From 1933 through the end of World War II administrative agencies in Washington had created and imposed a number of regulations on a philosophy of “father knows best.” By 1946, Congress had had enough and passed the Administrative Procedures Act to require agencies to solicit and consider public comments on proposed rules. Those rules, not passed by Congress, have the force of law.
Overall, APA has worked well. Commenters have raised issues which it is simply impossible for the best-intentioned civil servants to have thought of, simply because someone sitting behind a desk in Washington, D.C., can’t possibly have an understanding of all the factors that may result from a regulatory rule.
As a result of these comments, many regulations have been improved for the better. In some cases, they have been completely withdrawn and rewritten. And in others, they have been shelved.
But modern technology has made it possible for ordinary people to weigh in on issues, leading to agencies and Congress being swamped by a flood of emails.
One way an agency can deal with that is to obey the “letter” of the law while completely trampling its intent by making it very difficult and confusing for someone to submit a comment.
That’s the approach being taken by the U.S. Trade Representative’s Office which was swamped by 26,000 comments on proposed tariffs arising from the Boeing-Airbus dispute.
USTR has proposed that all comments must go through a portal it designed, asking specific questions for commenters to answer. National Association of Beverage Importers (NABI) thinks that’s a really bad idea, and has asked the Office of Management and Budget to intervene.
“Restricting comment to the use of the formatted portal with specific questions and drop-down screens is too limited of comment option and will discourage many consumers, employees, and small businesses from submitting their valuable views,” Robert M. Tobiassen, president, told OMB in letter.
“The attempt to channel the submission of comments imposing
requirements and/or asking for certain information as a condition for the submission itself will, as an unintended but inevitable consequence, reduce the number of comments received by USTR and limit the ability of concerned citizens to make their voice be heard by the Government,” he added.
Noting the USTR received 26,000 comments in an earlier public comment period, Tobiassen said, “This huge volume of comments clearly evidences a broad public interest in the USTR action. Having viewed many of these comments, NABI knows they came from a broad spectrum of consumers, small and larger importers, retailers, wholesalers and producers, trade associations in the U.S. and elsewhere, law firms, trade consultants and Members of Commerce and State Governments.
“Frequently, employees of many businesses submitted comments on the adverse impact of the retailiatory tariffs on their jobs and community.”
Just how hard would it be for an interested person to submit a comment? The USTR proposed portal “asks for Harmonized Tariff Schedule headings for specific products; it has dropped down windows that effectively limit how one can respond. It has a roadmap on instructions on how to proceed to various questions. While it does leave an open comment space at the end of the form portal, the complexity of getting that far on the form is confusing and discouraging to a consumer, employee or small business operator who does not have a trade attorney or consultant assisting in explaining and completing the form,” Tobiassen wrote.
Comment: One of the major reasons Donald Trump was elected President was a feeling among many people that the government wasn’t listening to their concerns. It’s ironic that an agency would proposed a system during the Trump Administration that would only serve to reinforce the image of a Washington that is out of touch with the country.