Another option is to combine direct citizen engagement with open convenings of subject matter experts from academics to disadvantaged, vulnerable, and marginalized communities themselves. Interactive dialogue between citizens, rule-makers, and experts could provide a more complete view of the potential benefits and impacts of proposed rules.
Identifying ways to discuss comments in open forums instead of only within an agency could also improve regulatory review transparency. Regulations.gov, a website managed by the eRulemaking Program Management Office at the US Environmental Protection Agency (EPA), provides citizens with the ability to comment on draft regulations as if they were commending on a blog post.14 Once an agency has processed a submitted comment, users of regulations.gov can see that comment and, once a regulation has been finalized, see how the agency responded to the comments it received during the rulemaking process.
In recent years, federal agencies including the General Services Administration (GSA) and Administrative Conference of the United States (ACUS) have been holding public forums on the issues and influences of the existing public comments process. Quite rightly, much of the discussion has focused on fake comments and robo-comments skewing the results.15 AI technologies can help solve for these issues by identifying similar comments to be grouped together, and many agencies are beginning to apply these technologies to the public comment process to ensure more accurate analysis and timely response.
However, the Modernizing Regulatory Review memo could implicitly call for agencies to take this another step further by analyzing not only the responses themselves but also who responded, and perhaps more importantly, who did not. For example, on a regulation about immigration, rule-makers should seek input from immigrants to the United States to ensure that their experiences are factored into the regulatory review process. As seen in the second equitable impact review example in the Equity section of this paper, the public comment process may not be accessible to everyone who is impacted by a regulation.
The application of AI technologies and augmented data sources enable agency leaders and their teams to spend less time searching through comments and complying with minimum requirements. With the new equity mandates from the Biden administration, rule-makers can spend this time instead on high-value activities such as seeking out community feedback and transparently implementing the intent of the administration’s directions.
Third guiding principle: Efficiency
“ … it is important that we evaluate the processes and principles that govern regulatory review to ensure swift and effective Federal action …”
To deliver on all the intended outcomes of the memo, any future regulatory review framework will also need to be efficient in addition to equitable and transparent. As the focus of an “efficient” regulatory system expands beyond just dollars and cents, agencies may consider the following:
• What barriers, if any, is my agency placing in front of constituents to providing feedback or engaging with the regulatory process?
• Are there noncodified norms in my agency that are slowing down the review process without adding significant regulatory value? What about codified ones?
• Is my agency often re-inventing the wheel on regulations, or do we build on the regulatory stock of those who have come before us to create new regulation?
Existing commercial feedback platforms could assist in lessening barriers to constituent feedback. AI can also help make sense of high volumes of responses quickly.
According to a 2017 Deloitte Center for Government Insights report analyzing data from the Department of Labor and the Office of Personnel Management, the US federal government spends over 10.5 million labor hours annually assessing regulations. This represents 5,059 full time–equivalent employees at a cost of around US$466M per annum.16 But if this investment is deployed to high value cognitive policy and regulatory tasks—equity, fairness, openness—this is time and money well spent.
Unfortunately, all too often the opposite is true. Highly skilled federal workers are spending their time on low-value cognitive regulatory tasks—searching, sifting, filtering, grouping—to find nuggets of value. Leveraging AI tools can change this equation. By utilizing AI to assist with low-value tasks, high-value federal worker time and energy will be freed up, enabling agencies to focus on achieving the goals and mandates of the administration and the aim and intent of the Modernizing Regulatory Review memo.
A thorough analysis of the regulatory process can also help identify redundant and duplicative processes that are slowing down the journey from initial idea to ultimate impact. There may also be opportunities to automate parts of the process, releasing staff time to make the judgement calls and qualitative analysis in a focused and deliberative way. Journey mapping could also produce insights to improve both the efficiency and effectiveness of the process.
To avoid reinventing the wheel each time a new regulation is proposed or needs to be reviewed, creating a “what works” repository as it relates to the regulatory process could help agencies build on and learn from each other’s experience, leading practices, innovations and networks of academics, community stakeholders, and in-house experts.
There is a growing notion across agencies that a more end-to-end approach to modernizing the regulatory review process is required. This approach is manifested in six primary steps as described in the chart below. Each of the steps in the chart represents a stage in which the regulatory process can work better for the American people than it does today using principles of equity, transparency, and efficiency. Below each stage is an example of how regulatory technology could be used to shift federal worker time toward these principles and away from low-value activities.
Finally, answering the President’s call for action and realizing the intended aims of the memo will require robust program and project management in the form of a dedicated Program Management Office (PMO). In addition, the team that takes forward this work must include or have access to a wide range of expertise including stakeholder engagement, impact measurement, communications, and other specialized capabilities such as human-centered design and journey mapping. By seizing the opportunity to increase equity, transparency, and efficiency in regulation, the regulatory review process must be examined from end to end (figure 2).