ACUS Committee Discusses Online Access to Rulemaking

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Committee investigates how to improve public access via the Internet.

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As part of an ongoing effort to improve federal agency rulemaking, the Administrative Conference of the United States’s (ACUS) Committee on Rulemaking held a public meeting last Wednesday to consider recommendations for enhancing online efforts to engage the public in the rulemaking process.

Professor Cary Coglianese, director of the Penn Program on Regulation, presented the Committee with a report commissioned by ACUS that highlighted “best practices” for improving online access to administrative rulemaking. Drawing on a detailed study of 90 federal agency websites conducted this spring at Penn Law, Coglianese concluded that accessing information about proposed rules at many agency websites remains difficult for members of the public.

He also offered a series of recommendations to build on the most innovative practices adopted by some federal agencies, such as the creation of one-stop web pages showing all agency rules open for public comment.

At Wednesday’s meeting, the committee considered draft recommendations prepared by ACUS staff based on Coglianese’s report. The committee took no vote on these draft recommendations at last week’s meeting, but it expects to schedule another meeting for further consideration of them within the next two months.  Any recommendations eventually adopted by the committee would then proceed to be considered for adoption by the Conference as a whole.

During last week’s meeting, one committee member expressed concern that ACUS not take action that would imply that all agency websites need to be uniform, but instead urged that agencies should continue to experiment in their use of websites and other electronic media. Other committee members noted that ACUS recommendations are non-binding and that in any event nothing in the draft recommendations would reduce agencies’ autonomy over their own websites.

At least one committee member expressed concern about agency use of social media, such as Facebook, during the rulemaking process. The concern was that members of the public could confuse discussion about proposed rules via social media sites with an agency’s official comment procedure under Section 553 of the Administrative Procedure Act.

Other members of the committee suggested that an agency’s use of social media sites need not cause any confusion if they are treated just as agencies currently treat live public hearings or meetings about rulemakings. Whether public discussion takes place online or at an in-person forum, if an agency were to decide to change the direction of a proposed rule on the basis of information submitted by a member of the public, then the agency would need to file a supplemental notice of proposed rulemaking.

The committee’s deliberations focused primarily on ways that individual administrative agencies could use the Internet more effectively to support rulemaking. They did not directly address the use of, the central, government-wide website where the public can comment on rulemakings and access agency documents. has been evaluated by other committees and efforts are already underway by the federal government to improve that site.

ACUS is a federal agency that is charged with developing recommendations for improving the governmental process. Attendees at last week’s meeting included representatives from administrative agencies, such as the Departments of Transportation, Education, and Justice, as well as other government officials and administrative law scholars.