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bbrandon

User Profile Image bbrandon
Member since : May-28-2009 (Verified)
3 Ideas, 12 Comments, 40 Votes

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Ideas Posted

Electronic rulemaking should encourage dialogue between the stakeholders. This often does not occur because of standard gamesmanship. Parties file their comments on the last day of the comment period and no interaction can occur.
In the past at least several agencies have experimented with a wiki-like dialog systems during rulemaking. The medical privacy rulemaking during the end of the Clinton Administration and some rules at the NMFS used a system whereby comments could be posted under individual parts of the preamble and the proposed rule text.
Federal agencies must pay the Federal Register by the page for the length of their rulemaking preambles & rules. Thus a Register NPRM is far from a complete recital of the materials supporting a rulemaking proposal. As a consequence agencies should use the Web to supplement the Register.
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Comments Posted

bbrandon 9 months ago
This is so true. I would incorporate my reference the ABA critique here.
bbrandon 9 months ago
The need for better civics education is crucial. One way to help may be to develop a teaching model that could be distributed to NGOs and academics who are interested in an issue at a grass roots level. As someone who worked on both sides of rulemaking proceedings I know that what makes for an informative and useful comment is not self-evident to the average "informed" citizen. The skill set of interested parties needs to be raised.
bbrandon 9 months ago
This is a wonderful issue to raise. Agencies whose subject matter address these populations should imaginatively assess how to contact and target these types of groups. However in an era of limited resources I do think this type of outreach should be limited to agencies whose agendas come into contact with particular groups. I think if the FAA is addressing handicap accessibility in airliners it should make this effort but if it is addressing standards governing a particular plane model I think it should not be forced to make special efforts.
bbrandon 9 months ago
I think this is a fine idea in theory but may be a lousy idea in practice. Industry pushed this bill in order to remove information from OSHA & EPA sites that they disagreed with. Any withdrawal requirement should not be the subject of litigation. Agencies are very short-staffed as it is and the more contested an agency's jurisdiction the more short-staffed it tends to be.
bbrandon 9 months ago
You certainly raise a large number of legitimate concerns but in some contexts it can be ameliorated by technology if the agency uses it correctly. In a rulemaking proceeding such as the roadless rulemaking in the Clinton Administration both lumber companies and environmental groups solicited their workers or members to submit astro-turf comments. These were thousands of identical messages or very similar short messages from both sides. These can be easily grouped by a robot searching the electronic docket and clustering like comments with like.

Rulemaking is not supposed to be an up or down vote; the agency is to make policy based on the facts that would support a policy directive under the applicable law. With these robots the agency is spared the burden of manipulating thousands of duplicative messages.

I have thought about this issue for a number of years and the robot appeals to me greatly. It saves the agency from inundation and it does allow citizens to voice their views even if their views were actively solicited by very biased sources from inside the Beltway.

I might add that Professor Noveck has also written most thoughtfully about this topic in an article in Emory Law Review that I would recommend. "The Electronic Revolution in Rulemaking, 53 Emory L. J. 433 (2004).
bbrandon 9 months ago
I think your idea makes sense upstream of the polling place. Precinct-based optical scan systems are a far more secure way to vote in a polling place than with DREs. But this does not solve the problem of hacking into the system later in the vote collection process as the Hursti hack proved. This is a critically important issue.
bbrandon 9 months ago
Opening up the APA is a dangerous concept for good government. Rulemaking in particular is already ossified by too many hurdles that can take an agency 4 years to promulgate a rule. [see recent GAO report on rulemaking.] I think President Obama would more wisely use his administrative powers in this area rather than seek a legislative solution.
bbrandon 9 months ago
EPA held such an online dialogue during the late 1990s. See http://www.network-democracy.org/epa/
bbrandon 9 months ago
I think both of the above comments have great merit. Another item that would help is a command to agencies and their individual subgroups to develop public participation outreach plans. These would require the agency to reach out to state and local NGOs and state and local governments for input. Academia should also be a target. This should be a pro-active strategy where the federal government reaches out to interested sections of the American public.
bbrandon 9 months ago
Adopt the Suggestions of the ABA Committee

This past fall the ABA Committee on the Status and Future of E-Rulemaking released a comprehensive report on this topic. A link to the report can be found at http://ceri.law.cornell.edu/erm-comm.php. I would ask to incorporate it by reference in these comments.

This report outlines the minimum steps that need to be taken to make Regulations.gov an effective site. In addition, it outlines promising steps for the future.

Regulations.gov is an important initiative that has been implemented well under difficult circumstances. But much work needs to be done to improve the governance, funding, architecture, public participation tools and search capabilities on this site. Lastly, flexibility must be built into the system to encourage innovation and take advantage of the exciting new developments in Internet technology.
bbrandon 9 months ago
Professor Sunstein's answers to the Committee questions on this topic during his confirmation hearings were particularly troubling in their opaqueness.

This problem is further complicated by OIRA's use of cost/benefit analysis - a far from transparent analytical tool that is easily manipulatable. As an advocate of this type of analysis I would hope that Professor Sunstein and his staff would provide greater disclosure of this type of analysis when they are reviewing a rule.
bbrandon 9 months ago
I think this is a key idea. Agencies and/or OIRA should require ANPRs or FACAs for all "economically significant" or "other significant" rules as those terms are used in the Unified Agenda. These are the rules most likely to impact the public at large. While rulemaking has become ossified with unnecessary steps increasing the opportunity for public input from outside the beltway is an important first step if public participation is going to be effective