Public Participation

DOT has issued a landmark directive dealing with the development of regulations within the agency. There are a number of noteworthy components but none anymore  path-breaking than the following:

Section 12 d (2):

 Mandatory hearing for high-impact rule. In the case of a proposed high-impact rule, the responsible OA or OST component shall grant the petition for a formal hearing if the petition makes a plausible prima facie showing that-

(a) The proposed rule depends on conclusions concerning one or more specific scientific, technical, economic, or other complex factual issues that are genuinely in dispute or that may not satisfy the requirements of the Information Quality Act;

Review of Agency Rules in the D.C. Circuit: Back to the Future?

In the 1970 influential judges on the D.C. Circuit engaged in a well-publicized debate about the appropriate scope of judicial review of federal agency rulemaking. One faction led by Chief Judge Bazelon believed that judges were experts on procedure not the substance of regulation and wanted the courts to ensure that agencies used whatever procedures were necessary to make the best decision and build the sort of record necessary to make the best decision. On the other hand, Judges Leventhal and Wright believed that mandating additional procedures, beyond those required in the Administrative Procedure Act (APA), would lead to over-proceduralization and would ultimately slow down the rulemaking process. They believed that, instead, judges should examine and try to understand the technical matters at issue in the rulemaking in order to determine whether the agency had exercised reasoned discretion. This review, conducted under the arbitrary-and-capricious test of the APA, was labeled “hard look” a term coined by Judge Leventhal.

Editor’s Note: In an article under preparation( p 43; fn 126) the author quotes a statement made by the  Council on Foreign Relations  that the United States has relinquished its position as the world leader in the development of mechanisms to improve the administrative state. The aforementioned result occurred because OIRA  is operating at a staff level of only 50% of the level it had at the time of its establishment nearly 40 years ago. That said OIRA should have its foot in the door with respect to the regulation or non-regulation of the social media. The absence of the US participation in this debate and the emergence  of the UK subsequent to its discussions with US social media interests reinforces the position of the Council on Foreign Relations.