E-Rulemaking Gaining Steam but Process Needs Work
Progress on the U.S. govt.’s online regulatory portal and developments underway for a comprehensive electronic docketing system are laudable, but challenges confront the effort to re-engineer rulemaking for the 21st century, panelists said Mon. at a Capitol Hill forum. While the new system holds promise for improved management at agencies plus savings on resources and outlays, a Web- based infrastructure could encourage more feedback from citizens ignorant of regulation, experts said at the House Judiciary Committee-sponsored event.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Correspondence could balloon with a better online system. Instead of 100-200 responses, an agency proposal might attract 100,000-200,000, said Don Arbuckle, Office of Management & Budget (OMB) deputy administrator- information & regulatory affairs. Besides enabling technologies for solicitation, U.S. will need tools for sorting and identifying public comments, he said. Agencies could benefit from offering opportunities online for correspondents to discuss one others’ comments, Arbuckle said. This discussion-board environment would ensure that the govt. hears more than one side of an argument and lets rulemakers “figure out which sets of facts are really the facts,” he said.
Regulations.gov, which lets users find, view and send comments on all Federal Register notices open for comment, is gaining popularity, said Oscar Morales, dir. of the govt.’s e-rulemaking initiative. The site has received 11.5 million hits and had 8.9 million pages reviewed and files downloaded, he said. More than 15,000 agency documents have been posted on the site, with 13,000-plus comments received, Morales said. OMB wants agencies using Regulations.gov by the first quarter of fiscal 2007, said OMB E-Gov Administrator Karen Evans.
But Regulations.Gov has had growing pains, said U. of Miami Law School Research Librarian Barbara Brandon, who tested the site by searching for a handful of major dockets. The rulemakings didn’t show up in a basic search; a full text query produced more accurate results, she said. Brandon urged improvements, including a better search function with more search fields, a more intuitive interface and the ability to bulk download a docket. The Federal Register should provide a hotlink to the filing and to the corresponding agency’s site. And customized Google and Clusty search capabilities should be built in, she said. Meanwhile, uniform policies on ex parte comments, obscenity and copyrighted materials should be set, Brandon said.
American U. Acting Pres. Cornelius Kerwin told agencies they need to get “back to basics” and answer questions not addressed satisfactorily as govt. embraces a more paperless process. He said there’s a growing gap in govt. ability to meet public regulatory expectations and questions remain: Will e-rulemaking promote awareness among affected persons and will it enhance knowledge in areas where agencies need the most help? Will e- rulemaking inform nonparticipation and will it produce better rules that are technically sound, perceived as legitimate and faithfully implemented? But better rules have different meanings for different stakeholders, Arbuckle said. For some, improvement implies rules that happen faster and impose stricter guidelines on regulated industries. For others, it means rules contemplated for years before they're imposed.
E-rulemaking “has the potential -- for better or for worse -- to transform the rulemaking process,” Jeff Lubbers, former research dir for the Administrative Conference of the U.S. said. Agencies may begin to filter out form submissions, discourage anonymous comments and focus on substantive public feedback, he predicted. Administrative courts likely will go along with the trend, Lubbers said. One way to authenticate feedback is to ask respondents to register, asa commercial Web portals do.
But predictions that e-rulemaking will energize the masses might be overstated, said George Washington U. political science prof. Steve Balla. He warned that agencies shouldn’t expect too much from a society “where most never participate in elections” and even fewer understand the fundamentals or importance of govt. rulemaking. Still, the mechanism could appeal to a generation that “doesn’t remember vinyl records” and is “accustomed to using info technology tools in many ways that many of us just don’t get,” said Rick Otis, Environmental Protection Agency (EPA) deputy assoc. administrator.
Despite the Bush Administration’s commendable regulatory streamlining effort, Congress ultimately controls the purse strings, said Sally Katzen, former OMB administrator-information & regulatory affairs. Historically, lawmakers haven’t been forthcoming with funding and “even in the best of times, it’s Congress’s pleasure to provide money for new projects, particularly for those back home, rather than ones to make the government function better,” she said: “We have the words, we don’t have the resources.”
Many of the issues raised at the forum are expected to be addressed in greater detail in a House Judiciary Committee report due out next fall.