Faculty Research Adopted by ACUS
Federal agencies generate most of the legal rules that govern the rights and responsibilities of the American people. Robust public participation is thus vital to the agency rulemaking process. By providing opportunities for public input and dialogue, agencies can write better rules, enhance the legitimacy of their decisions, and increase public support for regulation.
The primary method for public participation in this process is “notice-and-comment rulemaking.” Agencies are legally required to publish their proposed rules, allow interested persons to comment, and justify their final rules with an explanation that responds in a reasoned fashion to significant information and arguments. While notice-and-comment rulemaking is often praised for its democratic character, there is a widespread perception it is dominated in practiceby well-organized groups—and that ordinary citizens, unaffiliated experts, and other less well-financed individuals and groups who might benefit or be burdened by regulations are routinely absent.
MSU Law Professors Michael Sant’Ambrogio and Glen Staszewski are seeking to bring these missing stakeholders to the regulatory table.
As consultants for the Administrative Conference of the United States (ACUS), Sant’Ambrogio and Staszewski were charged with examining how federal agencies enhance public understanding of agency rulemaking and foster meaningful participation by traditionally absent stakeholders. ACUS also asked them to identify best practices to help agencies invest resources in a way that maximizes the likelihood of obtaining high quality public information throughout the course of the rulemaking process.
During their 18-month study, Sant’Ambrogio and Staszewski reviewed the academic literature, surveyed agency officials, and conducted interviews to examine how agencies have attempted to overcome a host of challenges and reach beyond the usual suspects in their rulemakings. Their detailed Final Report highlights the tools and practices available to generate valuable information from otherwise missing stakeholders, and identifies the best practices for soliciting informed public input and comment during each stage of the rulemaking process.
“In conducting our research, we spoke with numerous agency officials who described significant efforts to engage the public with their agenda setting and rule development activities. Because these efforts tend to be unstructured and ad hoc, we focused on encouraging strategic planning and other ways to better institutionalize public engagement with rulemaking,” said Sant’Ambrogio.
In December, ACUS adopted a series of Recommendations based on Sant’Ambrogio and Staszewski’s Report. These Recommendations now constitute official guidance for federal agencies. The Recommendations highlight effective methods for soliciting public comments early in the rulemaking process, identifying and engaging interests that might not otherwise participate, and obtaining feedback on potential regulatory alternatives through interactive dialogue among diverse stakeholders.
Sant’Ambrogio and Staszewski are quick to point out that there is no “one-size-fits-all” solution to public engagement with rulemaking.
“Agencies must think carefully at each stage about what information and stakeholders may be missing and use the tools most likely to generate this information in a cost-effective manner,” said Staszewski. “With careful planning and outreach, agencies can use different modes of public engagement at different stages of rulemaking to ensure that all of the relevant information and views are considered, and thereby enhance efforts to more fully democratize the regulatory process.”