Let the sun shine in

With a new administration taking office, it is time to review some of the key principles of federal executive rulemaking. Foremost is the concept of public notice and comment, which is embedded in the Administrative Procedures Act.

Under the APA, a federal agency must provide advance public notice of its intention to issue most new rules and must seek and consider comments before finalizing them. Those "legislative rules" have the force of law.

But this process can be time-consuming, especially when it involves controversial subjects. For this reason, agencies occasionally try to achieve the same results less formally by adopting guidelines and other policy documents.

This has been especially true in recent years, with the Clinton administration using agency Web sites to disseminate policy statements without formal public notice. Fortunately, the courts have not hesitated to strike down such tactics when they violate the APA.

In general, APA requirements do not apply to presidential executive orders because the president is not an "agency" within the meaning of the APA. Still, most presidents have sought public comments before issuing significant executive orders to build support for their policies and to obtain other points of view.

The value of proceeding this way was highlighted in May 1998 when President Clinton issued Executive Order 13083, dealing with federalism, to replace one issued by President Reagan.

The new order required, in part, that agencies provide an additional notice-and-comment period to state and local government officials before issuing certain new rules. Ironically, Clinton failed to provide any advance notice of his intention to issue the new order.

Almost immediately the president was forced to rescind Executive Order 13083 and to accept public comments before proceeding. In August 1999, Clinton issued Executive Order 13132, which replaced Executive Order 13083 and essentially restored the original order issued by Reagan.

In some cases, agencies have tried to limit public comment on controversial measures by using an informal working group to develop them. However, Congress enacted the Federal Advi-sory Committee Act in 1972 to ensure that advisory bodies could be used by agencies only in accordance with rules requiring them to operate publicly and fairly.

FACA violations are policed most commonly through private lawsuits filed by watchdog groups. The most noticeable example of this scenario was the President's Task Force on National Health Care Reform. The task force shut down when forced by the courts to operate in public.

Undoubtedly, the administration of George W. Bush will amend many rules adopted by Clinton. If administration officials want success, and in a way that builds support for Bush's goals, they will do a better job complying with the laws mandating public involvement.

Peckinpaugh is corporate counsel for DynCorp, Reston, Va.