This article was authored by Cary Coglianese, Edward B. Shils Professor of Law and Political Science at University of Pennsylvania Law School, Director of the Penn Program on Regulation, and Chair of ACUS's Committee on Rulemaking, and Todd Rubin, Attorney Advisor at ACUS.
This article first appeared in the Regulatory Review's series on "Guiding Agencies to Improve Transparency and Efficiency" that focuses on the ACUS Recommendations adopted at the December 2018 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
Federal agencies issue thousands of regulations each year. In making these rules, agencies follow a notice-and-comment process that allows the public to weigh in on new regulatory proposals. These public comments can boost the quality of regulations by giving regulators access to well-informed views and relevant information they might not otherwise have.
Since 2003, federal agencies have used Regulations.gov as their principal vehicle for soliciting public comments on proposed regulations and storing relevant background information. Despite the advance that this online regulatory portal represents over the paper-based regulatory dockets that agencies previously used to store information about proposed rules, Regulations.gov has yet to live up to its potential as a place where users can easily find supporting materials when they seek to submit comments. If members of the public are to file helpful comments on proposed regulations, they must have better access not only to the text of these proposed rules but to all the studies and other public materials underlying their development.
Before Regulations.gov, public access to such background materials required an actual visit to a physical reading room, normally located in Washington, D.C. Hard copies of documents could be requested from a clerk and checked out for viewing within that reading room. Needless to say, Regulations.gov represents an improvement over that bygone era.
Today, most major rulemaking agencies rely on Regulations.gov to organize supporting materials within separate “e-dockets” and to facilitate online access to those materials. Members of the public can now retrieve an online docket using their own computer. Regulations.gov also provides a handy button that allows users to send their comments directly to the agency.
Notwithstanding the digital access that Regulations.gov provides, members of the public still face significant challenges when trying to access important background materials on rulemaking. In particular, users too often encounter the following three problems when they try to use Regulations.gov.
Searching for documents on Regulations.gov remains difficult and confusing. Users searching for information on a rulemaking can use Regulations.gov to access millions of documents. Yet many documents share similar titles, so the ability to use a filter on Regulations.gov for document type is essential for users to narrow down their search results and find materials they seek. Unfortunately, Regulations.gov offers an unusual and confusing way of searching by document type. Although it presents a menu of “primary document” types—“rule,” “proposed rule,” “notice,” “supporting and related material,” “public comment,” and “other”—these document types are not used consistently either within or across agencies. For example, advance notices of proposed rulemaking are variously categorized under “proposed rule,” “other,” and “notice.” The site also provides users a separate menu of “secondary document” subtypes, but these differ by agency too. Despite the potential usefulness of allowing users to search by document type, the inconsistent use of document type categories does not allow users to narrow down their searches easily.
Agencies sometimes create multiple dockets for the same rulemaking. Agencies too often create more than one docket for a single rulemaking. Whenever more than one docket exists for a rulemaking, the lack of any clear linkage between them can mislead members of the public who are not able to find all of the supporting material pertaining to a rulemaking. For example, sometimes a sub-agency creates a docket for the proposed rule, but then the parent agency finalizes the rule under its own, separate docket—leaving two, unconnected dockets. In such a circumstance, a user trying to locate the final rule may only encounter the proposed rule’s docket and erroneously conclude that no final rule has been issued because no formal linkage exists between the two dockets.
Dockets too often lack important context about the rule. Surprisingly, agencies sometimes do not upload any supporting material for proposed rules listed in Regulations.gov dockets. Members of the public are invited to submit comments, but they are given no background studies or other information to review that the agency relied upon to create its proposed rule. Dockets also can lack other helpful information about the rule, such as whether a rule is scheduled as a “long-term action.” Some of that additional contextual information appears on Reginfo.gov, a separate rulemaking website maintained by the Office of Information and Regulatory Affairs, but which is not currently linked as a matter of course on Regulations.gov.
The eRulemaking Program—an interagency body co-chaired by officials from the U.S. Environmental Protection Agency and the Office of Management and Budget—currently manages Regulations.gov. Although the eRulemaking Program has made significant strides in bringing agency rulemaking into the Internet era, it should take further steps to overcome the limitations that remain with Regulations.gov. A recommendation adopted by the Administrative Conference of the United States (ACUS) put forward three suggestions to help reduce remaining deficiencies in Regulations.gov.
First, ACUS recommended that, to improve the ability to search by document type, the eRulemaking Program should identify and involve everyday users in critical design choices. Individual agency officials can offer vital input about how to structure document types in a more streamlined way that accurately reflects the purpose of rulemaking documents, but the public in turn should be asked to provide input about whether these labels are useful in helping them find documents. Based on feedback from users, the eRulemaking Program’s technical staff should continuously seek to provide more intuitive ways for agency officials to label documents and for members of the public to find them. Such agile approaches to systems design based on user experiences are well-established in private-sector software development and are being used more often in government. ACUS’s recommendation is consistent with the emphasis in the U.S. Digital Service’s Digital Services Playbook on designing digital government services with users in mind.
Second, to guard against the establishment of multiple dockets for the same rulemaking, ACUS recommended that the eRulemaking Program install an automatic alert function on Regulations.gov’s back-end system, known as the Federal Docket Management System (FDMS). This back-end system allows agency managers to create separate dockets for materials related to each proposed rule, with Regulations.gov providing the interface that makes the materials within the FDMS available to the public. It should be simple to add a feature to FDMS that would prompt agency managers for a proposed rule’s docket number whenever they seek to create a new docket for a final rule. The alert would also suggest to agency managers the likely dockets already in existence for any proposed or final rule for which they seek to open a new docket. The system could also be modified to provide an easy way for an agency manager to combine dockets or to link to them so that the public can find all connected dockets.
Finally, to ensure that dockets contain all relevant information, ACUS recommended that the eRulemaking Program take steps to enhance interoperability with other government rulemaking databases which often contain different types of information about the same rule. For example, Reginfo.gov informs users as to the Unified Agenda stage of a rulemaking—including whether it is a pending or a long-term action. Sometimes the dockets on Regulations.gov include information from Reginfo.gov, but many times they do not. By working with other government offices that publish information about the federal rulemaking process—such as the Office of the Federal Register and the Regulatory Information Service Center—the eRulemaking Program can help ensure that members of the public will be more fully informed about the rules included in Regulations.gov.
We have no illusions that ACUS’s recommendations will make finding rulemaking information as easy as online shopping. Nor would we expect that they will satisfy every user’s desire for access to some types of regulatory information that agencies do not currently provide online, such as information about rulemaking contained in intragovernmental communications. But by following the ACUS recommendation, the eRulemaking Program can help ensure that Regulations.gov better fulfills its promise of promoting informed public participation and quality rulemaking.
Suggestions like those contained in ACUS’s recommendations have been proposed to the eRulemaking Program since its earliest days. It is now past time to see the Program act on these suggestions and facilitate easier access to the information on which agencies rely in making their decisions about regulatory law.