CDT POLICY POST Volume 9, Number 3, January 23, 2003

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology

(1) Feds Open Portal for Online Comments on Regulations

(3) Background on Online Rulemaking and E-government

(1) Feds Open Portal for Online Comments on Regulations

In a step forward for e-government, the Bush Administration today unveiled a new web site, http://www.regulations.gov, that allows individuals to more easily find and comment on proposed rules being considered by federal agencies.

Increasingly, government agencies have been accepting online comments opposing or supporting proposed regulations, and a 1998 law requires all agencies, "when practicable," to accept submission of online comments by October of this year. But in the past, citizens had to know what agency might have responsibility for an area of interest. The new regulations.gov web site allows Internet users to search by keyword across government agencies for areas of interest, rather than having to guess which agency is writing a particular regulation.

The site also creates a common interface for filing comments. Agencies generally have different rules about what kind of information they want from persons submitting comments and different formatting styles. The new web site automatically provide submitters with the proper fields needed to submit comments to all covered agencies.

(2) Improvements Needed in New Site

While the introduction of regulations.gov is a positive step, its creators intend to improve it over time. Here are some immediate improvements CDT is recommending.

The search engine should be augmented with various browsing functions. While one of the main benefits of the site is the ability to search by keyword across departments and break down the "stovepipes" that have traditionally made government bureaucracies practically obscure, the current search tool may not be of much use if an individual does not know the exact terminology for a regulation. Browsing tools can be the only way for individuals not steeped in policy terminology to find a particular rule for comment. The site creators say that they plan to implement browsing features gradually.
CDT believes that there are some helpful browsing features that could easily be added to the site immediately to assist citizens who are not experts in any particular field. Specifically, the site should include:
- A "New Today" feature (similar to the existing Federal Register Table of Contents, but focused only on proposed regulations).
- A "Closing This Week" section that would serve as a reminder of comment periods that are ending soon.
- A "Hot Topics" section listing a few proposals that are especially important or are of broad public interest.
Also useful, and something the sponsors of the site say that they envision, would be a means for individuals to read the comments of others. If well-designed, this feature could allow for a new kind of interaction between individuals similar to town hall meetings. (If poorly-designed, this feature could also turn comment periods into "flame wars" familiar to all Usenet and chat room participants.) CDT believes that this would be a worthwhile experiment for government to try to improve participatory democracy using online tools.
Finally, we note that the comments are limited to 4000 characters - a limitation that seems unnecessary, and that basically would seem to create two tracks for filing comments: regulation.gov for non-professionals versus other electronic means, including agency web sites, for businesses, their lawyers and other experts, whose comments frequently exceed 4000 characters.

Ironically, the new site also shines a light on agencies that are not yet accepting comments online. A quick search today showed that the Copyright Office of the Library of Congress, the Drug Enforcement Administration, and the Air Force, among others, do not accept comments online. This should change, both as the site itself brings pressure on agencies to improve and as the upcoming October deadline approaches.

(3) Background on Online Rulemaking and E-government

Public comments on proposed government regulations are an important part of the democratic process -- in the United States, the concept of federal "notice and comment" rulemaking was a major reform of the first half of the 20th century. While agencies should not make decisions based solely on the referendum of pro and con comments, the comment process remains the most important tool that individuals have to influence the often opaque exercise of power by regulatory agencies in Washington.

In practice, citizen participation in rulemaking has been low, in part because the information was available only in the Federal Register in printed form. As the Federal Register has gone online, and as federal agencies themselves have posted proposed rules on their own agency web sites, a greater number of individuals have been able to participate in the comment process. The Pew Internet & American Life Studies have shown that Americans see commenting on government rules and regulations as a top priority for e-government, and 60% of Americans (75% of Internet users) say that the Internet is the first place that they now look for government information.

Congress recognized the importance of allowing individuals to interact with government online when it passed the Government Paperwork Elimination Act (GPEA) of 1998 requiring agencies to create means for individuals to submit information electronically by October 21, 2003. The E-Government Act of 2002 reaffirmed the obligation.

Yet, the move online has created varying means for individuals to submit comments. To this day, some agencies do not provide web interfaces or accept email or even fax. The rules for submission vary even if the comments are on similar or related topics. For example, the FTC and FCC recently had two different sets of rules for submission of comments on proposed telemarketing "Do Not Call" lists.

E-gov resources and background information:

Federal Register online: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

Pew Internet & American Life study on e-gov: http://www.pewinternet.org/reports/toc.asp?Report=80

CDT's e-government page: http://www.cdt.org/righttoknow/

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

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