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It’s Time to Make Rulemaking Really Transparent on Agency Websites

| Aug 11, 2014 | Opinion

People spend an increasing amount of time online for social interaction, online shopping, entertainment, and work. When they want to find government information or interact with government agencies, they also increasingly go online. As a result, agency websites have become a key vehicle for public interaction with the federal government over the last fifteen years. Websites and social media support communication about many government services and activities, but one of government agencies’ most significant activities – making law – appears to be at risk of disappearing into the background on many agency websites.

Searching the WebThis would be unfortunate because agency rules bind millions of individuals and businesses, imposing substantial compliance costs in an attempt to advance important societal goals. The nation’s economic prosperity, public health, and security are significantly affected by rules issued by administrative agencies. Indeed, these rules’ substantive importance has led to the adoption of federal administrative law principles that mandate openness and public participation whenever agencies make new rules. Yet when it comes to placing information about these new rules on their websites, agencies too often neglect opportunities for making rulemaking really transparent.

It is true that the federal government currently has an impressive, one-stop rulemaking portal called Regulations.gov. But this government-wide website remains only part of regulatory agencies’ digital outreach, and perhaps only a small part at that. Members of the public still go to individual agencies’ digital “front doors” – their websites – when looking for information about new rulemakings and seeking to comment on them.

A couple of individual regulatory agencies have constructed inside webpages to support public access to and participation in their rulemaking proceedings. For example, the U.S. Environmental Protection Agency (EPA) has created a webpage called (somewhat obliquely) a “Regulatory Development and Retrospective Review Tracker” – or “Reg DaRRT” for short. The U.S. Commodity Futures Trading Commission (CFTC) has a similar page listing all its rules open for public comment. These are positive developments, to be sure. But even with these inside pages devoted to tracking their rules, the EPA and CFTC could do better without much more effort – such as making access clearer from the agencies’ home pages. Most discouraging of all is that other major rulemaking agencies fail to provide anything as accessible and comprehensive.

How poor is online access at other agencies? Nearly a decade ago, I launched the first research on the accessibility of rulemaking information on agency websites. Working with Stuart Shapiro of Rutgers University and a team of graduate students, I surveyed sites looking for information related to rulemaking. We were surprised at how hard it was to find rulemaking information on many of the agency websites we surveyed – notwithstanding the fact that we studied agencies that had issued rules with a good degree of regularity. We concluded that agency websites had a lot of untapped room for improvement. Indeed, much of the information on agency websites had little to do with rulemaking, and basically less than half of the homepages contained the regulatory terms we asked our coders to find.

If those results were striking when we did our coding for that initial study, it was even more striking to find out that they have remained largely unchanged over time. Just a few years ago, working on a project for the Administrative Conference of the United States, I undertook to replicate and extend my earlier study, seeking to find out if agencies had made progress in the intervening years. With only relatively minor fluctuations, the frequencies of rulemaking information on agency websites were remarkably alike across the two time periods. References to Regulations.gov actually declined since my first study with Shapiro – a puzzling finding given Regulation.gov’s extensive maturation over time. One agency even hid its link to rulemaking information under a tab labeled “Business,” as if ordinary citizens would not want to find out about the agency’s rulemaking.

Of course, I fully understand that agencies must set priorities and that they are using their websites to communicate about many other activities. But what is troubling is how agencies currently set their priorities. Web managers self-consciously seek to give greatest prominence to their agencies’ top tasks – defining what constitutes a “top task” in terms of user demand and usage. Such an approach certainly has something to be said for it. But an exclusive focus on website usage or demand will assuredly push information about rulemaking far into the background.

Let’s be real. Out of all Internet searches, only a tiny proportion seek information about rulemaking. In that sense, rulemaking will probably never be a top task. But that doesn’t mean that rulemaking is not a substantively top task. Quite the contrary. Few tasks compare in significance with the ability of government agencies to create binding law backed up with the threat of civil, and even criminal, penalties. Rulemaking by agencies is one of the most profound, if not also democratically problematic, powers exercised by government, so regulatory agencies should seek to improve the use and design of their websites to make the rulemaking process more accessible to all.

How can agencies do better? One easy step would be to follow a practice many members of Congress have adopted. Members of Congress display on their websites readily accessible lists of legislation they are currently sponsoring. They provide this functionality simply by executing an interface with the THOMAS database of all legislation currently pending in Congress. The user merely clicks a button for sponsored legislation and is shown a list of sponsored bills automatically extracted from THOMAS. At that click of a button, the computer executes what is essentially a “canned” or predetermined search and extracts from the THOMAS database only those bills that are sponsored or cosponsored by that member of Congress, sending that information for display on the user’s screen.

Federal agencies can do the same by adding links that run canned searches of Regulations.gov, the rulemaking equivalent of THOMAS. As with congressional websites, the click of a button could extract lists of rules open for public comment automatically. It is really quite easy to do, but I have yet to find an agency that uses the same search approach as members of Congress. This is surprising. After all, if the functionality of a canned search can be implemented by the relatively small offices of members of Congress, such functionality can also be provided by much larger federal agencies. Indeed, the Penn Program on Regulation at the University of Pennsylvania Law School has established a proof-of-concept website – Rulefinder.org – that shows how all the major regulatory agencies could add this functionality via links on their homepages.

The point is that government web designers – and the agency leaders they serve – should recognize that their agencies’ power to create binding law makes rulemaking a substantively important task deserving ready access on agencies’ websites. Regulatory agencies ought to do more to improve public access to the regulatory process, treating rulemaking as a truly top task and making information about it really transparent.


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