Institute for Information Law and Policy at New York Law School

Summer 2003

eRulemaking: Law, Policy and Technology for Democratic Participation

Regulations.gov v. 2.0 -- Project Description

In consultation¹ with the United States Office of Environmental Information and the Department of Transportation, the Institute for Information Law and Policy at New York Law School is drafting a Whitepaper on the legal implications of e-Rulemaking.  Electronic Rulemaking, which the Gartner Group has described as the “most significant of all the other eGov initiatives,” is an ongoing effort by the federal government to harness the power of technology to make federal agency rulemaking more efficient and more democratic.  The E-Government Act  has given new support to agency efforts to move from a paper-based to an electronic regulatory docket and to foster citizen participation in the process.  The Act mandates this transition and the Office of Environmental Information (OEI) in collaboration with an advisory board representing the major rulemaking agencies is leading an effort to develop new best practices.  The introduction of technology permits a thorough re-thinking of how the regulatory docket should be managed and raises many complex legal issues.  eRulemaking also creates the hope for wider and more deliberative public input through the use of interactive technologies.

The goal of this project is to provide legal research supporting the eRulemaking initiative and to propose a legally-coherent policy and technology strategy to make eRulemaking, not only possible, but more deliberative and participatory than traditional rulemaking.

The Whitepaper’s Contents

Each time a federal agency commences an action, it creates a “docket,” which contains all of the records in connection with that action, including a proposed rule, documents and studies relating to it as well as public comments generated during the “notice-and-comment” process.  Student researchers, with the guidance of their faculty advisors, will graphically “map” the flow of information and communication in connection with the creation and management of the regulatory docket.  We will use this map to identify the legal problems and the democratic potential at each point in the process and to understand how technology might mitigate the former and enhance the latter.

For example, when public comments are submitted electronically, new issues arise relating to the integrity, authentication and legal status of that comment.  What should be the legal status of on-line publication of notice versus publication in the printed federal register?  Should an agency authenticate the source of an electronic comment?  Should comments be signed and should they be searchable by name? What constitutes the public record in an electronic regulatory environment?   Which communications with an agency in connection with the docket should be put on-line?  Agency culture and processes also create impediments to moving away from paper-based record-keeping and these hurdles must be identified to be overcome.

Technology also creates the possibility for making regulatory culture and practice more democratic.   Introducing powerful content management technologies into the docket management process will allow for better handling of comments to reduce agency workload and cost and, more important, allow agency officials to take better account of public input.  New discussion tools might be employed to facilitate greater participation. Blogging is a potential means to spread the word about regulatory initiatives and promote discussion sponsored by the agency or by the interest groups who regularly appear before it.  The web can be employed to educate adults and young people about rulemaking, its relevance and importance.

Whereas Congress passes hundreds of pieces of legislation a year, federal agencies promulgate thousands of regulations that impact every aspect of daily life from the cars we drive to the air we breathe.   The technological systems we put in place for rulemaking today will determine the quality of our democratic culture and system of governance tomorrow.

Project Research Calendar and Milestones – Summer 2003

- Investigate the current state of administrative rulemaking (May 27-June 4)

  completed

- Survey and evaluate current eRulemaking efforts (June 4-11)

  completed

- Create initial “information map” and begin to identify legal problem areas (June 11)

  completed

- Draft questionnaire for use with agency officials (June 11)

  completed

- Conduct in-depth, on-site interviews and debriefing with agency officials, Washington, DC   (June 16)

  completed

-   Revise legal research agenda and identify priority issues (June 25)

-   Refine and complete information and communication map (June 25-July 30)

-   Electronic documents and electronic signatures (early June-end June)

-   Additional interviews with key experts and stakeholders (mid-June-mid-July)

-   Content management technology briefing (early July) – e.g. Documentum

    o       What is content/document management?

    o       State-of-the-art, private sector

    o       State-of-the-art, universities

-   Second meeting with agency contacts (July 7)

-   Further research and writing (July 7-July 31)

-   Preparation of Whitepaper Draft (August 1-18)

-   Preparation of background materials for Expert Workshop (August 1-18)

-   Expert Workshop (mid-September)

-   Presentation of Whitepaper and Launch of Web-Based Resource  (October 1)

-   Develop relevant resource website (ongoing)

¹The Institute is an independent research initiative at New York Law School, and is neither working for nor at the behest of any agency or any entity of the federal government.