Administration Pushes E-Rulemaking

For each regulatory decision, or rulemaking, an agency keeps a formal docket that contains a wealth of useful information, including scientific studies, cost-benefit analysis, and comments submitted by the public. Unfortunately, if you want access to these materials, you may have to visit a federal docket room in Washington, D.C., as most agencies do not provide this information through their web sites. In this digital age, we still have a substantially paper government. The administration, to its credit, has announced a plan to change this. As part of the president’s E-Government Strategy, the Office of Management and Budget (OMB) is seeking to create a central, agency-wide web portal where the public can retrieve regulatory information and comment on proposed rules. Clearly, there is growing demand for such a system. About 68 million Americans visited agency web sites in 2001, according to a survey by the Pew Foundation, and 23 million used government web sites to comment on proposed rules and other policy decisions. This new “e-Docket” is to be modeled on the efforts of the Dept. of Transportation (DOT), which is partnering with OMB in a leadership role. DOT’s web site allows the public to search for regulatory materials, including all public comments, by entering in a rule’s identification number or key word. This electronic system now serves as the agency’s official rulemaking record, saving more than $1 million a year in administrative costs, while facilitating work in other ways (e.g., enabling agency personnel to easily access the rulemaking record from any location). Likewise, the administration estimates that its new agency-wide system will save $9.75 million by consolidating space and FTE costs. Yet before the administration commits to completely replicating DOT’s system, which is impressive, it should take stock of other agency efforts, and consider new possibilities as well. OMB Watch recently surveyed a number of agency web sites for rulemaking information (click here for details) and offers the following observations and recommendations as the administration moves forward with a government-wide e-docket: Rulemaking information should be comprehensive. In this respect, DOT should be the model. As stated above, the DOT docket system provides its entire rulemaking record online, including agency cost-benefit analyses, reports and studies, public comments, and any other documents informing the agency’s decision-making. DOT's electronic docket currently houses 1.2 million pages of regulatory and adjudicatory information, all of which is searchable. No other agency similarly provides its full rulemaking docket online. Recently, EPA moved in this direction, but their new system, EPA Dockets, is still incomplete. For instance, some public comments are merely indexed -- and still available only through paper copy -- and the site only provides docket information for rulemakings in which the comment period is still open, not old rulemakings. The Department of Labor, which includes the Occupational Safety and Health Administration, has electronic copies of all rulemaking documents over the past 25 years, which can be searched through a computer at Labor’s docket library in Washington, D.C. However, almost none of this information is available through its web site, which should be relatively easy since it’s already stored in electronic form. OMB should push agencies to follow the DOT example, and provide full access to rulemaking materials through the web. Obviously, new or ongoing rulemakings should take priority in this effort, but to the extent practical, agencies should also make materials available from past rulemakings, prioritizing by significance. Not only does such comprehensive information facilitate public participation, it also makes things easier for agency personnel, who are able to review a rulemaking record anytime, anywhere. Agencies should allow for electronic comments for all proposed rules. Since the terrorist attacks of Sept. 11, and the subsequent anthrax scare, the federal government has been understandably cautious in handling and screening mail. By encouraging the submission of electronic comments, agencies can help relieve themselves of this burden, and make it easier for public participation in the process. In June of 2000, agencies were not allowing electronic comments for many proposed rules, according to a report on e-rulemaking from the General Accounting Office (GAO), requested by Rep. Henry Waxman (D-CA) and Sen. Joseph Lieberman (D-CT). In fact, in all of 1999, HHS accepted electronic comments for only 9 percent of its proposed rules. Other agencies did slightly better, but were still lacking: USDA accepted e-comments for 31 percent of its proposed rules; DOT for 44 percent; DOL for 68 percent; and EPA for 71 percent. After a cursory check of these same five agencies, it appears there has been improvement, but still not all rulemakings allow for electronic comments. Recently, Citizens for Sensible Safeguards, a coalition chaired by OMB Watch, submitted comments to 57 agencies on their draft data quality guidelines, and 15 did not supply an email address for comments in their Federal Register publication. This should change, and indeed it must. The Government Paperwork Elimination Act requires OMB to ensure that agencies allow for electronic public comments and maintain records electronically by October 2003. At a minimum, every rulemaking notice published in the Federal Register should provide an email address for submission of comments, and once received, these comments should be immediately posted to the agency’s web site. Ideally, this will enable a shift away from current practice -- where comments are passively submitted to the agency, generally on the last day of the comment period -- to a more interactive process where interested parties respond directly to one another. Agencies should consider providing forms for comments on their web sites that will immediately and automatically post comments -- perhaps after a quick agency review to ensure integrity -- once they are submitted. This could cut down substantially on administrative burdens. Rulemaking dockets should be easy to find. OMB’s proposal to build a single portal will undoubtedly make it easier to locate rulemaking dockets. Currently, agency dockets are inconsistently labeled, and not always easily found from an agency’s home page. For instance, rulemaking material can be found under “Dockets” (DOT, EPA, FDA), “Regulation” (OSHA), “Federal Register Notices” (MSHA), as well as other subject titles, as described here. Meanwhile docket information is not always linked to directly from agency home pages. In the case of the Dept. of Agriculture or Health and Human Services, for instance, the user must first select a sub-agency (e.g., the Food and Drug Administration), to reach rulemaking information. Each of these sub-agency home pages has a different organization, and some require several clicks, and some searching, to reach rulemaking information. OMB should seek to give order and consistency to the presentation of such information. Obviously, there may be some variation from agency to agency based on their different missions. But at the very least, agencies should all use the same label for rulemaking materials, and this information should be linked to directly from each agency’s home page. Currently, the most consolidated list of rules available online can be found by going through FirstGov.gov (the federal government’s official web portal) and making two simple clicks -- first on "Laws and Regulations," then on "Comment on Federal Regulations." This page provides a link to all agency e-dockets, as well as a listing of all regulations currently open for comment. It can also be reached through the Federal Register home page by clicking on "Public Participation in Rulemaking." Agencies, as well as OMB’s new portal, should keep an inventory of ongoing rulemakings. “Federal agencies publish thousands of proposed rules each year, and finding a particular rule on which comments are being solicited can be difficult,” according to GAO’s e-rulemaking report. We also found this to be the case for many agencies. Accordingly, agencies, as well as the administration’s proposed government-wide e-docket, should provide an inventory of rules that are open for public comment. OMB’s portal should be sorted by agency, as well as subject, so the user doesn’t have to know which agency does what to retrieve relevant information. EPA’s new online docket is presented as an inventory, allowing the user to easily scroll through ongoing rulemakings, with links to the rulemaking record for each. Likewise, DOT provides such an inventory, but it’s buried on the agency’s web site. OMB should ensure that other agencies keep a similar inventory, and that it is prominently displayed and links directly to the rulemaking record. Rulemaking dockets should be searchable in a number of different ways. DOT’s e-docket is searchable only by a rule’s identification number. If you are unsure of the ID number, you can try searching DOT’s entire web site through a key word search (e.g., “tire pressure monitoring”). This is likely to return a host of documents, at least one of which will likely include the rule’s ID number. Ideally, a user should be able to search an agency’s e-docket independent of its entire site to avoid extraneous information. Such a search should be able to draw on a number of different criteria. DOT’s identification system is helpful, but rulemaking information should also be searchable by type of rule (economically significant, major or non-major), subject, key word, date, and document type. With this ability, for instance, you could produce a list of all economically significant rules ($100 million rules) over the last five years, or you could retrieve all risk assessments dealing with clean air. OMB should take the lead in establishing a government-wide regulatory identification system. Currently, there is no ID system that would facilitate the tracking of a rule over its life cycle. Ideally, the public should be able to enter in a rule’s identification number into a single web-based search engine, and retrieve all related information across federal agencies, OMB, GAO, and the Federal Register. OMB should begin an effort to make this a reality. This would mirror DOT’s identification system, but instead a rule’s ID number would follow it even as it leaves the agency -- for instance, when it’s sent to OMB for review under Executive Order 12866, or when it’s submitted to GAO for review under the Congressional Review Act. This should also facilitate the tracking of a rule over its various stages, as it moves from proposed rule to final rule, and should link to associated information collection requirements and compliance tools (e.g., online forms) once it is finalized. OMB should take care not to stifle innovation. OMB should set baseline requirements. As stated above, agencies should allow for electronic comments for all rulemakings. All agencies should keep an online docket for each rule, containing supporting documents, public comments, etc., which is searchable in a number of different ways. And each rule should be assigned a permanent identification number to facilitate the tracking of its lifecycle and beyond. Beyond these baseline requirements, agencies should be encouraged to innovate and experiment, and provided the resources to do so. Agencies should continue experiments with proactive notification systems, as well as interactive methods of e-rulemaking. The administration’s e-docket initiative, though important, is a largely passive measure and should be viewed as a first step in moving the government toward more interactive e-rulemaking. Accordingly, OMB should encourage new innovations, track such efforts, and facilitate information sharing among agencies. As stated earlier, most agencies provide an email address for submission of public comments when they publish proposed rulemakings in the Federal Register. But as GAO pointed out in its e-rulemaking report, many agencies do not proactively dispense information on pending regulatory decisions (aside from notification in the Federal Register), nor is there much opportunity for the public to interact electronically with government officials or other interested parties. Agencies should make efforts to change this. For notification purposes, some agencies have successfully employed email lists. Through the Food and Drug Administration’s web site, for instance, users can sign up and receive email notices of rules under review and open for comment. The USDA’s Animal and Plant Health Inspection Service (APHIS) offers a similar but slightly more advanced feature; by submitting key words and an email address, a user will receive an email whenever those key words show up on the APHIS home page. Agencies, as well as OMB’s new e-docket, should also consider providing a check box with a list of subjects (e.g., clean air, clean water), allowing users to specify issues on which they wish to receive email updates. Promoting interaction between outside parties and government officials is more difficult, but should serve as the true measuring stick for e-rulemaking. In 1996, for instance, Information Renaissance built an electronic docket room for an online seminar on a rulemaking by the Federal Communications Commission. The discussion was moderated, and over 500 participants were brought together from all 50 states and Puerto Rico, allowing for a much fuller presentation of views than the agency would normally receive. Barbara Brandon and Robert Carlitz of Information Renaissance recently discussed the usefulness of such a dialogue in their paper, Online Rulemaking: A Tool for Strengthening Civic Infrastructures.
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