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166 Shulman

Chapter IX

The Federal Docket Management System and the Prospect for Digital Democracy in

U.S. Rulemaking Stuart W. Shulman, University of Pittsburgh, USA

Abstract

A large interagency group led by the Environmental Protection Agency (EPA) has worked diligently to set up a centralized docket system for all U.S. federal rulemaking agencies. The result, the Federal Docket Management System (FDMS), is still a work in progress, reflecting technical, administrative, financial, and political challenges. A close examination of the effort to design, fund, and shape the architecture of the FDMS suggests many impor- tant lessons for practitioners and scholars alike. While both the new technology and the 60-year-old administrative process of rulemaking offer tantalizing glimpses of innovation, increased efficiency, and remarkable democratic potential, the actual progress to date is mixed. Neither the information system nor its users have turned the FDMS into a techno- fix for all or even much of what ails the sprawling U.S. regulatory rulemaking system. In the great American tradition of incrementalism, the FDMS represents a small step toward a number of worthy but perennially elusive goals now routinely linked to the prospect for digital democracy.

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Introduction

Agency personnel and the commenting public are adjusting to the increasingly digital landscape of the “notice and comment” process required under the 1946 Administrative Procedure Act (APA). While the APA sets a “floor below which an agency may not go in prescribing procedures for a particular rulemaking” (Lubbers, 2006, p. 6), scholars, activ- ists, and rulemaking practitioners have long recognized the benefits and burdens that accrue when the baseline requirements for gathering public input are exceeded (Furlong & Kerwin, 2004; Kerwin, 2003). Running parallel to agency and public efforts to adapt, there is a growing body of e-rule- making research and scholarship focusing on such fundamental issues as whether Internet- enhanced public participation results in better rules (Carlitz & Gunn, 2002) or in a process characterized by informed deliberation (Brandon & Carlitz, 2002; Emery & Emery, 2005). Information technology opens previously unimaginable avenues for engaging the public in meaningful and well-informed public discourse on a national scale. In its latest incarnation, the “new governance” is increasingly defined by the “tool makers and tool users” (Bingham, Nabatchi, & O’Leary, 2005, p. 547) who are building and using the architecture of electronic participation linking citizens and government. Inside the federal government, best practices continue to target efficient, cost-effective strat- egies for overworked information managers in budget-strapped agencies facing statutory deadlines and political pressure to promulgate complex rules, allocating billions of dollars of costs and benefits (General Accounting Office [GAO], 2005). Regulatory rulemaking in the United States can be a highly contested, time- and information-intensive process (Coglianese, 2003a; Johnson, 1998; Rakoff, 2000). How and whether outside commenters influence the process and final outcomes is a matter of some debate (Golden, 1998; West, 2004). Meanwhile, dedicated users of digital communications technologies have started to exploit the potential to flood agencies with vast quantities of public comments (Lubbers, 2006; Shulman, 2006). The outcome of this approach is often a boon for organized interests that instigate the campaigns. Benefits can include regulatory delay (which allows a return to Congress for redress), favorable publicity, and payoffs in terms of membership identification with a group’s mission. However, such efforts may also undermine or dilute the voice of the public as agencies face statutory and administrative deadlines to incorporate public input into a legally defensible final rule (Shulman, 2005). Large-volume public comment submissions that bash agency efforts may decrease the overall level of trust of citizens (Yang, 2005) or else hinder agencies’ options as they seek rational and coherent approaches to difficult problems (West, 2005). At the very least, they contribute directly to a preexisting “deep ambivalence about citizens directly participating in their government” (Roberts, 2004, p. 315). This chapter updates earlier reports on the status of electronic rulemaking. First, it briefly introduces the rulemaking process. Second, it documents the origin and progress of the Federal Docket Management System (FDMS) and looks closely at the evolution of the cur- rent interface for Regulations.Gov (the FDMS Web portal) in the context of recent literature on public participation and federally funded research into the impact of e-rulemaking. It draws on workshop, interview, and focus group experiences that have fed into a multiyear dialogue between researchers, regulators, and the regulated public.1 Finally, it concludes,

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without much surprise, that there is much work to be done to make the FDMS into a hub for enhanced digital democracy and better rulemaking.

The U.S. Regulatory Rulemaking Environment

While the slow pace of regulatory decision making may occasionally provoke controversy, rulemaking is of necessity methodical and time consuming. Precisely because it is a delib- erative process, it tends to be associated with some degree of administrative legitimacy. Yet, it is the often unmet challenge of assembling a complete and usable whole record of the multiyear rulemaking process that is cited by courts overturning final rules (Yackee, 2005). Online rulemaking offers solutions and new challenges in this regard. For example, in a rulemaking widely cited as a harbinger of things to come, the United States Department of Agriculture’s (USDA) National Organic Program (NOP) conducted a 12-year rulemaking process involving numerous public hearings, national advisory-board meetings, and a mas- sive outpouring of public comments. Two rounds of notice and comment on the proposed and revised rules resulted in over 300,000 public comments. The challenges and opportunities were quickly apparent. For example, the precise number of comments reported depended on whether form letters were counted as discrete com- ments, and how and whether to count such letters remain matters of continuing debate for all parties in this process (Shulman, 2005). The evolving definition of “meaningful input” and the uncertain role of digital public participation are unsettled legal and political issues that constitute an important backdrop for the implementation of the FDMS at this early stage (Lubbers, 2006; Stoll, Herz, & Lazarski, 2006). Participants in the NOP rulemaking submitted just under 21,000 comments via a USDA Web site where they could also read the previously submitted comments of other participants. This introduced an interesting dialogical element to public input. Democratic theorists continue to watch for signs of two-way communication (give and take between officials and citizens or peer-to-peer citizen contact) that run counter to the tradition of one-way comment collection. Professor Lubbers (1998) has noted that public comments “are much more likely to be focused and useful if the commenters have access to the comments of others” (p. 214), and such was the case in the NOP rulemaking. While many stakeholders found cause to complain about substantive and procedural issues along the way, ultimately the organic standard, and the process by which it was finalized, benefited enormously from transparent, Internet-enhanced decision-making structures (Shulman, 2003; “Revisiting the Rules on Organic Food,” 1998). During the interviews with key agency personnel, one USDA official involved in the rulemaking noted,

we built an enormous amount of goodwill with the comment process with people who to this day don’t believe we got it right. Now the vast majority of the people think we did, but there still are lots of people out there, who think that we’ve sold everybody down the river, but there’s this enormous goodwill because of the comment process, because they really felt like we cared and we tried, we really tried to listen to what they were saying.

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Enhanced public participation and the credibility conferred on federal agencies are considered key e-rulemaking drivers (Beierle, 2003). When public values and knowledge infuse deci- sion making, the results are generally positive (Beierle & Crawford, 2002). For example, the Environmental Protection Agency’s review of the National Ambient Air Quality Standards (NAAQS) showed that “informed public debate over competing interpretations of cost-benefit analyses and risk assessments can produce broad political support for enhanced protection levels” (Cooney, 1997, p. 11). A senior career official with rulemaking responsibilities at one federal agency remarked,

the public should participate because we the government agencies don’t have all the answers, we don’t know all the information. Indeed there are situations where we would have made mistakes if we did not have public input—mistakes that could have been very costly. Sec- ondly, I think that when you provide not just an opportunity to participate, but an effective opportunity to participate, those that are affected by the regulation would be more willing to accept it, to live with and comply with it. One of the basic arguments is that even if you don’t get everything you want, by participating effectively in the process, you are buying into the result. If we do normal APA type rulemaking in an effective way, bring the public in an effective way, they should feel better about the end product.

To date there has been little systematic documentation of the effect of this digital transforma- tion on either citizens or agencies. Indeed, one workshop report noted “a striking absence of empirical studies that examine the behavior of developers and governmental users of IT” (Fountain, 2002a, p. 40). While the move to Internet-facilitated governance is accelerating, there is a dearth of political science and sociological research on the impact of the Internet on the administrative state (Fountain, 2001). Scholars of public administration have made headway developing a meaningful research agenda focused on the impact of IT (Garson, 2003). However, perhaps one collateral indicator of the still-novel nature of this area is the membership of the IT and politics section of the American Political Science Association, which remains around 300 despite a total association membership of over 15,000. The interdisciplinary nature of the process may be a barrier, as well as the tendency of academic endeavors to disregard the rulemaking process generally. Political scientists have been particularly reluctant to take up the interdisciplinary challenges inherent in digital gov- ernment research. As a result, leading disciplinary journals and textbooks do not reflect the important change under way. One author, noting the lag time for well-developed theory and empirical research in the study of public administration, suggests “scholars and practitioners may be ill equipped to face the challenges of the information age” (Holden, 2003, p. 54). A classic text for students of regulatory rulemaking observes that political scientists have done a particularly poor job of studying the rulemaking process (Kerwin, 2003). Much of the available scholarship lays out a broad and complex research agenda that re- mains noticeably forward looking (e.g., Lubbers, 2002; Shulman, Schlosberg, Zavestoski, & Courard-Hauri, 2003). Initial attempts at genuinely interdisciplinary work are tentative but promising (Shulman, Callan, Hovy, & Zavestoski, 2004). While the practitioners in federal agencies are moving forward, the concept of e-rulemaking and its implications for democracy remain largely unexamined by academics. Jane Fountain (2002, p. 118) notes, “There is little theory and no coherent research program within the discipline of political

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science that seeks to account for the potential or likely effects of information processing on the bureaucracy.” For now, much of the e-governance scholarship remains speculative in nature. For example, Joseph Nye (2002, pp. 11-12) sketches a familiar bipolar vision of IT-enhanced govern- ment:

In a bleak vision of the future, one can imagine a thin democracy in which deliberation has greatly diminished. Citizens will use the set-top boxes on their Internet televisions to engage in frequent plebiscites that will be poorly understood and easily manipulated behind the scenes. The growth of thin direct democracy will lead to a further weakening of institutions ... Alternatively, one can envisage a better political process in the future. New virtual com- munities will cross-cut geographical communities, both supplementing and reinforcing local community. In Madisonian terms the extensive republic of balancing factions will be enhanced. Access to information will be plentiful and cheap for all citizens. Political participation, including voting, can be made easier.

It is against this historical backdrop that a broader e-rulemaking research community is emerging with the support of the National Science Foundation’s digital government program (Coglianese, 2003a). Collaboration between computational and social scientists imposes unique challenges, as does work between academic and governmental personnel (Dawes, Bloniarz, Kelly, & Fletcher, 1999; Dawes & Pardo, 2002). Nonetheless, significant inroads have been made over the past 2 years. The prominent role for federal funding and leadership in IT research and development is part of a well-established tradition whereby the public sector supports innovation and research with an eye toward socially beneficial applications (Comedy 2002; President’s Information Technology Advisory Committee [PITAC], 2000). Digital government research requires interdisciplinary collaboration with government part- ners to ensure that information technology used for citizen-government interaction meets the requirements of democratic institutions and traditions. Program managers in the Directorate for Computer & Information Science & Engineering (CISE) at the NSF have recognized that “insight from the social sciences is needed to build IT systems that are truly user-friendly and that help people work better together” (National Research Council [NRC], 2000, p. 42). To that end, the research into, and practice of, e-rulemaking must continue to be informed by a broad, inclusive, and transparent dialogue about the tools and information systems that can balance competing visions for a democratically legitimate administrative state. This nascent research domain is likely to generate innovative data that will enable heretofore impossible empirical studies of rulemaking (Dotson, 2003). The lack of solid empirical stud- ies of rulemaking has vexed administrative-law scholars for some time (Kerwin, 2003). In the information age, however, one observer notes that “[f]ed by non-stop, real-time opinion polling, endless market testing of messages and images, and instant and cheap online focus groups, no social scientist need ever go hungry again” (Applbaum, 2002, p. 20). New automated collection techniques will track Web logs, click-through data, lengths of visits, page counts, and a host of other potential baseline data generated and easily captured by e-rulemaking systems using legally permissible session cookies. At stake in the research

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process is the potential to shape data collection and mining techniques that may fundamentally redefine the study and the practice of public participation in administrative decision making. The impetus to develop these tools emerges from observations such as the following from a rule writer working at the USDA:

As you know, one of the things that we had out of our 300,000 comments, we had probably 150-175,000 comments that were basically form letters, said the exact same thing over and over and over. Once you’ve read one, you’ve read them all. But that still leaves 100,000 individual comments that may have a kernel, a grain of a marvelous idea that you need to somehow bare it out and find it and use it. That either demands sophisticated IT infrastruc- ture, or lots and lots of people.

Computer science research will facilitate the development of e-rulemaking applications for duplicate and near-duplicate detection, stakeholder identification, and clustering issues and themes, and it will summarize content using natural language processing and informa- tion-retrieval algorithms. Over the next 5 to 10 years, these data, and the techniques used to harvest and analyze the data, will infuse a challenging yet energetic dialogue between social and computational scientists as they carve out the direction of interdisciplinary digital government-funded research (NRC, 2002; Shulman, Zavestoski, Schlosberg, Courard-Hauri, & Richards, 2001). Like much of the ongoing e-government rollout (Schelin, 2003), both fundamental and more subtle choices about the architecture of e-rulemaking will shape the new digital and democratic landscape (Lessig, 1999). The transition is fraught with peril for those who would design, approve, or use such a system. For example, information systems that provide seamless access and increased accountability can result in controversy for public-sector officials (Rocheleau, 2003). As the National Research Council (2000, p. 1) has noted, “IT is anything but a mature, stable technology,” and the leeway for innovations in democracy that has devolved to technologists and public administration managers is remarkable. The challenge for researchers in this unsettled context is to conduct interdisciplinary research capable of evaluating and anticipating the shifting terrain. Visions of e-rulemaking need to retain a long-term and evolutionary perspective in the face of demands for technical quick fixes for information management problems that plague the process:

Overwhelmingly, the most important opportunities lie in not simply automating existing applications, but rather in rethinking and remolding the structure and organization of the business process to reflect the best uses of IT and in redesigning and remolding the technol- ogy to make it most valuable in its (rethought) application context. (NRC, 2000, p. 146)

Governmental organizations, we are often told, are not prone to seeking business-process reengineering solutions. The new federal impetus to e-rulemaking, however, may do just that on a historically significant scale, comparable to that created by passage of the APA in 1946.

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The Origin of the FDMS

After an erratic and uncertain start government-wide in the mid- and late-1990s, e-rulemaking is moving toward a unified structural system for the entire federal government. Clearly, IT- based approaches to rulemaking hold the potential to increase the volume and lower the cost of citizen-to-government (C2G), government-to-citizen (G2C), and citizen-to-citizen (C2C) interactions. The potential for C2C, however, is only beginning to enter the practice of public administration (e.g., for European e-government, see Holmes, 2001), though it flourishes in the voluntary, peer-to-peer, self-organizing spaces on the Internet. The Bush administration situates its online rulemaking initiative in the government-to-business (G2B) category of its 24-point e-government plan (Office of Management and Budget [OMB], 2002a), leaving some doubt about both the immediate prospect for C2C and C2G development. The transition to e-rulemaking is attributable in part to the impetus from legislative (e.g., the Government Paperwork Elimination Act and the Paperwork Reduction Act) and adminis- trative directives (e.g., the National Performance Review) that seek to make the regulatory process open, transparent, deliberative, efficient, and effective (GAO, 2000, 2001; OMB, 2002b). Citizen demand for electronic access is also an impetus for this transition (Larsen & Rainie, 2002; Schorr & Stolfo, 1997). These various trends culminated in approval by Congress in 2002 of the E-Government Act, which specifically directs agencies “to enhance public participation in Government by electronic means” (Sec. 206[a][2]). Professor Michael Herz (2003) has noted that the act called for enhancements that were already in the pipeline, resulting in “a classic example of Congress leading from the rear” (p. 168). Indeed, many agencies already had begun to develop e-rulemaking systems when the act was signed into law (OMB Watch, 2002). What the act did was to translate a politically popular trend into a bipartisan victory for advocates of a more modern and accessible government. Despite the move toward a consolidated endeavor under the current eRulemaking Initiative, many federal agencies have been moving ahead with the implementation and refinement of their own in-house solution to the question of how to incorporate Internet-based public participation in rulemaking. More than 100 subagencies have integrated some form of elec- tronic comment process into their notice and comment rulemaking procedures, with varying degrees of success. At the individual agency level, electronic collection of public comments is often ad hoc and conducted via a nonstandardized process (GAO, 2003). Meanwhile, at another level and of relevance to the impact of e-rulemaking, some are questioning the statutory and constitutional basis for a recent expansion of the OMB’s role in rulemaking (Craig, 2003). Professor Lubbers (2006, p. 20) notes, “Perhaps the most sig- nificant administrative law development during the last two decades has been the increased presidential involvement in federal agency rulemaking.” Interestingly, many of the tools employed by the OMB when it exerts control over federal rulemaking (e.g., monitoring, prompting, or early collaboration in drafting proposals) are likely to be enhanced by seam- less IT systems for e-rulemaking. According to the President’s Management Agenda, promulgated in 2001,

IT offers opportunities to break down obsolete bureaucratic divisions. Unfortunately, agen- cies often perceive this more as a threat than as an opportunity, and in response they make

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wasteful and redundant investments in an effort to preserve chains of command that lost their purpose years ago. (OMB, 2002c, p. 23)

This theme emerged during many of the e-government interviews conducted over the last 5 years. In reference to a question about institutional obstacles to change, one long-time federal official stated, “We get in a rut. We get jaded. Bureaucracy can kill you sometimes. It truly can.” When cross-agency initiatives challenge traditional stovepipe, bureaucratic culture, a number of obstacles quickly emerge. One official at the OMB noted,

E-Government is much more about process transformation and change management than it is about the technology. The technology is the easy, easy, easy stuff. There’s an overwhelming amount of technology out there that’s applicable. It’s hard to drive that change. And you’re seeing that in rulemaking. People don’t want to lose their system. People don’t want to lose the way they manage their docket. People don’t want to lose something they identify with.

Early e-rulemaking adopters in the U.S. Department of Transportation (DoT) developed an impressive Docket Management System (DMS) that improved the flow of information across nine subagencies, as well as to and from the public. The DoT’s DMS was the first agency-wide e-rulemaking system that assembled entirely electronic dockets for the com- menting public to review (Perritt, 1995). In its infancy, it represented a major transformation of the rulemaking work flow. One person involved with the creation of the DMS recalled the numerous technical and organizational hurdles:

They all had their own individual processes, they all champion what they wanted to do, what they felt was best. And now you’re going to try and make everybody do it in a uniform fash- ion. A lot of resistance to that and technical barriers in the early days, the system required open forms based application, so everybody had to buy a big, expensive PC with a 21 inch monitor and do client server all for forms. Couldn’t afford it. This was a DoT wide system but they didn’t have the money and the technical configurations were horrible. We had 5 different network operating systems throughout the department. With all kinds of different protocols, all kinds of technical hurdles to make a very complicated client install happen.

Originally, the Department of Transportation played the managing partner role as the Online Rulemaking Initiative that emerged in February 2002 (GAO, 2005). The DoT commissioned Excella Consulting to perform an independent study of the seven major e-rulemaking ap- plications that were in existence at federal agencies.2 The goal was to find an existing system best suited to become the universal Web-based front end for members of the public wishing to read and comment on proposed federal rules. The report (Excella Consulting, 2002) listed several primary areas of interest:

• The public’s ability to comment • The public’s ability to search and view proposed rules and their dockets

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• The agency’s ability to review, report on, summarize, and incorporate comments • The agency’s ability to internally receive, upload, and process paper comments

Based on a complex scoring system, the DoT’s Docket Management System finished a close second to the EPA’s newer EDOCKET system. While the DoT’s many strengths were noted (automated work flow, strong internal reporting, proactive Listserv communication, flexible key-word search, and mature IT procedures), the areas for improvement included the need for better integration of content and comments, content sorting tools, and full-text search. One official at the OMB noted that there is:

a rule in technology that you really never want to be first. Sometimes first to take advantage of something is a good thing, but the best thing to be is second or third, so that you can learn from the mistakes from others.

Other agency personnel were less sanguine about the results of the selection process, com- menting that the EPA’s Capitol Hill lobbying for the managing partner role was decisive in the end. As a result, personnel at the EPA assumed the managing partner role developing the OMB- mandated e-rulemaking portal for all federal agencies. The EPA’s EDOCKET was praised in the Excella report for its integration of content and commenting, intuitive display, powerful full-text search and content manipulation and sorting tools, as well as an automated work flow based on an open, technically sound architecture. A unified regulatory access point, Regulations.Gov, went live on January 23, 2003 (Skrzycki, 2003). It expanded on the portal precedent set by FirstGov.gov (Fletcher, 2002). Officials at the OMB (2003b) estimated that the new consolidated system resulting from the eRulemaking Initiative could save the federal government close to $100 million by eliminating redundant systems. The portal Regulations.Gov was always conceived as an interim system, representing the first of three modules planned for the eRulemaking Initiative. In this first module, the Government Printing Office (GPO) hosted the front end (http://www.regulations.gov) and provided user support, while the EPA’s National Computing Center hosted the back-end collection and distribution of the comments. One of the few important innovations in Phase One was the ability to “search by keyword across all government agencies to find proposals of interest” (Brandon, 2003, p. 7). This ability lessens, but does not yet eliminate, the chal- lenge of knowing where to look within the labyrinth of federal government Web pages for an open rulemaking on a topic of interest. An EPA official used the example of a motorcycle to illustrate the long-term goal:

The guy that owns a motorcycle in the Midwest and the small business owner who manufac- tures motorcycles ... anybody that touches a motorcycle can go on line and find out what rules affect ... whatever his relationship with the motorcycle is. Whether he’s a parts distributor or the salesman, owner, operator, or whatever, that if they want to say something about these rules that they can readily, easily, in, as fast and cheap, of manner as they can.

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A GAO report in late 2003, noted that, despite some difficulties, during its first 3 months in existence, Regulations.Gov provided substantially greater electronic access to proposed rules and commenting than either the DoT or EPA systems. Nonetheless, this interim portal has received very few substantive comments in its short life span. The GAO report found Regulations.Gov was listed in only 2 of 411 rulemakings published over the period of its study. Part of the problem may be that Regulations.Gov is a passive system, “requiring users to take the initiative to find out about recently proposed rules” and the ability to comment on them (GAO, 2003, p. 17). While EPA officials suggested the low rate of use “could be because commenters have become used to filing comments in a particular way,” it remains to be seen whether a central portal will ever become popular with the commenting public. Focus group responses from organized interest groups suggested a number of technical and organizational reasons why Regulations.Gov may remain underused for some time. For example, groups will be unlikely to promote citizen-to-government communication that will steer traffic away from their own information-gathering Web sites. Instead, advocacy organizations will look for creative ways to reverse engineer public comment portals back to their own Web content, maximizing their influence over the message and the valuable respondent contact information. Nonetheless, over a 33-month period ending in September 2005, the initiative reports Regulations.Gov “is one of the most heavily trafficked E-Gov web sites,” with an excess of 11 million hits produced by 1.6 million visitors viewing over 8.6 million pages and files (Morales & Moses, 2006). In September 2005, the eRulemaking Initiative launched the second module, the Federal Docket Management System, which is presented as “a full-fledged content management system” (Morales & Moses, 2006). The FDMS will be the home for all electronic and paper dockets that are on a phased migration to the centralized system. The 2003 GAO report noted that “a number of legal and policy issues still must be resolved,” including the issues involved in making electronic documents the official record, as is currently the case at the DoT. However, the rollout of the second module did not hinge on the resolution of these issues. Indeed, the 2005 GAO report praised the initiative for following 28 of 30 “key practices” for managing the initiative. GAO reviewers were particularly happy with the extensive and effective collaboration with other agencies. Administrators of the initiative reported on a successful “cross-agency FDMS development workgroup” involving “more than 100 IT, regulatory, and docket managers and staff across 25 federal agencies” (Morales & Moses, 2006, p. 1). For the third module, the eRulemaking Initiative will create the Integrated Federal eR- ulemaking System. This system will create a seamless electronic process for developing, reviewing, and publishing federal regulations and similar documents for internal agency use. This desktop system (the Regulation-Writers Workbench) will provide a host of tools to assist in all phases of the process. Whereas the docket migration to the FDMS is manda- tory, participation in this third module by agencies is voluntary, and its future is far from certain (Stoll et al., 2006). Indeed, the initiative has already encountered, and has usually overcome, a number of specific and general challenges (such as bureaucratic resistance, a lack of awareness, and a temporary suspension of funding) stemming from the fact that, as Jeff Seifert (2006) of the Congressional Research Service points out, e-government has no natural domestic constituency.

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The Prospect for Digital Democracy in U.S. Rulemaking

For some, the rise of so-called “click-on democracy” eventually will lead to a viable pathway from public indifference to greater civic engagement on a massive scale (Davis, Elin, & Reeher, 2002). The electronic republic has been held out by some (and dismissed by others) as a remedy for inequities that plague democratic and administrative practice. It remains to be seen whether e-rulemaking will significantly alter the adversarial decision-making char- acteristic of much administrative procedure in the United States, particularly with respect to environmental matters (Dryzek, 2000; Fischer, 2000; Zavestoski & Shulman, 2002). To date, there is little empirical data, no developed theory, and too few studies to support any authoritative statement about the impact of e-rulemaking. Indeed, much of what is available fosters ad hoc speculation rather than substantive insight. So while the potential for IT enhancements to improve democratic processes is apparent to many, the risks associated with moving administrative decision making and public deliberation online may be less well understood (Coglianese, 2003b; Tesh, 2002). Some perils of online governance have been clearly identified, including social fragmentation, mass manipulation, and increased political and economic inequality due to the digital divide (Sunstein, 2001; Wilhelm, 2000). Yet, even Professor Sunstein’s widely noted fragmentation thesis is made suspect by examples, such as the Howard Dean presidential campaign, which uses peer- to-peer organizing to generate impressive levels of face-to-face political activity involving tens of thousands of people across the country. According to Cornelius Kerwin (2003) of American University, the core elements of rulemak- ing are information, participation, and accountability. Each of these elements potentially takes on new significance as IT-based applications are introduced and enhanced over time. The use of IT in rulemaking creates the possibility for transparent, low-cost information flows, improved rulemaking management, as well as many-to-many communication. Rulemaking offers the public a chance to participate in a way that is not present in Congress (Kerwin, 2003). It is a process designed to allow participants to sort through and challenge facts derived from numerous sources, experts, and laypersons alike. How individual agencies actually weigh such comments varies widely. One administrator noted,

I will say that in general, the most compelling public comments come from the most influential stakeholders and the stakeholders with the largest stakes, if that’s a proper way to put it. And I think the system pretty much has identified … I mean those folks know where they need to play, that sort of thing. Getting another member of the public … of course there’s probably rulemakings where that’s a much bigger, there are probably styles and kinds of rulemak- ings where comments from the individual or the collective opinion of individuals—like I can imagine food labeling or something. You know, food labeling rules by the FDA may be propelled by the aggregate weight individual commentary or something. The rules I have experience aren’t influenced by that.

In theory, IT-enhanced public participation will result in better and more durable rules that stand up to court challenges and better achieve the goals of the authorizing legislation. Ul-

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timately, the official rulemaking record will be more accessible once it is entirely electronic as existing and new tools (e.g., full-text search, self-indexing databases, or stakeholder iden- tification) allow rule writers and the regulated public to drill down into the many sources of relevant data.3 In the past, judges have been “somewhat perplexed and unhappy about some of the rulemaking records they have been called upon to review” (Lubbers, 1998, p. 216). As one judge noted, in a lengthy rulemaking proceeding, the record “too often resembles a safari through uncharted lands without benefit of a guide” (Judge Wald, as cited in Lubbers, p. 217). Agencies using mature electronic dockets will likely find it easier to compile the record needed to meet the standards under the logical outgrowth doctrine (Kannan, 1996). If rule-writing agencies can more easily show comments were submitted and considered, then a key threshold for rulemaking durability in the courts is crossed. Future enhancements to e-rulemaking will create innovative methods for advance notice, allowing agencies to target groups and individuals likely to be affected by proposed rules. While Listservs are the most likely method to transition from a passive to an active notification system, we also can expect to see more ubiquitous plain-English translations of regulatory language, as well as Amazon.com-style referral applications (Coglianese, 2003a). For example, if a commenter has submitted concerns about biotechnology in the organic rulemaking, he or she might be prompted via e-mail or during a future visit to a government portal to look at other open or pending rulemakings dealing with genetic engineering. Just as electronic commerce offers users referral and notification services, so too will electronic government, assuming the Office of General Counsel (OGC) can approve such practices. On occasion, significant rules are promulgated without targeted outreach to interested par- ties and thus potential commenters. As a result, public input is limited. For example, new treasury-department rules created under the authority of the USA PATRIOT Act to enhance law-enforcement surveillance raise a range of privacy issues for all users of U.S. financial institutions. Despite the widespread discussion of threats to privacy and other civil liberties post September 11th, only 180 public comments were received. While 70% of the comments came from individuals concerned with privacy, the final rule reflected only the “sophisticated statements made by financial institutions and their lawyers” (Cuéller, 2003, p. 4). In this case, the researcher concluded that layperson comments could have been more meaningful had they directly addressed the possible methods for allaying privacy concerns. We can expect future iterations of e-rulemaking will explicitly guide commenters to make substantive suggestions, perhaps through an optional TurboTax-style interface that leads the public not only to participate, but also to make more useful submissions that will effectively shape the final rule. What will be interesting will be to see where these more structured comment architectures develop. The most likely developers appear to be e-advocacy action- center firms on contract to interest groups seeking to streamline their role in the management of public sentiment. One can imagine a range of human-computer interfaces proliferating in the marketplace as groups seek to offer a menu of options for commenters of varying levels of sophistication and time commitment to the comment process. For many groups, these flexible comment portals may redefine the nature of advocacy and education in the American political system. Public access to agency procedures and methods, as mandated under the Freedom of In- formation Act (FOIA) and the Electronic Freedom of Information Act (E-FOIA; Leahy 1998; Strauss, 1989), will be standardized and hence more manageable. The use of IT in rulemaking should be able to ease the twin burdens of delay and cost that plague users of

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FOIA and E-FOIA (Grunewald, 1998). In addition, e-rulemaking will greatly enhance the “government in the sunshine” philosophy that “does more than merely create a visitors gallery and convert rulemaking into a spectator sport…[that] empowers the public to question the proposed regulation, and the data and assumptions on which it is based, before it becomes effective” (Kannan, 1996, p. 219). Ultimately, this increased transparency and accessibility will lower the number of FOIA requests and force agencies to better defend their decisions when they release their final rules. New systems for e-rulemaking can also be expected to result in user-friendly methods for navigation through complex and heterogeneous dockets. As noted by Professor Lubbers (2002), the growth of useful government Web sites in recent years is nothing short of re- markable. With that expansion of e-government services on the Web, both by rule-writing agencies and the National Archives and Records Administration, came a host of navigability challenges, not only for the commenting public, but also for end users and IT managers in the federal agencies. Access to more information is a boon to democracy only when it is easily penetrable with tools that eliminate insignificant documents from a query. One useful way to describe this capacity is in terms of horizontal and vertical axes (Lub- bers, 2002, p. 4) that allow online inspection and full-text search capacity from cradle to grave in a rulemaking life cycle. The horizontal view captures “every meaningful step” in rulemaking, with end users helping to define what counts as meaningful, while the vertical view allows access to all the studies and comments that shaped a final rule. While these tools are emerging rapidly in the private sector, the process of aligning all federal rulemaking to a “global seamless view,” as described by Professor Lubbers, remains a slow and cumbersome one. Nonetheless, IT visionaries like Eduard Hovy imagine a perpetual “Super-Google” on every rulemaking that goes backward and forward in time, gathering, sorting, and clustering documents from every imaginable electronic source. Others, such as Robert Carlitz who is very usefully exposing system flaws by unleashing his army of “bots” on the system, call for technology development with a normative bent. According to Carlitz (2006, p. 9),

an electronic docket should be more than an online incarnation of the old paper-based sys- tem; it should be a gateway to new forms of public participation, encouraging interaction among participants who can read each other’s comments as they are submitted; and it should provide a platform for online dialogue. It should also facilitate multi-media contributions, allow for complex, linked submissions and have the capacity for direct access to computer models used to generate data for specific comments.

Conclusion

A rich and challenging dialogue about the shape of e-rulemaking is under way. While in its infancy, an interdisciplinary research community has formed to assess and inform the development of information technologies that serve the public and rule writers. To date, little is actually known about whether this transition is likely to benefit or degrade the

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role of public participation, though the murmurs abound about the many perils of moving rulemaking online. As with all policy innovation, particularly technologically determined innovation, the risk of unintended consequences is present. While the Internet may usher in a new era of more inclusive, deliberative, and legally defensible rulemaking, it may be just as likely to reinforce existing inequalities, or worse, create new pitfalls for citizens wishing and entitled to influence the decision-making process. Still, much of the evidence gathered over the last 5 years of workshops and sustained dia- logue with agency personnel suggest that the parties responsible for building and using an integrated federal e-rulemaking system are aware of the high stakes measured in terms of democratic legitimacy, accountability, and regulatory effectiveness. To translate that aware- ness into a functioning architecture, scholars, federal officials, and many public stakeholders will need to continue to deliberate in a transparent and inclusive manner. The public rationale for e-government is often couched in the rhetoric of cost savings and other familiar efficiency metrics. Efficient, effective, and responsive e-government, as defined by the OMB, may be at odds with the core principles of participatory democracy as envisioned by advocates of wider and enhanced forms of public commentary. Since federal agencies are neither equipped nor well positioned to examine the impact of IT on democracy, it remains for students of democratic theory, administrative law, and many others to investigate how e-rulemaking actually impacts citizen notions of trust and legitimacy and the nature of the deliberative process (Schlosberg & Dryzek, 2002). A new generation of interdisciplinary scholars is embracing the study of public administration, intrigued by the unpredictable but seemingly powerful impact of information technology on the regulatory process. Given the importance of regulatory rulemaking and public participation, these efforts will necessarily provoke greater public scrutiny of the architecture of Regulations.Gov and similarly critical citizen-government interfaces. The dialogue under way will help inform those who find themselves steering the juggernaut known as e-government as well as the end-user public, whose practices and demands drive a cat and mouse game that can oc- casionally become a part of the rulemaking process. For now, all the parties encountered seem willing to support a wider and far-reaching debate about what a better e-rulemaking system might be.

Acknowledgments

This research was made possible with three National Science Foundation grants, EIA-0089892 “Digital Government: SGER: Citizen Agenda-Setting in the Regulatory Process: Electronic Collection and Synthesis of Public Commentary”; EIA-0328914, “SGER Collaborative: A Testbed for eRulemaking Data,” and SES-0322662, “Democracy and E-Rulemaking: Com- paring Traditional vs. Electronic Comment from a Discursive Democratic Framework.” Any opinions, findings and conclusions or recommendations expressed in this material are those of the author, and do not necessarily reflect those of the National Science Foundation.

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Endnotes

1 Semistructured interviews were conducted by a team of three academic researchers between July 21 and July 24, 2003. Most of the 15 interviews were conducted on the condition of ano- nymity in accordance with Human Subjects guidelines at each of the researchers’ universities. Interviews were conducted at the Environmental Protection Agency (EPA), USDA, DOT, IRS, HHS, and GSA.

2 The seven agencies assessed in the Excella report were the EPA, DoT, Occupational Safety & Health Administration (OSHA), Nuclear Regulatory Commision (NRC), Federal Communica- tions Commission (FCC), FDA, and Department of Energy (DoE).

3 For more information on the computer science research on information retrieval, summarization, clustering and other techniques being brought to bear using real-world eRulemaking data, visit the NSF-funded eRulemaking project home page at http://erulemaking.ucsur.pitt.edu/.

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Section II

Computer Applications in Public Administration