Federal Agency Use of Electronic Media
in the Rulemaking Process
Cary Coglianese
University of Pennsylvania
Final Report to the Administrative Conference of the United States
December 5, 2011
This report was prepared for the consideration of the Administrative Conference of the
United States. The views expressed are those of the author and do not necessarily reflect
those of the members of the Conference or its committees.
1
Federal Agency Use of Electronic Media in the Rulemaking Process
*
Cary Coglianese
†
One of the most significant powers exercised by federal agencies is their power to make
rules. These agency rules or regulations bind millions of individuals and businesses, imposing
substantial costs on them for compliance. Agencies impose their rules, however, in an attempt to
advance important goals for society. The nation’s economic prosperity, public health, and
security all depend on rules issued by administrative agencies.
Given the substantive importance of agency rulemaking, the process by which agencies
develop these rules has long been subject to procedural requirements aiming to advance
democratic values of openness and public participation. The Administrative Procedure Act of
1946 (APA), for example, has mandated that agencies provide the public with notice of proposed
rules and allow them an opportunity to comment on these proposals before they take final
effect.
1
Since 1966, the Freedom of Information Act (FOIA) has established that the public has a
right to access certain information held by the government.
2
Court decisions reviewing agency
rules have tended to reinforce these statutes’ principles of openness and public participation in
the rulemaking process.
3
With the advent of the digital age, government agencies have encountered both new
opportunities and new challenges in carrying out these longstanding principles. The
development of the Internet has resulted in increasing efforts to make more rulemaking
*
This report was prepared for the consideration of the Administrative Conference of the United States. The views
expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees.
†
Edward B. Shils Professor of Law and Professor of Political Science, University of Pennsylvania Law School, and
Director, Penn Program on Regulation. The author gratefully acknowledges the dedicated support provided by a
team of website reviewers from the student body of the University of Pennsylvania Law School as well as excellent
assistance provided by members of the University of Pennsylvania Law School library, faculty support, and
information technology staffs. Several student research assistants also assisted in various aspects of this study.
Jessica Goldenberg provided crucial and capable overall management of the website analysis discussed in Part III
and played a key role in the interviews discussed in Part IV; Eric Merron provided support with data entry and
analysis on the website analysis; David Rosen assisted with interviews, research, and drafting; Christopher Wahl
provided extensive support with research, drafting, and editing; Kamya Mehta provided research and drafting on
several discrete issues; and Stephanie Lo studied website accessibility to the disabled. Professor Stuart Shapiro of
Rutgers University helpfully consulted and provided assistance with the website coding.
1
5 U.S.C. § 553 (2006).
2
Freedom of Information Act, 5 U.S.C. § 552 (2006).
3
See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 49 (1983) (affirming that “an
agency must cogently explain why it has exercised its discretion in a given manner”); Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 419 (1971) (holding that litigation affidavits are an “inadequate basis for review” under
the APA, which requires that the “whole record” developed by the agency in the rulemaking process be considered);
Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (finding that the legitimacy of unelected administrative
rulemakers is dependent upon “the openness, accessibility, and amenability of these officials to the needs and ideas
of the public from whom their ultimate authority derives”).
2
information available online as well as to elicit public participation via electronic means of
communication. Across the full range of functions and services they provide, federal agencies
have made great strides to connect with the public through electronic media, such as websites.
Indeed, as one government official recently noted, “When people interact with an agency today,
they are most likely to go to its website. The website has become the front door for members of
the public to interact with their government.”
4
And data seem to bear this out. Although
measures of overall satisfaction in the federal government have recently declined, public
satisfaction with agency websites remains quite strong.
5
Indeed, according to an analysis by the
American Customer Satisfaction Index, “federal websites are one of the most satisfying aspects
of the federal government.”
6
Of course, when it comes to the use of electronic media, no entity can rest on its laurels.
Agencies may be able, first of all, to do better still than they are doing at present. Moreover, the
rapid pace of innovation in both new technologies and new applications of existing technologies
requires the federal government to continue seeking improvements in order to maintain public
satisfaction. Despite the current level of satisfaction with federal websites, the Obama
Administration has already targeted agency websites as a major part of its “Campaign to Cut
Waste,” specifically seeking “ways to improve the online experience with Federal websites.”
7
Some agencies undoubtedly trail behind others in their use of electronic media. And not all
functions of agencies have achieved the same level of accessibility via the Internet. General
satisfaction levels do not necessarily measure how well agencies are doing with respect to their
use of electronic media in support of their rulemaking functions, for example.
In this report, I survey the landscape of agencies’ contemporary efforts to use electronic
media in the rulemaking process. 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, I identify both existing “best practices” as well as opportunities for
continued improvement. As such, this study, commissioned by the Administrative Conference
of the United States (ACUS), is intended as one further input into a broader series of
government-wide efforts to study and improve federal agencies’ use of electronic media. Over
the years, many agencies have used the Internet to improve greatly the public’s access to
information about rulemaking and to provide enhanced opportunities for public input into agency
decisions. Through both large, cross-cutting initiatives – such as the online portal
Regulations.Gov – as well as smaller ones at individual agencies, the federal government has
undertaken numerous efforts to promote transparency of and public participation in the
rulemaking process. In addition, a growing administrative infrastructure has emerged both
within and across agencies, such as through the government-wide Federal Web Managers
4
Telephone interview with Rachel Flagg, Co-Chair of the Federal Web Managers Council (July 1, 2011).
5
The American Customer Satisfaction Index, Citizen Satisfaction with Federal Government Services Plummets,
January 25, 2011, available at http://www.theacsi.org/index.php?option=com_content&view=article&id=237:acsi-
commentary-january-2011&catid=14&Itemid=297. In citing public satisfaction with government websites, I am not
suggesting that satisfaction provides the appropriate metric for designing and assessing agency websites, but only
that such satisfaction indicates how important government websites have become as a means of public interaction
with the government. For further discussion of satisfaction, see infra Part V, Recommendation 7.
6
Id.
7
Erin Lindsay, Open for Questions: Live Chat on Improving Federal Websites, July 11, 2011, available at
http://www.whitehouse.gov/blog/2011/07/11/open-questions-live-chat-improving-federal-websites.
3
Council, for standardizing and improving the design of federal agency websites as well as
agency use of interactive electronic media. As such, this report emerges at an energetic time in a
field fertile for governmental innovation, with undoubtedly no shortage of ideas for continued
development of the federal government’s digital infrastructure.
What makes this report distinctive is its principal focus on electronic media as it pertains
to agency rulemaking. In addition to suggesting that agencies continue many of their efforts to
improve their use of electronic media generally, I offer seven recommendations in this report for
both ACUS and agencies to consider with the specific aim of improving the accessibility of
rulemaking through the use of digital technology. These recommendations are linked by an
emphasis on using electronic media, such as agency websites and social media tools, to facilitate
public participation in the rulemaking process.
In Part I of this report, I present a brief history of the early development of the federal
government’s use of electronic media in the rulemaking process so as to clarify both the goals of
so-called e-rulemaking as well as to clarify what aspects of agencies’ use of electronic media this
report is, and is not, principally aimed at addressing. It is not, for example, focused on the
federal rulemaking portal, Regulations.gov, which has already been the subject of several
detailed reports offering numerous recommendations.
8
Nor does it provide an in-depth
assessment of the Department of Transportation-Cornell University collaboration on Regulation
Room, which also has generated separate assessments by those involved in its development.
9
In Part II of this report, I provide illustrative descriptions of a broad range of e-
rulemaking practices that exist beyond just Regulations.gov or Regulation Room, in order to
draw particular attention to the ways that agencies have used websites and social media in
connection with rulemaking. This part highlights what might be considered current “best
practices” across the federal government in the use of electronic media to support rulemaking.
This part makes concrete the existing efforts underway and provides a baseline against which to
consider recommendations for further improvements.
In Part III, I discuss the results of a systematic study of the characteristics and features of
90 federal agency websites. This study replicates and builds upon a similar study from about
five years ago, providing a comprehensive account of the differences that continue to exist across
federal agency websites and of the remaining opportunities to make improvements in how
rulemaking information is provided through these sites.
In Part IV, I synthesize the findings from a series of interviews conducted with officials
at ten regulatory agencies about their use of electronic media to support rulemaking. These
interviews were intended to supplement the quantitative analysis of agency websites, providing
8
Cary Coglianese, Heather Kilmartin & Evan Mendelson, Transparency and Public Participation in the Federal
Rulemaking Process: Recommendations for the New Administration, 77 G
EO. WASH. L. REV. 924, 939-41 (2009);
C
OMMITTEE ON THE STATUS AND FUTURE OF FEDERAL E-RULEMAKING, ACHIEVING THE POTENTIAL: THE FUTURE OF
FEDERAL E-RULEMAKING (2008), available at http://ceri.law.cornell.edu/erm-comm.php. I was a member of the
Committee on the Status and Future of Federal e-Rulemaking.
9
Cynthia R. Farina et al., Rulemaking 2.0, 65 U. MIAMI L. REV. 395 (2011).
4
qualitative insights from those directly involved in the development and management of agency
use of electronic media.
Finally, in Part V, drawing upon my findings in Parts II, III, and IV, I present and explain
a series of seven recommendations for consideration by ACUS to enhance public participation in
e-rulemaking. These recommendations are intended as additional inputs into the ongoing
management processes within and across agencies that aim to make websites and other uses of
electronic media “a bright spot for government in years to come.”
10
I. The Development and Goals of E-Rulemaking
Throughout the past several decades, the Administrative Conference of the United States
(ACUS) has taken a leadership role in efforts to guide the effective deployment of digital
technology by administrative agencies. As early as 1988, ACUS adopted recommendations on
the release of computer-stored information, noting that “[n]ew information technologies can
improve public access to public information.”
11
In 1990, ACUS reaffirmed that “[c]hanges in
the format of agency information from paper to existing and future electronic media [should] not
reduce the accessibility of information to the public.”
12
A few years later, the Clinton
Administration’s National Performance Review recommended that agencies “increase use of
information technology” in the rulemaking process.
13
In 1996, Congress passed the Clinger-
Cohen Act that called upon agencies to improve their management of information technology so
as, among other things, to improve the “dissemination of public information.”
14
Starting in the 1990s, agencies began to use the Internet in earnest to communicate with
the public about rulemaking and other important functions and services. The public began to be
able to access the Federal Register and the Code of Federal Regulations online,
15
and Congress
amended the Freedom of Information Act in an attempt to facilitate the greater disclosure of
electronic information.
16
Agencies started to create online docket rooms and to accept public
10
The American Customer Satisfaction Index, supra note 5.
11
Admin. Conf. of the U.S., Recommendation 88-10: Federal Agency Use of Computers in Acquiring and Releasing
Information, 1 C.F.R. § 305.88-10 (1988), available at http://www.law.fsu.edu/library/admin/acus/3058810.html.
See also Henry H. Perritt, Electronic Acquisition and Release of Federal Agency Information: Analysis of
Recommendations Adopted by the Administrative Conference of the United States, 41 A
DMIN. L. REV. 253, 255
(1989); Admin. Conf. of the U.S., Recommendation 89-8: Agency Practices and Procedures for the Indexing and
Public Availability of Adjudicatory Decisions, 1 C.F.R. § 305.89-8 (1989), available at http://www.law.fsu.edu/-
library/admin/acus/305898.html.
12
Admin. Conf. of the U.S., Recommendation 90-5: Federal Agency Electronic Records Management and Archives,
1 C.F.R. § 305.90-5 (1990), available at http://www.law.fsu.edu/library/admin/acus/305905.html.
13
NAT’L PERFORMANCE REV., OFFICE OF THE VICE PRESIDENT, REG04: Enhance Public Awareness and
Participation, in I
MPROVING REGULATORY SYSTEMS (Sept. 1993), available at http://govinfo.library.unt.edu/npr/-
library/reports/reg04.html.
14
40 U.S.C. § 11302(b).
15
See Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process, 56 ADMIN. L. REV.
353, 363 (2004) [hereinafter Coglianese, Information Technology].
16
Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (amending 5
U.S.C. § 552).
5
comments submitted by email.
17
In some rulemakings, electronically submitted comments
numbered in the tens of thousands.
18
With the dawn of the new century, interest in e-rulemaking grew. Congress passed the E-
Government Act in 2002, requiring federal agencies to accept electronically submitted public
comments on rules and to publish regulatory dockets online.
19
Several large regulatory agencies,
such as the Department of Transportation and the Environmental Protection Agency (EPA),
established their own online docket systems.
20
Although few other agencies took steps to create
online docket systems, some did develop electronic dialogues over proposed rules that “actively
encourage[d] considered back-and-forth conversation.”
21
In its first term, the Bush Administration took steps to centralize e-rulemaking. In
January 2003, it rolled out a centralized web-based portal for rulemaking information known as
Regulations.gov, which was envisioned both as a one-stop shop for information about
rulemaking across the entire federal government as well as a central input site for public
comments.
22
Two years later, Regulations.gov came to be supported by a Federal Docket
Management System (FDMS) that could house in one central electronic location rulemaking
information that otherwise had been kept in disparate paper and electronic dockets scattered
across the federal government.
23
By 2008, it could be said that “[m]ore than 170 different
rulemaking entities in 15 Cabinet Departments and some independent regulatory commissions
[were] using a common database for rulemaking documents, a universal docket management
interface, and a single public website for viewing proposed rules and accepting on-line
comments.”
24
Regulations.gov has garnered considerable attention from academic observers as well as
governmental practitioners. Although Regulations.gov has received many plaudits,
25
it has been
subjected to its share of criticism too. Some observers, for example, have faulted the
completeness of the information Regulations.gov purports to contain, the usability of its search
17
See Coglianese, Information Technology, supra note 15, at 364.
18
For further discussion of the history of e-rulemaking, see Coglianese, Information Technology, supra note 15, at
363-66. Subsequent empirical analysis has failed to find that the introduction of electronic submissions of
comments made any systemic impact on the number of comments agencies received, even though in a few highly
salient rules the number of comments did appear to increase. See Cary Coglianese, Citizen Participation in
Rulemaking: Past, Present, and Future, 55 D
UKE L. J. 943 (2006) [hereinafter Coglianese, Citizen Participation];
Steven J. Balla & Benjamin M. Daniels, Information Technology and Public Commenting on Agency Regulations, 1
R
EG. & GOVERNANCE 46 (2007).
19
E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (2002) (codified as amended in scattered
sections of 5, 10, 13, 31, 40, 41, and 44 U.S.C.).
20
See Coglianese, Information Technology, supra note 15, at 364-65.
21
Thomas C. Beierle, Discussing the Rules: Electronic Rulemaking and Democratic Deliberation 7 (Resources for
the Future, Discussion Paper No. 03-22, 2003), available at http://www.rff.org/documents/RFF-DP-03-2.pdf.
22
See Coglianese, Citizen Participation, supra note 18, at 946.
23
Id.
24
COMMITTEE ON THE STATUS AND FUTURE OF FEDERAL E-RULEMAKING, supra note 8.
25
A page on the Regulations.gov website lists all of its awards. See http://www.regulations.gov/#!aboutAwards (last
visited July 13, 2011). In addition, the General Services Administration and the Federal Web Managers Council
have listed Regulations.gov as an example of a “best practice” in a governmental website for its effort to consolidate
regulatory information and reduce duplication across agencies. See Agency Examples, H
OWTO.GOV, http://www.-
usa.gov/webcontent/reqs_bestpractices/best_practices/examples.shtml (last visited June 16, 2011).
6
function, and the overall complexity of its design.
26
Agency officials, governmental auditors,
and independent expert panels have scrutinized Regulations.gov, offering numerous
recommendations for its improvement in management, functionality, and design.
27
In response
to these suggestions, Regulations.gov has been modified considerably over the years, so that the
site’s functionality has markedly improved over its initial design. Although more improvements
can surely be made, the developers of Regulations.gov have no shortage of recommendations to
consider, so this report focuses on agency websites and uses of social media which are distinctive
enough to warrant their own study.
28
Whether with Regulations.gov, websites, or social media tools in mind, information
technology’s proponents have emphasized several distinct, potentially complementary goals for
the use of electronic media in the rulemaking process: (1) promoting democratic legitimacy, (2)
improving policy decisions, and (3) lowering administrative costs.
29
First, information
technology can be designed to help inform the public about prospective decisions and thereby
enable them to contribute input to governmental decision makers that is both more meaningful as
well as more frequent.
30
Second, information technology can enhance the quality of public
policy decisions.
31
One way it does so is by facilitating participation by a broader set of experts
and other knowledgeable commentators. As I have written elsewhere, “[t]he local sanitation
engineer for the City of Milwaukee … will probably have useful insights about how new EPA
drinking water standards should be implemented that might not be apparent to the American
Water Works Association representatives in Washington, DC.”
32
In other words, information
technology better allows government officials to tap into what the current administrator of the
Office of Information and Regulatory Affairs, Cass R. Sunstein, has called the public’s
“dispersed knowledge.”
33
As President Obama has indicated, “public officials benefit from
having access to that dispersed knowledge.”
34
Finally, information technology can lower
administrative costs.
35
Well-designed information systems can enable agency staff to increase
26
For a summary of such complaints, see Farina et al., supra note 9, at 403-04.
27
Jeffrey S. Lubbers, A Survey of Federal Agency Rulemakers’ Attitudes About E-Rulemaking, 62 ADMIN. L. REV.
451 (2010); Coglianese, Kilmartin & Mendelson, supra note 8; C
OMMITTEE ON THE STATUS AND FUTURE OF
FEDERAL E-RULEMAKING, supra note 8; CURTIS W. COPELAND, CONG. RESEARCH SERV., RL 34210, ELECTRONIC
RULEMAKING IN THE FEDERAL GOVERNMENT 37-42 (2008), available at
http://www.fas.org/sgp/crs/misc/RL34210.pdf; U.S.
GOV’T ACCOUNTABILITY OFFICE, GAO-10-872T, ELECTRONIC
RULEMAKING: EFFORTS TO FACILITATE PUBLIC PARTICIPATION CAN BE IMPROVED 29 (2003), available at
http://www.gao.gov/new.items/d03901.pdf.
28
Assessments of the Department of Transportation’s use of the Regulation Room developed by researchers at
Cornell University would also be informative, but as others are already engaged in such analysis Regulation Room is
treated as outside the scope of this report. See Farina et al, supra note 9.
29
Coglianese, Information Technology, supra note 15, at 372. See also Farina et al., supra note 9, at 407-08
(dividing the goal of improving policy so as to generate a four-fold set of goals: (1) “regulatory democracy,” (2)
“new information,” (3) “better policy,” and (4) “doing more with less.”)
30
Coglianese, Information Technology, supra note 15, at 372-74.
31
Id. at 374.
32
Cary Coglianese, Weak Democracy, Strong Information: The Role of Information Technology in the Rulemaking
Process, in G
OVERNANCE AND INFORMATION TECHNOLOGY: FROM ELECTRONIC GOVERNMENT TO INFORMATION
GOVERNMENT 101, 117 (Viktor Mayer-Schoenberger & David Lazer eds., 2007).
33
CASS R. SUNSTEIN, INFOTOPIA: HOW MANY MINDS PRODUCE KNOWLEDGE (2006).
34
Memorandum on Transparency and Open Government, 2009 DAILY COMP. PRES. DOC. 10 (Jan. 21, 2009).
35
Coglianese, Information Technology, supra note 15, at 376.
7
their productivity, reduce the costs of replying to FOIA requests, and eliminate overlapping
reporting requirements.
Each of these goals can be found in the current administration’s Open Government
Initiative. On his first day in office, President Obama issued a government-wide memorandum
calling upon agencies to promote transparency, public participation, and collaboration, reasoning
that “[o]penness will strengthen our democracy and promote efficiency and effectiveness in
Government.”
36
Elaborating on the principles outlined in the President’s memo, the Office of
Management and Budget (OMB) subsequently called upon agencies to increase their use of the
Internet to advance the President’s goals.
37
The Office of Information and Regulatory Affairs
further clarified that “the Internet should ordinarily be used [by agencies] as a means of
disclosing information, to the extent feasible and consistent with law.”
38
In early 2011, President
Obama issued an executive order on regulation that called upon agencies to “afford the public a
meaningful opportunity to comment through the Internet on any proposed regulation” and urged
agencies to use the online dockets accessible via Regulations.gov.
39
More recently, he has issued
a further executive order, as part of a broader effort to improve customer service, that calls upon
agencies to develop better ways of serving the public via the Internet.
40
The clear signal from
the current administration – and a signal extending back to the earliest days of e-rulemaking –
has been for agencies to use electronic media to engage early and often with the public.
II. Current Uses of the Internet and Agency Rulemaking
Around the world, “nearly all governments have websites.”
41
The World Wide Web
provides a platform for governments to communicate with their citizens and with other
individuals and organizations; for members of the public to communicate to government
officials; and for both government officials and the public to interact with each other using Web-
based tools and media. In these ways, information technology has assertedly “empowered
36
Memorandum, supra note 34.
37
Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments
and Agencies: Open Government Directive 1 (Dec. 8, 2009), available at http://www.whitehouse.gov/omb/assets/-
memoranda_2010/m10-06.pdf.
38
Office of Info. & Reg. Affairs, Exec. Office of the President, Memorandum for the Heads of Executive
Departments and Agencies: Disclosure and Simplification as Regulatory Tools
6 (Jun. 18, 2010), available at
http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclosure_principles.pdf.
39
Exec. Order. No. 13,563, 76 Fed. Reg. 3821, 3821-22 (Jan. 18, 2011). See also Cary Coglianese, New Executive
Order Promotes Public Participation, R
EGBLOG (Jan. 18, 2011), http://www.law.upenn.edu/blogs/regblog/2011/-
01/new-regulation-executive-order-promotes-public-participation.html.
40
Exec. Order. No. 13,571, 76 Fed. Reg. 24339, 24339 (Apr. 27, 2011). In implementing this executive order, the
Obama Administration plans both to seek public input on ways to improve agency use of the Internet and to update
federal guidelines on the development of agency websites. See The Open Government Partnership: National Action
Plan for the United States of America 8 (Sep. 20, 2011), available at http://www.whitehouse.gov/sites/default/files/-
us_national_action_plan_final_2.pdf.
41
U.N. DEP’T OF ECON. & SOC. AFFAIRS, U.N. E-GOVERNMENT SURVEY 2010: LEVERAGING E-GOVERNMENT AT A
TIME OF FINANCIAL AND ECONOMIC CRISIS, at 77, U.N. Doc. ST/ESA/PAD/SER.E/131, U.N. Sales No. E.10.II.H.2
(2010), available at http://unpan1.un.org/intradoc/groups/public/documents/un/unpan038851.pdf.
8
citizens to become more active in expressing their views on many issues, especially on issues
concerning environment, health, education and other areas of government policy.”
42
Enthusiasm about e-government has contributed to a proliferation of uses of electronic
media by U.S. regulatory agencies. A complete accounting of all federal government uses of
electronic media in connection with rulemaking would be an expansive undertaking; however,
even a brief review of the highlights in this area reveals a striking breadth of innovation and
provides, in combination with the original data collection reported in Parts III and IV of this
report, a useful point of reference for recommendations to ACUS. Obviously the best of these
current practices within agencies should be emulated by other agencies. Regulatory agencies
have constructed new websites specifically to support public access to and participation in their
rulemaking proceedings, and they have also begun to use social media tools to support their
rulemaking efforts. In addition, several government-wide initiatives as well as private projects
have emerged that either make rulemaking information available to Internet users or otherwise
support agency rulemaking.
A. Agency Websites
Each regulatory agency has its own website, replete with information about all aspects
of its operations and activities. In Part III, I report on the findings of a comprehensive study of
both the general features of these individual agency websites as well as specific features related
to rulemaking. Here it is helpful to note that a few agencies have recently developed highly
specialized portions of their own websites to support their overall rulemaking efforts. These
practices deserve to be highlighted as the kind of efforts that all major rulemaking agencies
should consider.
The Commodity Futures Trading Commission (CFTC)
43
maintains a specialized
webpage entitled “Public Comments,” which allows users to submit and view comments on all
of CFTC’s open rulemakings (Figure 1).
44
CFTC also maintains a separate webpage for all of
the rules proposed under the Dodd-Frank Act.
45
Links from the CFTC homepage take users to
both webpages. At these webpages, users may submit their own comments as well as sort and
search for comments that others have submitted. A help feature explains how to use the
website to submit a comment on the proposed rules.
46
The Environmental Protection Agency (EPA) has created a website that the agency
initially called its “Rulemaking Gateway” but now calls a “Regulatory Development and
42
Id. at 84.
43
U.S. COMMODITY FUTURES TRADING COMM’N, http://www.cftc.gov (last visited June 6, 2011).
44
Public Comments, U.S. COMMODITY FUTURES TRADING COMM’N, http://comments.cftc.gov/PublicComments/-
ReleasesWithComments.aspx (last visited June 6, 2011).
45
Dodd-Frank Proposed Rules, U.S. COMMODITY FUTURES TRADING COMM’N,
http://www.cftc.gov/LawRegulation/-DoddFrankAct/Dodd-FrankProposedRules/index.htm (last visited June 14,
2011).
46
How to Submit a Comment, U.S. COMMODITY FUTURES TRADING COMM’N, http://www.cftc.gov/LawRegulation/-
PublicComments/HowtoSubmit/index.htm (last visited June 14, 2011).
9
Figure 1: U.S. Commodity Future Trading Commission’s Public Comments Webpage
Source: http://comments.cftc.gov/PublicComments/ReleasesWithComments.aspx (last visited May 23, 2011)
Retrospective Review Tracker” – or what the agency refers to as “Reg DaRRT,” for short. As
the agency has described, Reg DaRRT “provides information to the public on the status of
EPA’s priority rulemakings and retrospective reviews of existing regulations.”
47
EPA
rulemakings appear on Reg DaRRT soon after the agency’s Regulatory Policy Officer
approves their commencement, typically appearing online well in advance of the appearance of
any notice of the rulemaking in the semiannual regulatory agenda or in any Federal Register
notice.
48
Reg DaRRT enables the public to track rulemakings from the earliest pre-proposal
47
Reg DaRRT, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/regdarrt (last visited Oct. 14, 2011). Reg DaRRT
was previously named the Rulemaking Gateway, but was renamed on August 22, 2011. See Recent Upgrades, U.S.
ENVTL. PROT. AGENCY, http://yosemite.epa.gov/opei/RuleGate.nsf/content/upgrades.html (last visited Oct. 14,
2011). Reg DaRRT contains the same basic design as the Gateway and much the same features. It differs in that
Reg DaRRT no longer provides an easy way to identify and provided input on EPA rules open for comment, see
infra notes 188-191 and accompanying text, but it also allows users to view the agency’s retrospective reviews of
existing regulations. Id. The transition from Rulemaking Gateway to Reg DaRRT occurred after an initial version
was shared with ACUS and discussed by its rulemaking committee. In this final report, most references to this
example of an agency’s innovative use of electronic media are to Reg DaRRT rather than to Gateway.
48
About Reg DaRRT, U.S. ENVTL. PROT. AGENCY,
http://yosemite.epa.gov/opei/RuleGate.nsf/content/about.html?opendocument (last visited Oct. 14, 2011).
10
stage through to completion.
49
To facilitate commenting, Reg DaRRT provides users with
instructions on how to comment on a regulation on Regulations.gov.
50
Users may view all Reg
DaRRT rules in one list or may sort through them by their phase in the rulemaking process or
by other criteria.
51
In response to Executive Order 13,563,
52
Reg DaRRT also allows users to
view EPA’s retrospective reviews of current regulations.
53
Figures 2 and 3 provide
screenshots of Reg DaRRT. Figure 2 shows its homepage, while Figure 3 shows its display of
the full list of EPA rules on Reg DaRRT.
Figure 2: U.S. Environmental Protection Agency Reg DaRRT: Homepage
Source: http://www.epa.gov/regdarrt (last visited Oct. 14, 2011)
49
Reg DaRRT, supra note 47.
50
Comment on a Regulation, U.S. ENVTL. PROT. AGENCY, http://yosemite.epa.gov/opei/RuleGate.nsf/content/-
phasescomments.html?opendocument (last visited Oct. 14, 2011).
51
Reg DaRRT, supra note 47.
52
Exec. Order. No. 13,563, 76 Fed. Reg. 3821, 3821-22 (Jan. 18, 2011) (requiring that agencies conduct
“retrospective analyses of existing regulations”).
53
Retrospective Review, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/regdarrt/retrospective/ (last visited Oct.
14, 2011).
11
Figure 3: U.S. Environmental Protection Agency Reg DaRRT: List of Rules
Source: http://yosemite.epa.gov/opei/RuleGate.nsf/content/allrules.html?opendocument (last visited Oct. 14, 2011)
Many other agency websites contain pages dedicated to regulations. The CFTC and
EPA’s sites are distinctive, though, in that they provide an easily accessible but comprehensive
list of the agencies’ proposed rules. The Department of Labor’s website, by way of contrast,
includes a page devoted to regulations where users can find links to the Department’s regulatory
agenda and other helpful information (Figure 4). The “featured items” on the page include only
a subset of actions from the agency’s regulatory agenda, presumably ones that agency managers
think will be of the greatest interest to the public.
54
Only toward the bottom of the webpage,
does a box appear that is labeled “Other Regulations Currently Open for Comment;” it contains
listings for three rulemakings.
54
Regulations, U.S. DEP’T OF LABOR, http://www.dol.gov/regulations (last visited July 17, 2011).
12
Figure 4: U.S. Labor Department Regulations Webpage
Source: http://www.dol.gov/regulations/ (last visited July 17, 2011)
B. Social Media
Social media may provide agencies with a potentially powerful tool for “get[ting] public
input on pending proposed rules in the early planning stages,” as suggested by Professor Beth
Noveck, former United States Deputy Chief Technology Officer and former director for the
White House Open Government Initiative.
55
Social media tools include blogs, Facebook,
Twitter, IdeaScale, and other online discussion platforms.
56
These tools have raised some
questions about how best to deal with privacy and security concerns as well as how to handle
55
Alice Lipowicz, Use Digital Tools for Better Rulemaking, Former Official Advises, FED. COMPUTER WK. (Jan. 26,
2011), http://fcw.com/Articles/2011/01/26/Former-White-House-deputy-CTO-advises-immediate-actions-for-
improved-erulemaking.aspx.
56
Id.
13
records management and Freedom of Information Act requests.
57
Nevertheless, agencies
increasingly use them for diverse purposes.
For example, the Department of Agriculture Forest Service recently published a proposed
Forest Planning Rule which it had developed with the assistance of a dedicated website and blog
(Figure 5).
58
The Forest Service created a website solely for this rulemaking on which it posted
announcements, news releases, and other relevant information.
59
To create a forum for public
deliberation, the Forest Service also created a blog on which users could offer input.
60
Although
comments on the blog were not considered “official formal comments,” the Service encouraged
participation and received over 300 comments via the blog that helped inform the proposal
development.
61
Federal agencies have turned also to more popular online platforms, such as Facebook and
Twitter. Facebook allows users to sign up and create what is effectively their own personal
webpage.
62
Each Facebook page has its own web address and contains information its owner
wishes to allow other users to view, including updates displayed on a virtual “wall.”
63
Visitors
to a personal profile can post messages on the wall that are visible to both the owner and other
visitors.
64
Owners and visitors can also post pictures, videos, and links to other websites.
65
Although originally intended for individual persons, Facebook now is a popular venue for
commercial, nonprofit, and governmental organizations. For example, the Environmental
Protection Agency (EPA) maintains an active Facebook page, updating its wall almost daily with
links to news articles, photos submitted by members of the public, videos of projects by
university students, job postings, and other pieces of information.
66
Only on occasion, though,
does EPA post information on Facebook specifically pertaining to any of its rulemakings.
67
Twitter allows users to post and receive short messages known as “tweets.”
68
A user may
choose to “follow” other users’ tweets, receiving tweets whenever they are posted by way of a
customized page that lists the most recent tweets from the users that one is following.
69
Although tweets are limited to no more than 140 characters, they may contain links to other
57
GREGORY C. WILSHUSEN, U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-872T, INFORMATION MANAGEMENT:
CHALLENGES IN FEDERAL AGENCIES’ USE OF WEB 2.0 TECHNOLOGIES 1 (2010), available at http://www.gao.gov/-
new.items/d10872t.pdf.
58
Planning Rule, U.S. DEP’T OF AGRIC., http://fs.usda.gov/planningrule (last visited June 17, 2011).
59
Id.
60
Forest Service Planning Rule Blog, U.S. DEP’T OF AGRIC., http://planningrule.blogs.usda.gov (last visited June 17,
2011).
61
Collaboration & Public Involvement, U.S. DEP’T OF AGRIC., www.fs.usda.gov/goto/planningrule/collab (last
visited July 13, 2011). The blog elicited only somewhat more than 300 comments, while the total number of
comments received overall, through means other than the blog, exceeded 300,000. Forest Service Planning Rule
Blog, supra note 58.
62
FACEBOOK, http://www.facebook.com (last visited June 6, 2011).
63
Id.
64
Id.
65
Id.
66
U.S. Envtl. Prot. Agency, FACEBOOK, http://www.facebook.com/EPA (last visited June 6, 2011).
67
Id.
68
TWITTER, http://twitter.com (last visited June 6, 2011).
69
Id.
14
Figure 5: U.S. Forest Service Forest Planning Rule Blog
Source: http://planningrule.blogs.usda.gov/ (last visited July 17, 2011)
media, such as websites, photos, and videos.
70
One advantage of tweets’ limited size is that they
can be transmitted through both computers and handheld devices, allowing instantaneous and on-
the-go access to information.
71
Numerous regulatory agencies use Twitter. The EPA, for
example, maintains numerous Twitter accounts, ranging from EPAnews (for press releases),
72
EPAgov (for general announcements),
73
and EPAresearch (for research announcements),
74
not to
mention accounts for EPA’s various regional offices.
75
The Securities and Exchange
Commission (SEC) similarly has a news account, SEC_News,
76
as well as an account for
information related to legal filings, SEC_Litigation.
77
70
Id.
71
Id.
72
EPAnews, TWITTER, http://twitter.com/EPAnews (last visited June 14, 2011).
73
EPAgov, TWITTER, http://twitter.com/EPAgov (last visited June 14, 2011).
74
EPAresearch, TWITTER, http://twitter.com/EPAresearch (last visited June 14, 2011).
75
See, e.g., EPAregion3, TWITTER, http://twitter.com/EPAregion3 (last visited June 14, 2011).
76
SEC_News, TWITTER, http://twitter.com/SEC_News (last visited June 14, 2011).
77
The Twitter account SEC_Litigation was removed during the writing of this report. For a similar SEC Twitter
account, see SEC_Enforcement, T
WITTER, http://twitter.com/SEC_Enforcement (last visited June 14, 2011).
15
Ideascale is a web-based “crowdsourcing” software that government agencies have
started to use to structure public input and dialogue.
78
The software allows users to post their
ideas to a webpage where other users can discuss and vote on these ideas.
79
The software keeps
track of which ideas received the most votes and discussion, and then ranks the discussions and
ideas according to popularity.
80
The most popular ideas are automatically placed at the top of
the page.
81
The White House has used IdeaScale to develop its agenda for its Open Government
Initiative;
82
the Federal Communications Commission (FCC) has used it in developing its
National Broadband Plan;
83
and the Department of Labor (DOL) has used it to obtain public
suggestions and comments on proposed regulations.
84
The White House is currently in the process of creating what it considers a “next
generation public engagement platform,” known as ExpertNet.
85
True to its billing, the platform
is being developed using public input provided through a wiki set up by the White House.
86
The
platform is intended to facilitate a structured dialogue by allowing government officials to post
discussion topics on current policy concerns and by attracting contributions from experts.
C. Government-Wide Websites and Resources
As already noted, Regulations.gov, which is managed by EPA, provides online access to
regulatory documents prepared by or submitted to agencies from across the federal govern-
ment.
87
Members of the public can also submit comments on proposed rules via Regulations.
gov.
88
The homepage of Regulations.gov now shows users which regulations have garnered the
most comments and also lists newly posted regulations and regulations with open comment
periods.
89
The site contains both simple
90
and advanced
91
search options.
A separate website, Reginfo.gov, serves as the online location of the Unified Agenda of
Federal Regulatory and Deregulatory Actions – otherwise known as the semiannual regulatory
agenda because it is published twice every year, once in the spring and once in the fall.
92
The
78
IDEASCALE, http://ideascale.com (last visited June 6, 2011).
79
Id.
80
Id.
81
Id.
82
Open Government Dialogue, IDEASCALE, http://opengov.ideascale.com (last visited June 6, 2011).
83
Broadband.gov, IDEASCALE, http://broadband.ideascale.com (last visited June 6, 2011).
84
Dep’t of Labor Reg. Rev., IDEASCALE, http://dolregs.ideascale.com (last visited June 6, 2011).
85
David McClure, Expert Net: Two More Weeks to Weigh In, THE WHITE HOUSE (Jan. 6, 2011, 2:53 PM),
http://www.whitehouse.gov/blog/2011/01/06/expertnet-two-more-weeks-weigh.
86
Id.; See also Expert Net, WIKISPACES, http://expertnet.wikispaces.com/Getting+Started (last visited June 6, 2011).
87
REGULATIONS.GOV, http://www.regulations.gov (last visited June 8, 2011). Regulations.gov reports that “there
are nearly 300 agencies whose rules and regulations are posted to [the site].” See About Us, R
EGULATIONS.GOV,
http://www.regulations.gov/#!aboutPartners (last visited Oct. 3, 2011).
88
REGULATIONS.GOV, supra note 87.
89
Id.
90
Id.
91
Advanced Search, REGULATIONS.GOV, http://www.regulations.gov/#!advancedSearch (last visited June 8, 2011).
92
REGINFO.GOV, http://www.reginfo.gov (last visited June 8, 2011).
16
agenda contains lists of rulemakings for all federal agencies, sorted by stage of regulatory
development (e.g., proposed rules versus final rules).
93
Users can also search for rulemakings by
a Regulation Identifier Number (RIN), which is given to every rulemaking as it commences.
94
Reginfo.gov also dedicates a separate webpage – the “Regulatory Review Dashboard” –
to proposed rules currently under review by the Office of Information and Regulatory Affairs
(OIRA).
95
The Dashboard uses pie charts and bar graphs to display data on the number of rules
by agency, rule stage, length of review, and economic significance.
96
This part of the site
includes its own search engine
97
and provides access to archives of OIRA’s past reviews.
98
In addition to Regulations.gov and Reginfo.gov, both of which are specifically devoted to
regulation, several other government-wide websites bear noting. FDsys.gov is the homepage of
the Federal Digital System (FDsys), operated by the U.S. Government Printing Office (GPO).
99
FDsys, a recent update of what had previously been known as GPO Access, makes legislative,
executive, and judicial documents available online.
100
At FDsys, for example, the user can find
an electronic archive of the Federal Register, the executive branch’s official publication and
published source of all proposed and final rules.
The “Federal Register 2.0” website, managed by the National Archives and Records
Administration (NARA) and GPO, provides a user-friendly interface to an online version of the
Federal Register.
101
Federal Register 2.0 contains search capabilities and, for rulemakings, a
timeline linking to all related Federal Register notices.
102
For proposed rules still open for
comment, Federal Register 2.0 provides a link to Regulations.gov, where a user may submit a
comment.
103
93
See, e.g., Agency Rule List – Fall 2010, REGINFO.GOV, http://www.reginfo.gov/public/do/agencyRuleList (last
visited June 8, 2011).
94
Search of Agenda/Regulatory Plan, REGINFO.GOV, http://www.reginfo.gov/public/do/eAgendaSimpleSearch (last
visited June 8, 2011).
95
Regulatory Review Dashboard, REGINFO.GOV, http://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp (last
visited June 6, 2011).
96
Id.
97
Search of Regulatory Review, REGINFO.GOV, http://www.reginfo.gov/public/do/eoAdvancedSearchMain (last
visited June 6, 2011).
98
Historical Reports, REGINFO.GOV, http://www.reginfo.gov/public/do/eoHistoricReport (last visited June 6, 2011).
99
Federal Digital System, U.S. GOV. PRINTING OFFICE, http://www.fdsys.gov (last visited June 6, 2011).
100
Id.
101
FEDERAL REGISTER 2.0, http://www.federalregister.gov (last visited June 6, 2011). President Obama has
announced that the Federal Register will no longer be printed in hard copy but instead will only be issued
electronically. Robert Jackel, Federal Register Will No Longer Be Printed, Obama Says (June 22, 2011), available
at http://www.law.upenn.edu/blogs/regblog/2011/06/federal-register-will-no-longer-be-printed-obama-says.html.
102
See, e.g., Hazardous Materials: Requirements for Storage of Explosives During Transportation, FEDERAL
REGISTER 2.0, http://www.federalregister.gov/articles/2011/06/07/2011-13837/hazardous-materials-requirements-
for-storage-of-explosives-during-transportation (last visited June 8, 2011).
103
See, e.g., Petition Requesting Safeguards for Glass Fronts of Gas Vented Fireplaces, FEDERAL REGISTER 2.0,
http://www.federalregister.gov/articles/2011/06/08/2011-14020/petition-requesting-safeguards-for-glass-fronts-of-
gas-vented-fireplaces (last visited June 8, 2011).
17
Finally, HowTo.gov provides a series of “best practice” guidelines for agencies in their
development of websites, use of social media, and operation of contact centers.
104
A “Tech
Solutions” section of this site showcases technological innovations and explains how agencies
can use them to improve their websites and other IT operations.
105
HowTo.gov is the product of
the Federal Web Managers Council, a group of senior government web managers organized
under the auspices of the General Services Administration (GSA).
106
The Web Council issues
guidelines and recommendations aimed at “increas[ing] the efficiency, transparency,
accountability, and participation between government and the American people.”
107
D. Nongovernmental Websites on Federal Rulemaking
In addition to governmental websites, several nongovernmental websites deserve
mention. The Regulation Room
108
is an e-rulemaking pilot program co-sponsored by the
Department of Transportation and Cornell University that seeks to complement Regulations.gov
(Figure 6).
109
Although the Regulation Room website supports public dialogue over selected
DOT rulemakings, it is not an official governmental site.
110
Users can submit comments and ask
questions about a proposed DOT rule, and then their comments are synthesized and submitted as
an official comment.
111
To date, Regulation Room has facilitated public discussion on a
proposed rule that would ban texting by truckers and on another proposed rule that would force
the disclosure of airline baggage fees.
112
OpenRegs.com is a private website that allows users to locate recently proposed and
recently promulgated regulations.
113
Maintained by a research fellow at the Mercatus Center at
George Mason University in collaboration with a web editor, OpenRegs.com claims to provide a
more usable alternative to Regulations.gov and agency docket databases.
114
The site lists both
proposed regulations and final regulations after they are published in the Federal Register.
115
Visitors may sort through these announcements by agency, topic, or date of publication.
116
For
proposed rules, the homepage also allows users to sort proposals by the comment period, finding
104
HOWTO.GOV, http://www.howto.gov (last visited June 6, 2011).
105
Tech Solutions, HOWTO.GOV, http://www.howto.gov/tech-solutions (last visited June 8, 2011).
106
Federal Web Managers Council, HOWTO.GOV, http://www.usa.gov/webcontent/about/council.shtml (last visited
June 6, 2011).
107
Federal Web Managers Council, Putting Citizens First: Transforming Online Government, HOWTO.GOV, 1
(November 2008), http://www.usa.gov/webcontent/documents/Federal_Web_Managers_WhitePaper.pdf.
108
REGULATION ROOM, http://regulationroom.org (last visited June 6, 2011).
109
Alice Lipowicz, DOT e-Rulemaking Pilot Project Encounters Minor Glitch, FED. COMPUTER WK. (Feb. 2, 2011),
http://fcw.com/articles/2011/02/02/dot-erulemaking-pilot-project-encounters-minor-glitch.aspx.
110
About, REGULATION ROOM, http://regulationroom.org/about (last visited June 6, 2011).
111
Id.
112
Id.
113
OPENREGS.COM, http://openregs.com (last visited June 8, 2011).
114
About, OPENREGS.COM, http://openregs.com/about (last visited June 8, 2011).
115
OPENREGS.COM, supra note 113.
116
Id.
18
Figure 6: Regulation Room
Source: http://regulationroom.org/ (last visited June 10, 2011)
proposals with comment periods that have recently opened or periods that soon will close.
117
Through RSS feed and email subscription features, users can be updated on new proposals.
118
OpenRegs.com also includes options for commenting and tweeting,
119
an editor’s blog,
120
and an
iPhone app.
121
A website for researchers and analysts interested in the use of electronic media in
rulemaking can be found at E-Rulemaking.org, a website maintained by the Penn Program on
Regulation at the University of Pennsylvania Law School.
122
E-Rulemaking.org contains
research papers, government reports, news accounts, and links to governmental and
nongovernmental websites related to information technology and the regulatory process.
117
Id.
118
Using This Site, OPENREGS.COM, http://openregs.com/learn/site (last visited June 8, 2011).
119
See, e.g., Cotton Board Rules and Regulations: Adjusting Supplemental Assessment on Imports, OPENREGS.COM,
http://openregs.com/regulations/view/108895/cotton_board_rules_and_regulations_adjusting_supplemental_assess-
ment_on_imports (last visited June 8, 2011).
120
Open for Comment, OPENREGS.COM, http://blog.openregs.com (last updated Jan. 26, 2010).
121
iPhone, OPENREGS.COM, http://openregs.com/iphone (last visited June 8, 2011).
122
E-Rulemaking, http://www.law.upenn.edu/academics/institutes/regulation/erulemaking/ (last visited July 13,
2011). As the faculty director of the Penn Program on Regulation, I created E-Rulemaking.org and oversee its
maintenance.
19
III. Systematic Analysis of Agency Websites and Rulemaking
As the review in Part II has illustrated, agencies across the federal government – and even
a few entities outside of government – are using electronic media in a variety of ways to inform
and engage with the public over rulemaking. The most dominant method, of course, has been to
provide information on an agency website, which has become each agency’s “front door” to the
public.
123
Just as the website has increasingly become the face of retail business, it has
increasingly become the face of government. Accordingly, public officials and scholars looking
to assess the quality of government in the digital age have increasingly turned to the website as
their object of study.
124
For the purpose of informing any recommendations on the use of
electronic media to support rulemaking, it was necessary first to review past research on agency
websites and then to undertake to study the current state of agency websites, particularly with
rulemaking in mind, to identify patterns and gaps in current practices. This Part reports the
results of a study of 90 federal agency websites which provides a foundation upon which to base
recommendations for improvement.
A. Past Research
In one of the earliest studies of agency websites, Genie Stowers issued a report in 2002
ranking federal agency websites based on their features,
125
noting in particular a lack of attention
to websites’ accessibility to the disabled.
126
The Congressional Management Foundation also
conducted a study of websites for each Member of Congress in 2002, giving each site a grade
based on a scorecard of qualities such as “audience, content, interactivity, usability, and
innovations.”
127
A few years later, a study on digital government by Brooking Institution scholar
Darrell West singled out the website for analysis, studying legislative, executive, and judicial
websites at both the federal and state levels in the United States.
128
West found that, at least as
of 2005, “many government websites [were] not offering much in the way of online services.”
129
Since 2002, the United Nations (UN) has annually assessed government websites around
the world.
130
The UN has specifically examined “how governments are using websites and Web
portals to deliver public services and expand opportunities for citizens to participate in decision-
making.”
131
Based on the latest survey, conducted in 2010, the United States appears to have
made progress since the time of West’s study. The U.S. ranked second to Korea across the world
in terms of overall quality of e-government,
132
a measure which takes into account the online
123
See Telephone Interview, supra note 4 and accompanying text.
124
See infra Part III.A.
125
Genie N. L. Stowers, The State of Federal Websites: The Pursuit of Excellence, THE BUSINESS OF GOVERNMENT,
23 tbl.4 (August 2002), http://www.businessofgovernment.org/sites/default/files/FederalWebsites.pdf.
126
Id. at 19.
127
NICOLE FOLK ET AL., CONGRESSIONAL MANAGEMENT FOUNDATION, CONGRESS ONLINE 2003: TURNING THE
CORNER ON THE INFORMATION AGE 3 (2003).
128
DARRELL M. WEST, DIGITAL GOVERNMENT (2005).
129
Id. at 69.
130
STEPHEN A. RONAGHAN, U.N. DEP’T OF ECON. & SOC. AFFAIRS AND AM. SOC’Y FOR PUB. ADMIN.,
B
ENCHMARKING E-GOVERNMENT: A GLOBAL PERSPECTIVE (2002), available at http://unpan1.un.org/-
intradoc/groups/public/documents/un/unpan021547.pdf.
131
U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 41, at 59.
132
Id. at 60.
20
availability of government services, the extent and penetration of the Internet and
telecommunications technology across the country, and the overall level of literacy and
educational attainment in the country.
133
The UN has separately studied each country’s “use of the Internet to facilitate provision
of information by governments to citizens (‘e-information sharing’), interaction with
stakeholders (‘e-consultation’), and engagement in decision making processes (‘e-decision
making’).”
134
On this measure, known as the “e-participation index,” the United States ranked
first in the world in the UN study released in 2008.
135
In developing a subsequent report, the UN
changed its method of indexing, such that in 2010 the U.S. ranked only 6
th
in the world in terms
of e-participation, a function both of a scoring of websites and of a scoring for “citizen-
empowerment.”
136
A separate UN assessment of just the “quality” of countries’ websites in
terms of e-participation placed the U.S. even somewhat lower in the rankings.
137
In addition to providing these overall rankings, the UN researchers asked about the
internal features or characteristics of government websites. For example, across the globe, the
UN found that “[s]ite maps can be found on slightly over 50 percent of national portals….
[despite a map being a] very useful feature [that] helps citizens to find pages on the website
without having to guess where information might be found.”
138
Just as the UN survey has compared U.S. government websites to government websites
in other countries, some recent research has sought to compare agency websites with commercial
ones. In a 2009 article, Forrest Morgeson and Sunil Mithas compared customer service survey
results from users of ten federal government websites with survey responses from users of
commercial websites.
139
They found that, compared with commercial websites, “e-government
Web sites are perceived by their own customers as less customizable, less well organized, less
easy to navigate and less reliable.”
140
Taken together, the existing research suggests that the U.S. federal government’s
websites rate better when compared to most other countries than they do to business websites. In
addition, the U.S. government perhaps may be doing less well in keeping up with the latest
features related to public participation in governmental decision making.
133
Id. at 109-13.
134
Id. at 113.
135
U.N. DEP’T OF ECON. & SOC. AFFAIRS, U.N. E-GOVERNMENT SURVEY 2008: FROM E-GOVERNMENT TO
CONNECTED GOVERNANCE, at 58, U.N. Doc. ST/ESA/PAD/SER.E/112, U.N. Sales No. E.08.II.H.2 (2008),
available at http://unpan1.un.org/intradoc/groups/public/documents/un/unpan028607.pdf.
136
U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 41, at 85 & tbl.5.1.
137
The U.S. tied for seventh place on website quality, although due to ties, a total of 10 countries’ websites ranked
higher than the U.S. in terms of quality. Id., at 85.
138
Id. at 78.
139
Forrest V. Morgeson III & Sunil Mithas, Does E-Government Measure Up to E-Business? Comparing End User
Perceptions of U.S. Federal Government and E-Business Web Sites, 69 P
UB. ADMIN. REV. 740 (2009). The ten
agency websites were selected to provide a mix of “agencies delivering benefits, providing services, and performing
regulatory functions.”
140
Id. at 744.
21
B. Rulemaking and Agency Websites
The existing research, however, has focused on agency websites in general, and not
specifically on websites in connection with agency rulemaking. To fill this gap, I co-authored a
study, released in July, 2007, that measured website features specifically related to agency
rulemaking.
141
Until that time, most of the research on e-rulemaking focused on ways to use the
Internet to allow the electronic submission of public comments, ranging from the advent of email
submission of public comments to the one-stop, government-wide comment funnel,
Regulations.gov.
142
Other scholarship at the time tended to play out scenarios by which digital
government would “transform” or “revolutionize” the relationship between the public and
agency decision makers.
143
My co-author, Stuart Shapiro, and I conducted our study on the premise that any such
transformation would presumably begin with the ubiquitous agency website. We selected 89
federal regulatory agency websites to study, drawing on all agencies that had completed more
than two rules per cycle during the preceding two years.
144
We recruited graduate students to
code each agency website according to a uniform protocol we created. The protocol was
designed to collect website information in three broad categories: (1) the ease of finding the
agency’s website, such as by typing in the agency name or acronym directly or using Google; (2)
general website features, including the presence of a search engine, a site map, help or feedback
options, other languages, and disability friendly features; and (3) the availability and access to
regulatory information, such as the kind of information the public could otherwise find in a paper
rulemaking docket.
145
Although we learned that agency websites could be easily located,
146
the general features
of agency websites were not as consistently favorable. Search engines were present on the home
pages of almost all of the agency websites, and user feedback and help features could be found
on a majority of sites, but less than half of the sites were readable in a language other than
English and only 4 of the 89 sites surveyed had what we deemed “disability friendly” features.
147
More notably, regulatory information was too often lacking. Although more than half of the
websites included one or more words related to rulemaking on the home pages (e.g., “rule,”
“rulemaking,” “regulation,” or “standard”), other key words related to participation in
rulemaking – like “comment,” “Proposed Rules,” and “docket” – could not be found on most of
the home pages.
148
141
Stuart Shapiro & Cary Coglianese, First Generation E-Rulemaking: An Assessment of Regulatory Agency
Websites (Univ. of Pa. Law Sch. Pub. Law & Legal Theory Research Paper Series, Paper No. 07-15, 2007),
available at http://papers.ssrn.com/abstract=980247.
142
Balla & Daniels, supra note 18.
143
Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 EMORY L.J. 433, 433 (2004); Stephen M.
Johnson, The Internet Changes Everything: Revolutionizing Public Participation and Access to Government
Information Through the Internet, 50 A
DMIN. L. REV. 277, 320 (1998).
144
Shapiro & Coglianese, supra note 141, at 3. We determined the frequency of rulemaking by examining five
issues of the semiannual regulatory agenda published in the Federal Register.
145
Id. at 2-3.
146
Id. at 3.
147
Id.
148
Id. at 3-4.
22
Strikingly, rulemaking dockets either did not exist online or were not easy to locate. Our
study had been conducted before the government-wide adoption of the Federal Docket
Management System that underlies Regulations.gov, so online dockets at that time, if they
existed, would have been found on agency websites. Only 44% of the agencies surveyed had a
link to some type of docket on their home page.
149
Dockets were found on the site maps of only
three agencies’ websites, and the coders could find dockets on only two additional sites through
the use of the website’s search engine.
150
When we gave student coders two additional minutes
per website to locate the docket by whatever means possible, they could find only seven
additional dockets.
151
We also compared websites across different agencies. We ranked agencies based on
three scores: (1) the ease of finding the website and the general website characteristics; (2) the
regulatory content on the website; and (3) the sum of the first and second scores.
152
We found
that those agencies that promulgated more rules tended to have websites that were slightly easier
to find, but they did not tend to have sites with more features.
153
Remarkably, we found no
major difference between the two groups in terms of the accessibility of regulatory information –
with the one exception being that it was actually easier to find a link to a docket for agencies that
regulated less frequently.
154
We concluded that agency websites had much untapped room for improvement. We
urged greater attention be given to websites as an important mediating juncture between the
public and the agency with respect to rulemaking, suggesting that “at the same time scholars and
government managers justifiably focus on new tools, some thought also be given to standards or
best practices for the accessibility of regulatory information on the first generation tool, the
worldwide web.”
155
C. Agency Websites and Social Media Today
To help inform the Administrative Conference of the United States (ACUS)
consideration of recommendations about agencies’ current use of the Internet in support of
rulemaking, I undertook to replicate and extend my earlier study in order to determine whether
agencies had made progress in the intervening years and to identify both new developments and
any new concerns. This second study, conducted in March 2011, followed the earlier study in its
design and in most of the coding protocols, but it also included additional coding for agency’s
use of social media, such as Facebook and Twitter, which were not in widespread use at the time
data were collected for the earlier study (November 2005).
149
Id. at 3.
150
Id.
151
Id.
152
Id. at 5.
153
Id. at 4.
154
Id. For 46 agencies from which we could obtain reliable data on their number of employees, we analyzed
whether website features varied according to agency size. We found no clear pattern in our results relating to
agency size.
155
Id. at 6.
23
As with the earlier study, I drew upon the semiannual regulatory agenda for the sample of
agencies to include in the study. Out of about 180 agencies reporting some final rulemaking
over the course of the previous two years (2009-2010), a total of 90 agencies were included in
the study because they reported an average of two or more rulemakings completed during each
six-month period covered by the agenda.
156
Sixteen law students coded the websites on a single
day in March 2011, each using a uniform coding protocol and following a collective training
session. Each coder separately collected data on two websites – the Federal Communications
Commission and the Department of Transportation – to measure intercoder reliability (.93).
157
1. General Website Characteristics
For the most part, coders again had no difficulty finding the agency webpage. As in the
earlier study, Google not surprisingly enables users to find government agencies easily by name
or acronym. In at least two cases – the Rural Utility Service and the Minerals and Management
Service – coders encountered difficulty because the agencies had been disbanded or merged into
other agencies at the time of the coding – even though they had appeared in the latest version of
the semiannual regulatory agenda.
158
The Minerals Management Service, for example, had been
folded into a new entity known as the Bureau of Ocean Energy Management, Regulation and
Enforcement following the Gulf Coast oil spill in 2010.
Once at the website, coders started coding at the homepage, checking first for general
website features. Of the 90 websites coded:
• 89 agency websites displayed a search engine
• 79 websites included some facility to ask a question or provide feedback
• 70 agency websites included a link to site index/site map on the homepage
• 26 websites offered what the coders considered a clear disability-friendly feature,
such as text equivalents for non-text features (as opposed to a general statement of
policy on accessibility to the disabled)
The use of each of these navigational aids increased in the five years since the previous study.
However, fewer sites than before included a text-only option (only 3 out of 90, as opposed to 9
out of 89 in 2005). About the same number of websites (32 out of 90) provided translations in
languages other than English as in 2005, and of these 32 sites seven provided multiple non-
English language options.
156
Some of these “agencies” were actually sub-agencies or offices within cabinet level departments or other larger
agencies. In the case of the Environmental Protection Agency, the listings in the Regulatory Agenda refer to statutes
administered by the agency (e.g., “Clean Air Act”), so effort was made where possible to find the corresponding
office (e.g., “Office of Air and Radiation”) and code its portion of the EPA website. About 10 entries from the
regulatory agenda listings that would otherwise have qualified for inclusion were excluded because either they were
not really agencies (e.g., “procurement regulation”) or were effectively coterminous with agencies already included
(e.g., “Department of Homeland Security Office of the Secretary”).
157
In addition, Stuart Shapiro, one of the coauthors of the 2007 study, duplicated the work of each of the student
coders for one agency website each.
158
In such a case, the coders reviewed and recorded data for the new agency’s website.
24
This time, coders looked for links to various policy statements. Almost every website (89
of 90) included a link to a privacy policy, but only 39 included a link to “Open Government,” an
initiative of the Obama Administration that calls upon agencies to develop plans for improving
transparency and public participation. In only 29 instances could coders find an agency policy
on the treatment of public comments, such as guidelines about impermissible content (obscenity
or profanity, commercial endorsements) or agency policies about the posting of comments.
2. Social Media
Social media – or Web 2.0 features – have definitely secured a foothold use among
regulatory agencies, but they remain far from ubiquitous. Of the 90 websites coded:
• 21 contained a link for learning more about the agency’s social media presence
• 32 included a listserv subscription for email updates
• 55 provided a general RSS “feed” option, whereas only 4 provided a feed specifically
devoted to rulemaking
• 31 displayed a link to a general blog
o 14 blogs were used for postings by the agency head
o Only one agency could be found that had a blog specifically devoted to
rulemaking
• 39 websites featured a link to Facebook, but only 18 of these agency Facebook pages
mentioned at least one word related to rulemaking in a posting (i.e., rule, regulation,
rulemaking, standard, law, legislation, or statute)
• 43 websites contained a link to Twitter, with only 17 having a tweet that mentioned at
least one of the specified words related to rulemaking
• 43 websites included a link to YouTube, a commercial site for posting videos
• 24 linked to Flickr, a commercial site for posting photos
• 14 websites included links to other social media applications, including 4 that link to
MySpace, a less popular version of an online community like Facebook
• 31 websites provided podcasts, or online audio recordings
• 14 agencies had an option to download a widget (or small software application), although
coders failed to find any of these widgets directly relevant to rulemaking
• 7 websites provided an option to receive cell phone updates of some kind
Overall, these findings indicate that a sizeable portion of agencies – but by no means a majority –
have started to make use of social media. However, even among those agencies that are using
social media, they do not yet use these Web 2.0 tools much in connection with their rulemaking.
3. Rulemaking Information
Agencies admittedly have many governmental responsibilities beyond just rulemaking, so
their needs for communication on their websites also obviously range beyond just rulemaking.
Nevertheless, from our 2005 coding of agency websites, Stuart Shapiro and I observed “a
25
comparative lack of availability of regulatory information on the agencies’ home pages.”
159
That
is, despite the fact that the agencies included in our sample engaged in rulemaking, much of the
information on their websites had little to do with rulemaking. With the exception of the
“Freedom of Information Act” and our roster of synonyms for the word “regulation,” less than
half of the homepages contained the terms we asked our coders to find.
If those results were striking five years ago, it may be all the more striking that things
have remained quite stable over time. Table 1 below compares the results of the 2005 coding
with the results of the same coding in 2011. With only relatively minor fluctuations, the
frequencies are remarkably alike across the two time periods. Perhaps most striking of all,
Regulations.gov continues to appear quite infrequently on agency homepages, having actually
declined in appearances since our 2005 coding. This finding is all the more puzzling when one
considers that our 2005 coding took place at a time when Regulations.gov was still in its infancy.
For whatever reason, federal agencies appear not to have grabbed hold of the Regulations.gov
“brand” and made much use of it on their homepages. What they have done instead is use other
words to link to Regulations.gov: 53% of the homepages contained a link to a rulemaking-
related word (e.g., rules, regulations, etc.) that took the user to Regulations.gov. Agencies
apparently do not believe that using the term “Regulations.gov” is itself very helpful in directing
users to the Regulations.gov website.
Just about as many sites that link to Regulations.gov (54%) link to some agency-specific
page related to rulemaking, with some agencies providing links both to an agency page and to
Regulations.gov. When my coders used the search engine on the website, in 51% of the cases
they found some agency page related to rulemaking in one of the “top 10” search results;
however, in only 3 cases did they find a link to Regulations.gov in one of the top 10 search
results. Thirty percent of the websites had a central rulemaking page listed on the site map,
while only 13% had a link to Regulations.gov on that site map.
In about a third of the agency websites (34%) coders could find a webpage, graphic, or
video that explained the rulemaking process to a lay audience. Strikingly, only about a fifth of
the homepages (22%) mentioned even one specific proposed rule, and a similar minority of
homepages (23%) had a dedicated link or section devoted to proposed rules or rules open for
comment. Even more strikingly, about 40% of the websites did not have any link to an
explanation of rule making, the Federal Register, the Code of Federal Regulations,
Regulations.gov, any proposed rule, or a section dedicated to rules.
As shown in Table 1, the availability or visibility of agency rulemaking dockets, which
was already rather small in 2005, diminished still further by 2011. Only six agency homepages
in 2011 included the word “docket,” with only four websites containing a link on that word (a
drop from about nine websites in the 2005 study). None of these four links connected the user to
Regulations.gov.
159
Shapiro & Coglianese, supra note 141, at 3.
26
Table 1. Frequency of Links from Agency Homepages
Word or Phrase
% Agencies with
Homepage Link
(2005 Coding)
% Agencies with
Homepage Link
(2011 Coding)
7%
6%
10%
10%
27%
21%
18%
23%
79%
83%
67%
64%
31%
36%
15%
26%
15%
23%
10%
4%
Given the scant attention given to dockets on the agencies’ homepages, I asked all the
coders to see if they could nevertheless find on their own something that looked like a
rulemaking docket. About 17% of the time coders could find a central rulemaking docket in one
of the top 10 results by using the agency website’s search engine. In 29% of the websites, coders
could find something that looked to them like a docket but that did not use the word “docket.”
4. Overall Assessment
Following an approach used in previous analyses of government websites, an overall
ranking can be made of the agency websites included in this study, based on the number of
features and characteristics coded. As with my previous study, separate index scores can be
computed for each website based on general characteristics (up to 11 points possible) as well as
specific features related to rulemaking (up to 25 points). Due to the inclusion of social media in
this most recent study, it is also possible to compute a score for visible use of social media (up to
13 points). The presence of each feature or characteristic coded is treated as one point. An
overall combined score sums across the three indices, for up to 49 points possible, facilitating a
comparison across different agency websites in summary fashion. One caveat should be noted: a
higher score does not necessarily mean a website is “better” in some absolute sense, as some of
the coded features may not serve all agencies’ purposes equally well. Furthermore, we did not
27
include in these rankings other relevant quality factors, such as overall usability or timeliness and
accuracy of information. Still, the agencies with the highest 15 “combined general website and
regulatory” scores are listed in Table 2, with agency names shown in bold if that agency also
appeared as one of the highest-scoring agencies in the 2005 study. The top-scoring agency in the
earlier study – the Food and Drug Administration – came out on top again in 2011. Five
additional top-scoring agencies in the previous study also came out as top-scorers in the present
analysis. Some agencies that were top-scorers in the 2005 study, however, did not place as top-
scorers in the 2011 study, and some agencies appeared for the first time in the top-rankings in the
2011 study. The only agencies that consistently placed in the top were FDA, CFTC, Alcohol and
Tobacco Tax and Trade Bureau, OSHA, EPA, Department of Labor, and NRC.
The rankings in the present analysis were based on the combined score of the general
website and regulatory scores because these scores were used also to compute the rankings from
the 2005 coding, which did not take into account social media – a phenomenon still budding at
the time. It should be noted, however, that when the social media score is taken into account, the
rankings in the present analysis change. EPA, for example, moves from sixth place to second
place, and USDA from sixth place to third place. FDA still remains in the number one spot.
Of course, no agency came even close to reaching the maximum points possible, which
suggests that all agencies continue to have room for further development, especially with respect
to the accessibility of information about rulemaking. Even among the overall top-scoring
agencies, websites typically contained no more than half of the possible rulemaking points. If
we focus on just those agencies that issued the most rules in 2009-2010 (that is, those above an
average of 40 final rules), we find that even their websites were missing some fairly simple
features that could prove useful in easing public access to and participation in their rulemaking
process. For example, only three of these 22 agencies (14%) provided a page that displayed all
the rules the agency currently had open for comment.
In our previous study, Stuart Shapiro and I noticed that among the 21 agencies that issued
the most rules during that earlier period, only one listed the word “comment” somewhere on its
homepage. We found this surprising, because “adding a button or link telling users how to
comment on proposed rules must surely be among the easiest possible steps to take to advance
the goal of increasing citizen access to and involvement in the regulatory process.”
160
In this
respect, the results of the latest review of agency websites are somewhat encouraging. In 2011,
the websites of 7 of the 22 agencies that most frequently issued rules contained the word
“comment” somewhere on their homepages – a considerable improvement over five years. Of
course, even still this means that nearly 70% of the most frequent rulemaking agencies do not
provide on their homepage a link dedicated to soliciting public comment. Federal agency
websites continue to have opportunities to improve their websites in order to attract and facilitate
public comment on proposed rules.
160
Shapiro & Coglianese, supra note 141, at 6.
28
Table 2. Overall Ranking of Regulatory Agency Websites (2011)
Agency
General
Website
Score
(out of
11)
Regulatory
Score
(out of 25)
Combined
General
Website &
Regulatory
Score
(out of 36)*
Social
Media
Score
(out of
13)
Total
Score
(Combined
General
Website,
Regulatory
& Social
Media
Score) (out
of 49)
Food and Drug Administration
8
19
27
9
36
Mine Safety and Health Administration
9
17
26
1
27
Securities and Exchange Commission
10
14
24
3
27
Commodity Futures Trading
Commission
8
14
22
6
28
Federal Energy and Regulatory
Commission
9
13
22
4
26
Occupational Safety and Health
Administration
8
12
20
4
24
Nuclear Regulatory Commission
7
13
20
2
22
National Credit Union Administration
8
12
20
3
23
Farm Credit Administration
9
11
20
0
20
Federal Aviation Administration
7
12
19
3
22
Alcohol and Tobacco Tax and Trade
Bureau
8
11
19
1
20
Employment and Training
Administration
7
12
19
1
20
Environmental Protection Agency
8
11
19
11
30
Department of Agriculture
10
9
19
10
29
Department of Labor
8
11
19
7
26
* This ranking compares best with the 2005 ranking, which did not include a social media score.
29
IV. Agency Perspectives on E-Rulemaking
To complement the systematic, independent review of agency websites in Part III, I
conducted telephone interviews with over fifteen agency managers and staff from ten different
agencies, in addition to several conversations with officials with responsibilities that cut across
agencies. As one of my interview respondents noted, “a one-size-fits-all look at any agency
website would be a bit misleading,” for as I noted in Part III, a high score does not necessarily
mean that an agency’s website is “better.” Similarly, although not scoring high in our index may
reveal opportunities for additional features for an agency to consider, it does not necessarily
mean that an agency has not been innovative in using electronic media. For example, the U.S.
Department of Transportation did not rank among the top agencies on my index in either the
2005 or the 2011 coding, yet it nevertheless has been a leader in using online dockets and
experimenting with online rulemaking chat, such as Regulation Room.
The results from the website rankings, however, do provide a reasonable proxy for
getting variation in agencies in order to decide which agencies to target for purposes of
conducting interviews. Since practical constraints limit the number of interviews that can be
conducted, I wanted to ensure that respondents came from agencies that reflected more than just
the “successes,” but also included interviews with officials from agencies with websites that are
not as advanced. As a result, four of the agencies included in my interviews ranked in the “top
ten” based on the scores in the website review discussed in the previous part of this report, while
four placed in the “bottom ten.” Two agencies were in between the “top” and the “bottom.”
Each interview was conducted on a not-for-attribution basis, lasted approximately thirty minutes,
and covered a range of questions focused on the experiences these agency personnel reported
with their use of the Internet in rulemaking. The interviews revealed a high level of
thoughtfulness and depth of experience among the agency personnel who are responsible for
building and maintaining government websites. In many agencies, these responsibilities are
divided across both information technology offices and communications (or public affairs)
offices, with the latter generally responsible for content. In addition to revealing more about the
successful deployment of electronic media tools in each agency, the interviews also uncovered
several common challenges facing agencies, as well as some opportunities that respondents
identified for making the rulemaking process more accessible to those members of the public
who use electronic media. I report the findings from these interviews according to ten themes
that emerged from many, if not even most or all, of the interviews.
Theme 1: The Value of the Internet.
Respondents repeatedly pointed to the benefits from using electronic media to support
rulemaking. As one responded reminded, “It used to be we would have people lined up at public
reference rooms. Now we can webcast all open meetings, all of which are viewed from the
website and [the online] archive.” Another noted that “so much information is available on our
website that it leaves us very little that we collect that we don’t make publicly available in that
way.” A third put it simply: “Web services are crucial and worth a real investment in.”
30
Multiple respondents commented on the slowness of getting information released through
the “normal” government channels such as the Federal Register. For example, “it takes 6 to 14
days to go from the [agency] decision to a Federal Register notice. Twitter gives us a way to let
the public know that the Federal Register will be coming out as well as to provide links to
webcasts and testimony.” Another commented that “by the time a proposed rulemaking is in the
Federal Register, our agency’s thinking is already well formed.” This same respondent
continued:
What the agency is doing is not known early enough. Even the regulatory
agenda, because it has to be coordinated by OMB and GSA, takes time to put
together, so that a rulemaking that has been initiated could be at least 2 to 3
months old, and maybe at most 4 or 5 months old, by the time it appears in the
regulatory agenda. The Internet allows us to put up information faster. Once
a regulatory policy officer approves a rulemaking to go forward, we can have
something up within a month on our website.
Other respondents similarly noted that they were able to release information to the public – as
well as communicate internally – more quickly by posting in a website, blog, or a tweet. In at
least one agency, staff members have access to online forms that allow them to upload reports of
ex parte communications to their agency’s website instantaneously. Several respondents also
pointed to the advantage of live streaming of public meetings and placing these videos in an
online archive for users – a practice in which agencies are increasingly engaging.
Theme 2: The Complexity of Rulemaking Information.
Respondents recognized that the issues their agencies addressed through rulemaking
tended to be complex, and that they faced a major challenge in presenting rulemaking
information in a manner accessible to a broad segment of the public. “People spend an average
of 3 seconds on a webpage,” one respondent reported having been told. “A major challenge for
us,” he continued, “is taking what is very complicated information and putting it up in a
discernible, digestible form that the public can use.”
Moreover, the sheer volume of information creates both information management and
communication challenges. Any individual rulemaking can generate a lot of information – from
lengthy reports to numerous public comments. But of course agencies are sometimes developing
several rulemakings at a given time, not to mention pursuing a range of additional activities and
objectives. As others have noted, rulemaking in the information age brings with it the problem
of information overload.
162
One respondent commented that there is “a lot of informational
competition out there …We’ve got to get information that’s in-house out to people who are
interested in it.”
The challenge, noted another respondent in commenting on his agency’s website, lies in
“making the site more intuitive.” “It would benefit the public,” said another, “if they could go to
one place where all the things they could comment on could be found.” Another concluded that,
162
Farina et al., supra note 9, at 434-40.
31
at present, “you must be pretty sophisticated to find your way around our website and to connect
the dots between the Federal Register and Regulations.gov.” Much as the old agency docket
rooms were more accessible to the repeat players in the rulemaking process who had offices in
Washington, D.C., a respondent commented that today’s online rulemaking information is still
“really for frequent users.” Another noted that despite the efforts of agency staff to make
“Federal Register notices readable and in an accessible format to the general public, they’re not
really written for the general public.”
Theme 3: Effectively Using Electronic Media to Support Rulemaking is a Management
Challenge as Much as a Technology Challenge.
As other scholars have noted, the effective deployment of information technology by
government agencies demands managerial and political prowess as much as technological
skill.
163
One of my respondents put it even more straightforwardly: “Management is critical.”
It is not just managing the use of technology, but making sure that the underlying data are
accurate and the presentation of information is clear and consistent. If an agency has, as one of
my respondent’s agencies has, “500,000 webpages and 200 or 300 different people working on
the web,” then creating a clear, coherent, and integrated website requires a major management
undertaking. One respondent pointed out that “we’ve had [over a decade and a half] of
unfettered development and hosting on our website, [so] it’s become large and sprawling.”
Another cautioned that an agency’s “website [can’t become] a dumping ground for everything
you have.”
To respond to the need for good management, many agencies have developed “web
councils” or similar agency working groups to manage their websites. They have also developed
various internal standards and guidelines for website design. Many are also working to try to
develop consistency in design and layout formatting across the sub-units with their agencies:
“We work hard at standardizing information across the website,” noted one respondent. “A big
challenge for us is how to present rules, fact sheets, Q&A in a consistent format, and where to
put them on the page,” he said. Another respondent noted that “[w]e need to weed through and
find the key material and think about how to present that in the most accessible manner
possible.”
Of course, sometimes management tasks in government can be affected by political
considerations. One respondent spoke of a political appointee in an agency deciding to make the
default presentation of search results appear in reverse chronological order rather than by
relevance, apparently so as to have at the top of the results list those things accomplished during
the administration in which that official served. “That’s the kind of thing that happens in the
government,” the respondent concluded.
163
See, e.g., JANE E. FOUNTAIN, BUILDING THE VIRTUAL STATE: INFORMATION TECHNOLOGY AND INSTITUTIONAL
CHANGE (2001).
32
Theme 4: Agencies Face Multiple Audiences.
In managing the electronic presentation of regulatory information, agencies confront the
particular challenge that their websites serve multiple audiences. “One of the challenges that we
face,” noted one respondent, “is that we have very different constituencies. If you’re a law firm,
your ideal website is one thing; but it might be another if you’re a small business. It’s hard to
balance the different needs and design a homepage that will meet them all.” Several respondents
commented that their websites serve a range of audiences, including reporters, kids doing
homework, concerned citizens, students and researchers, the regulated community, Congress,
state and local governments, other countries, and librarians. In many agencies, a further
audience comprises the agency’s own employees who often use the agency’s website as much if
not more than those outside the agency. As one respondent observed: “So many competing
agendas.”
Theme 5: Agencies Face Increasing Pressures to Load Information on their Homepages.
Respondents repeatedly reported facing pressures to fill up their agencies’ homepages
with more content. It’s “always a fight for space on the homepage,” noted one respondent. “I'm
sure everyone in the agency would like to see their business found on the homepage,”
commented another. Yet, this competition itself creates another management challenge. “We
want to be careful about what we put forward on the homepage,” one respondent noted. “If so
much content goes on the homepage, it’s too much for users to look at.” Another respondent
lamented the increasing clutter on the home page, “where there have been boxes and boxes of
things…. We need to minimize the number of fracturing confusions.”
164
Theme 6: Agencies are Attentive to Accessibility for Special Populations.
In addition to concerns about making information accessible to the general public,
interview respondents noted sensitivity to access issues presented by special populations, such as
non-English speakers, visually impaired users, and members of the public who do not have
access to high-speed Internet connections. As noted in Part III of this report, some agencies have
alternative websites for different languages or have automatic translation tools on their websites.
However, more than one respondent agreed that “automated translation is worse than no
translation at all.” These respondents emphasized that when dealing with material that holds
legal implications, even minor mistranslations can have significant consequences.
164
This pressure on agency homepages may be accentuated, rather than ameliorated, by the Obama
Administration’s plan to freeze temporarily the creation of new government domains and ultimately to reduce the
number of existing agency websites. See Macon Phillips, TooManyWebsites.gov, http://www.whitehouse.gov/blog/-
2011/06/13/toomanywebsitesgov (last visited July 17, 2011) (statement by White House Director of Digital Strategy
on freeze on the creation of new government domains and plans to eliminate “unnecessary and duplicate websites”);
.gov Reform Effort: Improving Federal Websites, http://www.usa.gov/-WebReform.shtml (last visited July 17, 2011)
(website dedicated to Obama Administration effort to reform government websites). The Federal Chief Information
Officer, Vivek Kundra, believes “game changing technologies,” including improved search capacity, will be needed
to avoid increasing the complexity of existing websites. What You Missed: Live Chat on Improving Federal
Websites, http://www.whitehouse.gov/blog/-2011/07/13/what-you-missed-live-chat-improving-federal-websites
(video last accessed July 17, 2011).
33
Another respondent reported that, at his agency, “user testing with the blind helps us try
to keep improving that aspect, but the agency still has more to do.” With respect to the issue of
the so-called digital divide between users with high- versus low-speed connections, one
respondent noted that his agency is “aggressively optimizing images for the web.” However,
some respondents appeared somewhat less concerned about having their agency’s site be easily
accessible to low-speed users. As one commented, “we have to be careful we might be giving up
too much [to accommodate low-speed users]. People on dial-up understand they’re on a
connection that will take longer.”
Theme 7: Managing the Accumulation of Information is an Emerging Concern.
Although not a dominant theme across all respondents, another issue that arose during the
interviews centered on what to do with old material. Many agencies have documents dating back
for decades that are now available on their websites. Users who search for documents on those
websites will often retrieve a plethora of documents, old and new. For many users, the search
results are confusing, noted one respondent. Agency managers will increasingly need to
consider how to provide more optimal search techniques so that users are better able to find the
materials that they are looking for – presumably on current rulemakings – even at the same time
that older material remains available in online archives.
Theme 8: Agencies are Still Learning How to Use Social Media.
Agencies’ social media practices are still emergent. Although many of our respondents
seemed to support greater use of social media tools, even those who did support it suggested that
such support was not uniformly shared across their agencies. “What social media is more for is
the Secretary to talk about the latest speeches and public events,” according to one view. “Social
media is a ‘feel-good’ thing,” said a respondent. Another respondent noted that “some people
don’t want Facebook pages…[as they] can be a time sink.”
I heard palpable concerns about the resource intensity of social media. As one
respondent remarked, “the challenge is appropriate staffing resources. Do you have people with
the time?” Moderating comments on Facebook can be “a very time-consuming process” and
some agencies “do not have the capability in place.” Agency staff members find they need to
monitor Facebook, Twitter, and blogs in part to screen out comments that contain profanity,
product endorsements, gratuitous political expressions, and obscenities. A number of agencies
have developed guidelines on comments which make it clear that it is okay to disagree with and
criticize the agency in online comments, but that, in the words of one respondent, “it’s not
appropriate to open up flame war or troll.”
A more fundamental challenge with social media “is the level of expectations” about
responsiveness, observed one respondent, who continued:
People are posting, waiting five minutes, and wanting to see your response. But it
might take us a couple of days to get a response approved. We sometimes let people
know we’ve heard them and will get back to them. People at least appreciate that
we’re working on it.
34
As another agency respondent stated, “The key with the new media is the need to respond.” Yet,
as another noted, a “lack of responsiveness is a problem with government in general. But we are
making progress, doing the best we can.”
Part of the explanation for agencies’ sluggishness appears to be the desire to provide
accurate and authoritative responses, which requires review even at times from high-level
officials. As one respondent in a public affairs office commented, “this is the government and
we’re a regulatory body, so it’s not smart of us to post without clearing it first through the
persons who know the most up-to-date information.” Another respondent reported that her
agency schedules contributions on the agency blog three months in advance, just to be able to
post entries three times per week.
For now, the interviews suggest that agencies are using social media primarily as an
outlet for information dissemination from the agency to the public, rather than as a vehicle for
interactive dialogue between agency officials and members of the public. As one respondent
observed, “first you use Facebook or blogs as a place to re-purpose announcements and press
releases.” Only at some later point will be it be possible to “make current the Facebook entries
and experiences.”
Theme 9: Ongoing Evaluation is Crucial for Making Continuous Improvement.
A number of respondents’ agencies had either recently completed a website redesign or
were planning to undergo a redesign in the near future, so they spoke of efforts to collect user
data to support and evaluate such redesign efforts. One respondent noted that it is important to
have flexibility with a website so as to be able to highlight current topical issues or proceedings
as needed. Another respondent reported that “we’re using media at the end of each rulemaking
to help us redesign the webpage to get more information out.” In some agencies, it is apparent
that managers and technology developers are making deliberate efforts to solicit input and assess
how well specific uses of electronic media are serving agency objectives.
Theme 10: Effective Use of Electronic Media Requires Adequate Resources.
Perhaps not surprisingly, a common issue that arose in interviews was the need for
resources.
165
“We have no budget,” stated one respondent at a smaller agency. For that
respondent’s agency, for example, “an RSS feed has been highly sought after by our big users,
and even our agency’s own employees, but we don’t have the money to develop or install it.”
Other respondents noted the staffing needs associated with using social media and following the
comments on tools such as Facebook. Another noted that even with making comments available
on the agency website, we are “without sufficient staff to review up front and screen each
comment.”
165
In a recent survey of over two hundred federal managers, cost concerns ranked as the most significant barrier to
improved public outreach. Government Business Council, Engaging Citizens: Federal Agency Efforts to Connect
with the Public (June 2011), available at http://www.govexec.com/gbc/report/public-outreach-02/ (“A total of 74
percent of federal managers identify limited budget as their central challenge”).
35
V. Recommendations
The interview responses in Part IV clearly demonstrate that agency officials have been
able to overcome a range of management challenges associated with using electronic media. The
“best practices” discussed in Part II of this report, along with the website improvements and uses
of social media discussed in Part III, demonstrate that the challenges do not prevent all progress.
The growth in internal agency standards, Web councils, and cross-cutting government practice
guides all speak to the amount of time and thoughtful effort that agency officials now devote to
maintaining and improving the usability and accessibility of electronic media. Efforts such as
EPA’s Reg DaRRT testify to the potential for promising innovations to emerge from within
agencies, notwithstanding the centralization of the Federal Docket Management System and
Regulations.gov.
Still, the comparison of agency websites in Part III and the interview responses in Part IV
also reveal opportunities for further progress. Agencies today confront a dramatically denser and
more complicated informational environment, with a proliferation of demands for content to
appear on agency homepages as well as a still untapped potential for more effective use of social
media.
166
Although the accessibility of rulemaking information is light years ahead of where it
was only two decades ago, agencies still have plenty of room for further improvement. As OIRA
Administrator Cass R. Sunstein recently observed, “regulatory information online is
unnecessarily difficult to navigate, and members of the public may have difficulty searching,
sorting, finding, or viewing documents at each stage of the process.”
167
In Part III of this report,
results of a study of agency websites showed that there remains considerable variability in how
well different agencies are managing their use of electronic media. Innovations that some
agencies have adopted merit adoption by other agencies. To continue to improve e-rulemaking,
ACUS should consider adopting, and agency decision makers should ultimately take action
consistent with, the following seven recommendations.
Recommendation 1. Administrative agencies should manage their use of the
Internet with rulemaking participation by the general public in mind.
Agencies use the Internet for many different purposes, communicating through their
websites valuable information to the public not only about rulemaking, but also about a variety
of other issues and activities. The proliferation of competing demands for communication makes
rulemaking only one – perhaps even to some, a relatively minor one – of the many priorities
under consideration when agency officials make decisions about the design and functionality of
their websites. As a result, the risk exists that agencies will make website design decisions
without giving due consideration to the values of public participation reflected in the various
laws and executive orders that have called upon agencies to use electronic media to enhance the
166
After reviewing agency websites in March for this study, both Stuart Shapiro and I concurred that agency
homepages are today packed with markedly more information than they were in November 2005, the last time we
coded agency websites.
167
Cass R. Sunstein, Memorandum on Increasing Openness in the Rulemaking Process – Use of the Regulation
Identifier Number (RIN) (April 7, 2010), available at http://www.whitehouse.gov/sites/default/files/omb/assets/-
inforeg/IncreasingOpenness_04072010.pdf.
36
public’s understanding of and role in rulemaking.
168
Indeed, an emerging approach to
government website design focuses on giving prominence to “top tasks” sought by members of
the public.
169
Such an approach certainly has much to be said for it. But an exclusive focus on
current website use or demand will probably push information about rulemaking, and online
opportunities for public commenting on rulemaking, far into the background, simply because the
volume of website traffic generated by online government services performed by many agencies
dwarfs the traffic related to rulemaking. Rulemaking may perhaps never be a “top task” in terms
of the numbers of web users, but in a democracy few tasks compare in significance with the
ability of government agencies to create binding law backed up with the threat of civil, and even
criminal, penalties.
For this reason, officials who make decisions about the design of and content on their
agencies’ websites should ensure that rulemaking information will be easily accessible to
ordinary individuals – not just displayed in a way that comports with current traffic or usage
patterns. Consider, as an example, the website for the Federal Communication Commission
(FCC). The FCC website recently received a major redesign, making it perhaps the most up-to-
date website design of any federal agency, with many appropriate and useful improvements
made after extensive public input.
170
Nevertheless, from the standpoint of making rulemaking
information accessible to ordinary citizens, it is striking the website is not as clear and accessible
as the agency’s former site. The new site does not list “rulemaking” or “regulation” prominently
on the home page.
171
Instead, the new site includes a tab for “rulemaking” as one pull-down
option under the heading “Business and Licensing.”
172
Of course, if a citizen seeking to find out about FCC’s policy work goes to the FCC
website, she might be forgiven for not looking under a tab labeled “Business and Licensing.”
She might be expected first to click on the tab for “Our Work” – but she will not see there any
option for rulemaking. Only if she clicks further under “Our Work,” on a pull-down labeled
“Consumers,” and then goes to another webpage, will she find a section toward the bottom for
rulemaking. There she will find – under a heading obliquely called “Related Content for
Consumers” – an incomplete list of the agency’s proposed rules.
173
Alternatively, if she clicks
the “Take Action”
174
button on the home page and then further chooses the pull-down menu item
for filing a public comment, she will find a list of the Commission’s “Most Active
Proceedings”
175
(Figure 7) – although some of these proceedings appear to be largely if not fully
168
See supra Part I.
169
See What You Missed: Live Chat on Improving Federal Websites, supra note 164 (statement by Sheila Campbell,
Director of the General Services Administration’s Center for Excellence in Digital Government).
170
FED. COMM. COMM’N, http://www.fcc.gov (last visited July 14, 2011).
171
Id. A link for “Rulemaking” does appear in tiny font at the bottom of the site under the heading “Business and
Licensing.”
172
Id.
173
For example, on a day when 15 rulemakings dating back to December 29, 2010, appeared under “Related
Content for Consumers,” a total of 59 proposed rules could be found for the same period via a search for FCC
proposed rules on Regulations.gov. Compare Federal Communications Commission, Related Content for
Consumers, http://www.fcc.gov/related/44?categories[0]=proceeding (last visited July 14, 2011), with
Regulations.gov, Search Results, http://www.regulations.gov/#!searchResults;a=FCC;dct=PR;pd=12|29|10-
07|14|11;rpp=10;so=DESC;sb=postedDate;po=0 (last visited July 14, 2011).
174
FED. COMM. COMM’N, supra note 170.
175
Send Us Your Comments, FED. COMM. COMM’N, http://www.fcc.gov/comments (last visited June 9, 2011).
37
Figure 7: Federal Communications Commission’s Listing of Most Active Proceedings
Source: http://www.fcc.gov/comments (last visited June 10, 2011)
completed, such as a listing for the FCC’s National Broadband Plan.
176
Other entries under the
“Most Active Proceedings” contain no description whatsoever, which will make it hard for
ordinary citizens to use. For example, a listing for the AT&T/T-Mobile merger – while perhaps
self-explanatory at a certain level – offered no summary of the proceeding, such as deadlines,
standards for agency decisions, or links to any other supporting materials.
177
The user
presumably could not even glean from the website that the AT&T/T-Mobile proceeding is not a
rulemaking, to the extent that matters. Of course, it is possible to go to the search page for all
FCC proceedings,
178
type in the proceeding number for the AT&T/T-Mobile merger, and find
relevant FCC notices and documents. But surely it would also be helpful for members of the
public to see a summary or more descriptive account of the proceeding at the outset – especially
when the proceeding appears on a list and that same kind of information can already be found
elsewhere in the system.
176
A National Broadband Plan for Our Future, FED. COMM. COMM’N, http://www.fcc.gov/rulemaking/09-51-0 (last
visited June 9, 2011).
177
In fact, the link for “AT&T/T-Mobile” takes users directly to a form for filing a comment, which provides no
further information about the merger. ECFS Express Upload Form, F
ED. COMM. COMM’N, http://fjallfoss.fcc.gov/-
ecfs/upload/display;jsessionid=NwPQnfwQY1f6zy4kJmjj02M3KhmJwFTn06G3QYWhTyHl6ky946qD!271039122
!206283283?z=mko6v (last visited June 9, 2011).
178
Search for Proceedings, FED. COMM. COMM’N http://fjallfoss.fcc.gov/ecfs/proceeding_search/input?z=gr9c5 (last
visited June 9, 2011).
38
The point here is not to single out the FCC or its website for criticism. To the agency’s
credit, its website provides a prominent access point for comments, it lists some of the more
significant proceedings, and for some of these it includes precisely the kind of summaries helpful
to a layperson.
179
Other agencies do not provide even nearly the same level of accessibility –
and that is the point. If even on what could be considered a state-of-the-art agency website it can
be cumbersome for ordinary citizens to find rulemaking information, then presumably more
work remains across the entire federal government.
Web designers have an understandable, if not even desirable, tendency to create sites that
meet the needs of their primary users. This is perfectly sensible in most contexts. In the context
of government agencies making binding laws, however, a commitment to well-accepted
democratic principles should lead agency web designers to create sites that are at least neutral
across user types, if not even more accessible to less sophisticated or one-shot participants in the
rulemaking process. Placing a primary link to rulemaking information under a tab labeled
“business” – to use the FCC again as an illustration – may well reflect the reality that businesses
are both the most frequent users of agency websites and commenters on agency rulemaking.
180
But such thinking does not fit with the ideal of making the rulemaking process as accessible to
ordinary citizens as it is to sophisticated repeat players.
Recommendation 2. Agencies should provide a one-stop location on their home
pages for all rulemakings currently open for comment.
One way for agencies to improve their ability to help members of the public learn about
and comment on an agency rulemaking would be to create webpages, linked on their home page,
that list all the rules the agency is developing and all those currently open for comment. Anyone
interested in an agency rulemaking can reasonably be expected to go first to the agency’s website
to find information about the rulemaking, as well as to learn about how to provide the agency
with input about that rulemaking. Yet few agency websites currently list all rules open for
comment.
One agency that provides a page of rules open for comment, the Commodity Futures
Trading Commission (CFTC), allows users to access readily a list of all of the proposed rules the
agency has initiated under the Dodd-Frank Act (Figure 8).
181
In fact, the agency’s homepage
prominently features, as the first frame highlighted on the top of the page, the headline “CFTC
Proposes Dodd-Frank Rules,” clearly inviting the user to click a button to view all of the
proposed rules under the Dodd-Frank Act.
182
Clicking the button takes the user to a full list of
all of the proposed rulemakings that CFTC is currently working on, even if the comment period
has already closed, in which case the date of the closing is noted on the list.
183
It does take some
179
See, e.g., A National Broadband Plan, supra note 176.
180
For data on the frequency of business participation in rulemaking, see, e.g., Cary Coglianese, Litigating within
Relationships: Disputes and Disturbance in the Regulatory Process,. 30 L.
& SOC'Y. REV. 735 (1996).
181
Dodd-Frank Proposed Rules, U.S. COMMODITY FUTURES TRADING COMM’N,
http://cftc.gov/LawRegulation/DoddFrankAct/Dodd-FrankProposedRules/index.htm (last visited June 9, 2011).
182
U.S. COMMODITY FUTURES TRADING COMM’N, http://cftc.gov (last visited June 9, 2011).
183
Dodd-Frank Proposed Rules, supra note 181.
39
Figure 8: U.S. Commodity Futures Trading Commission’s Dodd-Frank Act Proposed Rules
Source: http://www.cftc.gov/LawRegulation/DoddFrankAct/Dodd-FrankProposedRules/index.htm (last
visited June 10, 2011)
work for the user to look down the full list to find out which rules are still open for comment; a
clearer display might list separately those rules currently open for comment.
184
The EPA’s website has a similar vehicle for finding rules currently in the making,
although it is not at all as prominently displayed nor as easily found on the EPA’s website as the
comparable page is on the CFTC site. To find EPA’s page, the user must click “Laws &
Regulations” on the homepage,
185
scroll down to a menu option for “Regulations,” and then find
an entry under the heading “Track EPA Rulemakings and Retrospective Reviews,” which then
takes the user to a link to the agency’s Reg DaRRT website.
186
Up at the top right corner of the
homepage, the user sees links under the banner, “Top Tasks.”
187
On the previous version of Reg
DaRRT, known as the EPA’s Rulemaking Gateway, among these top tasks was a link
specifically designated as “Comment on a Regulation,”
188
which took the user to a list of all
184
If they look carefully enough, users will see, of course, that they can sort entries so that the entries can be viewed
by the deadline for comments.
185
U.S. ENVTL. PROT. AGENCY, http://www.epa.gov (last visited Oct. 14, 2011).
186
Reg DaRRT, supra note 47. See supra Figures 2 & 3 and notes 47-53 and accompanying text.
187
Reg DaRRT, supra note 47.
188
Rulemaking Gateway, U.S. ENVTL. PROT. AGENCY, http://yosemite.epa.gov/opei/RuleGate.nsf/ (last visited June
9, 2011).
40
agency rules that were currently open for comment.
189
Reg DaRRT, however, no longer treats
commenting on a regulation as a “top task,” nor does it provide a list of all agency rules open for
comment.
190
Instead, Reg DaRRT simply gives the user a hyperlink to Regulations.gov, along
with a set of instructions on a further multistep process of using Regulations.gov to find EPA
rules open for comment.
191
EPA’s Rulemaking Gateway also previously displayed in a
prominent location on its frontpage a list of EPA’s “Most Viewed Rulemakings,” a feature which
has now also been removed.
Notwithstanding their limitations, the CFTC and EPA websites are steps in the right
direction of providing easy access to information needed to facilitate public comment on
rulemaking. Notably, each agency has done so by creating its own separate database of rules in
the making and developing its own display function for these lists. To implement a rulemaking
webpage for each agency, a more cost-effective approach for the federal government would
likely be to model agency rulemaking webpages off of a concept used by many members of
Congress to display legislation they are currently sponsoring. These members provide a link on
their home page pointing users to a page that lists all the legislation they sponsor.
192
The user
who clicks the button for sponsored legislation is shown a display that contains a list of
sponsored bills – not drawn from the Member’s own database, but rather a list extracted from the
THOMAS database of all legislation currently pending in Congress.
193
At the click of the
button, the computer executes what is essentially a “canned” or predetermined search and
extracts from the database underlying THOMAS only those bills that are sponsored or
cosponsored by that Member of Congress.
194
Figure 9 provides an example from a House
Committee’s website, but legislators also have similar pages on their individual websites.
Administrative agencies would avoid duplication of effort if they followed this model by
providing a link on their homepage to all rules currently open for comment. A list of these rules
already exists via the Federal Docket Management System (FDMS) and Regulations.gov. Users
can, in fact, currently get this information by going to Regulations.gov,
195
but even there they
must conduct an advanced search
196
which will likely prove cumbersome to most visitors. What
they retrieve from this search ultimately can be a list of rules sorted by an individual agency that
are currently open for comment. Since these data are already available in the FDMS, the federal
government could develop an extraction code similar to that which is used on Members of
Congress’s websites, completely automating retrieval and making it unnecessary for each
individual agency to create its own databases, as the CFTC and the EPA have done.
More generally, the interoperability of websites across the federal government that relate
to rulemaking – such as Regulations.gov, RegInfo.gov, Federal Register 2.0, and so forth – can
189
Comment on a Regulation, U.S. ENVTL. PROT. AGENCY, http://yosemite.epa.gov/opei/RuleGate.nsf/content/-
phasescomments.html?opendocument (last visited June 9, 2011) (website no longer available).
190
Reg DaRRT, supra note 47.
191
Comment on a Regulation, supra note 50.
192
See, e.g., Sponsored Legislation, CHARLIE DENT, U.S. REPRESENTATIVE FOR THE 15TH DIST. OF PA.,
http://dent.house.gov/index.cfm?p=SponsoredLegislation (last visited June 9, 2011).
193
Id.
194
Id.
195
REGULATIONS.GOV, http://www.regulations.gov (last visited June 9, 2011).
196
Advanced Search, REGULATIONS.GOV, http://www.regulations.gov/#!advancedSearch (last visited June 9, 2011).
41
Figure 9: Display of Current Legislation (from THOMAS) on House Committee Website
Source: http://www.smallbusiness.house.gov/Legislation/ (last visited May 20, 2011)
also avoid unnecessary duplication. Each of these websites contains data on rulemaking, some
the same, some different. Greater efficiencies would come about by allowing greater sharing
between these sites and their underlying data systems.
197
By creating linkages across these
197
Of course, it is essential that the underlying data in the shared systems be accurate, complete, and up to date. See
Cary Coglianese, Stuart Shapiro, and Steven J. Balla, Unifying Rulemaking Information: Recommendations for the
New Federal Docket Management System, 57 A
DMIN. L. REV. 621, 638 (2005) (“Electronic dockets[’] … impact
will depend on having information in these dockets that is useful, complete, consistent, and easy to find.”). See also
C
OPELAND, supra note 27, at 39-40 (discussing concerns about consistency and accuracy of the data inputted into
the Federal Docket Management System); Cass R. Sunstein, Memorandum on Increasing Openness in the
Rulemaking Process – Improving Electronic Dockets (May 28, 2010), available at http://www.whitehouse.gov/-
sites/default/files/omb/assets/inforeg/edocket_final_5-28-2010.pdf (addressing inconsistencies and incompleteness
to data submitted by agencies to the Federal Docket Management System). For some initial responses to concerns
42
websites and integrating data, users could seamlessly retrieve all the information the federal
government has about rulemaking found across each of these sites. At present, a user that finds a
proposed rule listed in Federal Register 2.0 finds only a general link to www.regulations.gov.
Not only is the link hidden within a section of the text of the agency’s Federal Register
notice, but it only points the user to the Regulations.gov homepage, not to the docket for the
specific rulemaking. A more integrated approach would provide the user who finds a specific
proposed rule at Federal Register 2.0 with a prominent link that, upon clicking, would
automatically extract from the FDMS and any other relevant data systems all the supporting
documents, public comments, and other information currently available only by making
cumbersome searches at Regulations.gov or RegInfo.gov. Users who find a rulemaking at these
other sites should similarly be able to retrieve automatically the relevant information from the
other data systems, including Federal Register 2.0. Eventually, to follow a recommendation
offered in a 2008 report by an American Bar Association-sponsored Committee on the Status and
Future of e-Rulemaking, the federal government could even “anticipate the eventual
interoperation with relevant federal systems such as THOMAS (statutory and other legislative
material) and PACER (judicial material from the federal courts), as well as relevant regulatory
material” elsewhere, so as to provide maximal accessibility to all the information connected with
a rulemaking.
198
Recommendation 3. Agencies should consider, in appropriate rulemakings,
retaining facilitator services to manage discussion with respect to the rulemaking
on social media sites.
Although websites allow the agency to communicate to the public about what it is
undertaking, and although they also allow the public to submit comments to the agency, the
process is hardly akin to a give-and-take dialogue. Social media tools, such as Facebook,
provide new vehicles for interactive discussion between agency officials and the public.
However, many agencies are not currently exploiting social media’s interactive, dialogic
potential. As noted in Part IV, many agencies find that they are unable to provide the staff time
needed to engage in deliberation via Facebook, and some agency leaders may well doubt the
wisdom of engaging in such a dialogue, given that agency officials may make comments that
have not been fully considered or that perhaps could be inaccurate or later viewed as prejudicial
in some manner to the agency.
How then to use social media effectively? Agencies could consider retaining services of
facilitators, whether they are designated agency employees or independent contractors. The
purpose of the online facilitator would be to do just that – facilitate an online conversation about
a rulemaking. The facilitator would not speak on behalf of the agency – a disclaimer that would
need to be stipulated clearly and prominently. Indeed, for this reason it may be that an
about e-rulemaking data quality, see Improving Rulemakings through Best Practices, http://www.regulations.gov/-
exchange/topic/exchange/bestpractices (last visited July 17, 2011); eRulemaking Program, Improving Electronic
Dockets on Regulations.gov and the Federal Docket Management System: Best Practices for Federal Agencies
(November 30, 2010), available at http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130-
_eRule_Best_Practices_Document_rev.pdf.
198
COMMITTEE ON THE STATUS AND FUTURE OF FEDERAL E-RULEMAKING, supra note 8, at 40.
43
independent contractor would be more appropriate as a facilitator. Although the facilitator
would not be speaking on behalf of the agency, the facilitator’s objective would be to steer the
conversation in a fashion that could be more helpful to the agency’s decision makers. This could
mean that agency managers would stay in contact with the facilitator, perhaps conveying their
desire to follow up on a particular line of comments or perhaps to raise questions that would be
helpful if they were answered by participants in the online conversation. The facilitator could
pose questions, float ideas, and even offer his or her own explanations for features, issues, or
decisions that the agency has made – but all without binding the agency.
This proposed recommendation is not unprecedented. Agencies hire facilitators of
negotiated rulemaking committees and public meetings, and on occasion they have even
assigned individual “conversation-starters” to early efforts at online dialogues.
201
The
Department of Transportation’s Regulation Room uses online moderators – and of course it also
preselects, and to a certain extent directs, the list of topics that participants in Regulation Room
are encouraged to discuss (Figure 10).
202
A designated facilitator when agencies use social
media could “direct traffic” in real time.
Figure 10: Regulation Room’s Management of Online Dialogue
Source: http://regulationroom.org/eobr/what-about-privacy-concerns/#1 (last visited June 10, 2011)
201
An example of the latter use can be found in EPA’s online dialogue on public participation. See Beierle, supra
note 21, at 12-13.
202
Learn More, REGULATION ROOM, http://regulationroom.org/learn-more/ (last visited June 9, 2011).
44
Recommendation 4. Agencies should strive further to improve the accessibility of
their websites to all members of the public.
As my interviews confirmed, agency officials already try hard to make their websites
accessible to the public, notwithstanding the complexity and cascading accumulation of
regulatory information. Despite these efforts, it remains the case that in the U.S., as in other
developed countries, “many elderly people, low-income individuals and families, and minorities
are outside the realm of the digital society.”
203
In three areas, agencies should strive to improve
on the accessibility of their use of electronic media in rulemaking.
a. Non-English Access
Nearly 20 percent of the population in the United States speaks a language other than
English at home.
204
In 2000, President Clinton issued Executive Order 13166 in an effort “to
improve access to … programs and activities for persons who, as a result of national origin, are
limited in their English proficiency.”
205
For those individuals with limited proficiency in
English, websites need alternative languages if they are to be accessible. In guidance on the
Executive Order, the U.S. Department of Justice has noted that as a general matter “entire
websites need not be translated;” however, the Department has made clear that “vital
information” does need to be translated.
206
The Office of Management and Budget’s policy on
agency websites reminds agencies that they are “required to provide appropriate access for
people with limited English proficiency.”
207
Given the proportion of the public with limited English proficiency and the government’s
policies requiring accessibility, it is striking that, as noted in Part III, only about 36% of all
agency websites include on their homepage a link to a language option other than English – for
even some of their websites’ content. Among the agencies that regulate most frequently, the
availability of non-English language materials is better (62%), but still more than one third of the
most active regulatory agencies’ homepages provide no readily retrievable information in any
language other than English.
Short of creating separate websites in other languages, agencies could include a link on
their sites to automated translator tools, such as one available through Google Translate. The
federal government’s current “best practice” guidelines for websites, however, advise agencies
203
U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 41, at 89.
204
Hyon B. Shin & Robert A. Kominski, Language Use in the United States: 2007, U.S. CENSUS BUREAU, 2 tbl.1
(April 2010), http://www.census.gov/prod/2010pubs/acs-12.pdf.
205
Exec. Order No. 13166, 65 Fed. Reg. 50121, 50121 (Aug. 11, 2000). This executive order has been affirmed by
the Obama Administration. See Attorney General Eric Holder, Memorandum on Federal Government’s Renewed
Commitment to Language Access Obligations Under Executive Order 13166 (Feb. 17, 2011), available at
http://www.justice.gov/crt/about/cor/AG_021711_EO_13166_Memo_to_Agencies_with_Supplement.pdf. A
dedicated website – LEP.gov – is devoted to the implementation of the Executive Order. Limited English
Proficiency: A Federal Interagency Website, http://www.lep.gov/index.htm (last accessed July 17, 2011).
206
U.S. Dep’t of Justice, Commonly Asked Questions & Answers Regarding Executive Order 13166,
http://www.justice.gov/crt/about/cor/Pubs/lepqa.php (last visited July 17, 2011).
207
OMB Deputy Director for Management Clay Johnson, Memorandum on Policies for Federal Agency Public
Websites (Dec. 17, 2004), available at http://www.whitehouse.gov/sites/default/files/omb/memoranda/-fy2005/m05-
04.pdf.
45
against linking to or relying on translator tools.
208
Accordingly, relatively few agency websites
provide such automated translator tools. The Small Business Administration is one exception, as
its homepage includes a button with a link that allows users to take advantage of the Google
translation tool to translate its site into dozens of different languages.
209
Our interview
respondents were often worried about the inaccuracies that would emerge in a translation
performed automatically, even by something like Google Translate. This is not an unreasonable
concern, particularly for documents that may have compliance and enforcement implications, as
rules do. As one prominent federal webpage on site design has noted, “[n]o machine can fully
replace a human being for the interpretation of different and subtle meanings of a word within
different contexts.”
210
However, even without relying on automatic translators, it is possible for agencies to
provide some middle ground between no translation and full translation. In accord with the
Department of Justice’s interpretation of Executive Order 13166,
211
agencies can follow a model
illustrated well by the Environmental Protection Agency’s website (Figure 11). The EPA
provides a scaled-down webpage translated into several different languages, including
Spanish,
212
Chinese,
213
Vietnamese,
214
and Korean.
215
These pages contain distinct text – not
complete translations of EPA's entire website – in order to reach out to and help inform members
of the public who do not speak English as their primary language. More agencies should provide
such pages.
Another middle-ground option is for agencies to provide translations for specific
rulemakings that can be anticipated to have disproportionate effects upon or elicit a substantial
interest by individuals with limited English proficiency. The FTC, for example, provided just
such a translation of an announcement it made of an antitrust cooperation agreement between the
US and Chile.
216
Consistent with guidelines from both the Department of Justice and the
General Service Administration,
217
agencies should provide translations in all rulemakings that
can be anticipated to affect, or be of interest to, non-English speaking populations in distinctive
ways.
208
Top 10 Best Practices for Multilingual Websites, HOWTO.GOV, http://www.usa.gov/webcontent/multilingual/-
best-practices.shtml (last visited June 7, 2011) (“The use of machine or automatic translations is strongly
discouraged even if a disclaimer is added.”). See also Laura Godfrey, Automated Translation – Good Solution or
Not?, H
OWTO.GOV, http://www.usa.gov/webcontent/multilingual/automated-translation.shtml (last visited June 7,
2011) (“Some government websites are currently using Google Translate. This is not a best practice and should not
be used as a sole solution…. A disclaimer on translated content … does not work for the [user] trying to accomplish
a task.”). The HowTo.gov website is maintained by the General Service Administration’s (GSA) Office of Citizen
Services and Innovative Technologies and the Federal Web Managers Council.
209
SMALL BUS. ADMIN., http://www.sba.gov (last visited June 9, 2011).
210
Godfrey, supra note 208.
211
See U.S. Dep’t of Justice, supra note 206 & accompanying text.
212
Spanish Webpage, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/espanol/ (last visited June 9, 2011).
213
Chinese Webpage, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/chinese/simple/ (last visited June 9, 2011).
214
Vietnamese Webpage, U.S. ENVTL, PROT. AGENCY, http://www.epa.gov/vietnamese/ (last visited June 9, 2011).
215
Korean Webpage, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/korean/ (last visited June 9, 2011).
216
La Comisión Federal de Comercio y el Departamento de Justicia Firman un Acuerdo de Cooperación para la
Defensa de la Competencia de Chile, F
EDERAL TRADE COMMISSION (Mar. 31, 2011), http://www.ftc.gov/opa/-
2011/03/chileagree_sp.shtm.
217
See U.S. Dep’t of Justice, supra note 206; Multilingual Websites, HOWTO.GOV, http://www.usa.gov/-
webcontent/multilingual/ (last visited June 7, 2011).
46
Figure 11: U.S. Environmental Protection Agency’s Spanish Version of its Website
Source: http://www.epa.gov/espanol/ (last visited July 17, 2011)
b. Low-Bandwidth Access
Even with advances in information technology, “the ‘public’ that participates in the
rulemaking process is still a very narrow slice of the entire citizenry.”
218
Except in the most
unusual circumstances, agency rules elicit more comments from businesses and other
organizations than from ordinary individuals. This participatory divide – between those who
have the ability, time, or inclination to participate in the rulemaking process and those who do
not – combines with another very real and broad divide over general access to the Internet.
219
Around the world, “[o]ne of the most critical e-government challenges facing many governments
today is how to bridge the digital divide.”
220
218
Cary Coglianese, The Internet and Citizen Participation in Rulemaking, 1 ISJLP 33, 38 (2005).
219
Cf. FRANKLIN S. REEDER ET AL., A REPORT BY A PANEL OF THE NAT’L ACAD. OF PUB. ADMIN. FOR THE U.S.
OFFICE OF MGMT. & BUDGET, THE GEN. SERVS. ADMIN. & THE FED. CHIEF INFO. OFFICERS COUNCIL, A NATIONAL
DIALOGUE ON HEALTH INFORMATION TECHNOLOGY AND PRIVACY 46 (2009), available at http://www.napa-
wash.org/wp-content/uploads/2011/01/09-04.pdf (distinguishing, in the context of a health care information
dialogue, between two participatory divides, one “gap between those citizens who have access to technology such as
computers and the Internet, and those who do not,” and the other “gap between those who choose to participate in
this type of use of the technology and those who don’t.”)
220
U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 41, at 88.
47
As recently as December 2010, only about 77% of the U.S. adult population used the
Internet.
224
Even fewer individuals have access to a high-bandwidth connection to the Internet.
According to the most current estimates, no more than about 68% of the population can access a
high-speed or broadband connection.
225
As a Department of Commerce report recently noted:
Significant gaps in Internet usage still exist among certain demographic and
geographic groups around the country. People with college degrees adopt
broadband at almost triple the rate of those with some high school education
(84% versus 30%), among adults 25 years and older. The rates for White (68%)
and Asian non-Hispanics (69%) exceed those for Black non-Hispanics (50%)
and Hispanics (45%) by 18 percentage points or more. Rural America lags
behind urban areas by ten percentage points (60% versus 70%).
226
The digital divide between the “information rich and poor”
227
also tracks the divide between the
economic rich and poor.
228
According to estimates by a Pew Foundation Internet research
project, close to 90% of those making $75,000 a year or more use high-speed connections,
compared with only 45% of those who earn less than $30,000 a year.
229
Despite these disparities in access to high-speed Internet, most regulatory agencies do not
provide the most easily accessible website form for low-bandwidth users: a text-only option. As
noted in Part III of this report, only 3% of agency websites were found to have a text-only option
– and none of these were the agencies that engaged in rulemaking most frequently. By contrast,
one can more easily find Members of Congress who have text-only or other low-bandwidth
options for their websites. It is true, of course, that agency websites are larger, more complex,
and more information intensive than the website for a Member of Congress. It is also true that
agency web developers have been sensitive to access to low-bandwidth users and do make
efforts to optimize the size of images so that their websites can load as quickly as possible.
230
But it is also true that, as websites develop, they tend to use more photo images and video and
audio content, which will make access harder still for those with low-bandwidth connections.
231
224
PEW INTERNET & AMERICAN LIFE PROJECT, Trend Data (May 2011), http://www.pewinternet.org/Trend-
Data/Online-Activites-Total.aspx (last visited July 17, 2011).
225
Nat’l Telecomm. & Info. Admin., U.S. Dep’t of Com., Digital Nation: Expanding Internet Usage 2 (February
2011), http://www.ntia.doc.gov/reports/2011/NTIA_Internet_Use_Report_February_2011.pdf; Aaron Smith, Pew
Research Center, Home Broadband 2010, P
EW INTERNET & AMERICAN LIFE PROJECT, 2 (Aug. 11, 2010),
http://pewinternet.org/~/media//Files/Reports/2010/Home%20broadband%202010.pdf.
226
Nat’l Telecomm. & Info. Admin., supra note 225.
227
PIPPA NORRIS, DIGITAL DIVIDE 4 (2001).
228
Id. at 16 (noting that inequalities in Internet access arise from “deep divisions of social stratification within
postindustrial societies.”)
229
Smith, supra note 225, at 8.
230
Compare U.S. SEC. & EXCH. COMM’N, http://www.sec.gov (last visited June 15, 2011) (a lower-resolution site),
with U.S.
ENVTL. PROT. AGENCY, http://www.epa.gov (last visited June 15, 2011) (a higher-resolution site).
231
See generally Samuel Ryan, The Evolution of Websites: How Ten Popular Websites Have (And Have Not)
Changed, W
AKE UP LATER, http://www.wakeuplater.com/website-building/evolution-of-websites-10-popular-
websites.aspx (last visited June 15, 2011) (displaying screenshots of popular websites taken at intervals to show how
web design has changed over time, with a number of sites becoming obviously more graphic intensive).
48
At least a few of my interview respondents seemed relatively unconcerned about low-
bandwidth users, especially given that the trend is toward increasing access to high-bandwidth
connections. Still other respondents suggested it would be too difficult to create and maintain a
separate text-only website. Yet, at least a few agencies are starting to create separate web
interfaces designed for use on handheld devices, a laudable approach that will expand the
usability and accessibility of information for those with so-called smart phones.
232
That same
effort to create a dual interface for mobile devices, however, could be adapted for a text-only
version of websites for users with low bandwidth. If nothing more, the emergence of these
mobile sites suggests that it would be feasible to create a separate, text-only interface for low-
bandwidth users. Until high-speed access is pervasive across all strata of society, any agency
that makes full public access and participation a priority should explore such low bandwidth
options.
c. Disability Access
According to some estimates, as much as 8% of the Internet community has a disability
that requires the use of assistive technology; the largest proportion of the disabled user
community has sight-related limitations.
233
Section 508 of the Rehabilitation Act requires
agencies using information technology to ensure that individuals with disabilities be able to
achieve parity with individuals without disabilities in their access to agency information.
234
Implementing regulations call for, among other things, websites to provide “[a] text equivalent
for every non-text element”
235
and a “text-only page, with equivalent information or
functionality . . . when compliance cannot be accomplished in any other way.”
236
As an adjunct to the comprehensive study of agency websites and social media discussed
in Part III of this report, a separate study focused on more than a dozen agency websites’
accessibility to blind users. Each site was reviewed in two ways. First, sites were reviewed
using the JAWS screen reader, a popular tool for blind users that converts information displayed
on a website into audio format and “reads” it back to the user.
237
For this study, a sighted
research assistant read each agency website at the same time as she listened to the audio provided
by the JAWS reader. Second, each site was subsequently evaluated for accessibility using
WAVE, a tool that analyzes the code behind the webpage to identify possible accessibility
problems. WAVE is one of a variety of tools that web developers can use to identify
232
See e.g., MyTSA Mobile Application, TRANSP. SEC. ADMIN., http://www.tsa.gov/travelers/mobile/index.shtm (last
visited June 9, 2011); Apps for the Environment, U.S.
ENVTL. PROT. AGENCY, http://www.epa.gov/appsforthe-
environment/ (last visited June 9, 2011). See also Alice Lipowicz, Gov 2.0 on the Go: Agencies Hit it Big with
Mobile Apps, F
ED. COMPUTER WK. (Apr. 8, 2011), http://fcw.com/Articles/2011/04/11/FEAT-government-mobile-
apps.aspx?Page=1.
233
U.S. DEP’T OF HEALTH & HUM. SERVS. & U.S. GEN. SERVS. ADMIN., Accessibility, in RESEARCH-BASED WEB
DESIGN & USABILITY GUIDELINES 22, 23 (2006), available at http://www.usability.gov/pdfs/chapter3.pdf.
234
Rehabilitation Act Amendments of 1998, 29 U.S.C. § 794d (agencies must ensure that their information
technology allows “individuals with disabilities who are members of the public seeking information or services from
a Federal department or agency to have access to and use of information and data that is comparable to the access to
and use of the information and data by such members of the public who are not individuals with disabilities”).
235
36 C.F.R. § 1194.22(a) (2010).
236
36 C.F.R. § 1194.22(k) (2010).
237
The reviewer used JAWS version 8.0 with Internet Explorer 5.0, the versions available in the local Philadelphia
public library which provided the software and testing location.
49
accessibility problems. Although the WAVE analysis is informative for web developers, for our
purposes the JAWS review by a sighted user is most revealing, for it provides a true test of
whether all website information available to sighted users will also be accessible in practice to
sight-impaired users.
Although about half of the websites reviewed presented no serious issues, those that did
present accessibility issues usually did so because of images that had no corresponding textual
tags or because of links that were not fully textually represented. Sometimes these problems
occurred on websites that otherwise used much more advanced and sophisticated designs for the
sighted user. For example, to the sighted user, the EPA’s website organizes a large volume of
information in a clear, visually compelling manner.
238
The EPA home page is divided into
tabbed sections (e.g., “Learn the Issues,” “Science and Technology,” and “Laws and
Regulations”), each of which contains a drop-down menu filled with many additional links.
239
Unfortunately, the screen reader could not read the names of any of these core links – a
deficiency which would prevent a blind user from navigating anywhere else in the EPA’s
website. The reviewer also noted a color-coded map and various graphics on the EPA home
page that had no corresponding textual elements, and hence were also “invisible” to the screen
reader and by extension to a blind user.
240
Continued vigilance is obviously needed to ensure that agency websites and other
electronic media will be as accessible to individuals who have impaired vision as they are to
other users. This accessibility may grow even more challenging in the wake of new techniques
for organizing a large volume of information on a website. Indeed, as the EPA example
suggests, there may exist a tradeoff between packing more information onto a home page, such
as by using pull-down tabs, and providing equivalent accessibility to the blind. Images and
graphics need to be consistently tagged with descriptive terms, especially when the images form
buttons that are central to navigate through the webpage or otherwise convey useful information.
Recommendation 5. Agencies should display comment policies in accessible
locations or provide links to the comment policy in multiple, accessible locations,
especially on webpages that elicit comments from the public.
Respondents to the interviews discussed in Part IV frequently referred to their agencies’
practice of removing comments from their websites if they contain obscenities or profanity or if
they promote commercial products. Deleting such comments is usually authorized by comment
policies established by each agency. For example, the EPA has a comment policy that explains
that the agency expects “comments generally to be courteous.”
241
The EPA policy also makes
clear that the agency can decline to post or can remove comments that are submitted that do not
comply with the stated policy.
242
Such a comment policy generally accords with current state-
238
See ENVTL. PROT. AGENCY, http://www.epa.gov (last visited June 9, 2011).
239
Id.
240
In addition to the review by my research assistant, I also listened to the JAWS rendition of the EPA site,
confirming this example. Data results are available upon request.
241
EPA Comment Policy, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/epahome/commentpolicy.html (last
visited June 7, 2011).
242
Id.
50
of-the-art practices, but at present the comment policies for many agencies cannot be found
easily by the public. I asked an experienced law student to review the websites for the ten
agencies that scored the highest overall on the ranking of websites in Part III of this report (see
Table 2), but in only two instances could he find a comment policy.
243
When asked to search for
five minutes from the EPA’s website (ranked #13) for its comment policy, he again could not
locate it. Even on webpages dedicated to the submission of comments, a comment policy is not
always visible to the user. For example, the CFTC website contains a webpage that allows users
to comment on regulations that are currently open for comment, but nowhere on the page can
one find the agency’s comment policy or a direct link to it.
245
To find the policy, the user must
click on a link labeled “How to Submit a Comment,” go to another webpage, and then scroll to
the bottom of the new page.
246
Recommendation 6. Agencies should develop systematic protocols for the
retrieval of old material online.
Online material ages and, as in life, the aging process requires attention. For websites,
aging presents two distinct types of concerns. First, most agency websites already contain at
least 10 to 15 years worth of online material. As a result, when searching for information at
agency webpages, users may retrieve old material mixed with newer material. If users are
coming to the agency webpage and conducting a search with a new proceeding in mind, they
may find the search results impenetrable if the search mixes much of the older material in with
the new material. For example, the FDA recently published a notice and request for comments
in the May 23, 2011 edition of the Federal Register, entitled “Preventive Controls for Registered
Human Food and Animal Food/Feed Facilities.”
248
However, a search on the FDA website using
the terms “preventive controls animal feed”
249
and a separate search using the terms “preventive
controls animal feed proposed rule”
250
resulted in no search results related to the recently
proposed rule; some hits in the top-ten results were from documents as old as 2009, and one even
as old as 2008. It was similarly impossible to find relevant search results on the Department of
Agriculture’s website related to a recently proposed rule regarding the Horse Protection Act,
243
The student, who had prior experience working with a federal regulatory agency, was instructed to search each
website for no longer than five minutes.
245
Public Comments, COMMODITY FUTURES TRADING COMM’N, http://comments.cftc.gov/PublicComments/-
ReleasesWithComments.aspx (last visited Oct. 14, 2011). The earlier version of EPA’s Reg DaRRT – the
Rulemaking Gateway – suffered the same deficiency. Although the Gateway had a page dedicated to submitting
comments, nowhere on that page could a user find information or a link related to the agency’s comment policy.
The issue is now moot, as EPA removed the comment page altogether when it converted the Gateway to Reg
DaRRT. See infra notes 188-191 and accompanying text.
246
How to Submit a Comment, COMMODITY FUTURES TRADING COMM’N,
http://www.cftc.gov/LawRegulation/PublicComments/HowtoSubmit/index.htm (last visited Oct. 14, 2011).
248
Preventive Controls for Registered Human Food and Animal Food/Feed Facilities, REGULATIONS.GOV,
http://www.regulations.gov/#!documentDetail;D=FDA-2011-N-0238-0001 (last visited June 2, 2011).
249
Search Results: preventive controls animal feed, U.S. FOOD & DRUG ADMIN. (June 2, 2011, 9:50 AM),
http://google2.fda.gov/search?q=preventive+controls+animal+feed&x=0&y=0&client=FDAgov&site=FDAgov&lr=
&proxystylesheet=FDAgov&output=xml_no_dtd&getfields=*.
250
Search Results: preventive controls animal feed proposed rule, U.S. FOOD & DRUG ADMIN. (June 2, 2011, 9:51
AM),
http://google2.fda.gov/search?q=preventive+controls+animal+feed+proposed+rule&x=0&y=0&client=FDAgov&sit
e=FDAgov&lr=&proxystylesheet=FDAgov&output=xml_no_dtd&getfields=*.
51
published in the Federal Register on May 27, 2011.
251
Searches with more particularized terms
at least provided information related to the Horse Protection Act,
252
but searches with less
particularized terms provided completely irrelevant or old information.
253
Second, agencies do change or get reorganized from time to time, raising the question of
how their webpages will be archived. For example, the website of the Mineral Management
Service (MMS), which has recently been incorporated into the newly created Bureau of Ocean
Energy Management, Regulation, and Enforcement (BOEMRE), is still available online, but
only some, not all, of the links on it redirect the user to the appropriate new page on the
BOEMRE website.
254
Similarly, the Rural Utilities Service (RUS), which was recently
incorporated into the USDA Rural Development Program, still has its own website available
online.
255
However, even though the RUS homepage indicates that its content has not been
updated since July 8, 2010, it does not otherwise provide any notice to the public that the agency
has moved, nor does it provide a forwarding location.
256
Some of the links on the page do
redirect the user to the relevant page of the USDA Rural Development website, but other links
take the user to the still intact, yet outdated page of the RUS website.
257
No explanation on
either website can be found about the reorganization of RUS into the USDA Rural Development
program.
258
Agencies should be encouraged to develop standard protocols for both of these issues.
Old materials do need to be preserved for archival, historical, and legal reasons, but the way
these materials are stored and retrieved needs to be more consistently and clearly systematized,
and search display algorithms need to be deployed with the existence of older materials in mind.
Recommendation 7. Agencies should conduct ongoing evaluations of their use of
the Internet against the goals of e-rulemaking.
Especially with new uses of electronic media, systematic evaluations will be appropriate
if agency officials are to learn better how to use electronic media to advance the principal goals
of e-rulemaking, namely, promotion of democratic legitimacy, improvement of policy decisions,
and lowering of administrative costs.
259
Collaborations between government agencies and
university researchers, such the Department of Transportation’s current collaboration with
251
Horse Protection Act: Requiring Horse Industry Organizations to Assess and Enforce Minimum Penalties for
Violations, R
EGULATIONS.GOV, http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0030-0001 (last
visited June 2, 2011).
252
Search Results: horse protection act proposed rule, U.S. DEP’T OF AGRIC. (June 2, 2011, 10:25 AM),
http://usda.gov/wps/portal/usda/usdahome?q=horse+protection+act+proposed+rule&x=0&y=0&navid=SEARCH&
Go_button.x=21&Go_button.y=11&site=usda.
253
Search Results: horse protection act, U.S. DEP’T OF AGRIC. (June 2, 2011, 10:21 AM),
http://usda.gov/wps/portal/usda/usdahome?q=horse+protection+act&x=0&y=0&navid=SEARCH&Go_button.x=21
&Go_button.y=11&site=usda.
254
See MINS. MGMT. SERV., http://www.boemre.gov/mmshome.htm (last visited June 2, 2011).
255
Utilities Programs, U.S. DEP’T OF AGRIC., http://www.usda.gov/rus/ (last visited June 2, 2011).
256
Id.
257
Id.
258
Id.; Rural Development – Utilities, U.S. DEP’T OF AGRIC., http://www.rurdev.usda.gov/Utilities_LP.html (last
visited June 2, 2011).
259
Coglianese, Information Technology, supra note 15, at 372.
52
Cornell University on the Regulation Room project, can assist in implementing such in-depth
evaluations.
In evaluating agency use of electronic media in rulemaking, agency officials should focus
on the overarching goals of e-rulemaking rather than on simply measuring users’ satisfaction. Of
course, satisfying users is fine, even commendable, but it should not become the main evaluative
criteria of agency use of electronic media. This point bears emphasis because agency officials
undoubtedly find that it is easiest to “evaluate” new media uses by asking users if they are
satisfied, something that can be readily facilitated by user satisfaction surveys or feedback
buttons on websites.
260
However, as I have discussed at length elsewhere, such an approach
raises numerous methodological and conceptual problems.
261
The satisfaction of those who
reply to a user survey or respond to a feedback button does not necessarily mean that an agency
has best advanced the overall public interest.
With agency website design, there is a real risk that user satisfaction will result in a status
quo lock-in effect if websites become increasingly optimized for current users rather than the
broader public. The FCC’s decision to list “Rulemaking” on a tab under “Businesses and
Licensing” rather than under both “Businesses and Licensing” and “Consumers”
262
may reflect,
even if just subconsciously, the current bias in participation in FCC rulemakings. Undoubtedly
even FCC officials would agree, though, that the agency’s goal should not be to design its
website so as to assist business users at the expense of others, even if businesses are currently the
most frequent users of the FCC website. A similar status quo bias can perpetuate accessibility
problems of the kind discussed above in connection with Recommendation 4. Since low-
bandwidth, non-English, and vision-disabled individuals make up a minority of users, agency
officials who view their principal role as one of pleasing their “customers” are more likely to
downplay the need for efforts to increase accessibility to all segments of the public. Finally, as
discussed in connection with Recommendation 1, an excessive emphasis on an agency’s “top
tasks,” if defined solely in terms of user frequency, could lead agencies to neglect website
accessibility to information about the substantively significant task of rulemaking.
If one goal of e-rulemaking is to maximize accessibility and use by as many members of
the public as possible, then the feedback from current users – as helpful as it may be for some
purposes – will still be woefully incomplete. Asking only users would provide no information
about why some interested or affected parties do not use a tool or media application under
evaluation. For example, why have more people not participated in the Department of
Transportation’s Regulation Room, created by Cornell University?
263
Answering an important
question like that will require more than just soliciting feedback from the users.
260
For an example of such a satisfaction survey, see supra notes 5-6 and accompanying text.
261
Cary Coglianese, Is Satisfaction Success? Evaluating Public Participation in Regulatory Policymaking, in THE
PROMISE AND PERFORMANCE OF ENVIRONMENTAL CONFLICT RESOLUTION 69 (Rosemary O’Leary & Lisa B.
Bingham eds., 2003).
262
FED. COMM. COMM’N, http://www.fcc.gov (last visited June 9, 2011).
263
See Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation
in Rulemaking, 31 P
ACE L. REV. 382, 400 (2011) (observing that “the results [of soliciting comments on a
Department of Transportation rulemaking via Regulation Room] were disappointing” with a “volume of response far
less than we, and DOT, had expected”).
53
Conclusion
People spend an increasing amount of time online, whether for social interaction, online
shopping, entertainment, or work. Corresponding with this overall trend in online activity,
agency websites have over the last fifteen years become a key vehicle through which the public
interacts with the federal government. In the years ahead, agencies’ use of social media and
other interactive web-based tools may well become just as ubiquitous as the agency website.
Although agencies will continue to use electronic media to support all of their services
and activities, making rules that efficiently and equitably solve society’s problems will remain
one of government’s most fundamental responsibilities. In this report, I have focused on ways
that agencies could use electronic media to improve the accessibility of the rulemaking process.
Until recently the process that generates thousands of binding rules each year was generally
impenetrable for the average member of the public. The Internet has now made possible a range
of new ways of organizing and disseminating rulemaking information as well as soliciting public
input.
Agencies need to use wisely the opportunities the Internet provides to advance the quality
and legitimacy of the rulemaking process. This report has provided an overview of agency “best
practices” in using electronic media to support rulemaking as well as the results from original
quantitative and qualitative research. This research has identified the practices of some agencies
– such as, to pick one example, the development of EPA’s original Rulemaking Gateway (the
predecessor to its current Reg DaRRT) – that merit replication by other agencies. It has also
identified gaps and concerns that any agency should consider when undertaking future efforts at
web design or the deployment of social media. The seven recommendations in this report
provide concrete direction for agencies to consider as they seek to improve their use electronic
media to make the rulemaking process more accessible to all.