Participatory rulemaking

Dec 27, 2011, 7:00AM EST
Participatory rulemaking
Sitting on your hands during regulatory development is counter-productive.

 The entire maritime industry complains, with justification, about the high number of rules and regulations by governmental agencies, particularly the US Coast Guard.  These regulations require the purchase of new equipment, modification of existing ships, training of personnel, recordkeeping, and/or reporting.  Two important steps are generally overlooked in these complaints.  First, the agencies seldom initiate new rulemakings on their own.  Most rulemaking projects derive from statutes adopted by Congress.  Legislation is rarely enacted overnight.  In most instances, a bill is introduced.  It is then referred to one or more committees for consideration, which often includes an open hearing.  Comments on received and considered.  The committee then reports out the bill and sends it to the full House or Senate for consideration.  If the bill is approved by one body, it is sent for consideration by the other body, where the process is repeated.  Only when both bodies have adopted the same measure, using the same language, is the bill forwarded to the President for signing (or veto).  Once signed, the bill becomes the law of the land and the federal agency begins the process of implementation.  Assuming that the bill needs regulations in order to be implemented, the second step in the process begins with the agency opening a rulemaking project, which includes notice and comment.  The agency publishes in the Federal Register its proposal on how to implement the new legislation and provides a period of time within which to submit written comments.  Also, there are often public meetings to give stakeholders an opportunity to state their positions verbally.  At each step in the process, stakeholders (including members of the regulated community) are afforded an opportunity to participate.  One way to meaningfully participate is to advise Congress and/or the agency of unintended consequences, where in solving one problem, the proposal creates another.  Stakeholders who are seriously concerned about the well-being of the maritime industry must be willing to participate in the process of considering and adopting statutes and regulations.  It is counter-productive and inefficient to complain, for the first time, about a regulation that has spent years in the legislative and rulemaking process.  Pay attention to what your government is planning and developing.  Submit meaningful comments.  You will be heard.  

 
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Comments
Richard Wells
Dennis - Very good points and I join you in urging more industry participation in rulemaking.
But, the regulatory agency must also be willing to listen to the input of the industry. In some rulemakings it is clear the agency has an agenda and a desired goal and facts are irrelevant.
12/29/2011 12:01:42 PM
 
Dennis Bryant
In many cases, the agency's options are constrained by statute. Even then, it is still important for stakeholders to make themselves heard.
1/2/2012 1:59:59 PM
 
Mark Sales
Dennis - perhaps you overlooked the current nature of international treaties (whic supposedly have already gone through Congressional oversight); and how they are now being 'modified' by "tacit consent" (which just means that we changed this while you were asleep and it was your own fault that you didn't tell us not to...).

Thus the SOLAS, MARPOL and STCW (and their various sub-treaties/codes like IMDG) are the main culprits in the international arena. Load Line and Tonnage conventions have yet to be amended to allow "tacit consent"; but some at IMO are trying.

The State Department determines participation (and positions)at IMO, since they are a U.N. organization; with some USCG, EPA, NOAA and FCC involvement.

Where the process here at home gets hammered is that IMO may change something with a certain projected implementation date (witness the Ballast Water issue) but getting a decent idea about how the U.S. as a Flag Administration is going to implement - thats a whole other story!
1/4/2012 4:36:14 PM
 
Dennis Bryant
Mark - The US Coast Guard leads the US delegation at IMO, with State Department participation. Conventions are not changed without full vetting of proposed amendments by the members. The Coast Guard holds public meetings (and accepts written comments) prior to each IMO meeting and announces all proposed changes and developments. This is the international equivalent of notice and comment rulemaking. You are invited to participate in the process.
1/6/2012 7:53:54 AM
 
G. Reza Emad
I have a research paper published in 2009 about this topic. It received editor's choice award.
This the address:
Emad, G., & Roth, W.-M. (2009). Policy as Boundary Object: A New Way to Look at Educational Policy Design and Implementation, Vocations and Learning 2(1), 19–35.
1/6/2012 1:43:54 PM
 

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