The Opportunity to Comment
Whatever the significance of who participates in standards-setting, what may be most important is how that participation occurs. This raises the second part of "notice and comment" rulemaking. On the public side, participation is often in written form. Pursuant to the APA, agencies request written comments on rules proposed in the Federal Register . Some agencies choose to hold public hearings as well, but this is not required under the "informal rulemaking" procedures of the APA.[17] Responses to written comments are routinely published in the Federal Register before a rule becomes final. On the private side, contrary to popular conceptions, participants, whatever interests they represent, generally have better access than in the public sector. Most organizations also offer an opportunity to respond to proposals with written comments. NFPA utilizes a procedure almost identical to that of the APA. ANSI mandates similar procedures as part of the larger requirement that private standards reflect a "consensus" of affected interests. Many of the APA-like rules in the private sector were adopted
in the wake of the FTC's investigation of standards and certification. There are examples in both sectors of seemingly legitimate concerns being ignored. This suggests that rules governing "comment" might not be very effective in either sector.
Surprisingly, the forms of participation are often more limited in the public sector than in the private, leading an attorney for the FTC to conclude that "government standards-writing is less open." "The only idea of process in the public sector," he complains, "is holding hearings." Such hearings were held in all of the public sector cases but aviation fire safety. (Written comments were solicited in all four cases.) Yet many participants in the CPSC proceedings complain that participation is stifled because observers cannot communicate with the commission during the many important briefing sessions conducted by the staff.
Direct dialogue between commenters and decisionmakers is more common on the private side. This has led some to conclude that private standards-setting holds the advantages sought in proposals for public "regulatory negotiation."[18] There were opportunities for informal dialogue in all of the private sector cases. UL engineers met with the Industry Advisory Council several times while converting UL 1482 to published form.[19] The minutes of the AGA/ANSI Z21.11.2 committee indicate that outsiders often attend meetings as guests. ANSI rules provide that "affected interests," a term subject to some dispute, can always attend committee meetings.[20] In short, those who want to participate appear to have better access to the standards-setting process. UL's canvass method is a bone of contention because it allows only industry participation during the formative stages of standards-setting, relegating other parties to commenting in writing on a proposal developed in their absence.[21]
Under the comment process specified by the APA, public agencies are expected to provide "reasoned responses" to all comments on the proposed rule. In theory, this should force the agency to face its critics. In reality the process is supervised by agency lawyers whose main concern is to ward off judicial review. Responses to comments are tailored to protect the agency, not to answer the commenter. The same appears to hold true on the private side, where the demands of the commenting process are greater. Most private standards-setters aspire to develop "consensus" standards, meaning that "unresolved negative comments" must be addressed in a convincing manner. But the response to comments in both sectors is prone to superficiality.
In the private sector, the process that unfolded in all four case studies was far from responsive. Like government agencies, UL delegates the task of responding to commenters to a special department that does not write the standards and whose main interest is in gaining approval, not changing the standard. In the case of woodstoves, the "response" to several comments was unresponsive; in a few cases, it was actually misleading.[22] NFPA has a similar problem. According to an NFPA official, commenters often complain that "committees claim to 'accept a comment in principle' but then go off in another direction." Another tactic, used in the grain elevator proceedings, is to hold over controversial comments for study and then dismiss them summarily several years later.[23]
Given their more technical orientation, however, private standards-setters might actually do a better job than their public counterparts in responding to comments. A detailed study of public and private standards for liquefied natural gas facilities concluded that "responses by the [NFPA] technical committee were far more specific than responses given by the [Department of Transportation]."[24] In neither case does the requirement to respond to comments appear to have a significant effect on the quality of decisionmaking.