E-Rulemaking Initiatives — the Future

Mike Broschinsky Rulemaking, Uncategorized

E-Rulemaking is fast becoming an issue nationwide. The Federal government is the primary locus of much of the attention, research, and development. Sites like Regulations.gov have raised awareness of the possibilities of increased public participation in the regulatory process by using the Internet. Other sites, like U.S. Department of Transportation’s (DOT) Docket Management System (DMS — http://dms.dot.gov/), take this notion a step further. The DOT DMS makes greater portions of the rulemaking process available to the public. Now, at the federal level, there is considerable discussion, with the Environmental Protection Agency as the lead agency, about making all parts of the rulemaking process–from conception and drafting to adoption of the final rule, including public comment–open to public review and available online. This transparency is one of the goals of E-Rulemaking. Others are also involved in this effort. Harvard’s Kennedy School of Government (KSG) hosts the E-Rulemaking Resource Website (http://www.ksg.harvard.edu/cbg/rpp/erulemaking/). The KSG, American University (http://www1.american.edu/academics/provost/rulemaking/erulemaking.htm), and others have hosted conferences about E-rulemaking. The Federal Government is not alone in its attempts to implement E-Rulemaking. States have been experimenting with automating and publishing various portions of the process since 1994. Utah was one of the first states to permit agencies to file rules electronically. Other states have been developing systems as well. Of special note is the Virginia Regulatory Town Hall because of its emphasis on public participation. It permits citizens to identify administrative rules they wish to track and request E-mail notification when action is taken on those rules. Comment may be submitted electronically. Others, like Rhode Island, are looking at innovative uses of Really Simple Syndication/Rich Site Summary (RSS) news feeds. Looking at an even larger picture, the Organisation for Economic Co-operation and Development (http://www.oecd.org/) has published a report called, “Promise and Problems of E-Democracy: Challenges of Online Citizen Engagement.” A message posted to KSG’s E-Rulemaking ListServ introduces the report by saying:
The unprecedented degree of interactivity offered by new [information and communication technologies] has the potential to expand the scope, breadth, and depth of government consultations with citizens and other key stakeholders during policy-making. At the same time, such new tools pose significant challenges to governments in terms of their technical, political and constitutional implications. Among the questions raised are:
  • How can government ensure an equal hearing and ‘assured listening’ to so many individual voices?
  • How can online consultations be designed to bridge the digital divide and ensure the inclusion of traditionally marginalized groups?
  • How will such inputs be integrated into the policy-making cycle?
  • How can guarantees for personal data protection be ensured?
The bottom line: the Internet has changed everything, including how people interact with and view their government. Utah’s eRules — web enabled rule filing for agencies — was an early step. More will be expected (demanded) shortly. It is interesting to note that, in Utah, centralized paper publication of administrative rules began in 1973 and functioned well as the sole-source of statewide administrative rules-related information for 22 years. Since 1995 (for nine years), Utah’s “paper” administrative rules publication have been posted online (same paradigm, different medium). In 2003, the funding for the paper editions of Utah’s administrative rules publications was redirected. State agencies and citizens now have an opportunity to ask what they want administrative rulemaking, public notice, and public participation to look like.