E-rule-making has potential, but kinks must be ironed out, expert says

Law professor running Transportation experiment details barriers to tapping social networks to engage public in federal notice and comment process.

Public participation in agency rule-making can be enhanced via promotion on Facebook and dialogue on interactive websites, according to an academic running a pilot program for the Transportation Department. But the "jury is still out" on whether the significant labor such collaboration requires is worth what agencies would gain in fresh ideas and data, she said.

Cynthia Farina, a law professor at Cornell University and a principal researcher in the Cornell E-Rule-Making Initiative, on Wednesday gave preliminary results of pilot projects in which her organization performed Web 2.0 outreach and monitored online public participation in two recent federal rule-makings. One involved cracking down on texting by drivers of commercial vehicles, and the other involved delineating the rights of airline passengers.

Farina spoke Wednesday at the National Archives as part of a lecture series celebrating the 75th anniversary of the Federal Register and on the eve of an expected release of new e-rule-making best practices guidance from the White House Office of Information and Regulatory Affairs.

The federal notice and comment process, Farina said, is "ahead of its time" in using peer knowledge procedures to foment collaboration and permit average citizens, interest groups and independent experts to critique proposed rules, ask questions and suggest alternatives. But paradoxically, she added, e-rule-making has not lived up to its potential: "Rule-making looks like a prime candidate for e-government, but looks are deceptive."

The two chief reasons are "the limited scope" of participating stakeholders and the tendency of participants to deliver "adversarial monologues" that talk at the agencies rather than with them, she said.

The fundamental obstacles to truly collaborative e-rule-making, according to Farina, are a lack of awareness that a rule-making is taking place, ignorance of how the process works and an environment of information overload. She also said that in the case of airline passengers' rights, which involve such issues as flight delays and the in-flight serving of peanuts, which some passengers are allergic to, the process was marred by a strategic refusal of the pilots and flight attendants unions to bypass their own leaders and mix their own comments with the public's.

Other obstacles include the complexity of rule language and a reluctance by hurried website visitors to read instructions and register.

In running its parallel Web-based rule-making alongside Transportation's, Farina's Regulation Room team at Cornell used a proactive outreach strategy on Facebook, Twitter and traditional news media to create awareness. After the public responded, they then attempted to summarize the diverse, often impassioned, and not always substantive comments for the department's benefit.

Agencies must ask themselves whether this process is really worth doing, Farina said, adding that one clear benefit -- cited by 50 percent of participants -- was improved public understanding of the issues. Other potential advantages include improved agency understanding of hot-spot situations on the ground and a more detailed impression of how current rules are working.

The Regulation Room has more freedom to experiment than do federal agencies, whose officers must adhere to procedures of administrative law and avoid the perception of censoring comments by private citizens. With funding from Google, the National Science Foundation, and Cornell Law School, it is the flagship initiative project of Transportation and received the Obama White House Leading Practices award.