Patchwork Improvements Continue for E-Rulemaking

2/23/2010

Several federal government websites have recently incorporated changes that better highlight regulatory issues and expand online access to rulemaking information. However, the changes appear independent of one another, not parts of a conscious effort by the Obama administration to transform the government's beleaguered e-rulemaking systems.

On Feb. 16, the White House announced a new effort it claims will shed more light on the activities of the White House Office of Information and Regulatory Affairs (OIRA). The so-called OIRA Dashboard, www.reginfo.gov/public, "will make it easier for people to identify the rule or category of rules they are interested in, and will allow them to monitor progress," Office of Management and Budget Director Peter Orszag wrote in a blog post. "Simply put, the Dashboard democratizes the data."

The launch of the OIRA Dashboard does not add new data to RegInfo.gov, which has for years provided users with online access to information about OIRA activities. RegInfo.gov indicates which draft proposed rules, final rules, and information collection requests are under review at OIRA, as well as the status of all previously reviewed rules and requests.

OIRA reviews agencies' significant rules under the authority of Executive Order 12866 and, under the Paperwork Reduction Act, must approve all agencies' attempts to collect information from ten or more people. The information on RegInfo.gov gives the public a partial look at how OIRA fits into the overall regulatory process.

The new OIRA Dashboard page on RegInfo.gov includes graphical representations of the number of draft proposed and draft final rules currently under review at OIRA, organized by agency, stage in the rulemaking process, length of the review period, and economic significance (those rules expected to have an annual impact of $100 million or more). Additionally, the launch of the dashboard coincides with a sitewide aesthetic redesign.

In addition to the updates to RegInfo.gov, the administration announced on Feb. 2 minor changes to the federal government's main e-rulemaking website, Regulations.gov. While RegInfo.gov illuminates OIRA activities, Regulations.gov is an online portal where users can find information about, and comment on, all agencies' rules. Among the changes to Regulations.gov, the homepage now includes an instructional video for using the site, and the site has added an alphabetical index of topics covered by regulation.

The federal government launched its e-rulemaking program in 2002. The intent of e-rulemaking is to give interested citizens and stakeholders a one-stop location to view documents related to a pending regulation and to file comments on regulations. Almost every federal rulemaking agency has incorporated its online rulemaking docket into the government-wide system. Partly because of prior success with its own e-rulemaking portal, the U.S. Environmental Protection Agency (EPA) was tasked with managing Regulations.gov.

Despite its potential to expand and facilitate participation, the e-rulemaking system has fallen short of expectations. One of the major challenges has been public education: many citizens simply are not aware of how regulations affect them or do not know where and how to comment on regulations.

Regulations.gov has already gone through several changes, most recently in July 2009, aimed at making the site's functionality and navigation more useful and intuitive. However, problems remain. For example, the search and sort functions are limited, making it difficult for users to easily find what they are looking for. Also, the online rulemaking docket is not necessarily identical to the authoritative paper docket housed in agency offices, undermining user confidence in the reliability of the online system.

Also on Feb. 2, the EPA announced an online forum for discussing changes to Regulations.gov, Regulations.gov/Exchange. Regulations.gov/Exchange solicits user feedback on the most recent batch of changes to Regulations.gov and identifies opportunities to expand new features.

This is the second iteration of Regulations.gov/Exchange. In May 2009, EPA launched Regulations.gov/Exchange to gather feedback on changes it was proposing for the main site. That version was taken down and has now been re-launched with new content. In both instances, the site has focused on receiving feedback on site upgrades the EPA has already decided to pursue.

While minor changes are being made to the government-wide e-rulemaking websites of RegInfo.gov and Regulations.gov, at least one agency has taken unilateral action to improve access to its own rulemaking process. On Feb. 18, EPA launched its Rulemaking Gateway, an online portal for tracking EPA rulemakings, learning more about issues EPA covers, and participating in the process. The "Rulemaking Gateway provides information as soon as work begins and provides updates on a monthly basis as new information becomes available," EPA says. "Time-sensitive information, such as notice [sic] of public meetings, is updated on a daily basis."

Each EPA rulemaking now has its own webpage with basic information about the rule, including an abstract and timeline for the rulemaking with projected milestones where appropriate. Users can search for rules by stage in the rulemaking process or topic, as well as by a variety of economic and social sectors the rule is expected to impact.

The Rulemaking Gateway also gives users an opportunity to comment on EPA rulemakings. Typically, rules are only open for public input during a legally required comment period immediately following publication of a notice of proposed rulemaking. On the Rulemaking Gateway, users can comment on rules at any time outside of the formal comment period.

EPA notes that comments submitted outside the formal comment period will not carry the same legal weight as those filed with the agency in the usual fashion. By law, agencies must respond to comments filed after publication of a notice of proposed rulemaking, but EPA may or may not respond to comments filed through the gateway.

EPA's online Rulemaking Gateway is integrated with Regulations.gov, which the agency also runs, but the gateway includes only EPA documents and issues. If information on EPA rulemakings is already available on Regulations.gov, or if a rule is open for public comment on Regulations.gov, the gateway includes links that give users quick access to relevant pages on Regulations.gov.

Missing from the recent flurry of activity is an overall framework for the Obama administration's approach to e-rulemaking. While administration officials have indicated a desire to transform e-rulemaking practices and, more generally, to make government information more accessible and expand public participation, the administration has failed to articulate its intentions.

It is unclear if such a strategy is in development. The White House's Open Government Directive, released in December 2009, references "transparency initiative guidance" on e-rulemaking. No announcements or documents about e-rulemaking have been issued. However, the launching of the OIRA Dashboard reflects the principles of the Open Government Directive, Orszag says.

Some e-rulemaking advocates, including OMB Watch, have called on the administration to adopt the framework detailed by the American Bar Association (ABA) in a November 2008 report. The report, Achieving the Potential: The Future of Federal e-Rulemaking, was written by regulatory and open government experts from outside the government. The authors wrote the report to provide the administration and Congress with a comprehensive roadmap for reforming e-rulemaking.

Among other things, the report recommends:

  • An improved search function that allows users to better define search parameters and sort results
  • The use of innovative techniques such as wikis and blogs to stimulate participation
  • The creation of comment portals on individual agency sites in addition to the current, centralized portal found at Regulations.gov
  • The formation of a public committee to advise the federal government on the status of, and changes to, the e-rulemaking system
  • Greater and more consistent funding for e-rulemaking efforts (currently, a dedicated funding source does not exist, requiring agencies to divert funds from other activities)

The recent changes to the e-rulemaking system only begin to address the greater reforms identified by the ABA report. Absent the adoption of an administration-wide e-rulemaking strategy, further reforms are likely to lack the cohesiveness necessary to achieve an effectively managed system.