A new study commissioned by the Administrative Conference of the United States (ACUS) finds that the design and functionality of U.S. federal agencies’ websites risks pushing into the background vital information about agency rulemaking, as well as online opportunities for public comment on rules under consideration.
Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation
The study, “Federal Agency Use of Electronic Media in the Rulemaking Process,” by Cary Coglianese, a professor at the University of Pennsylvania Law School and an expert in administrative law and regulatory affairs, investigates U.S. federal agencies’ efforts to use electronic media in the rulemaking process. Given the major economic and societal impacts of rules adopted by agencies, ranging from the Environmental Protection Agency to the Federal Communications Commission, the process by which these agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation – values to which the Obama administration has stated its commitment.
Drawing on a review of current agency uses of the Internet, a systematic survey of regulatory agencies’ websites, and interviews with managers at a variety of federal regulatory agencies, Coglianese finds that while agency websites have become a virtual front door for the U.S. government, rulemaking information remains difficult to find from many agencies' homepages, even for agencies that issue many rules. For example, only 14 percent of the most frequent rule-writing agencies contain a page that displays all the rules they have open for public comment – and only 30 percent contain a link dedicated to soliciting public comments.
Coglianese’s analysis reveals that an emerging approach to government website design focuses on giving prominence to “top tasks” sought by members of the public, such as businesses seeking licenses or filing for permits, and the proliferation of competing demands for communication makes rulemaking only one – and to some agency decision makers, perhaps a relatively minor one – of the many priorities under consideration when agency officials make decisions about the design and functionality of their websites. As such, the author recommends that agencies should create rulemaking webpages showing all rules open for comment, and that agencies should model such rulemaking webpages on those that many members of Congress have displaying legislation which they are currently sponsoring.
The findings suggest that there exist both considerable differences in how well various agencies are managing their use of electronic media as well as significant opportunities for the diffusion of best-practice innovations that some agencies have adopted. This research also provides a basis for seven key recommendations Coglianese offers for enhancing both the accessibility and quality of rulemaking through digital technology – including that agencies should strive further to improve the accessibility of their websites to all members of the public, especially those with limited English proficiency, sight impairments, and low bandwidth Internet connections.
Continued vigilance is needed, the author writes, to ensure that agency websites and other electronic media will be as accessible to ordinary citizens as they are to repeat players in the policymaking process in Washington, D.C.
The ACUS, an independent federal agency that was shut down in 1995 but reinstated last year, commissioned Coglianese to author one of the first studies in the agency’s new era of operation. The author, whose 2004 Administrative Law Review article “E-Rulemaking: Information Technology and Regulatory Policy” is the seminal work on the subject, is also the founder of RegBlog.org, a website sponsored by the Penn Program on Regulation that features daily news and expert analysis on regulatory affairs.
To download Coglianese’s report:
The ACUS’s Committee on Rulemaking will hold its first meeting on this project from 2:00-5:00 pm eastern time on Wednesday, August 24, 2011 at the Conference’s offices in Washington, D.C.