Introduction
Argive, a non-profit organization dedicated to “promot[ing] transparency in regulatory dialogue and support[ing] government agents in fostering open communication with individual citizens and businesses,” recently released a report focused on modernizing Regulations.gov.
Created in 2003, this government website allows citizens to provide input on regulations during the notice and comment period. The report, titled Improving Regulations.gov: A Perspective from Silicon Valley, details several of the platform’s outdated elements, and proposes the use of private sector innovations in consumer technology developed by companies such as Amazon and Yelp to fix these issues.
Background
Regulations.gov provides a platform for the public to share their perspectives on federal regulations online. Prior to the creation of the website, the barrier to comment was simply so high that only those with big incentives and expert familiarity with the regulatory system were likely to comment. According to the report, Regulations.gov democratized a once archaic system and allowed for any person with internet access to comment on proposed rules.
However, the system now proves to be outdated. Some proposed rules receive upwards of 119,000 comments which create a bottleneck in an already inefficient system. Argive’s report analyzed two regulatory actions: the Department of Commerce’s (DOC) request for information on how permitting requirements affect manufacturers, and the Food and Drug Administration’s (FDA) “Deeming Rule,” classifying e-cigarettes and similar devices as ‘tobacco products.’ Through their experiment, Argive found the process of collecting, sorting, and analyzing the thousands of comments to be unnecessarily inefficient. The following are some of the challenges identified by Argive and recommendations for improvement:
Challenge: Regulatory dockets can receive thousands of comments in various formats (some submitted as PDFs, others as free text), which agencies must sort, read, and integrate. Responses to these comments are often buried in a final regulation making it difficult for individual commenters to know how their issues were addressed.
Suggestion: To afford more transparency to users, Argive suggests agencies modernize the preexisting use of the ‘tracking number’ that commenters receive upon submission, which allows them to track the status of their comment, whether it was read, and whether it was addressed. Additionally, adding filters for sorting comments, similar to Amazon’s search process, could allow both agencies and users to sort comments more easily.
Challenge: The majority of comments still come from Washington. In the DOC docket, 37% of comments came from D.C.-based lobbyists or trade organizations. This suggests that, despite the improvements Regulations.gov has made to the public comment process, those “on the front lines” are not engaging in rulemaking.
Suggestion: Argive suggests Regulations.gov adapt options developed for e-commerce to keep customers engaged, and to track regulations and commenters by relevant statistics (such as industry code) in order to share new developments on related rulemakings.
Challenge: Regulatory agencies must set deadlines for public comments to be considered in the final rule and most dockets are open for 30 days or more as required by the Administrative Procedure Act of 1946. However, several issues arise from this relatively short period, including that comments seldom include benefit-cost analyses or useful data and they rarely include actionable improvements.
Suggestion: Argive suggests that Regulations.gov encourage comments beyond the formal comment window. Similar to companies like Yelp, this system would allow reviews to be posted at any time. Dubbed “living dockets,” these would aid agencies in retrospective review, permitting affected parties to voice their opinions of regulations even after implementation. Argive also offers suggestions for presenting agencies’ regulatory analysis data and assumptions in ways that would allow commenters to insert their own data to see how estimated costs change.
Conclusion
In whole, Argive’s proposals would fundamentally change the way Regulations.gov works. By utilizing interfaces developed in the private sector, Regulations.gov could help agencies sort and integrate comments more efficiently, and also could allow a broader range of commenters to have a larger role in shaping regulations, bringing the rulemaking process “into the 21st century.”