E-rulemaking highlights how the practice of law is changing in the Information Age and how counsel must take advantage of all of the new electronic resources available in administrative practice. This is best illustrated by the United States Consumer Product Safety Commission’s (“CPSC”) promulgation of rules to implement the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which provided sweeping modifications to consumer product safety standards for children’s products as well as many enhancements to the CPSC’s enforcement authority. Public Law 110-314, 122 Stat. 3016 (August 14, 2008). The CPSIA is a noteworthy regulatory enactment, not only for its sweeping consumer protection laws, but also for the CPSC’s design and implementation of the rulemaking procedures mandated by Congress.
Electronic rulemaking or e-rulemaking is the “use of new digital technologies in the development and implementation of regulations.” Cary Coglianese, E-Rulemaking: Information Technology and Regulatory Policy, Regulatory Policy Program Report No. RPP-05 (2004). Federal efforts to expand information technology capabilities began in earnest in 2002. As part of the President’s Management Agenda, the Bush Administration advanced an e-government strategy. Criticizing agency practices as internally focused, the Bush Administration sought to achieve citizen focused information technology by “putting the federal regulatory process online [to] offer citizens easier access to some of the most important policy decisions: better informing the citizenry and holding government more effectively to account.” Office of Management and Budget, The President’s Management Agenda, Fiscal Year 2002. Also in 2002, Congress passed the E-Government Act (Pub. L. No. 107–347, 166 Stat. 2899 (2002)): “This law aims to promote the use of information technology throughout government in order to increase opportunities for public participation, [and] improve government decision making.” See, Coglianese. The effect of these laws and the changing technology era are evident in today’s rulemaking procedures.
The CPSC, for example, uses the internet as the basic means for disseminating information to the public about the CPSIA. In fact, CPSC has created a website, available at http://www.cpsc.gov/about/cpsia/cpsia.html#requirements, solely dedicated to providing agency information to the public. As counsel to product manufacturers, this website is a particularly useful resource. Two RSS feeds are available for CPSIA updates: (1) http://www.cpsc.gov/cpscpub/prerel/prerelcpsia.xml, and (2) http://www.regulations.gov/fdmspublic/help/fdms-rss/eRulesRSS.xml.
Using the CPSC website is an efficient way of reducing client expenses. First, the website is a go-to source for primary source materials. The organized compilation of CPSIA agency materials also makes it a necessary stop in obtaining background materials for performing legal research. Second, the CPSC incorporates valuable intra-agency materials, such as Staff Memorandums and General Counsel Advisory Opinions, previously accessible through lengthy Freedom of Information Act requests. In some instances, the intra-agency materials can save valuable time, by providing free work product. In one instance, the CPSC has compiled into an easily accessible chart on their webpage a summary of the detailed and precise timetable for CPSC required actions. U.S. Consumer Product Safety Commission, Office of the General Counsel, Required Actions Pursuant to the Consumer Product Safety Improvement Act of 2008, available at http://www.cpsc.gov/about/cpsia/rulemaking.pdf. The CPSC has also developed sections for legislation summaries, listings of frequently asked questions regarding the CPSIA, and a link for copies of public comments. Overall, the CPSIA site is an effective tool in beginning your legal research for any CPSIA issue.
The CPSC’s use of the internet is also an example of how the digital e-rulemaking era has modernized the practice of law. Incorporation of agency records on the internet makes information more readily available to the public. Not only does this create a more informed public, which supports the exchange of ideas, but it also promotes greater agency transparency and earlier third party involvement. The CPSC also offers public involvement at earlier stages of regulatory promulgation. On a handful of occasions, the CPSC has posted requests for comments and information, encouraging regulated entities to become involved in the rulemaking process.
So far, CPSC’s process lends to greater agency transparency, public accessibility, and participatory rulemaking. The CPSC web postings form a regulatory timeline and provide status updates for interested parties. In addition, the CPSC staff has on some occasions posted requests for comments and information, encouraging regulated entities to produce information for the agency to consider during its rulemaking process. In contrast, other federal agencies rulemaking do not request public participation until later stages of rulemaking, such as once the Notice of Proposed Rulemaking is drafted and public commentary is sought. Thus, the CPSC is somewhat unique and their public website is a great resource to follow to remain ahead of the learning curve.
Interestingly, the CPSIA, itself, also supports increased expenditures on public access. Section 205 of the CPSIA requires “improvements and upgrades of the Commission’s information technology architecture and systems and the development of the database of publicly available information on incidents involving injury or death.” In sum, greater transparency and information accessibility are just a few of the advances offered by the CPSIA e-rulemaking. Future technology advances, which are certainly impending, should hopefully continue to reduce client expenses and improve open and transparent federal regulatory processes.
John Parker Sweeney (firstname.lastname@example.org)
Erin C. Miller (email@example.com)
Womble Carlyle Sandridge & Rice, PLLC