E-rulemaking gets a fresh push

If you have been around Washington for a while, you probably noticed when the e-government agenda of the George W. Bush administration morphed into open-government initiatives under President Barack Obama. Despite some common themes, political reality has swept out the old and brought in the new.

Yet if you look closely, those themes continue to intersect. E-rulemaking is a prime example. Starting in 2002, there has been a drive to put more rulemaking materials online and increase their accessibility on Regulations.gov, the central federal e-rulemaking portal. In the past three years, hubs of Gov 2.0 activity have developed to adopt new tools that encourage transparency, citizen participation and innovations in e-rulemaking.

The Transportation Department, for example, has been working with Cornell University Law School for more than a year on a rulemaking project that uses strong outreach efforts to bring stakeholders to the Regulation Room website for moderated discussions. One rule at a time, Regulation Room provides users with explanations of key details and areas of debate. The current proposed rule up for discussion focuses on making air travel websites and kiosks accessible to people with disabilities.

In another initiative, the Administrative Conference of the United States (ACUS), a federal advisory group, began a program this year to evaluate and make recommendations for improvements in e-rulemaking, including how to apply social media effectively.

Despite such projects, e-rulemaking is still having trouble gaining public attention, mainly because of its complex and technical nature. The hunt for technologies to simplify and spur public participation is just beginning to show results.

“There is not a lot of prominence to e-rulemaking, which is striking given that it is an essential role of government to create binding laws,” said Cary Coglianese, a professor at the University of Pennsylvania Law School and a consultant to ACUS. He wrote an analysis of innovations in federal e-rulemaking in July.

“E-gov is difficult enough to do well, and it is still evolving,” said Cynthia Farina, a professor at Cornell Law School and a principal researcher in the Cornell e-Rulemaking Initiative that runs Regulation Room. “E-rulemaking 2.0 is even harder.”

Those challenges mean that progress has been slow.

“There is a lot of support in talk, and talk is easy, but deploying new technologies to get more people to participate in regulation is very hard and takes a fair amount of resources,” Farina said.

Even so, several agencies have taken the lead in applying new approaches and tools in e-rulemaking, and advocates and advisers are ramping up their efforts. Although mostly relegated to the background in the current open-government agenda, e-rulemaking is starting to move toward the foreground.

Tough to catch on

The Obama administration has pressed hard for open government from its first day in office, including an effort to expand citizen involvement in regulations. The goals listed in the global Open Government Partnership’s National Action Plan for the United States of America, released in September, included an overhaul of the public interface of Regulations.gov.

Advocates agree that more attention is needed if e-rulemaking is to thrive. Consider the latest statistics from Coglianese’s study of e-rulemaking: He found that agency Web portals — many of which were redesigned in the past three years to improve citizen access — are providing fewer links now to e-rulemaking resources than they did in the past.

In 2005, 27 percent of agency portals linked to Regulations.gov. Six years later, it was down to 21 percent. In 2005, keywords such as “rule” and “regulation” appeared on agencies’ home pages 67 percent of the time. By 2011, the number had dropped to 64 percent.

On the other hand, only 15 percent of the Web portals mentioned a link to “comments” in 2005. By 2011, 26 percent did.

“We have taken one or two steps forward and two steps back,” Coglianese said. “It actually is more difficult to find rulemaking information online now.”

He said the recent push to streamline federal websites and focus on the top tasks performed by users has led to an unexpected reduction in references to e-rulemaking on those sites. That is because, if you judge by traffic alone, rulemaking is not a top task, he said.

Coglianese and others say the study underscores the fact that e-rulemaking has been slower to realize its potential than other components of open government.

“Rulemaking is generally an area that is ignored, but it is incredibly important,” said Tom Lee, director of Sunlight Labs, which is part of the Sunlight Foundation transparency advocacy group.

Federal regulations affect millions of people and cover chemical-spill reporting, accessibility for the people with disabilities, drug labels warning of potential side effects and peanut restrictions on airlines, among many others. Yet relatively few people engage in discussions about how to craft those rules.

Difficult delivery

The major challenge is that regulation is by nature complex, technical and often arcane, and average citizens often do not know which aspects affect them. Therefore, predictably few people are clamoring for improvements in the process.

When rulemaking moved to the Web, it was expected to generate much more enthusiasm because materials would be disbursed more readily than before.

“Ten years ago, people thought that if you put rulemaking materials online, there would be a groundswell of interest, but that has not happened,” Coglianese said. Meanwhile, industry and special interests have become experts at using Regulations.gov to promote their views.

Furthermore, designing a social media-based e-rulemaking application has not necessarily been intuitive.

"One of the lessons is that the value of social Web 2.0 for e-rulemaking is not self-evident,” Farina said. “You have to define the goals and define the program to achieve those goals.”

“There is a lack of useful tools for e-rulemaking,” Lee said. “It is very complicated staying on top of developments and comments in regulation. We think the right tools can simplify that.”

For example, Sunlight Labs released a database this month compiled from more than 1.5 terabytes’ worth of comments on Regulations.gov. The new database makes those comments searchable by name, company and lawmaker and gives users the ability to download the comments in bulk for the first time.

“Regulations.gov is very difficult for extracting information,” Lee said. “Our project makes the data more transparent and accessible.”

Federal agencies and advisory and watchdog groups have started a number of projects to advance e-rulemaking that are just starting to come to fruition.

• ACUS has been considering a number of recommendations for improving e-rulemaking, including whether agencies should take advantage of specialized software to help categorize and evaluate public comments and whether they should hire facilitators to help manage public discussions of rules on social media websites. In their most recent draft report in August, conference members made several recommendations to boost rulemaking’s prominence on agency Web portals, including providing a one-stop location for rules that are currently open to comment. They also addressed accessibility issues for people with disabilities and those with a limited understanding of English, policies that would make public comments easier to locate, and current and historic rulemaking materials.
• The Environmental Protection Agency, which serves as the managing partner on behalf of 39 agencies for Regulations.gov and Regulations.gov Exchange, recently began broadcasting notices of proposed rules on Facebook as part of a pilot project. Jeffrey Levy, EPA’s director of Web communications, tweeted the news about the Facebook expansion Sept. 30. EPA is also holding an online discussion on its upcoming rules for electronically reporting on pollution by breaking down the complex topic into several simpler elements.
• In May, OMB Watch and more than 30 other organizations, including the Sunlight Foundation, formed a coalition to sponsor an Environmental Information Initiative that urges immediate improvements in access to information for environmental, public health and safety regulations.

“The need to break down information barriers and bring the public back into the policy-making process is greater than ever,” the group wrote in its initial report. The members are calling for more collection and distribution of environmental data, and their recommendations include making the Toxics Release Inventory more accessible and developing a unified facility reporting system.

“Our goals are very aligned with the administration’s goals,” said Sofia Plagakis, a policy analyst at OMB Watch. “The right-to-know community wants greater access to information.”

Those kinds of projects keep e-rulemaking advocates hopeful about achieving greater public involvement in writing regulations. And as Washington becomes more gridlocked politically, e-rulemaking might become even more significant, Lee said.

“I am optimistic that interest in e-rulemaking can change, and it ought to change,” he said.