OMB Watch Calls for E-Rulemaking Reforms

On July 2, 2009, OMB Watch made the following comments as a contribution to the Obama administration’s Open Government Initiative. The comments were posted here: http://mixedink.com/OpenGov/ERulemaking [1].

OMB Watch applauds the administration's efforts to take advantage of interactive technologies to seek public input through the OGD. However, we would like to emphasize our hope that this will serve as a compliment to, not a substitute for, in-depth discussions among stakeholders. On the issue of e-rulemaking, the American Bar Association has submitted to the administration and Congress a detailed report that was nearly two years in the making. The report, Achieving the Potential: The Future of Federal e-Rulemaking, is available here: http://ceri.law.cornell.edu/documents/report-web-version.pdf [2]. We believe this report should serve as a roadmap for the administrations efforts.

We believe it unwise to attempt to develop policy proposals on a complicated subject such as e-rulemaking through the equivalent of policy sound-bites as afforded by this wiki experiment. Doing so often reduces important subjects into rhetorical commentary, particularly when a thoughtful report on policy solutions already exists. An alternative approach would be to post the ABA recommendations in order to seek comments using new media as a vehicle. This may produce more thoughtful reaction and commentary to considered recommendations, thereby advancing policy directions for e-rulemaking.

Some highlights of the report are summarized here:

Architecture

The administration should redesign e-rulemaking's architecture. From the report: "The redesigned system should allow for growth, promote innovation and provide opportunities for information sharing and collaboration through an architecture based on open standards, adaptable to the evolution of the Web, and capable of incorporating non-centralized models of information sharing."

A redesign is necessary for a number of reasons: the current system does not adequately take advantage of Web 2.0 technologies, does not allow for diversification or customization beyond the centralized system, and is too static and inflexible, preventing it from evolving in tandem with the broader technology universe.

Governance

The administration should work with Congress and outside experts to identify a lead agency to govern the e-rulemaking system. It should also create an interagency advisory committee and form and fund a public advisory committee comprised of users and expert stakeholders.

While the EPA has taken the functional lead in governing e-rulemaking, the system still relies on a committee structure in which many agencies have equal say. Management would benefit from an expressly identified single executive. Until now, the current governance has not allowed public input - ironic for a system designed to tap citizen minds.

Funding

The administration and Congress should secure consistent and separate appropriations for e-rulemaking efforts. Currently, efforts rely on resources agencies divert from other activities. This has added inconsistency, disincentives, and uncertainty to e-rulemaking.

Data Standardization

The new lead agency, working with the interagency committee, should develop data standards for the information submitted into the e-rulemaking system. The current system allows individual agencies to decide what pieces of information go into the system and how to name that information. This lack of standardization creates confusion for users. From the report: "If, for example, a searcher wants to locate notices of proposed rulemaking issued by an agency in a specified time period, she will discover at least nine different names for such documents in the current list of available search parameters (i.e. Proposed Rule, Notice of Proposed Rulemaking, NPRM, etc.)."

Agency Practice

The new lead agency should ensure that the online docket is the complete and authoritative source for rulemaking documents. Currently, agencies create dockets of varying completeness. The inconsistency and incompleteness do not provide users with the confidence that they have access to all relevant information.

Public Access

The Obama administration should utilize a new systems architecture, new governance structure, new data standards, secure funding, and improved agency practices to completely redesign Regulations.gov. Regulations.gov suffers from limited functionality. The site can also be intimidating for new or occasional users. The administration should work to make the site more intuitive, focusing on improvements to, among other things, search and sort functions, educational material, and graphical presentation. Additionally, there should be Applied Programming Interfaces and machine readable feeds to allow programmers inside and outside government to develop alternative websites to display rulemaking content.

These reforms, and others listed in the ABA report, are essential to improving e-rulemaking and expanding public participation. When assessing the efficacy of these reforms, the administration may find it helpful to consider the five goals of e-rulemaking stated in the report:

• Knowledge, specifically, the comprehensibility of rulemaking and expanded access to regulatory information;
• Participation, with a focus on both quantity and quality;
• Manageability, with a focus on helping agencies manage and coordinate their rulemaking activities;
• Monitoring, specifically, increasing transparency and facilitating evaluation of the regulatory process; and
• Quality, specifically, writing better rules and improving compliance.