Electronic rulemaking

The use of the new information and communication technology (ICT) – computers, the Internet and World Wide Web – opens up the prospect of e-rulemaking that enhances public participation, popular legitimacy, knowledge management and sharing, substantive research and administrative effectiveness.

All of the tools below are discussed in a Harvard University Study by the Kennedy School of Government:
Additional references are included with some of the tools.

E-Docket Rooms

E-docket rooms already exist in many U.S. departments and agencies, the Department of Transport and the Environmental Protection Agency being among the pioneers in these initiatives. Such rooms are web sites that list proposed new rules, often list the studies that support them, provide means for the public to comment and the means for members of the public to read each others comments, and reply to those interventions. At their most elaborate, they create a public dialogue on the merits and details of specific regulation. Many who promote such e-docket rooms envision them as ultimately providing detailed analysis of, and point-by-point response of the regulator to, categorical summarizations of public comment, creating conditions of genuine input accountability: providing the decisional transparency that allows the public to see how its contributions to the discussion have been used. Some imagine a second phase, allowing the public to further respond to decisions, clarifying points or rebutting unanticipated arguments against their positions. Such mechanisms would allow such e-docket rooms to become media for genuine public dialogue.
Brandon, Barbara H., and Robert D. Carlitz, "Online rulemaking and other tools strengthening our civil infrastructure", Administrative Law Review,54(4) Fall 2002, 1421-1478

Cuéllar, Mariano-Florentino , "Rethinking regulatory democracy," Administrative Law Review, 57(2) Spring 2005, 411-500

The author considers the prospect for a democratization of rulemaking on the bases of three case studies on the public role in providing formal commentary. His study leads him to several important conclusions: the level of comment suggests a desire of the public to be involved; while there is a great range of specialized and technical sophistication in public comment, lay people nearly always raise concerns relevant to the agencies legal mandate and some do so with the complex argumentation that regulators look for; agencies do respond with amendments on the basis of notice and comment, though the sophistication of the response affects the likelihood of its impact; interest groups don’t always raise the concerns expressed by the broader public; and the public’s interest, and capacity for sophisticated response, is shaped by the form of the consulting process. He concludes therefore that changes in the notice and comment process can enhance the democratization of rulemaking.

Coglianese, Cary , et al. "Unifying rulemaking information: Recommendations for the new federal docket management system," Administrative Law Review, 57(2) Spring 2005

The authors explain recommendations in a widely circulated and endorsed letter that they wrote to the Bush Administration in regards to the latter’s efforts to create the Federal Docket Management System (FDMS), which would for the first time make all information supporting federal regulation available to the public via the Internet. The authors argue that, if developed along the lines that they recommend, FDMS can also facilitate legal and social scientific research, which in the long term would improve regulatory policymaking.

Rule compliance wizards

The use of ICT for regulatory administration would facilitate compliance through the development of software programs that provided for guided information gathering that could aid in both the compliance assessment and more compliance-friendly promulgation of regulatory initiatives. Experiments have demonstrated that such software can stimulate in-use performance creating a more dynamic alternative to relying on the conventional text-based rules. Such wizards could also have a plain language capacity, providing translation of obscure legal or administrative jargon.

Coglianese, above.

Online hearings or digital juries

ICT opens the opportunity for hearings or juries deliberating on regulatory rulemaking online. Web sites, bulletin boards and email would be valuable in bringing together people of diverse experience and perspectives – if desired, chosen at random – to contribute to the kind of deliberation on rulemaking that today is largely restricted by fiscal and logistic impediments. This kind of technology can facilitate the participation of interested parties that my be otherwise especially difficult to engage, for geographic, cultural, or other reasons.

Coglianese, above.

Cary Coglianese, “The Internet and public participation in rulemaking,” Regulatory Policy Program Working Paper RPP-2003-05. Cambridge, MA: Center for Business and Government, John F. Kennedy School of Government, Harvard University, 2003.

Data processing: mining, extraction, summarization, categorization

A great deal of the research that conventionally goes into rulemaking, along with the added burden of processing the voluminous input of the public that could be anticipated under conditions of e-docket rooms and e-juries would be aided immeasurably by the capacities of the new technology. Improved data processing would allow, for instance: ready access to compliance and incident data; it would enable users to retrieve focused and relevant information from all the comments, background documents, and studies relevant to each sub-provision of a new rule; it also allows for the sophisticated summarization and categorization of public comment, enabling other members of the public an efficient review of the debate to date and facilitating efforts of the regulator to provide input accountability through targeted responses to all key points raised in the commentary.

Coglianese, 2004, above.

Single window

The ICT provides the opportunity for single window regulatory service to the regulator, the regulatee and the public. The U.S. web site Regulations.gov is an initiative in this direction. Such systems provide centralized input with decentralized output, reducing the sophistication required to access and operate the system, as well as standardized tools that could benefit all regulators.

e-comment

With a single window system, members of the public do not require an elaborate understanding of the government’s internal organization, but can still find the proposed-regulations relevant to them, and provide comments online that will be forwarded on their behalf to the relevant docket room. The system could also provide them access to links into the correct docket rooms, and appropriate government agency or department, and in this way serve as an educational tool mapping the regulatory machinery of government.

Knowledge management tools

In the U.S., administration officials expect that the development of a government-wide e-docket system will be followed by the development of an “electronic desktop” for regulators. While planning for such a desktop is still in early stages, it is expected that this will constitute the creation of a suite of knowledge management tools to aid with regulatory analysis and decision making, to which all regulators would have standardized access.

Coglianese, 2004, above.