Transparency and public participation in the federal rulemaking process: Recommendations for the new administration

George Washington Law Review

Volumn 77, Issue 4, 2009, Pages 924-972

  Coglianese, Cary ^a   Kilmartin, Heather ^b   Mendelson, Evan ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

^b Rhode Island Supreme Court ^*  (United States)

Author keywords

[No Author keywords available]

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EID: 69249196622     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (88)

1. These twin goals have been long recognized. Cf. Roger C. Cramton, A Comment on Trial-Type Hearings in Nuclear Power Plant Siting, 58 VA. L. REV. 585, 591-93 (1972) (arguing that although administrative procedures serve as a means to achieve better substantive outcomes, the procedures should also aim to foster meaningful participation by the relevant parties, accuracy in identifying issues to address, efficiency in resolving these issues, and acceptability of the resolution "to the agency, the participants, and the general public").
2. 5 U.S.C. § 553(c) (2006).
3. See E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490,1493 (1992) ("[The notice-and-comment process] fulfills an important function-to compile a record for judicial review⋯.").
4. Cf. Orly Lobel, Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety, 57 ADMIN. L. REV. 1071, 1089 (2005) (suggesting that decreased legitimacy in agency rulemaking and paternalistic enforcement efforts can, in some instances, lead to increased resistance by regulated parties).
5. See Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 NW. U. L. REV. 173, 224-25 (1997) (noting the high costs of information analysis for agency decisionmaking).
6. See, e.g., Special Comm., Admin. Conference of the United States, Report and Recommendation by the Special Committee to Review the Government in the Sunshine Act, 49 Admin. L. Rev. 421, 421-22 (1997) (listing ways in which open-meeting requirements can inhibit the communications that occur at affected meetings).
7. See Cary Coglianese, Richard Zeckhauser &Edward Parson, Seeking Truth for Power: Informational Strategy and Regulatory Policymaking, 89 MINN. L. REV. 277, 337-39 (2004).
8. Indeed, the Office of Information and Privacy ("OIP"), housed within the Justice Department, has noted that [sjociety's strong interest in an open government can conflict with other fundamental societal values, "[including]⋯ protecting sensitive business information⋯. " Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing a workable scheme that encompasses, balances, and appropriately protects all interests-while placing primary emphasis on the most responsible disclosure possible. OFFICE OF INFO. &PRIVACY, U.S. DEP'T OF JUSTICE, FREEDOM OF INFORMATION ACT GUIDE 5-6 (2007) (footnotes omitted), available at http://www.justice.gov/oip/foia- guide07.htm.
9. Freedom of Information Act, 5 U.S.C. § 552 (2006).
10. Government in the Sunshine Act, 5 U.S.C. § 552b (2006).
11. The Clinton administration adopted procedures intended to improve the transparency of OMB's review process, a process centered in OMB's Office of Information and Regulatory Affairs ("OIRA"). See Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 827-828 (2003) (noting that Executive Order 12,866 "required OIRA publicly to disclose information about communications between OIRA personnel and any person who is not employed by the executive branch, and to maintain a publicly available communications log containing the status of all regulatory actions, a notation of all written communications between OIRA personnel and outside parties, and the dates and names of individuals participating in all substantive oral communications, including meetings and telephone conversations, between OIRA personnel and outside parties"). OIRA adopted additional changes in the subsequent Bush Administration.
12. See Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 FORDHAM URB. L.J. 1257, 1292 (2006) (noting that the OIRA Administrator in 2001 "published a memorandum to OIRA staff on the office's web site that extended [Executive Order 12,866's] disclosure requirements" and announced that "OIRA would disclose substantive meetings and other contacts with outside parties about a rule under review[,]⋯ it would disclose substantive telephone calls with outside parties that were initiated by the Administrator," and "that it would be expanding its web site [and] posting lists of regulations currently under review" (footnotes omitted)).
13. See OFFICE OF MGMT. &BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, THE PRESIDENT'S MANAGEMENT AOENDA: FISCAL YEAR 2002, at 23-25 (2001), available at http://www. whitehouse.gov/omb/budget/fy2002/mgmt.pdf. See generally Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process, 56 ADMIN. L. REV. 353 (2004) (explaining how information technology has been applied to the rulemaking process).
14. See William F. West, Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis, 64 PUB. ADMIN. REV. 66, 69-71 (2004).
15. Semiannual agendas, first required by an Executive order of President Carter, were designed in part to address this problem. See Exec. Order No. 12,044,43 Fed. Reg. 12,661 (Mar. 23, 1978) (providing that "agencies shall publish at least semiannually an agenda of significant regulations under development or review" and that agencies "shall give the public an early and meaningful opportunity to participate in the development of agency regulations"), revoked by Exec. Order No. 12,291, 3 C.F.R. pt. 127 (1982), reprinted in 5 U.S.C. § 601 (1988). Currently, section 4 of Executive Order No. 12,866 contains a requirement that agencies prepare regulatory agendas, Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51,738 (Sept. 30, 1993), as does section 3(a) of the Regulatory Flexibility Act, 5 U.S.C. § 602 (2006).
16. See, e.g., Nat'l Mining Ass'n v. Mine Safety &Health Admin., 116 F.3d 520, 530-31 (D.C. Cir. 1997) (finding that a regulation governing preshift inspection of mine ventilation was not a logical outgrowth of proposed rule and thus required additional notice).
17. See Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 EMORY L.j. 433, 453 (2004) ("For the most part, each agency has a regular constituency of regulated parties and inside-the-Beltway interest groups.").
18. See id. at 435-36 (stating that interactive technology can help address rulemaking's "democratic deficit" by allowing for greater collaboration between government and citizens).
19. In Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977), the Court of Appeals for the District of Columbia Circuit noted that although ex parte contacts made after the issuance of a notice of proposed rulemaking were to be discouraged, such contacts were not per se impermissible.
20. See id. at 57.
21. This potential barrier to communication is both unfortunate and unnecessary because the D.C. Circuit has clarified that the holding in Home Box Office is limited to its facts and that there is no "ex parte contacts doctrine" in informal rulemaking. See Sierra Club v. Costle, 657 F.2d 298, 402 (D.C. Cir. 1981) (noting that the D.C. Circuit has, in the past, "declined to apply Home Box Office to informal rulemaking of the general policymaking sort" and referencing United Steelworkers v. Marshall, 647 F.2d 1189, 1215-19 (D.C. Cir. 1980), and Action for Children's Television v. FCC, 564 F.2d 458, 474-77 (D.C. Cir. 1977)).
22. Federal Advisory Committee Act, 5 U.S.C. app. §§ 1-16 (2006).
23. Steven P. Croley &William F. Funk, 77ie Federal Advisory Committee Act and Good Government, 14 YALE J. ON REO. 451, 452 (1997).
24. See id at 493-502.
25. After all, the Supreme Court long ago held that "it [is] not the function of the court to probe the mental processes" of administrators. Morgan v. United States, 304 U.S. 1, 18 (1938);
26. see also United States v. Morgan, 313 U.S. 409, 420, 422 (1941) (noting that "[i]t is not for us to try to penetrate the precise course of the Secretary's reasoning" and that "the integrity of the administrative process must be⋯ respected").
27. In the context of litigation, the Supreme Court disfavors rationalizations developed by an agency, or its attorneys, after an agency decision has been made, even if such rationalizations would have been adequate to sustain the decision had they been announced contemporaneously with it. See SEC v. CHENERY CORP., 318 U.S. 80, 87 (1943) (noting that "[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based").
28. 25 See U.S. Dep't of State v. Ray, 502 U.S. 164,173 (1991) ("[FOIA's] strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.").
29. 26 5 U.S.C. § 552b(c)(l)-(9) (2006).
30. 27 See id. § 552(a)(l)-(3).
31. 28 Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231,110 Stat. 3048 (amending 5 U.S.C. § 552).
32. 29 See 5 U.S.C. § 552(a)(2).
33. 30 Clean Air Act, 42 U.S.C. §§ 7401-7671 (2006).
34. 31 For the Act's docket requirements, see Id. § 7607(d).
35. 32 Id. § 7607(d)(4)(B)(i).
36. 33 Id. § 7607(d)(4)(B)(ii).
37. 34 Id. § 7607(d)(4)(A).
38. See, e.g., AL GORE, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER &COSTS LESS, REENOINEERING THROUGH INFORMATION TECHNOLOGY 23-28 (1993), available at http://govinfo.Iibrary.unt.edu/npr/library/ reports/it03.html (recommending development of integrated electronic access to government information and services); AL GORE, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER &COSTS LESS, IMPROVING REGULATORY SYSTEMS 38-39 (1993), available at http://govinfo.library.unt. edu/npr/library/reports/reg04.html (recommending steps to enhance public awareness and participation).
39. See OFFICE OF MGMT. &BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, supra note 12, at 23-25.
40. E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (2006) (codified as amended in scattered sections of 5,10, 13, 31, 40, 41, and 44 U.S.C.).
41. See id. § 206, 116 Stat, at 2915-16.
42. See 5 U.S.C. § 552(a)(4)(A)(iii) (2006) ("Documents shall be furnished without any charge or at a charge reduced below the fees established⋯ if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.").
43. Openness Promotes Effectiveness in our National Government Act of 2007, Pub. L. No. 110-175, § 10, 121 Stat. 2524, 2529-30 (codified at 5 U.S.C. § 552(h)).
44. See id. (enumerating the obligations of the Office of Government Information Services).
45. Id.
46. See Elizabeth Williamson, Is Ombudsman Already in Jeopardy? Bush Proposes Moving Post from Archives to Justice Dept., WASH. POST, Feb. 6, 2008, at A17 (quoting White House spokesman Tony Fratto as stating that "only the Department of Justice⋯ is properly situated and empowered to mediate issues between requestors and the federal government" (internal quotation marks omitted)).
47. See 154 CONO. REC. S1050-51 (daily ed. Feb. 14, 2008) (statement of Sen. Leahy).
48. Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, 5 U.S.C. §§ 2301-2305 (2006).
49. Id. § 2302(b)(8).
50. Lloyd-La Follette Act, ch. 389, § 6, 37 Stat. 555 (1912) (codified at 5 U.S.C. § 7211 (2006)).
51. The Federal Employee Protection of Disclosures Act would have clarified existing whistleblower law and enhanced the protection for federal employee whistleblowers. See S. 274, 110th Cong. (2007). The Whistleblower Protection Enhancement Act of 2007, H.R. 985, 110th Cong. (2007), would have refined whistleblower protections in response to decisions by the U.S. Court of Appeals for the Federal Circuit limiting the scope of disclosures protected under the current law; it also would have provided specific whistleblower protections to federal workers who specialize in national security issues, federal contractor employees, and federal employees who make disclosures regarding actions that threaten the integrity of federally funded research.
52. 49 in the past, the Administrative Conference of the United States ("ACUS") has fruitfully examined the issue of gaps in whistleblower protection, leading to recommendations that were incorporated into amendments to the Whistleblower Protection Act.
53. See, e.g., Federal Protection of Private Sector Health and Safety Whistleblowers (Recommendation 87-2), 1 C.F.R. § 305.87-2 (1993).
54. See Coglianese et al., supra note 7, at 299-300 (recounting how the Securities and Exchange Commission and the Food and Drug Administration promulgated rules after private- sector whistleblowers in the mutual fund and tobacco industries, respectively, came forward).
55. See supra Part I.A.
56. The Task Force's recommendations concerning interactive comment periods bear resemblance to a much earlier ACUS recommendation on this issue. See Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking (Recommendation No. 76- 3), 1 C.F.R. § 305.76-3 (1993).
57. See infra Part II.C.2.
58. See Sierra Club v. Costle, 657 F.2d 298, 400-01 (D.C. Cir. 1981) ("Under our system of government, the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public from whom their ultimate authority derives, and upon whom their commands must fall⋯. Informal contacts may enable the agency to win needed support for its program, reduce future enforcement requirements by helping those regulated to anticipate and shape their plans for the future, and spur the provision of information which the agency needs." (footnote omitted)).
59. The Task Force's recommendations on this point bear a close resemblance to recommendations made by the Administrative Conference of the United States in the mid-1970s. See Ex Parte Communications in Informal Rulemaking Proceedings (Recommendation No. 77-3), 1 C.F.R. § 305.77-3 (1993) ("Agencies should experiment in appropriate situations with procedures designed to disclose oral communications from outside the agency of significant information or argument respecting the merits of proposed rules, made to agency personnel participating in the decision on the proposed rule, by means of summaries promptly placed in the public file, meetings which the public may attend, or other techniques appropriate to their circumstances. To the extent that summaries are utilized they ordinarily should identify the source of the communications, but need not do so when the information or argument is cumulative.").
60. See supra text accompanying notes 18-22.
61. See supra text accompanying notes 13-15.
62. 5 U.S.C. § 602 (2006) (requiring agencies to publish twice each year a regulatory agenda of rules under development that are "likely to have a significant economic impact on a substantial number of small entities").
63. Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51,738 (Sept. 30,1993), available at http:// www.whitehouse.gov/omb/inforeg/eol2866/eol2866- amended-01-2007.pdf (requiring agencies to "prepare an agenda of all regulations under development or review" and to create regulatory plans "of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form" each year).
64. U.S. DEP'T OF TRANSP., REPORT ON DOT SIGNIFICANT RULEMAKINGS, http://regs.dot. gov/rulemakings/ index.htm (last visited May 8, 2009).
65. U.S. Envtl. Prot. Agency, Actions Initiated by Month, http://www.epa.gov/lawsregs/ search/ail.html (last visited May 8, 2009).
66. A Technical Assistance Grant provides nonprofit citizens' groups with funding to hire independent expert advisors to enable them to participate in regulatory decisions. Such grants are sometimes used in complex, scientific regulatory actions such as in Superfund cleanup actions.
67. See, e.g., U.S. Envtl. Prot. Agency, Technical Assistance Grants, http://www.epa.gov/super fund/community/tag/ (last visited May 8, 2009).
68. See The Ombudsman in Federal Agencies (Recommendation 90-2), 1 C.F.R. § 305.90-2 (1993) (urging agencies with significant public interaction to consider establishing agency-wide or program-specific ombudsmen and to set forth guidelines concerning powers, duties, qualifications, term, confidentiality, limitations on liability and judicial review, access to agency officials and records, and outreach).
69. Federal Advisory Committee Act, 5 U.S.C. app. §§ 1-16 (2006).
70. Executive Order 12,838 mandates the elimination of a significant number of advisory committees and requires OMB approval to establish new committees. See Exec. Order No. 12,838, 58 Fed. Reg. 8207, 8207 (Feb. 10, 1993).
71. See Oversight of the Federal Advisory Committee Act: Hearing Before the Subcomm. on Gov't Mgmt., Info., and Tech. of the H. Comm. on Gov't Reform and Oversight, 105th Cong. 139-41 (1998) (testimony of J. Clarence Davies, Director, Center for Risk Management, Resources for the Future).
72. See 5 U.S.C. app. § 5(b)(2).
73. Cf. U.S. EPA SCI. ADVISORY BD., OVERVIEW OF THE PANEL FORMATION PROCESS AT THE ENVIRONMENTAL PROTECTION AGENCY SCIENCE ADVISORY BOARD 10 (2002) ("At the SAB, a balanced panel is characterized by inclusion of the necessary domains of knowledge, the relevant scientific perspectives⋯, and the collective breadth of experience to address the charge adequately.").
74. Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified in scattered sections of 2, 5, and 28 U.S.C).
75. For general ACUS recommendations regarding standards governing conflicts of interest, see Administrative Conference of the United States, Conflict-of-interest Requirements for Federal Advisory Committees (Recommendations 89-3), 1 C.F.R. § 305.89-3 (1993). A leading example for expert bodies was published by the National Academies. See NAT'L ACADS., POLICY ON COMMITTEE COMPOSITION AND BALANCE AND CONFLICTS OF Interest for Committees Used in the Development of Reports (2003), available at http://www.national academies.org/coi/bi-coi-form-0.pdf.
76. Craig S. Barrow &James W. Conrad Jr., Assessing the Reliability and Credibility of Industry Science and Scientists, 114 ENVTL. HEALTH PERSPECTIVES 153, 155 (2006).
77. See 5 U.S.C. app. § 3(2)(c)(ii).
78. See OFFICE OF MOMT. &BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, FINAL INFORMATION QUALITY BULLETIN FOR PEER REVIEW 2 (2004), available at http://www.white house.gov/omb/memoranda/fy2005/m05-03.pdf.
79. Id. at 7.
80. See generally THOMAS C. BEIERLE, DEMOCRACY ON-LINE: AN EVALUATION OF THE NATIONAL DIALOGUE ON PUBLIC INVOLVEMENT IN EPA DECISIONS (2002), available at http:// www.rff.org/rff/Docuraents/RFF-RPT-demonline.pdf (describing and evaluating the undertaking).
81. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870 (codified in scattered sections of 5, 10, 28, 29, 31, and 41 U.S.C).
82. Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648,104 Stat. 4969 (codified at 5 U.S.C. §§ 561-570 (2006)).
83. Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980) (codified in scattered sections of 5, 15, 28, and 42 U.S.C).
84. Congressional Accountability Act of 1995, Pub. L. No. 104-1,109 Stat. 3 (codified at 2 U.S.C. §§ 1301-1438 (2006)). According to the former Acting Chair of the Conference and OIRA Administrator, Sally Katzen, over the life of the Administrative Conference, "about three-fourths of [its] recommendations have been favorably acted on, in whole or in part." Sally Katzen, The Role of the Administrative Conference in Improving the Regulatory Process, 8 Admin. L.J. Am. U. 649, 665 (1994) (reproducing testimony taken at congressional hearings regarding reauthorization of ACUS).
85. See Treasury, Postal Service, and General Government Appropriations Act, Pub. L. 104-52, Title IV, 109 Stat. 468, 480 (1996).
86. See Memorandum from Morton Rosenberg &T.J. Halstead, Cong. Research Serv., to Hon. Chris Cannon, Chairman, House Subcomm. on Commerce and Admin., Comm. on the Judiciary 2 (Oct. 7, 2004), available at http://www.abanet.org/poladv/documents/acus-crs-7oct04. pdf (noting that in its last year in existence, ACUS received $1.8 million in appropriations).
87. Implementation of ACUS recommendations often resulted in significant savings at the agency level. For example, in its final years, ACUS spearheaded the use of alternative dispute resolution techniques in agency litigation. According to Katzen's estimates, [t]he FDIC, relying on ACUS recommendations, began a pilot mediation program that saved more than 9 million dollars in legal fees and expenses during the first eighteen months. A pilot project by the Department of Labor, on which ACUS has worked closely⋯ reduced the cost of litigation in cases resolved by mediation by seventeen percent and expedited resolution of disputes by six months, or more than sixty percent. Katzen, supra note 79, at 659.
88. However, ACUS recommendations are now available online. See, e.g., Florida State University College of Law, Recommendations of the Administrative Conference of the United States, http://www.law.fsu.edu/library/admiri/acus/ acustoc.html (last visited May 8, 2009).