At Agencies, Open Government and E-Rulemaking Go Hand in Hand

4/20/2010

Several agencies are highlighting their rulemaking activities as part of the Obama administration's push to improve government transparency and public participation. The Department of Transportation (DOT), U.S. Environmental Protection Agency (EPA), U.S. Department of Agriculture (USDA), and Department of Labor (DOL) all recognized the importance of regulation by including rulemaking and regulatory innovations in their Open Government Plans.

The plans, released April 7, show an increased emphasis on e-rulemaking, the term used to describe electronic public access to rulemaking documents and participation in the regulatory process, at the agency level. For several years, the government-wide Regulations.gov website has been the primary arena for e-rulemaking activity. However, the individual agency initiatives reflect a growing need for agencies to tailor rulemaking outreach and participation to their own policy areas and needs.

DOT launched Regulation Room, a pilot project experimenting with new and more innovative ways to educate the public about rulemaking and spur participation. Regulation Room, at regulationroom.org, is hosted by the Cornell e-Rulemaking Initiative (CeRI), DOT's partner in the project. Regulation Room is one of DOT's Flagship Initiatives. (The Obama administration's Open Government Directive required all agencies to include a "flagship" transparency initiative in their Open Government Plans. Background is available at www.ombwatch.org/node/10626.)

Regulation Room currently only applies to one DOT rulemaking, a proposed regulation to restrict truck drivers from text messaging while driving. CeRI will continue to experiment with web-based technologies during future rulemakings and report its results to DOT, according to the plan.

Regulation Room presents information on the DOT texting rule in traditional formats – for example, displaying the Federal Register notice of proposed rulemaking – as well as in novel ways. The Rule Dashboard displays information in a question-and-answer format. For example, the "Which drivers are covered" heading communicates to users, in plain language, the classes of drivers that would be covered by the proposed rule's definitions and estimates on the number of drivers it would impact. Other headings include "What penalties" for information on failure to comply with the rule and "What costs & benefits" for estimates of the costs to industry and gains in motorist safety.

The website also experiments with new means of participation in rulemaking. The site emphasizes collaboration, encouraging users to discuss the decisions the agency will need to address and to respond to one another in a blog-like format. Then, Regulation Room's moderators will summarize the discussion and ask users to collaborate in developing joint comments for submission to the agency. This process occurs concurrently with the official public comment period hosted by the agency.

EPA also included an e-rulemaking innovation among its Flagship Initiatives. EPA's new Rulemaking Gateway was launched in February but is also highlighted in the agency's Open Government Plan.

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'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.

The U.S. Department of Agriculture is focusing on one particular rulemaking in its Open Government Plan with the launch of a website dedicated to the development of a new national forest plan, a rule detailing the USDA's overall approach to forest management. "[W]e believe this effort will increase agency credibility and public understanding of the planning rule and lead to a planning rule that endures over time," USDA said in its plan.

The planning rule website is a central hub for all information related to the rulemaking, including information on public meetings and background information for new users. It also includes participation mechanisms. The agency says, "Our planning rule Web site provides the latest information and opportunities to participate in the conversation via our planning rule blog." Like EPA's Rulemaking Gateway, USDA's planning rule website was launched before the release of its Open Government Plan, in December 2009. It is also a Flagship Initiative.

The Department of Labor's Open Government Plan addresses the enforcement side of regulation. The Department's new online enforcement database contains information on inspections the department conducts to ensure businesses are complying with the nation's worker rights and safety laws and regulations. The database covers enforcement activity at DOL's Employment Benefits Security Administration, Mine Safety and Health Administration, Office of Federal Contract Compliance Programs, Occupational Safety and Health Administration, and Wage and Hour Division.

Currently, shortcomings in the search and sort functions limit users' ability to find information. For example, users are not currently able to search by the name of a business or facility. However, the website provides important information that had been difficult to obtain. For example, users can find information on enforcement actions at Massey Energy, a company that has recently been in the national news because of the 29 people who died in one of their mines in West Virginia. DOL says it will continue to make improvements to the site.

Agency-by-agency changes are occurring in the absence of a broader, administration-wide e-rulemaking policy. While administration officials have indicated a desire to transform e-rulemaking practices, the administration has failed to describe how e-rulemaking fits into its goals of making government information more accessible and expanding public participation – goals embodied in the Open Government Directive and plans.

The White House has taken steps to address particular e-rulemaking issues. In conjunction with the release of agency Open Government Plans, White House Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein issued two memos related to e-rulemaking.

One memo encourages agencies to consistently use Regulation Identifier Numbers, or RINs, to tag documents. Currently, agencies assign a RIN to every rulemaking, and the RIN appears in the proposed and final rules published in the Federal Register. Under Sunstein's memo, agencies will now need to display the RIN on all documents associated with the rulemaking, such as cost-benefit analyses and information collections. The move will allow the public to more easily link rules to their supporting evidence and, in turn, could promote public participation, the White House says.

The other memo relaxes agency obligations under the Paperwork Reduction Act (PRA) to seek White House approval to use web-based interactive technology. The memo says that voluntary social media and other web-based forums – for example, blogs, wikis, or message boards – will not be considered information collections under the PRA. The memo is intended to stem concern that agencies need to comply with the PRA before including comment sections on their websites or using online services like Facebook and Twitter.

The White House is expected to continue to find ways to improve e-rulemaking practices and foster innovation. Both the White House and individual agencies emphasized that the plans, documents, and websites released April 7 were only first iterations and that the open government process is ongoing.