The federal government should solicit input from the public to help combat the coronavirus
As regulatory agencies look for ways to help address the ongoing coronavirus crisis, they should leverage an invaluable resource at their disposal: input from the public. To date, agencies have used their internal subject matter expertise to issue dozens of actions to address the COVID-19 pandemic, but they may soon exhaust “low hanging fruit” options—making it difficult to identify new opportunities for action.
A recently-released report coauthored with my colleagues at the George Washington University Regulatory Studies Center, found that public comments can help agencies identify which existing regulations should be candidates for review. To supplement regulators’ expertise, the government should solicit and analyze public comments to identify additional opportunities for action. This effort should be widely publicized to maximize participation—including the use of social media, which senior administration officials like Dr. Anthony Fauci have demonstrated are capable of generating millions of views.
Agencies have already identified many regulatory opportunities to ease the impact of the pandemic including: relaxing provisions on the trucking industry, issuing guidance about disinfectants effective against coronavirus, temporarily reducing restrictions on businesses producing hand sanitizers, and halting collection actions on student loans. These early efforts were likely among the most intuitive actions for each agency to issue, however, and over time, finding additional opportunities is likely to become more difficult. Agencies lack effective strategies for searching among hundreds or thousands of regulations for promising candidates. Scholars and practitioners consistently emphasize that public participation can help regulators address this problem.
As part of a cooperative agreement with the U.S. Department of Agriculture, we analyzed thousands of comments submitted to agencies in response to requests for public input on regulations that could be revised or replaced. We found evidence that comments provided useful information to agencies about specific regulations—particularly those likely to impose costly burdens or generate unintended consequences. Even when commenters did not identify a specific regulation, they often provided information about the types of regulations they found problematic.
Although the comments we analyzed were all related to agriculture, our findings likely apply to other regulatory areas. Agencies received input from a broad range of stakeholders including individuals, businesses, and state and local governments. Many comments were submitted by regulated entities who provided suggestions about changes in implementation (oftentimes minor ones) that could substantially improve their operations. This is the kind of information that can be invaluable to regulators—direct feedback from “folks on the ground.”
Temporary waivers, like those issued by the Centers for Medicare & Medicaid Services, provide flexibility for businesses to operate in this crisis. Many businesses are voluntarily altering production—like switching from making clothing to producing medical masks. Other businesses could be compelled to alter production should the Trump administration exercise its authority under the Defense Production Act. In either case, businesses will often find themselves operating in unfamiliar regulatory territory. For example, clothing is not regulated by the U.S. Food & Drug Administration but medical gowns are. Regardless of how we address the current shortage of products necessary to combat the coronavirus, agencies should get feedback about specific regulatory barriers that impede these efforts. Our research shows that public comments are likely to provide valuable information to agencies.
The government has several options for soliciting and processing public comments. Agency-specific dockets would allow regulators to pose detailed prompt questions specific to their area—which research suggests could improve the quality of feedback they receive. Alternatively, if individual agencies are too resource constrained to process comments and act on suggestions in a timely fashion, a single agency—such as the Office of Management and Budget—could serve as a centralized repository for public comments and coordinate action across agencies. Notably, public comments could also be valuable for state and local governments—most of which have issued regulatory actions related to the coronavirus crisis.
Agencies need timely information about where they can look next to provide regulatory relief, and the public is likely to have valuable information to contribute. Every action agencies take represents an opportunity to reduce the spread of this virus—saving hundreds, if not thousands of lives.
Pérez is a senior policy analyst at the George Washington University Regulatory Studies Center and a PhD Candidate at the Trachtenberg School of Public Policy and Public Administration