What if the government launched a website where members of the public could access proposed federal rules and regulations, but it was impossible to use and nobody could ever find anything on it?
Welcome to Regulations.gov, the so-called "public interface" launched in 2002 so that anyone outside the federal government could access publicly available materials posted to the Federal Document Management System (FDMS) electronic repository or e-docket for rulemaking documents. Any ordinary human being could be forgiven for thinking that Regulations.gov was set up to drive people crazy.
Now a special committee, set up as a (yes) blue ribbon commission 17 months ago to survey the current sad state and hopeful future of electronic rulemaking, has released a significant report, Achieving the Potential, The Future of Federal E-rulemaking.
POGO, along with several other "good government groups," including OpenTheGovernment.org and OMB Watch, has endorsed the recommendations of the committee. Chaired by former OMB official Sally Katzen, and set up under the auspices of the American Bar Association's Section of Administrative Law & Regulatory Practice, the committee comprised a wide array of experts and academics in technology, regulation, public administration, as well as representatives of business and public interest groups and current and former state and federal government officials. But the impossible task of pulling together all the information and viewpoints and melding them into one coherent package was accomplished by Cynthia Farina, a law professor at Cornell.
As the report notes, federal regs are the tools we use to implement our nation's laws and they affect everything: "the food we eat, the air we breathe, the safety of consumer products, the quality of the workplace, the soundness of our financial institutions, the smooth operation of our businesses, and much more." [Ouch on those last two!] In the 1990s, several agencies that do a lot of rulemaking started developing their own electronic websites for the public to access and track the regulatory process. They included the Transportation Department, the Nuclear Regulatory Commission, and the EPA. In fact, when the Bush administration began to conceive of a government-wide online rulemaking system, in 2002, EPA was made the lead agency for the effort.
Under that eRulemaking Initiative, all federal agencies were required to join the FDMS, but some retained their own separate agency systems as well. The Initiative was funded by the participating agencies and led by a "complex, multi-tiered governance structure" where all agencies were entitled to an equal say, but which inevitably resulted, the report finds, in the domination of the lowest common denominator. While praising the Initiative as a necessary first step, the report finds much about the system to be wanting. Here are its major failings, and the committee's recommendations to address them.
1. The very basic design of the system's architecture and the single centralized system prevents agencies from developing their own applications. At the same time, however, the system allowed agencies to retain autonomy in formatting and entering data and in setting practices for public comment. Thus, for example there are nine different ways to abbreviate the term "Notice of Proposed Rulemaking." As the report notes, "without harmonization of data standards and practices, the purpose and utility of a multi-agency rulemaking database and a single public web portal is fundamentally undermined."
The report recommends the system be redesigned. Having been set up as a "one-size-fits-all" means the system architecture doesn't work well for all. Starting anew and junking the six-year old system would be too radical. Therefore, take the current system, enhance it and let it function as the primary system for those agencies that choose to use it as is, but also let it function as a core onto which other agencies can build out their own specialized systems.
2. Funding through existing agency budgets has resulted in financial instability and uncertainty. Agencies tended to support only those functions they cared about for their own operations. Also, "the particular algorithm currently used for apportioning the costs among participating agencies actually discourages agencies from embracing e-rulemaking because, for example, the more comments received on a proposed rule via regulations.gov, the greater proportion of overall costs the agency must pay."
The report recommends a new separate appropriation to the lead agency expressly for the purpose of developing and maintaining the core e-system.
3. The unwieldy multi-level multi-agency decision-making has resulted in risk-averse outcomes.
The report recommends the appointment of a new lead agency that, while involved in rulemaking, would not be one of the principal rulemaking agencies. Chair Sally Katzen acknowledged that the committee knew the choice would be controversial, but the report suggests the GSA should be considered for the role of lead agency. The report points out that "over the last six years, sharp disagreements about system design and functionality emerged among some of the major rulemaking agencies." But the lead agency must have some understanding of the regulatory process, must have government-wide operational authority, and be experienced in designing and implementing information technology systems. Thus, GSA seemed to be the most logical choice.
4. Standards have been all over the place.
The report recommends that the new lead agency should establish common data standards and define the practices.
5. Many agencies have not been using the FDMS as ordered or envisioned; "some agencies are failing to post many significant rulemaking materials--including submitted comments."
The report recommends that the online docket "should become the authoritative rulemaking record for all agencies, with clear indication and adequate identification of any portions of that record not being made publicly available." Agencies must create comprehensive and accurate e-dockets that are well-indexed and easily searchable, and they must post in a timely manner.
6. The public website, Regulations.gov, "continues to reflect an 'insider' perspective--i.e., the viewpoint of someone familiar with rulemaking and the agencies that conduct it." Despite some improvements in the last year, the website "remains neither intuitive nor easy to use, even for those knowledgeable about rulemaking."
The report recommends that the website be completely redesigned. The new design should make "creative use of web capabilities and state-of-the-art web design practices." Public users and experts should be actively engaged in the process.
We go on and on about this report because its recommendations are so simple and basic and yet absolutely essential. These are not pie in the sky, people. They represent a fundamentally new approach, but not an unreasonable one. The committee also insists that they are not items on an a la carte menu; all of the recommendations must be adopted and implemented as they are so integrally interrelated. Of course, much depends on the new president and whether he and the new Congress can find any funds to appropriate for this important mission...although it does seem to us that it shouldn't cost much.
-- Beverley Lumpkin
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