New Executive Order Promotes Public Participation

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Obama’s recent order makes promising strides toward improving participation in agency rulemaking.

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This morning President Obama issued a new executive order on regulation. The order reaffirms many core principles of regulatory policymaking reflected in prior executive orders dating back to the Reagan Administration. It also keeps in place the existing structure of White House review of new regulations that had been established by President Clinton.

But consistent with the Obama Administration’s emphasis on open government, today’s order also makes some significant new strides toward improving the role the public plays in the regulatory process. Section 2 states that new “regulations shall be adopted through a process that involves public participation.” By itself, this command is not remarkable, as agencies are already required by law to give the public an opportunity to comment on proposed rules.

Yet, requiring that the public have an opportunity to comment does not mean that this opportunity is always meaningful, especially when it is hard for members of the public to review the data and documents underlying agencies’ regulatory proposals. As I noted in 2008, in a nonpartisan presidential transition task force report, for some agencies

important data might not be included in a rulemaking docket until late in the comment process, or the data might be buried in voluminous records that are not available electronically. The lack of meaningful access to important information detracts from the public’s ability to contribute to the formulation of better rules.

That same task force recommended steps to improve the timely, online availability of information underlying new regulatory proposals.

In today’s executive order, President Obama announced a significant new effort to improve the public’s access to government information about agency proposals. The executive order calls for agencies to make their regulatory dockets available online in a “timely” manner so that the public can comment on “all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.”

Although many federal agencies do provide such information online, far too many still do not provide this information in a timely and complete manner, even in today’s digital era. If President Obama’s order is implemented faithfully and consistently across all federal agencies, it will go a long way toward advancing the goal of a more open federal government.

Cary Coglianese is the Edward B. Shils Professor of Law, Professor of Political Science, and Director of the Penn Program on Regulation at the University of Pennsylvania Law School. He is the founder of and faculty advisor to RegBlog.