Final Report (all chapters)

submit public comments, it is usually well-organized groups that make the most effective use of
this avenue. When members of the general public make themselves heard, it is often the result of
an organized political campaign rather than a grass-roots response by concerned citizens. As a
matter of regulatory practice, this may not be a serious problem, as federal regulators have
become quite adept at spotting these manipulative maneuvers. But the fact remains that
regulators do not use and not do consider notice-and-comment an effective tool of public
involvement.
Having discredited notice-and-comment as an effective institution of public consultation, it
is worth noting that there have been a few instances of federal agencies making a strategic use of
this administrative tool to promote broader societal interests. 25
The term “broader societal
interests” in this context indicates a situation in which an agency is willing and able to pursue a
policy that is likely to be supported by a large majority of the general public but opposed by a
few well-organized interest groups. This characterization closely resembles our description of the
political landscape in the field of reproductive medicine and biomedical research, and is
therefore of some interest to our discussion. The agencies involved are the EPA, the FDA and the
Office of the Comptroller of the Currency (OCC), the federal agency responsible for regulating
the banking industry. In 1997, the EPA managed to promulgate new air standards designed to
reduce air pollution by ozone and particulate matters, against the vehement opposition of the
regulated interests, including automakers, coal producers, electric utilities, and oil companies. In
1996, the FDA issued a new rule governing the advertising, sale, and distribution of cigarettes
and smokeless tobacco. The proposed new rule restricted access to cigarette sales by minors,
limited tobacco advertising in the media, and prohibited the distribution of free tobacco samples
and non-tobacco promotional items, among other things. Finally, in the late 1990s, the OCC took
numerous bold steps to expand bank securities and insurance powers, naturally over the
opposition of powerful financial interests.
Common to these three federal agencies was a strategy designed to build broad public
support for their proposed new regulations. To achieve this goal, the agencies began to reach out
to the public at a very early stage of the rule-making process – that is, well before the proposed
new rules were officially announced in the Federal Register. The tools used for this purpose
varied somewhat from case to case; they ranged from convening public hearings, and organizing
conferences and town hall meetings to making informational materials available to the public,
among other things. The novelty in this case does not reside in the tools used, but in the
extensive efforts made by these agencies to reach the general public at a stage of the regulatory
process in which an agency usually negotiates exclusively with key interest groups.
An important reason for mobilizing the general public was to stimulate a large number of
supportive comments during the notice-and-comments phase. Extensive outreach strategies had a
second, important goal: to build the best possible case in support of the proposed new rules. By
25
Steven P. Croley, "Public Interested Regulation," Florida State University Law Review 28 (2000); Elizabeth
Garrett, "Interest Groups and Public Interested Regulation," Florida State University Law Review 28 (2000).
255