Modernizing the rulemaking process in the eyes of industry

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Most federal rules are aimed at one business or another. Large business and associations spend a lot of time following and responding to rulemaking. As the government ponders how to modernize rule-making, and as our third and final installment of our series on e-rulemaking modernization, we wanted to see how rulemaking is regarded from the industry side. One strong advocate for sound rulemaking is the deputy general counsel at the National Association of Manufacturers, Patrick Hedren. He joined the Federal Drive with Tom Temin to discuss some of his ideas.

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Interview transcript:

Tom Temin: Mr. Hedren, good to have you on.

Patrick Hedren: Good to be on. Thanks for having me.

Tom Temin: First of all, you have spoken publicly about your view of the US federal rulemaking process, and you were pretty positive on it. Review that for us, if you would.

Patrick Hedren: Sure. Well I mean, let me start by saying that it’s always a work in progress, and it’s something that I think the United States continues to evolve on and will continue to do so in the future. But if you look at how the United States conducts rulemaking at the federal level, not necessarily getting into the states, but at the federal level, I think what you see is kind of a gold standard that other countries have emulated around the world. And there’s good reason for that because there are some core components of rulemaking that dramatically increase its fairness and reduce opportunity for graft and corruption and other kind of bad outcomes that might come, and then improve the quality of the rules at the end of the day that come out of that process. And some of those are very, very simple tools like public notice, an opportunity for comment into a docket that could be viewed by anybody. And the U.S. does a remarkably good job of that. And we have some online tools that the government has developed like regulations.gov and federalregister.gov that improve the ability of the public to engage that process. So when you look around the world, there are a lot of different ways of doing this. But they’re typically not quite up to that standard of bringing the public inside the process of making policy with the government.

Tom Temin: Now the GSA is part of a project to modernize e-rulemaking and one of the issues that rule readers, rule commenters, anyone connected with rulemaking has these days are two, really. One is the revving up of mass commenting, which has always been a phenomenon, even when we had postcards. But electronics and the ability to do things in automated fashion really revs that up. So the mass commenting and the other issue is comments also revved up by electronics that are fake or coming from sources that aren’t really qualified or legally entitled to comment. What’s your sense of how the government could better deal with those two issues? Let’s start with mass comments.

Patrick Hedren: Well, first, let me push back gently on the thought that there might be folks that are in worse position to offer views into the process. I think we would actually disagree with that on kind of a fundamental level. There’s a lot of value in having public participation. Even if they may not be directly sophisticated on the underlying law or on the policy calls, there is a voice that they could bring to the table that’s valuable for agencies, valuable for the public, valuable for policymakers who ultimately create the laws that create the authority for agents to make the rules.

Tom Temin: Well, I was referring more to countries like, comments coming from China or something or Burma, [Myanmar] that aren’t entitled to have any say in US rulemaking is what I meant.

Patrick Hedren: Oh, interesting. So, you know, we’re pretty open in our rulemaking process here, to the point that the government does occasionally take into account the views of other countries when you might create a trade barrier or something like that. I think that’s probably a slightly different thing than what you’re referring to here. But you know, kind of taking them in order is, as you’ve laid them out with the mass comment campaigns you’re right, that’s a very old tradition, if you will, that goes back to postcards and weighing in with agencies on on a mass level. And that’s become much more tech enabled and a process where people can sit down at their computer and weigh in directly with agencies 1,000 miles away. And I think if you kind of take a step back from process and just situate what it is that those commenters are doing, you can see there really is some value in it. It may be at times a little bit cumbersome for agencies to deal with, but there really is some value there. And from our perspective that value can come from simply finding a way to inform the public, inform our members. Give them an opportunity to understand what might be happening in Washington, D.C., that will affect their lives and give them a chance to become active in that process. Give them that voice. And at the same time, from our perspective, if we’re working on a campaign that we’re actually offering to our members to participate in, that gives us an opportunity to really get into the weeds on the policy issues and do some of that work from the sector’s perspective. So that when you’re sitting in California and commenting on a rule in Washington, D.C. , you don’t feel like there’s some barrier between you and the agency of, “Well, have I read the statute? Have I dug deep in the underlying science?” Some of these things could be more relevant for other commenters than others. So I maintain there’s a lot of value in doing this just as a way of engaging the public in a process to make sure that it doesn’t become some insider process that’s really driven by a handful incredibly sophisticated players, and I think that will continue into the future as well, and our system is really built to be open to that type of participation. And in some ways it’s not that different from how many people around the country engage with their local congressional representative. And I think if you go into a congressional office, you see they get an unbelievable flow of email, inquiries and views about issues, some of which are mass campaigns that can kind of be broken down into different categories sorted through software to help them out. But it gives them a sense of perspective on what’s happening in their district and how do people feel about this, and evaluate that activity.

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Tom Temin: We’re speaking with Patrick Hedren, deputy general counsel of the National Association of Manufacturers. And I’m just curious a group like NAM, which has a great number of companies in it but those companies are all different sizes – do you ever have the situation where, say, the Caterpillars and the Boeings and the General Motors have one view on a rule? Whereas maybe some of the thousands of small manufacturers, family-owned companies might have a diametrically opposite view of a given rule? How does an association handle that type of situation, or just say folks tell them what you want?

Patrick Hedren: That’s a fantastic question. I think it gets a little bit to the core of what does a business association do? In many ways, and the issues aren’t unique to the rulemaking context, this is really anything that we deal with is gonna have some differences of opinion, to put it mildly, in the membership. And I think it’s actually pretty tough to find an issue that doesn’t have that type of dynamic to it. It’s not always big versus small. It may be within a subsector. There are different companies that disagree on a particular policy issue, so that’s always there. One of the ways in which we seek to get through that is a policymaking process that’s internal to the association that involves those members. But in other ways, you know, specifically in the rulemaking process, making sure that we’re putting out in the world a summation of where we believe the policy is heading and how that’s likely to impact a sector and empowering the members directly to weigh in and giving them that opportunity to say, you know, “I may disagree with Company X and I’ll have a different viewpoint,” but that viewpoint, really should be heard as well. So it’s tough to become monolithic as a voice in a business association and to the greatest extent possible we try to avoid that kind of hubris to say that we speak on a unanimous voice of everybody in industry. We actually like to show that diversity of opinion where that’s meaningful.

Tom Temin: And looking at the federal rulemaking again as a professional practicing in this whole area, I guess the government seeks to update the process for e-rulemaking. What are the principal changes you would see or like to see or the benefits you would like to see come out of that process?

Patrick Hedren: I think that’s a great question. I think the tools that we have today are very good. Start there. They’re very good. They’re very easy to access and participate in to file a comment in. That’s a very smooth process, and in general the system works pretty well. So we’re starting from a good place. In the future, though I think there’s a lot that GSA can do in their new stewardship of this rulemaking tool, regulations.gov, to make it more accessible to call it the standard internet. So that search engines and others, and people rely on more commonly to access information about government. And for whatever reason, the existing tools does not work that well with Google or with other tools that people would more commonly use to access that information. So there’s a clear opportunity there. That probably extends into some other areas as well. Could you improve the ability of the public, to see comments more quickly? Can you empower the agencies to manage comment processes when they’ve become very, very engaged? So don’t quote me on it, but I think that the average rulemaking probably has about seven comments or so in the docket. But some rulemakings may have 7 million. And for agencies that can pose kind of a technical issue, in addition just to the practical issues with the comments. And if that’s the case, then we think there could be some innovations in that tool that will help the agencies and, frankly help the public to kind of batch large groups of comments so they’re not scrolling through 400 screens of a database to get to the comment that they’re looking for.

Tom Temin: So it sounds like you’re looking for technical and usability changes. But no, no real change in the framework of the way the system works.

Patrick Hedren: I think that’s basically right. The system is designed to work with a range of customers within the federal government that all have slightly different needs and the last we checked I think there’s maybe two agencies that use a different type of docketing system, so it works pretty broadly for everybody. But the goal would be to get everybody into that system so that there’s a one stop shop for anybody in the public and especially the regulated public, to be able to figure out what’s going on in their government. And to do that, I think the tool needs to remain fairly broad. The functionality that it has now probably needs to be largely maintained. And instead, I think the focus is likely to be more on the accessibility side. And how do people get access to information that they’re looking for?

Tom Temin: Patrick Hedren is deputy general counsel of the National Association of Manufacturers. Thanks so much for joining me.

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Patrick Hedren: My pleasure. Thanks for having me.

Tom Temin: We’ll post this interview along with the others in our e-rulemaking series at www.federalnewsnetwork.com/FederalDrive. Subscribe to the Federal Drive at Apple Podcasts or Podcastone.

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