Notice and Request for Public Comment

Description

Government and regulatory bodies often issue a ‘Notice and Request for Public Comment’ (NRPC) to solicit feedback on proposed regulations, laws, and amendments. NRPCs are predominantly used by government departments and agencies as well as public oversight or regulatory bodies. In the United States, the Administrative Procedures Act (1946) requires all Federal agencies submit regulation proposals for public comment before they can be written into law.[1] The NRPC is widely used outside the United States but is often referred to simply as ‘public consultation’ while more participatory forms of consultations are referred to by their title such as citizens’ jury or public hearing.[2]

Problems and Purpose

A Notice and Request for Public Comment is used to solicit public feedback on proposed laws or regulations. Public commenting periods are widely used in representative democracy as a way to increase transparency in the policy making process.[3] As well, the solicitation of feedback legitimises policy by giving citizens voice and agency in the process. The resulting policy can thus claim to represent or reflect citizens' views. Policy makers are not, however, legally obliged to adopt or act on any public commentary although they must respond to it in a final report.[4]

History

According to a report by the Organisation for Economic Co-operation and Development, “Notice-and-comment has a long history in some OECD countries, and its use has become much more widespread in recent years. It was first adopted for lower-level regulations in the United States in 1946. The practice was subsequently adopted in Canada in 1986 – called “pre-publication” – and in Portugal in 1991. By 1998, 19 OECD countries were using public notice-and-comment at least in some situations. Japan adopted notice-and-comment requirements for all new regulatory proposals (and revisions to existing rules) in April 1999. In other countries such as Hungary, the process is proceeding on an ad hoc basis, with individual Ministries deciding their own policies.”[5]

Participant Recruitment and Selection

As its name suggests, the request for public comment is open to all members of the public. The 'notice' or 'request' for comment is typically posted by the issuing body on government message boards - either online or in public spaces such as Town Halls or administrative centres.[6] As Graham Smith notes, “[o]pen forms of consultation tend to attract citizens who already have a strong political interest.”[7] The number and type of people who comment are heavily dependent on the topic of the regulation or policy. Because there is often little effort on the part of the issuing bodies to attract a larger or more diverse audience, topics which provoke widespread contention, which affect a large number of people, or which attract a vocal opposition will continue to draw the most comments.

Non-governmental organizations which promote public oversight and accountability play a role in promoting notices and requests for public comment. Organisations such as the Public Comment Project and the Project on Government Oversight (formerly the Center for Effective Government) have adopted the communicative power of information and communications technology to disseminate NRPCs.[8] For example, the Public Comment Project uses the Twitter hashtag #pubcomm [9] and the Project on Government Oversight offers email alerts.[10] Government websites tend not to advertise NRPCs but aid in public participation by posting NRPCs, collecting comments (or detailing how to comment), and providing final reports.[11]

Deliberation, Decisions, and Public Interaction

The public commenting process does not, typically, involve deliberation or, indeed, negotiation. As far as channels of citizen engagement go, public commenting is very uni-directional: the public posts their comments but, in general, they do not hear back until the final report is issued. The reception - but not the adoption - of all comments must be documented by the soliciting entity in the final report. The depth of response varies but, in general, detailed or lengthy explanation is only given to those final decisions which go against the views expressed in the comments.[12]

Like the number of people that participate, the amount of interaction between citizens and officials is heavily dependent on the amount of public interest and the visibility of the process. Many regulations pass the public commenting period with little to no public involvement.[13] In general, policy or regulatory proposals which deal with highly contentious subjects or which have the potential to affect a large number of people attract the greatest public participation.

Commenting can be done through a variety of means depending on the issuing body. Most NRPCs issues by federal government departments and agencies in can be found and/or commented on on a central website. For example, the following websites keep an up-to-date list of all policies and regulations open for public commenting: regulations.gov in the USA, canada.ca/consultingcanadians in Canada, and gov.uk in the United Kingdom. The ease-of-use varies significantly across platforms. regulations.gov has a built-in commenting function for most notices but canada.ca/consultingcanadians offers little information on how to comment. In most cases, it is necessary to visit the specific agency or department website. It should be noted that many countries list Notices and Requests for Public Comment on their consultation website and thus do not distinguish between ‘deep’ and ‘shallow’ forms of engagement. Public commenting is one of the most shallow forms of public engagement since there is little effort put into recruitment, participation is non-deliberative, and final decisions are left to the issuing bodies.[14]   

Influence, Outcomes, and Effects

Most government bodies required to submit regulations and policies to public comment are also required to respond to those comments in a final report.[15] Independent groups or organisations that solicit public comments on rule changes likewise often commit to some form of response.[16] The effect of public commenting alone is difficult to measure. Organised, concerted citizen efforts to change or influence regulatory decisions often involve multiple methods of government engagement and communication such as petitions, demonstrations, and lobbying. It is unlikely that public commenting alone can affect much change in policy although it does force legislative bodies to justify decisions which go against the majority of comments received.[17]

For governments, the public commenting period and its recognition in the final report are often used to justify or legitimise the proposed policy. Having open consultations with the public demonstrates a government’s willingness to at least listen to citizen opinions and concerns.[18]

Analysis and Lessons Learned

The Notice and Request for Public Comment is a non-deliberative, open method of public consultation. The following ‘broad conclusions’ drawn by Graham Smith are thus applicable:

Open forms of consultation tend to attract citizens who already have a strong political interest; whereas more statistically representative techniques tend to lack depth.

  • “The relationship between consultation and decision-making is not always clear and feedback is rarely provided.
  • There is often widespread scepticism that consultation is being used to legitimate decisions that have already been made.”

Reassuringly, however, Smith notes the following:

  • “Standard techniques for eliciting public opinion on services and policies can be used in highly creative and innovative ways.
  • More innovative approaches offer interesting developments but they will only be effective if citizens believe that public authorities are genuinely committed to engagement.
  • The best consultation exercises are run independently of government reducing suspicion of manipulation by authorities.” [19]

The standard form of NRPC - non-deliberative, not widely publicised, difficult to navigate and/or participate - is, in many countries, being supplemented with ‘deeper’ forms of public consultation and participation such as Town Halls, focus groups, and initiative reviews. The ability to comment on policy is still an important feature of policy making but, as it stands, it could be improved.

 

Endnotes

[1] https://publiccommentproject.org/how-it-works/

[2] https://www.oecd.org/mena/governance/36785341.pdf

[3] Ibid.

[4] https://publiccommentproject.org/how-it-works/

[5] https://www.oecd.org/mena/governance/36785341.pdf

[6] https://publiccommentproject.org/how-it-works/

[7] Graham Smith, Beyond the Ballot, (London: The Power Inquiry 2005), 8. https://eprints.soton.ac.uk/34527/1/Beyond_the_Ballot.pdf

[8] https://publiccommentproject.or

https://www.foreffectivegov.org/about-us

[9] https://twitter.com/pubcommproject

[10] http://www.pogo.org/take-action/

[11] regulations.gov

[12] See, for example, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/692644/Government_response_FSM_and_EY_entitlements_under_Universal_Credit.pdf

[13] https://www.oecd.org/mena/governance/36785341.pdf

[14] http://pages.uoregon.edu/rgp/PPPM613/class10theory.htm

[15] https://publiccommentproject.org/how-it-works/

[16] See, for example, https://wolverineterminals.com/news-releases/public-notice-open-house-invitation-comment/

[17] Graham Smith, Beyond the Ballot, (London: The Power Inquiry 2005), 28. https://eprints.soton.ac.uk/34527/1/Beyond_the_Ballot.pdf

[18] Ibid.

[19] Ibid., 8.

Secondary Sources

“Background Document on Public Consultation,” Organisation of Economic Co-operation and Development, 2015. https://www.oecd.org/mena/governance/36785341.pdf

Parker, Bob, “Planning Analysis:  The Theory of Citizen Participation,” University of Oregon, October 21, 2003. http://pages.uoregon.edu/rgp/PPPM613/class10theory.htm

Graham Smith, Beyond the Ballot, (London: The Power Inquiry 2005), 28. https://eprints.soton.ac.uk/34527/1/Beyond_the_Ballot.pdf

External Links

https://www.regulations.gov/

https://www.foreffectivegov.org/node/4059

https://www.finra.org/industry/requests-comments

https://publiccommentproject.org/

http://www1.canada.ca/consultingcanadians/

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