Federal Agency Use of Electronic Media in the Rulemaking Process
University of Pennsylvania Law School
December 5, 2011
Michigan Journal of Environmental and Administrative Law, Forthcoming
U of Penn Law School, Public Law Research Paper No. 11-32
One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ 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. The findings of this research suggest that there exist both considerable differences in how well different agencies are managing their use of electronic media as well as significant opportunities for the diffusion of best-practice innovations that some agencies have adopted. This research also provides a basis for seven key recommendations that I offer for enhancing both the accessibility and quality of rulemaking through digital technology. A commitment to well-accepted democratic principles applicable to regulatory agencies should lead federal web designers to strive to create sites that are as accessible to ordinary citizens, including individuals with limited English proficiency, vision impairments, and low-bandwidth connections, as they are to the sophisticated repeat players in Washington policymaking circles.
Number of Pages in PDF File: 55
Keywords: administrative law, federal rules and regulations, promulgation of new rules, proposed rules, electronic notice and opportunity to comment, agency practices and innovations, democratic principles of web design, e-rulemaking
JEL Classification: K23
Date posted: August 18, 2011 ; Last revised: September 29, 2012
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