and strive to appear to be receptive, to public input. It seems reasonable, indeed prudent, for federal agencies to cease public advocacy for the limited period of time when they are soliciting public input.

I’ll close with perhaps an interesting wrinkle. As I explore in greater detail in an essay published last year in the Administrative Law Review, the various provisions of the Regulatory Accountability Act would apply generally to both executive and so-called independent agencies. But would there be a reason here for treating differently multi-member commissions, such as the Equal Employment Opportunity Commission or the Federal Communications Commission? Perhaps those independent agencies should have more flexibility to engage in advocacy during the public comment process. After all, the commissions consist of members from both political parties, and it is not unusual for the commissioners to engage in extensive debate among the commissioners during their regulatory activities. It is not unusual for some members to dissent from the agency’s final action.

Or perhaps these distinctions have no meaningful difference in the context of agency advocacy during the public comment period. Although independent commissions often appear more like a legislative body in their public deliberations, they are still not elected. Indeed, they are designed to be further removed from political accountability through some insulation from presidential oversight and removal. Even in the independent-commission context, it seems prudent for the commissioners to save their advocacy for the pre- and post-comment periods.

 


This post is part of a symposium entitled How Agencies Communicate. You can read all the posts here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

4 thoughts on “How Agencies Should Communicate During Notice-and-Comment Rulemaking

  1. Leigh Osofsky

    I hear the concern about an agency filing notice and comment with its own views, squeezing public comment out of the process. But, this makes me wonder, as an empirical matter: Is the regulatory process really filled with comments by the public at large? Or is there already a very skewed nature to who is commenting in a notice and comment process (i.e.: industry insiders)? If so, is it incumbent on the agency to represent the public at large (who the regulation might be designed to protect to begin with) by voicing its view and perhaps even engaging them to join in? And, if so, would the Act leave space for the agency to fill this role?

    Reply
  2. Susan C Morse

    My prior is that there is a bias in notice and comment toward inclusion of repeat players. Exceptions exist though — e.g. the 30,000 comments received in connection with Treasury’s Section 385 debt recharacterization rules in 2016. A lot of these comments were pro-regulations and anti-industry (large corporate taxpayers’) interests. https://www.regulations.gov/document?D=IRS-2016-0014-0002.

    Perhaps if narrowly construed (e.g., narrow construction of “in support of or against the proposed rule”) and limited to notice-and-comment period, the proposed statute is OK. I confess though I do not know what “publicity or propaganda within the United States in a manner that Congress has not authorized” means. Does Congress typically (ever?) “authorize” “publicity”?

    Reply
  3. Eric Rasmusen

    I find the proposal strange. The agency is the one proposing the rule, so *of course* it favors the rule and favors the rule being written a certain way, with certain policy preferences. Indeed, it should be expressing the President’s policy preferences, which he was democratically elected to implement, given that he is also supposed to follow the statute wherever it is clear. There should be no pretence of policy indifference, only fairness and desire for a quality rule. The point of public comment should be information collection, so that the policymaker, using the President’s preferences, can make the best rule possible given those preferences. A good agency will want comments hostile to the proposed rule, though, because it will want to fix what everybody would agree were unnoticed flaws, and because it wants to find out if the effects on hostile parties are worse than it realized and it should pull back. The agency thus can pull in private resources and expertise much greater than it can afford itself, and come out with a better rule.
    The proposal says that if the agency has $10,000 of time to spend, it can spend it on having its own employees look over the rule again, but it can’t spend it on trying to get $100,000 of time spent by private persons who are on the agency’s side. That would waste $90,000 of taxpayer money.

    Reply
    1. Chris Walker Post author

      Weird. I didn’t get a notification of any comments on the post, so I just saw these thoughtful comments. I don’t think this proposed limitation would limit the agency from reaching out during the comment period to encourage various groups and individuals to review the proposed rule and provide comments. Indeed, for the reasons Eric, Leigh, and Susie mention, it’s quite important for the agency to publicize broadly the proposed rule and encourage those interested to make the rule better. The proposed legislation seems aimed more at trying to keep the agency out of advocacy mode during the comment period, and that would include refraining from organizing outside parties to “undertake advocacy in support of or against the proposed rule.”

      A good friend made another, somewhat related point that I think it’s worth clarifying. He said:

      “In one sentence, you state: ‘Because agencies are policy implementers that have democratic deficits, it is all the more important that they strive to be receptive, and strive to appear to be receptive, to public input.’ First, I’m not sure what you mean by agencies being policy implementers with democratic deficits. It is true that notice and comment is not a plebiscite, but that would seem to be a good thing. That is, rulemaking is premised on argument and data, not public opinion. That doesn’t mean that agencies are autocratic. Second, in my experience, agencies try all sorts of means of making their rulemaking documents available so that anyone can comment. That is the whole premise of e-rulemaking, and online dockets. And, agencies regularly use webinars and are experimenting with synchronous online public meetings, often with a neutral moderator, so that interested parties can access the process, regardless of their physical location, and be heard. Finally, and in light of the first two, I’m not sure what else an agency can do to be receptive. The proposed rule is published and it’s up to parties to participate. As a practical matter, that tends to happen through DC law firms and trade associations / interest groups. Nothing any agency has done has or likely will change that dynamic.”

      I agree. Although gencies should always experiment with ways to be more receptive to public input (and I don’t think my friend disagrees with that), my point here is not about what more they should do, but what they should avoid doing: advocating themselves during the public comment period. Advocating during the public comment period strikes me as presenting at least the appearance of not being receptive to public comment. In many ways I see this as a parallel to the problem of post-promulgation notice-and-comment rulemaking. All of the best practices my friend identifies are obviously done in part to produce the best rule, but the APA also requires this public, deliberate process because of the agencies’ democratic deficits (the lack of electoral accountability). Following public opinion is definitely not the way to address the fact that federal agencies are not elected by the people. Instead, we feel more comfortable with agency lawmaking because Congress has commanded them to engage in reasoned-decisionmaking that involves seeking and responding to public input.

      Reply

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