E-rulemaking Legislation Seeks Greater Transparency and Participation

On Nov. 17, Sens. Joseph Lieberman (I-CT) and Susan Collins (R-ME) introduced a bill that would expand public participation and transparency in the rulemaking process by improving aspects of the current electronic rulemaking (e-rulemaking) system. The bill would enhance technical aspects of the current federal system, encourage agency experimentation, and allow the public to track rules and better contribute to agency decisions.

E-rulemaking was one of the government's many initiatives created by the E-Government Act of 2002. The government developed Regulations.gov, the central public portal for viewing and commenting on agencies' rules. Several problems have afflicted the e-rulemaking initiative over the years, including differences in the ways that agencies submit similar information, unreliable searches, and a funding structure that prevents agencies from fully utilizing Regulations.gov.

The bipartisan legislation, the E-Rulemaking Act of 2010 (S. 3961), addresses many of these shortcomings while maintaining the current system as the core of a redesign. According to a press release issued by the two leaders of the Homeland Security and Governmental Affairs Committee (HSGAC), "The new bill addresses inconsistencies, impediments to open communication, and policy issues that have slowed progress toward a robust, publicly-accessible rule-making process."

For example, the current system is financed by a fee-for-service approach that is a disincentive for agencies to use Regulations.gov. The more participating agencies use the central system, the more it costs them. The Lieberman-Collins bill would authorize a stable appropriation of $10 million annually through 2015 for "maintenance, improvement, and promotion of the e-rulemaking system," and end the fee-for-service funding model. Instead, agency funds could be used for improving agency websites and experimenting with innovative approaches to e-rulemaking.

The bill also proposes changing the management and governing structure of the current system. The bill would create an interagency committee that would oversee the daily operations of the system; act as the liaison to agencies, through which agencies could propose new capabilities and improvements; and help develop recommendations for the online disclosure of regulatory information to the Office of Information and Regulatory Affairs (OIRA) and the Office of Electronic Government, both offices within the Office of Management and Budget (OMB).

In addition, the bill calls for the creation of a public advisory committee made up of regulatory experts and information access experts. The committee would advise and consult with the government officials overseeing the system and would be the mechanism through which public users of the e-rulemaking system could share ideas about the most effective practices. The committee would also provide to congressional oversight committees a report outlining existing "obstacles to achieving e-rulemaking goals" and potential solutions. The advisory committee would terminate two years after its formation, unless extended by the president.

Lieberman and Collins also called for reform to the system's architecture – how the data and processes are constructed. The bill calls for broad goals intended "to achieve significant improvements." Data standards, new tools, and information retrieval and exchange processes need to be accurate and consistent, the bill says. The bill concludes that new guidelines need to be issued, for example, to help the system achieve transparency and usability of information, to ensure that agency websites and the central core of the system are interoperable, and that the system is flexible enough to evolve as technology and practices demand.

The bill reflects many of the changes proposed in a major 2008 study of the strengths and weaknesses of the current system. That report, Achieving the Potential: The Future of Federal e-Rulemaking, was written under the auspices of the American Bar Association (ABA) 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.

OMB Watch, which participated in the ABA study, supports the Lieberman-Collins bill. "The public has a right to participate in the regulatory process," said Gary Bass, OMB Watch Executive Director, "and e-rulemaking reform holds the potential to make the process more transparent and more participatory."

Passage of the bill in the lame-duck session of Congress is doubtful. Even if HSGAC approves the bill and the full Senate passes it, no one has introduced a companion bill in the House. The House could adopt the Senate bill and move it quickly, but most observers expect Congress to focus only on spending bills and a few high-priority bills (see the related article in this issue on food safety) during the current lame-duck session.

back to Blog