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Future of rule making: Pilot project aims to increase public participation

Aug. 22, 2010 - 06:00AM   |  
By SEAN REILLY   |   Comments
An Environmental Protection Agency employee tests water samples in Portland Harbor, Ore. Among all agencies, EPA has received the most comments on its regulations on the website.
An Environmental Protection Agency employee tests water samples in Portland Harbor, Ore. Among all agencies, EPA has received the most comments on its regulations on the website. (Environmental Protection Agency)

For decades, the basic mechanics of federal rule making have changed little: First comes the Notice of Proposed Rulemaking in the Federal Register, then a public comment period, followed by the final rule. Although agencies now put rule making materials online, the system is still largely the province of major stakeholders, lawyers and advocacy groups.

An experimental website known as offers a far more inclusive experience. In the place of a proposed Transportation Department rule on airline passenger rights that ran some 24 triple-column pages in the Federal Register in June, the unofficial site offers a one-paragraph overview, accompanied by brief explanations of the major issues in play. An online moderator fields comments; there's even a Facebook page.

"What we're trying to do there is make a government process that is supposed to be broadly participatory, but is in fact very intimidating to people, and make it a more accessible process," said Cynthia Farina, a Cornell University law professor working on the pilot project in partnership with the Transportation Department. As of late last week, the site had attracted almost 16,000 unique visitors and yielded about 1,100 comments, she said. By contrast, a study earlier this decade found that the average Transportation Department rule making received fewer than 50 comments, Farina said.

When the public comment period ends next month, a summary of those comments will go to DOT, which will incorporate it into the formal rule making process chugging ahead on a parallel track.

Transportation Department spokesman Bill Adams said the first-of-its-kind endeavor the flagship initiative of the department's open government plan is already helping regulation writers draft language easier for the public to understand.

Although the full impact isn't known, he said, the project "is showing the potential to increase public involvement in rule making."

It's a crucial task, particularly as Congress continues to offload major responsibilities onto unelected federal regulators.

The financial services overhaul approved last month, for example, will require a torrent of new regulations, some of which will directly shape the law's scope in consumer financial protection and other areas.

"I think it's important to hear what the public has to say about these regulatory issues that have been delegated to the agencies," said Jeffrey Lubbers, an American University professor of administrative law.

But getting the public's attention can take some work.

In the case of, Transportation Secretary Ray LaHood has blogged about the site several times, among other outreach efforts.

Cornell has crafted a communications strategy aimed at spreading the word to stakeholder communities, Farina said, ranging from pilots to small airport operators. The techniques vary from news releases to blog comments.

Online access boosts participation

Electronic rule making dates back to the early 1990s, but it was only in 2003 that went live as a clearinghouse for federal regulatory activity.

Most agencies participate: Some 90 percent of rule making now happens there, said Andrew Battin, acting director of the Office of Information Collection at the Environmental Protection Agency, which has lead responsibility for the site.

By any account, it has been a boon in making information more easily available.

Anyone with a computer and an Internet connection now has access to records that a few years ago would have been available only by a trip to a reading room or through a Freedom of Information Act request.

"Not having to go through reams of paper in a library [is good] I've done that, and I so much prefer being able to do it online," said Janice Nolen, assistant vice president for national policy and advocacy at the American Lung Association.

At EPA, the volume of comments has risen tenfold in the last nine years or so, Battin said, adding that he believes has broadened public participation.

The Animal and Plant Health Inspection Service, or APHIS, a relatively obscure branch of the Agriculture Department that in recent years has attracted considerable interest on rule making related to biotechnology and tracing disease in animals, has also seen more input from people unattached to traditional stakeholder groups, spokeswoman Andrea McNally said.

Besides comments, offers access to economic analyses and other supporting documents that also used to be harder to obtain, she said. Internal electronic access has been a plus for APHIS employees who no longer have to spend as much time photocopying and distributing comments.

Communication barriers remain

But outside experts say online rule making still has a long way to go in broadening public engagement in the rule-making process.

"I think we're still at the beginning stages," Lubbers said.

The website makes rule making materials more transparent and easier to obtain. But, Farina said, "what it doesn't do is address some of the fundamental barriers to broad public participation in rule making." The average person may not know that a rule making is underway, she said, let alone how to comment effectively.

Two years ago, both Farina and Lubbers were on an American Bar Association e-rule-making committee that gave lukewarm reviews. Because people outside the federal government weren't involved in the site's design, the panel said it reflects "an insider perspective that is, the viewpoint of someone familiar with rule making and the agencies that conduct it." The committee also faulted many agencies for failing to post submitted comments and other rulemaking materials.

Lately, the critics have been joined by Cass Sunstein, who oversees federal rulemaking policy at the Office of Management and Budget.

"Currently, regulatory information online is unnecessarily difficult to navigate, and members of the public may have difficulty searching, sorting, finding or viewing documents at each stage of the process," Sunstein said in an April memo reminding agencies to use a tracking number on all relevant documents throughout a proposed rule's life cycle. Sunstein, who heads OMB's Office of Information and Regulatory Affairs (OIRA), repeated that admonition the next month in a separate memo calling on federal regulators to make sure that electronic dockets include everything in the paper docket.

"I can't tell you why there were some inconsistent practices over the last 10 years," Michael Fitzpatrick, associate administrator at OIRA, said in an interview last week. "What I can tell you is that this administration takes it very seriously and moved on its own to try to come up with improvements and solutions."

Most of the bar association recommendations are being addressed, Battin said. As part of a two-year series of enhancements set for completion in 2012, is also getting improved search and navigation tools, docket summaries, and more reliance on social media and other Web 2.0 techniques, he said.

The public's role

Whether broader public participation affects the final shape of a rule is a question that seemingly has yet to be studied. Fitzpatrick declined to discuss specific examples but said that agencies take comments "very seriously and make changes to these final rules in response to those comments."

Matt Madia, a regulatory policy analyst at the government watchdog group, OMB Watch, said a more robust engagement by the public in rule making could change the way rules are developed. Because agencies spend so much time developing a proposed rule, he said, they are often reluctant to make major changes to the final version. But if regulators expect a particular proposed rule making to generate a lot of interest, that may shape the draft proposal.

"It does in a way sort of force them pre-emptively to take a look at the public opinion out there," Madia said.

Whether the approach embodied in offers a path into the future has yet to be seen.

The passenger rights rule making is the second in the partnership between the Cornell and the Transportation Department. While there's no deadline for completion, Cornell's e-Rulemaking Initiative will eventually produce a "best practices" report to let other agencies learn from the experience. Because of the resources needed to run the site successfully, Adams said, "it would likely be best suited for more high-visibility rule makings." is also being followed by OMB, where Fitzpatrick called it "an exciting, very interesting project that has a lot of potential." Asked, however, whether its tech-savvy approach could be meshed with the existing regulatory framework spelled out in the 1946 Administrative Procedure Act, Fitzpatrick declined to comment.

"There are a host of legal questions about using new technologies," he said. "Their interactions with the APA process need to be resolved by agency general counsels."

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