This is a guest post authored by Susan Dudley and Steven Balla.  Steven Balla is Associate Professor of Political Science, Public Policy and Public Administration, and International Affairs at the George Washington University, and a Senior Scholar with the GW Regulatory Studies Center.  Susan Dudley is Director of the GW Regulatory Studies Center and Research Professor of Public Policy and Public Administration at the George Washington University. This post is the result of the authors’ independent research and does not necessarily represent the views of the Administrative Conference or its Members, or the United States.

In a recent working paper for the OECD, we examine the processes through which U.S. regulations are developed, implemented, and evaluated, highlighting the instruments through which stakeholders participate.  Our review finds that in many respects, the process of developing regulations in the United States is a model of transparency, as it institutionalizes a wide array of opportunities for stakeholder participation.  All regulatory actions are taken under authority initially delegated to executive branch agencies by legislatively-enacted statutes.  The content of regulations is constrained by the language of authorizing statutes, executive principles for regulatory analysis, and procedural rules regarding the consideration of public comments.  Agencies must, as a general matter, solicit public comment on proposed regulations and base final rules on the administrative record, including comments that have been submitted.  During the notice and comment process, both the proposed rule and extensive justifications for alternative courses of action are available to the public, and any interested party may submit a comment.  Once rules are finalized, issuing agencies are responsible for enforcement and facilitating retrospective reviews of the effects of regulations.

Despite nearly seven decades of institutionalized stakeholder participation, however, challenges and opportunities remain for regulatory policymaking in the United States.  It has been argued, for example, that “by the time the NPRM is issued, the agency has made a very substantial commitment to the draft rule it is proposing, and will be understandably reluctant to modify it very substantially afterwards.”[1]  Furthermore, public comment is largely oriented toward the provision of information and, as a result, does not do as much as it could to maximize deliberative engagement in the regulatory process. [2]  Stakeholders have relatively short windows between publication of notices of proposed rulemaking and deadlines for filing comments, and therefore the majority of comments are submitted on or close to the last days of comment periods.  In such an environment with limited opportunity for reflection on positions held by others, stakeholders often craft comments with an eye toward future litigation if the final rule is inconsistent with their preferences.[3]  Such public comments serve as legal documents rather than as instruments for fostering deliberative engagement among stakeholders with varying perspectives. In the end, such legal documents are often of limited utility to agency officials seeking to finalize regulatory decisions.[4]

Information and Communication Technologies (ICTs), despite limitations thus far in their impact on regulatory policymaking, offer the potential to harness the wisdom of dispersed knowledge and facilitate stakeholder participation that is deliberative in orientation.  Agencies and stakeholders might utilize open source workflows in the regulatory process.[5]  Open source software, such as Git,[6] provides a platform, not unlike a collaborative wiki, for individuals to build upon one another’s contributions, by adding, editing, updating, and correcting information and interpretations.[7]  Such engagement would operate not as a replacement, but as a supplement to the notice and comment process, especially early in the development of regulations before agency and stakeholder positions have hardened.

Another area of the regulatory process where there is strong potential for enhancing stakeholder participation, both in terms of information provision and deliberative engagement, is retrospective review of rules after they have been promulgated and implemented.  President Obama has reinforced long-standing executive requirements for retrospective regulatory review and has emphasized the role of the public in exchanging information on the impacts of agency rules.  Such ambitions have not yet been fully realized, an indication that stakeholder participation in retrospective review may not enhance the reduction of existing “unjustified regulatory burdens and cost.”[8]  Retrospective review, and in particular stakeholder participation in this process, may, however, contribute to the design and implementation of future regulations that meet the needs of transparency and evidence-based policymaking espoused by democracies in the 21^st century.