The Center for Progressive Reform (CPR) Believes that the Interactive Public Docket (IPD) Developed by the Center for Regulatory Effectiveness is Detrimental to the Public Interest
The CPR consists in large part of leading law faculty members who study the federal regulatory process. CRE is a regulatory watchdog founded and presently managed by former regulatory officials of the White House Office of Management and Budget..
CRE developed the concept of an Interactive Public Docket (IPD). The essence of an IPD is to convert the public comment period on proposed federal regulations to a 24/7 basis, meaning that the public could comment on a proposed rule 24 hours a day 7 days a week and could do so after the close of the public comment period.
Why, because with the time demands on the public it is difficult for members of the public to offer comments in the usual sixty day public comment period which is a seemingly overly resrictive constraint given the fact that the developmental stage of a regulation from conception to promulgation could easily be a year or more?
In addition, new facts become available and federal regulators should be advised of such developments.
CRE has stated very explicitly that comments submitted after the close of the public comment period need not be adopted or responded to by federal agencies. Federal regulators could, however, based upon their discretion, incorporate comments they believe to be useful into the public record.
In keeping with a trend already under way in a number of federal agencies, the IPD allows the public to comment on comments made by others. CRE believes that this capability is a benefit to federal regulators in that third-parties police the accuracy of comments made by other third-parties.
CRE developed an IPD for a new regulatory regime which is under development by federal agencies—ocean zoning (marine spatial planning).
CPR states the following with respect to IPD’s in general and the ocean zoning IPD in particular:
IPDs would undoubtedly make the problem of “information capture” even worse. The agencies would now have to consider and respond to all of the trifling little comments that regulated industries might make during and after the official comment period. It’s not hard to imagine these IPD-based comments numbering in the thousands for more complex or controversial rules.
In short, the CRE’s IPD proposal would be a recipe for greater regulatory delay and increased industry influence over the regulatory process.
It is time to put the CRE IPD to work, submit your comments on this important public policy issue in the comment section below.
Read CPR article.
4 responses to “The Center for Progressive Reform (CPR) Believes that the Interactive Public Docket (IPD) Developed by the Center for Regulatory Effectiveness is Detrimental to the Public Interest”
I think CPR’s arguments are well grounded. However, CPR fails to account for the fact that industry already has substantial influence over the agency rulemaking process. The interactive public docket provides public interest groups and concerned individuals with the opportunity to participate in rulemaking without the constraints and formalities of the current public comment period for rulemaking.
I agree with James Goodwin. Agencies are already stretched so thin on resources. The IPD will do nothing but provide industry with a forum to barrage agencies with frivolous comments and arguments that the agency will be required by law to consider. Government’s role is not to respond to and administer every interest groups’ concern, but rather govern in the interest of the general public. Providing industry with a channel to continuously detract with the Agencies is extremely detrimental to the public at large.
The IPD sounds great in theory, but it will ultimately have a detrimental impact on regulators and the public at large. The regulated industry would inundate the federal agencies with information of little benefit. The IPD could be of great benefit, however, it poses too many dangers if misused by the regulated industry.
An interesting debate. CRE’s proposal, CPR’s response, and the comments appear to be based on inferences from experience and logic. They are not based on evidence, as far as I can see. I suggest testing CRE’s proposal, perhaps under the auspices of the recently resurrected Administrative Conference of the United States. Let us see if the anticipated benefits (broader public input, transparency) and the anticipated problems (agency information overload, agency capture) actually happen. Maybe we can get a grant.
Throwing my (limited) wisdom into the fray, my (limited) experience suggests that well-heeled commenters will always have an advantage in any rulemaking system. In a public comment system, they will have or be able to hire good, trusted technical experts and communicators. It’s a major source of income, I suspect, for lobbyists. To the extent that less flush people wish to make their voices heard, they will need to aggregate their resources and exploit nonmonetary motivations to encourage their own trusted experts and communicators to speak up.
As for the CRE proposal and CPR’s objections, I suspect that quality will win out over quantity. Information from sources trusted by the decisionmakers will have the greatest impact. Regulation is not a democratic process, although it improves its authority and gains acceptance when it allows everyone to speak her or his mind and appears to be a fair process. The public trust in regulators is positively related to regulators demonstrated expertise, demonstrated judgment, and demonstrated responsiveness to the concerns of those affected by their decisions.
Information overload is simply a fact of life in the 21st Century. Regulators, like the rest of us, must learn to deal with it. See How To Drink From a Firehose Without Drowning, Or Online Current Awareness Made Less Difficult.
I suspect that as for agency capture, there is little difference between CRE’s proposal and the current system. As long as aggregate interests offer better preparation for regulatory positions and better standards of living for people leaving regulatory positions, there will be some degree of capture, even if only on a less than conscious level. Regulators are human. Where you stand depends on where you sit, or sat, or will sit. That most regulators try to be honest and objective, that they think they are being honest and objective, is an amazing tribute to American culture.
Ted McClure, Editor
Administrative Law Prof Blog
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