Robust Public Participation Makes for Better Regulations

The Importance of Public Participation in Federal Rule Making

The recent release of the report With The People, For The People: Strengthening Public Participation In The Regulatory Process by the White House’s Office of Information and Regulatory Affairs (OIRA) has brought to light the importance of enhancing public participation in federal rule-making processes. This report outlines four key priorities for improving public engagement and provides examples of agency activities that align with these priorities.

At the UCS Center for Science and Democracy, our mission is to ensure that government decisions are based on sound science and evidence, free from political influence, and inclusive of diverse community perspectives. We welcome the focus on public participation in rule-making highlighted in the report, as we have a history of producing resources and analyses on this critical issue. Additionally, we have noted instances where OMB guidance and the OIRA report align with recommendations put forth by UCS, as highlighted in our submitted comments. Here, we will delve into some of our specific recommendations and concerns in relation to public participation in federal rule making.

The Role of Early Engagement in Public Participation

The OIRA report underscores the significance of early engagement in enhancing public comments on proposed federal rules. By involving the public at an early stage, agencies can gather valuable insights before key decisions are finalized, such as the language used in the rule. An effective way to notify the public about upcoming rule-making activities is through an Advanced Notice of Public Rule Making (ANPRM), which agencies are required to publish in the federal register. However, monitoring the Federal Register for these notices can be challenging for the public. The report cited an example of early engagement by the Fish and Wildlife Service regarding revisions to permits for the disturbance and taking of eagle nests, where direct communication and notices were sent to Tribal communities impacted by the proposed rule.

Research has shown that adopting a “learning together approach” during early public participation can enhance engagement and participation. This approach involves soliciting feedback on topics that require clarification and hosting webinars to facilitate mutual understanding between agencies and the public. State agencies have successfully implemented this approach in cumulative impacts rule-making processes.

Enhancing Support During the Public Comment Process

One area of improvement in public participation requirements during rule-making is the lack of specified information about the rule-making process and proposed rule content. The OIRA report highlighted best practices for communicating about proposed rules, such as consolidating related rules in one location, providing plain-language fact sheets, and conducting public hearings for formal comments. Agencies have also utilized webinars and listening sessions to educate the public about rule content and process, as demonstrated by the Department of Housing and Urban Development in their rule-making around climate change impacts in housing projects. The publication of the Unified Regulatory Agenda serves as another avenue for communicating upcoming regulatory activities.

Inclusivity in Public Engagement

The report emphasizes the importance of soliciting public comments and engagement from communities most affected by rule-making, particularly underserved communities. These communities may require translated materials, hearings outside of standard hours, and plain-language summaries to effectively participate in the process. The report also acknowledges that trusted partners or intermediaries can serve as effective messengers to engage these communities. The EPA’s approach to identifying and engaging communities impacted by rule-making processes showcases the value of demographic data and intermediary support in fostering meaningful engagement.

Empowering Communities to Influence Rules

Ensuring that public participation is not merely a formality, but a meaningful opportunity for communities to influence rule outcomes, is vital. Agencies are mandated to disclose information on how public comments were considered in rule-making decisions, often through tables summarizing comments and responses. A clear and comprehensive response to comments is crucial, as highlighted by joint research conducted by UCS and Tufts University. Additionally, agencies must commit to evaluating the effectiveness of public engagement post-rule enactment and make necessary adjustments for future improvements.

Continuous learning and adaptation in engaging affected communities are essential, given the evolving nature of communication, community organization, and regulatory subject matters. The OIRA report rightly emphasizes that public participation leads to better rules and regulations. By genuinely considering and integrating community feedback, rules can be more effective and responsive to diverse perspectives.