Comments Slow Rules Process

Kathy Grismore, a sociology instructor at Brown Mackie College in Phoenix, wrote to Education Secretary Arne Duncan last year complaining that a proposed rule on student loans was "biased" against programs at her for-profit college. Then, at the urging of administrators, she also had students write letters.

Last fall, the college and its parent company orchestrated thousands of similar comments, gathered via form letters from staff, students, parents and others. In all, the Department of Education received more than 90,000 comments — the most it has ever gotten on a rule.

Most of the comments asked the Obama administration to scuttle the "gainful employment" rule, which would cut off student loans to programs whose graduates have high debt ratios and low repayment rates. If nothing else, the comments have slowed the rule, which was expected last November but is still being reviewed by the White House.

"Based on the comments we received, we decided to take additional time," Education Department spokesman Justin Hamilton said.

It’s just one of several rules delayed by a barrage of comments this year.

Mass comment campaigns are a new twist on an old political tactic. In some ways, they’re an extension of letter-writing campaigns directed at Congress. But comments on proposed rules are different. The 1946 Administrative Procedure Act requires agencies to consider public comments before finalizing rules. If they don’t, rules can be overturned in court.

Transparency efforts by Presidents George W. Bush and Obama put proposed rules online and allowed Internet comments.

"It’s a case of be-careful-what-you-wish-for," said Cynthia Farina, a law professor at Cornell.

"Ballot-box stuffing is a venerable tradition. We couldn’t expect political interests not to use any tool they have."

Federal agencies propose about 8,000 rules a year. Most get fewer than 50 comments. Those that get thousands can be "catastrophic" to the rulemaking process, Farina said.

Federal Reserve Chairman Ben Bernanke told Congress this month that 11,000 comments on "swipe fees" — the amount banks can charge retailers for using debit cards — have also delayed that rule. Comments came mostly from credit unions and community banks opposed to the rule, and included more than 8,000 form letters.

Retailers say bankers have time to make comments, while grocery workers don’t. "Anyone can sit at a computer and press send all day to up the numbers, but I don’t see how that’s valuable," said Jennifer Hatcher of the Food Marketing Institute.

In January, the Environmental Protection Agency asked a judge for six more months to develop a rule on boiler emissions because of a barrage of 30,000 comments. More than 25,000 were "mass submissions" bundled by environmental and industry groups. Some letters were more than 300 pages long.

The judge gave the EPA one more month. The agency finished the rule — but rescinded it last week and started over.

James Pew, a lawyer representing environmental groups, said the comment campaign was "a smart idea" by the industry. "To be fair to them, they raised substantive comments. I just think they’re wrong."

Pew said the letters complemented a political campaign — emboldened by GOP victories last year — to attack environmental regulations. "EPA came under enormous political pressure to make the rule weaker, and they needed time to do that," he said. "It may have worked like a charm."

But on the gainful employment rule, there’s some question about how many comments are legitimate.

Grismore, who left Brown Mackie, said administrators pressured her. "I can’t say I felt there would be repercussions," she said. "I can say I wouldn’t put anything past them."

When she asked students to sign, they revolted, she said. "Why should we? So they can keep their pockets fat?" Grismore said one student asked.

Students elsewhere went off script. "First of all I’d like to thank whoever came up with this for getting their act together. This is what horrible for-profit schools need," wrote Kyle Rau, a student at the Art Institute of Seattle.

Some submitted multiple comments. And, as the Higher Ed Watch blog noted, many form letters weren’t filled in. "I am a career college student at [INSTITUTION] studying [PROGRAM]. [INSTITUTION] is providing me with the education and training necessary to obtain the job I`ve always wanted as a [CAREER]," said one of four similar letters submitted by Farnaz Hamedanchian, a design student at Berkeley College in New Jersey.

Critics say the form letters are a sham. "These are corporate lobbying efforts masquerading as public comments," said Lauren Asher of the Institute for College Access & Success, which supports student loan changes.

Brown Mackie and its parent — EDMC, or the Education Management Corp. — did not return calls seeking comment. Two other groups that helped conduct the campaign: the Business and Industry Political Action Committee and the DCI Group, also did not respond.
Not everyone’s convinced the mass comments are a problem.

"I’m skeptical of the conclusion that the process now is hindered because of an increase in numbers of comments — and specifically the number of form comments," said Michael Fitzpatrick, of the White House’s Office of Information and Regulatory Affairs.

Even form letters, he said, can give useful information about the number of people who might be affected by a rule.

"Comments count," Fitzpatrick said. "I can’t think of a lot of examples of actual abuse."


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