Home > Uncategorized > Free access, but not easy access

Free access, but not easy access

Regulations.gov is, in theory, a large step forward in making the rule-making process more publicly accessible, by allowing people to see all proposed rules and read comments submitted by others on the proposed rules. In practice, however, Regulations.gov suffers from several problems, both systemic and having to do with the site’s usability, so that the Open Government Initiative’s goal of increased public participation is not even close to being reached.

(As an aside, the systemic barriers to greater public participation have to do with a lack of publicity about proposed rules, combined with the general public ignorance about the rule-making process and public apathy about government.) To focus more on Regulations.gov’s weaknesses as a website, the most noticeable problem might be that Regulations.gov’s search function is not very good and would be even harder to use for any non-lawyer members of the general public that might go to the site. The search function appears to be limited to what the official agency-assigned title of the Rule is, that may not be very intuitive and may not actually be informative as to what the Proposed Rule actually contains. As an example, for the Airline Passenger Rights rule that was open for comment last summer, a search for the terms “peanut allergies”, “tarmac delay” or “baggage fees” (all of which are major topics dealt with in the Proposed Rule) does not come up with the rule. Neither does a more general search for “airline passenger rights”. (More disturbingly, I have it on good authority that one of the DoT lawyers assigned to the Rule was not able to find the Rule on Regulations.gov by searching for it.)

Another problem is that Regulations.gov only posts the Notice of Proposed Rulemaking (NPRM) as it appears in the Federal Register with no alterations. But, as anyone who’s tried to read through a NPRM probably knows, most (if not all) NPRM’s are not particularly easy to understand, even for a lawyer, let alone a member of the general public. Often, for example, an NPRM only refers back to the relevant section of the C.F.R. and says that the agency is proposing to change a word here or insert a phrase there. Without also having the relevant sections of the C.F.R. readily available and having background knowledge about the area, it would be very difficult to even begin to understand the real meaning or significance of the NPRM in order to be able to comment on it. The NPRM’s are also written by lawyers, as legal documents, without any view towards clarity, comprehensibility, succinctness or a number of other things. (Oddly enough, as mentioned in the Rulemaking article we read for class, the Plain Writing Act exempts regulations from the plain writing requirement.)

With all this, it’s hard enough for a lawyer to use Regulations.gov effectively, let alone for a member of the general public to use it. Regulations.gov provides free access to the rule-making process in its various stages, but it does not quite provide public access to rule-making yet, in any real sense. As the example of Regulations.gov indicates, the difference between providing free access to the laws and providing easy/public access to the laws is something to keep in mind in assessing any website that purports to provide legal resources of any kind.

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