    Electronic Rulemaking: Efforts to Facilitate Public Participation
    Can Be Improved (17-SEP-03, GAO-03-901).

    Information technology can greatly facilitate the public's
    ability to comment on proposed rules that affect them. The
    E-Government Act of 2002 made the Office of Management and Budget
    (OMB) responsible for overseeing electronic government
    initiatives. We examined the extent to which agency-specific Web
    sites and the new governmentwide Regulations.gov Web site permit
    the public to electronically (1) identify proposed rules that are
    open for comment, (2) comment on proposed rules, and (3) access
    regulatory supporting materials (e.g., economic analyses) and the
    comments of others.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-03-901
        ACCNO:   A08495
      TITLE:     Electronic Rulemaking: Efforts to Facilitate Public
    Participation Can Be Improved
         DATE:   09/17/2003
      SUBJECT:   Electronic government
    	     Federal agencies
    	     Government information
    	     Information technology
    	     Web sites
    	     Federal legislation

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    GAO-03-901

                        United States General Accounting Office

    GAO

    Report to the Committee on

                           Governmental Affairs, U.S. Senate

    September 2003

                                       ELECTRONIC
                                       RULEMAKING

               Efforts to Facilitate Public Participation Can Be Improved

                                           a

    GAO-03-901

    Highlights of GAO-03-901, a report to the Committee on Governmental
    Affairs, U.S. Senate

    Information technology can greatly facilitate the public's ability to
    comment on proposed rules that affect them. The E-Government Act of 2002
    made the Office of Management and Budget (OMB) responsible for overseeing
    electronic government initiatives. We examined the extent to which
    agency-specific Web sites and the new governmentwide Regulations.gov Web
    site permit the public to electronically (1) identify proposed rules that
    are open for comment, (2) comment on proposed rules, and (3) access
    regulatory supporting materials (e.g., economic analyses) and the comments
    of others.

    This report contains recommendations intended to improve the public's
    awareness of rules open for comment and the Regulations.gov system, and to
    improve the operation of Regulations.gov. OMB generally agreed with the
    report's recommendations and indicated that actions had already begun to
    address some of them. EPA expressed concerns about how the report
    characterized its Web site but expected to implement our recommendations
    regarding Regulations.gov.

    www.gao.gov/cgi-bin/getrpt?GAO-03-901.

    To view the full product, including the scope and methodology, click on
    the link above. For more information, contact Victor Rezendes at (202)
    512-6806 or rezendesv@gao.gov.

    September 2003

    ELECTRONIC RULEMAKING

    Efforts to Facilitate Public Participation Can Be Improved

    The Web sites for the Environmental Protection Agency (EPA), the lead
    agency for the administration's electronic rulemaking initiative, and the
    Department of Transportation (DOT) each identified only about 20 percent
    of the agencies' proposed rules that were published from February 2003
    through April 2003 and that were open for comment on May 1, 2003. However,
    a Web site for an agency within DOT identified most of the department's
    other rules. Neither the EPA nor the DOT systems were originally designed
    to include rules originating outside of the agencies' headquarters
    offices. The Department of Agriculture's Web site did not identify open
    proposed rules, but Web sites for agencies within the department
    collectively identified almost all of the rules. The Regulations.gov Web
    site identified nearly all of these agencies' open proposed rules, but its
    design sometimes made finding the rules difficult.

    Regulations.gov allowed the public to provide electronic comments
    (ecomments) on about 91 percent of the 411 proposed rules that were
    published during this 3-month period. In contrast, the rulemaking agencies
    provided for e-comments in only about 66 percent of the rules. Some
    agencies (e.g., EPA) did not provide for e-comments in most of their
    proposed rules. Where agencies permitted e-comments, the methods provided
    varied. Only 2 of the 411 proposed rules mentioned Regulations.gov as a
    commenting option. Perhaps, as a result, few comments were submitted via
    Regulations.gov during this period.

    Some agencies permitted the public to access regulatory supporting
    materials for some of their proposed rules. Although Regulations.gov did
    not permit access to these materials, EPA officials said such access would
    be available when the second module of the electronic rulemaking
    initiative is fully implemented (by the end of 2005).

    About One-Third of Proposed Rules Did Not Permit E-Comments

    Contents

      Letter

    Results in Brief
    Background
    Regulations.gov Identified More Rules Open for Comment Than

    Major Rulemaking Agencies' Web Sites Regulations.gov Permitted Electronic
    Comments on More Proposed Rules Than Agencies' Systems Some Agencies
    Provided Electronic Access to Supporting Materials,

    but Regulations.gov Does Not Currently Do So Conclusions Recommendations
    for Executive Action Agency Comments and Our Evaluation

    1 3 5

    8

    18

    24 27 28 29

    Appendixes

    Appendix I: Objectives, Scope, and Methodology 33

    Appendix II:	Agencies Varied in Extent to Which They Provided for
    Electronic Comments on Proposed Rules 35

    Appendix III: Comments from the Environmental Protection Agency 37

    Appendix IV: Comments from the Office of Management and Budget 40

    Figures	Figure 1: Figure 2:

    Figure 3: Figure 4:

    Figure 5:

    Three Federal Agencies Accounted for More Than Half of
    the 411 Proposed Rules Published from February 2003
    through April 2003 9
    Three Agencies' Web Sites Varied in Ability to Identify
    Proposed Rules Published from February 2003 through
    April 2003 That Were Open for Comment on May 1,
    2003 10
    Different Steps Required to Identify Airworthiness
    Directives and Other DOT Rules That Were Open for
    Comment 13
    Regulations.gov Identified Almost All of the USDA, DOT,
    and EPA Proposed Rules Published from February 2003
    through April 2003 That Were Open for Comment on
    May 1, 2003 15
    About Two-Thirds of the 411 Proposed Rules Published
    from February 2003 through April 2003 Provided for
    Some Type of Electronic Comments 19

    Contents

    Figure 6:	Regulations.gov Permitted Electronic Comments on Nearly All of
    the 411 Proposed Rules Published from February 2003 through April 2003 22

    This is a work of the U.S. government and is not subject to copyright
    protection in the United States. It may be reproduced and distributed in
    its entirety without further permission from GAO. However, because this
    work may contain copyrighted images or other material, permission from the
    copyright holder may be necessary if you wish to reproduce this material
    separately.

    A

    United States General Accounting Office Washington, D.C. 20548

    September 17, 2003

    The Honorable Susan M. Collins
    Chairman
    The Honorable Joseph I. Lieberman
    Ranking Minority Member
    Committee on Governmental Affairs
    United States Senate

    Each year, federal agencies publish thousands of regulations that can
    affect
    almost every aspect of citizens' lives-from allowing a fireworks display
    over the Columbia River in Vancouver, Wash., to registering food
    facilities
    in light of the potential for bioterrorism.1 The public can play a role in
    the
    rules that affect them through the notice and comment provisions of the
    Administrative Procedure Act of 1946, as amended. In fact, involvement of
    the public in rulemaking has been described as possibly "the most complex
    and important form of political action in the contemporary American
    political system."2 However, in order to be involved in rulemaking
    effectively, the public must be able to (1) know whether proposed rules
    are
    open for public comment, (2) prepare and submit comments to relevant
    decisionmakers, and (3) access regulatory supporting materials (e.g.,
    agencies' economic analyses) and the comments of others so that their
    comments can be more informed and useful.

    Information technology (IT) can greatly enhance the public's ability to
    accomplish each of these comment-related tasks, and can also improve
    federal agencies' ability to analyze and respond to those comments. In
    June 2000, we reported on agencies' initial efforts to use IT to
    facilitate
    public participation in rulemaking.3 Since then, there have been several
    legislative and executive branch initiatives in this area. For example,
    Congress enacted the "E-Government Act of 2002," which contained

    1Safety Zone; Fort Vancouver Fireworks Display, Columbia River, Vancouver,
    WA (68 Fed. Reg. 7471, Feb. 14, 2003) and Registration of Food Facilities
    Under the Public Health Security and Bioterrorism Preparedness and
    Response Act of 2002 (68 Fed. Reg. 5378, Feb. 3, 2003).

    2Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and
    Make Policy, Second Edition (Washington D.C.: CQ Press, 1999).

    3U.S. General Accounting Office, Federal Rulemaking: Agencies' Use of
    Information Technology to Facilitate Public Participation, GAO/GGD-00-135R
    (Washington, D.C.: June 30, 2000).

    several provisions specifically designed to encourage electronic
    rulemaking ("e-rulemaking"). In 2001 the administration identified
    erulemaking as one of about two dozen governmentwide electronic government
    ("e-government") initiatives being directed by the Office of Management
    and Budget (OMB). As a result of a study of existing government on-line
    rulemaking systems, the Environmental Protection Agency (EPA) was named
    the lead agency for the e-rulemaking initiative in late 2002. As the first
    module of the initiative, in January 2003 the administration launched a
    Web site at www.regulations.gov (Regulations.gov), which allows the public
    to find and submit comments on federal rules and other documents that are
    open for comment and published in the Federal Register. Although some
    agencies had previously established Web sites that identified open rules
    and permitted the public to comment electronically, the Regulations.gov
    Web site was the first to facilitate both of these functions
    governmentwide.4 The second module of the e-rulemaking initiative will
    move beyond rule identification and commenting by establishing a
    governmentwide electronic docket management system into which all relevant
    regulatory supporting materials and public comments will be placed. The
    third and final module will create an electronic regulatory desktop to
    facilitate the rule development process.

    In response to your requests and as a follow up to our previous report, we
    examined the public's ability to participate in the rulemaking process
    electronically in the wake of these efforts. Specifically, our objectives
    were to examine the extent to which individual agencies and the new
    governmentwide Regulations.gov Web site permit the public to
    electronically (1) identify proposed rules that are open for comment, (2)
    comment on proposed rules, and (3) access regulatory supporting materials
    and the comments of others.

    4The National Archives and Records Administration previously developed a
    "Federal Register E-Docket" system to identify rules open for comment, but
    that system did not permit the public to submit comments directly. That
    system served as the foundation for Regulations.gov.

    A detailed description of our methodology is provided in appendix I.
    Briefly, we focused most of our review on the 411 proposed rules that were
    published in the Federal Register from February 1, 2003, through April 30,
    2003 (the first 3 full months that the Regulations.gov Web site was in
    operation).5 Three agencies-EPA, the Department of Transportation (DOT),
    and the Department of Agriculture (USDA)-accounted for more than half of
    these proposed rules.6 To address our first objective, we determined how
    many of these three agencies' proposed rules that were published during
    that 3-month period and open for comment as of May 1, 2003, were
    identified on the agencies' and the Regulations.gov Web sites as open for
    comment. To address our second objective, we determined how many of the
    411 proposed rules provided the public with an electronic commenting
    option (e.g., an e-mail address to which comments could be submitted) and
    how many could be commented on via Regulations.gov. To address our third
    objective, we reviewed selected agencies' electronic docket systems and
    the Regulations.gov Web site to determine whether they permitted the
    public to identify regulatory supporting materials and the comments of
    others.7 We did our work in the Washington, D.C. offices of the three
    selected agencies and OMB from February 2003 through June 2003 in
    accordance with generally accepted government auditing standards.

    Results in Brief	EPA's Web site identified only about 20 percent of the
    agency's proposed rules that were published from February 2003 through
    April 2003 and that were open for comment as of May 1, 2003. DOT's Web
    site also identified only about 20 percent of the department's open
    proposed rules, but a separate, newly-created link on the Web site for an
    agency within the department listed most of the remaining rules. Neither
    the EPA system nor the DOT system was originally designed to include rules
    originating outside

    5As explained more fully in appendix I, this total does not include
    certain items published in the proposed rules section of the Federal
    Register. For example, it does not include advance notices of proposed
    rulemaking, extensions of ongoing comment periods, and rules without
    specified comment periods and on which comments were not expected (e.g.,
    notices of data availability and notices of public meetings).

    6Unless otherwise indicated, "agencies" in this report refers to both
    cabinet departments and independent agencies.

    7As used in this report, a rulemaking "docket" is the official repository
    for documents or information related to an agency's rulemaking activities,
    and may include any public comments received and other information used by
    agency decision makers.

    of the agencies' headquarters offices. USDA's Web site did not list any of
    the department's proposed rules that were open for comment, but the Web
    sites for the agencies within the department collectively did so for most
    of the open rules. In contrast to these agencies' efforts, the
    Regulations.gov Web site identified nearly all of the DOT, EPA, and USDA
    proposed rules that were open for comment. However, the design of both
    Regulations.gov and the agencies' Web sites sometimes posed barriers to
    the identification of open rules.

    About 66 percent of the 411 proposed rules that were published
    governmentwide during the relevant 3-month period provided some type of
    mechanism for the public to provide comments electronically. However, the
    agencies varied substantially in this regard. Some agencies provided an
    electronic commenting option in virtually all of their proposed rules
    (although the method of commenting often varied). Other agencies (e.g.,
    EPA) did not allow electronic comments on most of their proposed rules.
    Regulations.gov permitted the public to comment electronically on about 91
    percent of the agencies' proposed rules-including many of the rules for
    which the agencies themselves did not provide an electronic commenting
    option. However, only 2 of the 411 proposed rules published during this
    period mentioned Regulations.gov as a commenting option. Perhaps as a
    result, as of May 2003 relatively few comments had been submitted through
    Regulations.gov.

    Several federal agencies (e.g., EPA and DOT) allowed the public to have
    electronic access to regulatory supporting materials and the comments of
    others for some of their proposed rules. Other agencies provided no
    electronic access to these supporting materials. Regulations.gov does not
    provide electronic access to regulatory supporting materials or the
    comments of others. EPA officials noted that Regulations.gov was not
    designed to provide that function. They said the second module of the
    governmentwide e-rulemaking initiative would, when fully implemented,
    permit users to access supporting materials and comments of others for all
    proposed rules. EPA currently expects such access to begin by the end of
    2005.

    In general, Regulations.gov more consistently allowed the public to both
    identify rules open for comment and provide electronic comments than the
    agency systems. However, certain changes could allow Regulations.gov to
    work better and be more widely used, thereby potentially increasing the
    public's ability to participate in rulemaking. This report contains
    recommendations intended to improve the public's awareness of rules

    open for comment and the Regulations.gov system, and improve the operation
    of Regulations.gov. OMB generally agreed with the report's recommendations
    and indicated that actions had already begun to address some of them. EPA
    expressed concerns about how the report characterized its docket system
    but expected to implement our recommendations regarding Regulations.gov.

    Background	The notice and comment requirements in the Administrative
    Procedure Act are codified in section 553 of title 5, United States Code.
    The act generally requires agencies to (1) publish a notice of proposed
    rulemaking (NPRM) in the Federal Register; (2) allow interested persons an
    opportunity to participate in the rulemaking process by providing "written
    data, views, or arguments;" and (3) publish the final rule 30 days before
    it becomes effective. The "addresses" section in the preamble of agencies'
    proposed rules tells the public how they can comment on the rules.

    In June 2000, we reported on five federal agencies' initial efforts to
    allow the public to electronically participate in the rulemaking process.8
    We determined that all five of the agencies were using IT to allow the
    public to participate electronically in rulemaking, but that there were
    variations within and among the agencies in this regard. All of the
    agencies had Web sites that conveyed rulemaking information to the public
    and/or maintained some rulemaking records in electronic form. Several of
    the individuals and organizations that we contacted suggested that
    agencies move to a more consistent organization, content, and presentation
    of information to allow for a more common "look and feel" to agencies'
    IT-based public participation mechanisms in rulemaking. However, the
    agency representatives that we contacted did not believe that cross-agency
    standardization was either necessary or appropriate.

    8GAO/GGD-00-135R.

        Legislative and Executive Branch E-Rulemaking Initiatives

    In recent years, Congress has taken a number of actions to promote
    e-government functions in general and e-rulemaking in particular. For
    example, the Paperwork Reduction Act of 1995 provides that the Director of
    OMB should promote the use of IT "to improve the productivity, efficiency,
    and effectiveness of Federal programs." 9 In 1998, Congress enacted the
    Government Paperwork Elimination Act (GPEA), which requires that by
    October 21, 2003, federal agencies provide the public, when practicable,
    with the option of submitting, maintaining, and disclosing information
    electronically, instead of on paper. 10 GPEA makes OMB responsible for
    ensuring that federal agencies meet the act's implementation deadline.11
    Although GPEA does not specifically mention rulemaking, both OMB and
    rulemaking agencies have indicated that its requirements have provided an
    impetus for developing IT-based approaches to regulatory management.12

    The E-Government Act of 200213 has been described as "the most
    far-reaching federal government effort to date for promoting online public
    involvement,"14 and contains requirements specific to rulemaking. Section
    206 of the act requires agencies, to the extent practicable, to accept
    public comments on proposed rules "by electronic means." That section also
    requires agencies (again, to the extent practicable) to ensure that a
    publicly accessible federal Web site contains "electronic dockets" for
    their proposed rules. The dockets are required to contain all comments
    submitted on the rules as well as "other materials that by agency rule or

    944 U.S.C. 3504(h)(5).

    1044 U.S.C. 3504 note.

    11See U.S. General Accounting Office, Electronic Government: Better
    Information Needed on Agencies' Implementation of the Government Paperwork
    Elimination Act, GAO-01-1100 (Washington, D.C.: Sept. 28, 2001).

    12U.S. General Accounting Office, Regulatory Management: Communication
    About Technology-Based Innovations Can Be Improved, GAO-01-232
    (Washington, D.C.: Feb. 12, 2001).

    1344 U.S.C.A. 3601 note.

    14Thomas C. Beierle, Discussing the Rules: Electronic Rulemaking and
    Democratic Deliberation, Discussion Paper 03-22 (Washington, D.C.:
    Resources for the Future, 2003).

    practice are included in the rulemaking docket under section 553(c) of
    title5, United States Code, whether or not submitted electronically." The
    E-Government Act also established an Office of Electronic Government
    within OMB, headed by an Administrator appointed by the President.15 The
    act requires the Administrator of that office to work with the
    Administrator of OMB's Office of Information and Regulatory Affairs in
    establishing the strategic direction of the e-government program, and to
    oversee its implementation. We have previously reported that OMB
    leadership of these efforts is extremely important to their success.16

    The President has also demonstrated an interest in greater use of IT in a
    range of government functions, including rulemaking. For example, in July
    2001 the President identified the expansion of e-government as one of the
    five priorities of his management agenda. To support this priority, OMB
    developed an implementation strategy that identified 24 e-government
    initiatives, one of which was e-rulemaking.17 This initiative is intended
    to provide a single portal for businesses and citizens to access the
    federal rulemaking process and comment on proposed rules. In late 2002,
    EPA was named lead agency of the initiative.

    As a first step in the e-rulemaking initiative, in January 2003 the
    administration launched the Regulations.gov Web site, which is intended to
    allow users to find, review, and submit comments on agencies' rules and
    other documents. According to its April 2003 e-government strategy, one of
    the administration's goals is to receive 200,000 electronic comments via
    Regulations.gov. The second module of the initiative involves
    consolidation of existing electronic docket systems into a governmentwide
    version of EPA's docket system. The administration said e-rulemaking would
    "democratize an often closed process," and estimated that the initiative
    would save nearly $100 million by creating a single docket system to
    access and comment on all federal agencies' rules and eliminating
    duplicative agency-specific docket systems.

    1544 U.S.C.A. 3602.

    16U.S. General Accounting Office, Information Technology: OMB Leadership
    Critical to Making Needed Enterprise Architecture and E-government
    Progress, GAO-02-389T (Washington, D.C.: Mar. 21, 2002).

    17For a description of the other initiatives, see U.S. General Accounting
    Office, Electronic Government: Selection and Implementation of the Office
    of Management and Budget's 24 Initiatives, GAO-03-229 (Washington, D.C.:
    Nov. 22, 2002).

    In May 2002 the Director of OMB sent a memorandum to the heads of
    executive departments and agencies advising them of "our intention to
    consolidate redundant IT systems relating to the President's on-line
    rulemaking initiative." Citing OMB's authority under the Clinger-Cohen Act
    of 1996, the Director said OMB had identified "several potentially
    redundant systems across the federal government that relate to the
    rulemaking process," and indicated that consolidation of those systems
    could save millions of dollars.

      Regulations.gov Identified More Rules Open for Comment Than Major Rulemaking
      Agencies' Web Sites

    EPA's Web site identified only about 20 percent of the agency's proposed
    rules that were published from February 2003 through April 2003 and that
    were open for comment as of May 1, 2003. DOT's Web site also identified
    about 20 percent of the department's open proposed rules, but a separate,
    newly created link on a Web site for an agency within the department
    listed those rules. Neither the EPA system nor the DOT system was
    originally designed to include rules originating outside of the agencies'
    headquarters offices. USDA did not have a Web site that listed the
    department's proposed rules that were open for comment, but various Web
    sites for the agencies within the department collectively did so for most
    of the open rules. Regulations.gov identified nearly all of the DOT, EPA,
    and USDA proposed rules that were open for comment. However, the design of
    both Regulations.gov and the agencies' Web sites sometimes posed barriers
    to the identification of open rules.

    Some Agency Web Sites Did From February 1, 2003, through April 30, 2003,
    federal agencies published Not Identify All Proposed 411 proposed rules in
    the Federal Register. As figure 1 shows, three Rules Open for Comment
    agencies-DOT, EPA, and USDA-published more than half of these

    proposed rules (122, 78, and 34 rules, respectively).18

    18See appendix II for a list of the other agencies that published proposed
    rules during this period.

    Figure 1: Three Federal Agencies Accounted for More Than Half of the 411
    Proposed Rules Published from February 2003 through April 2003

                                          DOT

                                          EPA

                                          USDA

                                         Other

    Source: GAO.

    To determine the extent to which the three agencies' Web sites and
    Regulations.gov identified rules that were open for comment, we examined
    both types of lists on the day after the 3-month period ended-May 1, 2003.
    However, because the comment periods for some of the proposed rules
    published during this period were as short as 30 days, only about 44
    percent of the rules for these three agencies were open for comment on
    that date. Specifically, 52 of the 122 DOT proposed rules were open for
    comment, 33 of the 78 EPA proposed rules were open, and 17 of the 34 USDA
    proposed rules were open.

    The results of this portion of our review are depicted in figure 2. As
    discussed in detail in the following sections, DOT and EPA had links from
    their Web sites' home pages that ultimately allowed users to identify some
    of the proposed rules that were open for comment. USDA's Web site did not
    contain a link that identified rules that were open for comment throughout
    the department. However, the Web sites for most of the individual agencies
    within USDA provided links to lists that, in combination, identified 16 of
    the department's 17 proposed rules that had been published during the
    3-month period and that were open for comment on May 1, 2003. DOT's
    departmentwide list only identified 11 of the 52

    proposed rules that were open for comment, but a separate Web site for an
    agency within the department identified the 41 remaining open DOT proposed
    rules. EPA's Web site only identified 6 of the agency's 33 proposed rules
    that were open for comment and that had been published during the 3-month
    period. The Web sites for the individual offices within EPA did not
    identify additional proposed rules that were open for comment.

    Figure 2: Three Agencies' Web Sites Varied in Ability to Identify Proposed
    Rules Published from February 2003 through April 2003 That Were Open for
    Comment on May 1, 2003

    60 Number of proposed rules

    52 52

    50

    40

    30

    20

    10

    0 USDA DOT EPA Agency

    Open for comment

    Identified as open for comment on Web sites for the agency's subunits

    Identified as open for comment on Web site for agency

    Source: GAO.

    In some cases, the design of agencies' Web sites made it difficult to find
    proposed rules that were open for comment. Specifically, the Web sites
    sometimes (1) lacked a clear, direct link to proposed rules open for
    comment, (2) used terminology that did not clearly identify rules that
    were open for comment, and/or (3) required the public to know which agency
    within a department issued the proposed rule.

    USDA	USDA did not have a link from its home page that allowed the public
    to identify proposed rules open for comment throughout the department.
    However, all but 2 of the 19 agencies within USDA had such links on their
    home pages. Using those links we were able to identify 16 of the 17 USDA
    proposed rules that were published from February 2003 through April 2003
    and that were open for comment on May 1, 2003. Some of the USDA agencies
    directly provided a list of their open rules, but others (e.g., the Farm
    Service Agency and the Animal and Plant Health Inspection Service) simply
    provided a link to the lists available on Regulations.gov. Only one USDA
    agency did not have any type of link or list of open rules-the Cooperative
    State Research, Education, and Extension Service (CSREES). CSREES had one
    proposed rule published during the 3-month period that was open for
    comment on our target date.

    Because USDA does not provide the public with a list of all proposed rules
    open for comment on its Web site, a member of the public would have to
    examine each USDA agency's list to know which rules within the department
    were open for comment. Also, if a member of the public wanted to find a
    particular USDA rule, the user would have to either know which agency
    within the department issued the rule or examine each agency's list within
    the department. In addition, the Web sites for some of the USDA agencies
    used terminology that could make it difficult to identify proposed rules
    open for comment. For example, the department's Food Safety and Inspection
    Service (FSIS) link to proposed rules open for comment was located within
    a link entitled "FSIS Notices or Directives." A member of the public may
    not know that a list of open proposed rules could be found under a
    "Notices or Directives" link.

    DOT	DOT's home page contained a link that ultimately led to a table of
    Federal Register items from various parts of the department for which
    public comments were being sought. However, using that table on May 1,
    2003, we were able to identify only 11 of the 52 proposed rules that were
    published during the 3-month period covered by our review and that were
    open for comment as of that date. All of the 41 proposed rules that were
    not listed in the open dockets table were proposed airworthiness
    directives published by regional offices within the Federal Aviation
    Administration (FAA).19 According to an FAA official, airworthiness
    directives were

    19These directives originate in FAA's regional offices and are intended to
    correct an unsafe condition in a product, such as an aircraft or its
    engine or propeller, when this condition is likely to exist or develop in
    other products of the same design.

    excluded from the department's docket management system primarily because
    manufacturers were concerned that if the directives were listed the public
    would have free access to proprietary information that was normally sold
    to them. However, the official said FAA had recently decided that the
    public's right to the information outweighed the manufacturers' concerns.
    As a result, FAA plans to put airworthiness directives in the department's
    document management system, so the directives would also appear in the
    open dockets table. Meanwhile, FAA added a page, "Airworthiness Directives
    Open for Comment," to its own Web site in April 2003.

    Figure 3 illustrates the steps that the public must follow to find DOT's
    proposed rules open for comment through both the DOT and FAA Web sites. As
    the figure illustrates, finding DOT proposed rules that are not
    airworthiness directives is relatively easy. However, the list of open
    dockets provided through the DOT Web site created the impression that it
    contains all of the department's proposed rules, when in fact it excluded
    about 80 percent of them. Also, to locate the proposed rules that are
    missing from the list, a member of the public would first have to know to
    use the FAA Web site. Then, after accessing the FAA Web site, a user could
    take any of three paths-only one of which can be used to find a list of
    open airworthiness directives. The link on the FAA Web site for "Final
    Rules & NPRMs" lists agency rules that are not airworthiness directives
    (and that are also listed on the departmentwide system). The
    "Airworthiness Directives" link provides a list of new directives that
    have become final in the last 60 days, not proposed directives that are
    open for comment. Only the "Current Federal Aviation Regulations" link
    ultimately provides a list of airworthiness directives that are open for
    comment, but only after going through a "Regulation and Rulemaking" link
    and avoiding a "Documents Open for Comment" link.

      Figure 3: Different Steps Required to Identify Airworthiness Directives and
                       Other DOT Rules That Were Open for Comment

                               Source: DOT and FAA sites.

    Also, although the departmentwide system is relatively straightforward, it
    requires the public to know that the term "docket" refers to (among other
    things) proposed rules. The DOT home page contained a link entitled
    "Dockets & Regulations," which contained a link to the department's docket
    management system."20 That system, in turn, contained a link to "Open
    Dockets" that listed DOT Federal Register items open for comment (other
    than airworthiness directives). When we pointed out to DOT

    20The DOT docket management system is an electronic, image-based database
    that stores on-line information about proposed and final regulations,
    copies of public comments on proposed rules, and related information for
    easy research and retrieval.

    officials that a member of the public may not know that "Open Dockets"
    contains a list of proposed rules open for comment, they said the term
    "dockets" is used because the department's system includes more than just
    rules (e.g., adjudicatory proceedings).

    EPA	EPA's home page contained a link that ultimately led to a list of
    certain EPA proposed rules and other documents that were open for comment.
    On May 1, 2003, that list included only 6 of the 33 proposed rules that
    were published from February 2003 through April 2003 and that were open
    for comment. The list did not include 6 rules issued by EPA headquarters
    offices and 21 state- and/or region-specific proposed rules that were
    issued by EPA regional offices-primarily state implementation plans (SIP)
    under the Clean Air Act.21 EPA officials said these state- and/or
    region-specific rules were not on the agency's list of rules that were
    open for comment because the system was originally designed to include
    only rules that originated in EPA's headquarters, not those that
    originated in its regional offices. However, EPA officials said that
    efforts are currently under way to add regional office rules and other
    material to the system. They said the agency was conducting a pilot test
    in its Boston and Atlanta regional offices that is designed to add
    proposed SIPs to the agencywide list.

    Like DOT, EPA uses the term "dockets" to guide users to rules open for
    comment. Specifically, EPA's home page contained a link entitled "Laws,
    Regulations, & Dockets," which leads to a link called "EPA Dockets." This
    link then leads users to another link called "View Open Dockets," which
    reveals a list of "Dockets Open for Comment." As we indicated previously,
    the public may not know that "dockets" includes a list of proposed rules.
    Also, at the time of our review the titles of these links suggested that
    they contained all EPA rules open for comment (when, as our work
    indicated, they did not).22 Recently, EPA added a section to the top of
    its "EPA Dockets" page indicating that the system "currently contains only
    docket materials for EPA's major Headquarters programs. For a list of
    other EPA rules and proposed rules currently open for comment, visit

    21EPA has set national air quality standards for six common air
    pollutants-ground level ozone (smog), carbon monoxide, lead, nitrogen
    dioxide, sulfur dioxide, and particulate matter. A SIP can be revised by a
    state when necessary to address the specific air pollution situation in
    the state.

    22EPA representative said another link on the agency's Web site ("About
    EDOCKET") indicated that the system contained only headquarters rules, and
    said the system was being phased in across EPA.

    www.regulations.gov." EPA also recently noted on its "About EDOCKET" Web
    page that it "contains Headquarters regulatory and non-regulatory dockets
    and documents," suggesting (although not specifically stating) that it
    does not contain regional office material.

    Regulations.gov Identified As figure 4 shows, Regulations.gov listed 101
    of the 102 USDA, DOT, and More Proposed Rules Open EPA proposed rules that
    were published between February 2003 and April for Comment Than Major 2003
    and that were open for comment as of May 1, 2003. Although

    Regulations.gov was, in general, more comprehensive than the three
    majorRulemaking Agencies' Web rulemaking agencies' Web sites, we concluded
    that users could face Sites difficulty finding these open rules on the
    governmentwide site because of

    limitations related to its design and operation.

    Figure 4: Regulations.gov Identified Almost All of the USDA, DOT, and EPA
    Proposed Rules Published from February 2003 through April 2003 That Were
    Open for Comment on May 1, 2003

    60 Number of proposed rules

    52

    50

    40

    30

    20

    10

    0 USDA DOT EPA Agency

    Open for comment
    Identified on Regulations.gov by agency subunit
    Identified on Regulations.gov by agency
    Source: GAO.

    One such limitation was that Regulations.gov did not allow users to obtain
    a list of all rules open for comment within a cabinet department, only by
    agency within departments. For example, clicking on "Agriculture
    Department" within Regulations.gov produced a list of links to 10
    different agencies within USDA (e.g., the Agricultural Marketing Service
    and the Farm Service Agency). A user wanting to obtain a list of all USDA
    rules open for comment would have to search through each of the 10 links.
    Similarly, a user wanting to find a particular USDA rule but who did not
    know which agency within the department issued the rule would have to
    search through each of the agencies' lists.

    Another limitation was that the titles of the rules in Regulations.gov
    were not always the same as the titles as they appeared in the Federal
    Register, making it difficult to determine whether a particular rule was
    listed, as the following examples illustrate.

    o The Federal Register title for one of the EPA rules in our review was
    "Florida: Revision to Jacksonville, Florida Ozone Air Quality Maintenance
    Plan." However, the title used in Regulations.gov was "Air quality
    implementation plans; approval and promulgation; various States: Florida."
    It was not clear that a rule about an air quality maintenance plan in
    Jacksonville was the same as a rule about air quality implementation plans
    for the entire state of Florida.

    o The Federal Register titles for the FAA airworthiness directives in our
    review were very specific, such as "Airworthiness Directives; Boeing Model
    767-200, -300, -300F, -400, and -400ER Series Airplanes." However, the
    titles for the directives in Regulations.gov were much more general, such
    as "Airworthiness directives: Boeing" or "Airworthiness directives:
    McDonnell Douglas." Because FAA issues a number of directives involving
    these manufacturers' aircraft, it was unclear whether the rules listed in
    Regulations.gov were the same rules that were listed in the Federal
    Register.

    Changes to Regulations.gov	At the start of our review Regulations.gov
    permitted users to search for rules by keyword or by agency, but the two
    search functions could not be used simultaneously. As a result, the
    searches yielded results that were not as specific as might be needed. For
    example, a user attempting to locate an open rule about animal drugs
    within the Animal and Plant Health Inspection Service could (1) do a
    keyword search on the words "animal drugs," yielding a list of all open
    rules about animal drugs governmentwide (not just those within that
    agency); or (2) do an agency search on "Animal

    and Plant Health Inspection Service," yielding a list of all open rules
    from that agency (not just those about animal drugs). However, in June
    2003, the Regulations.gov search functions were changed, and users were
    permitted to search for rules by keyword within particular agencies
    (although still not within entire departments).

    The search function in Regulations.gov has changed since it was initially
    established in other ways as well. For example, users can now use recently
    added links to identify "Regulations Published for Comment Today" and
    rules with "Comments Due Today." However, these links cannot be combined
    with other search functions (e.g., to identify regulations published for
    comment today by a particular agency).

        Proactive Rule Identification Systems

    Both Regulations.gov and the agency-specific rule identification systems
    discussed above are "passive" systems, requiring users to take the
    initiative and find out about recently proposed rules. As we reported in
    our June 2000 report, some agencies have begun using more proactive
    mechanisms for alerting the interested public about impending or recently
    issued rules and opportunities for participation.

    For example, DOT has established a "list serve" that permits members of
    the public to receive e-mail notifications when government documents are
    entered into the department's docket management system.23 Subscribers are
    instructed to create a "profile" that identifies the user by e-mail
    address and to create "agents" (automatic document hunters) to send search
    results to the subscribers' e-mail addresses. Subscribers tell the agents
    what to look for and every 24 hours it will retrieve a list of documents
    matching the criteria entered. If a particular DOT agency is selected
    (e.g., FAA), the subscriber will receive notifications for all of that
    agency's dockets. Notifications can be limited in several other ways as
    well (e.g., only dockets with federalism implications, tribal
    implications, or small entity implications). EPA also allows the public to
    subscribe to any of several list serves and receive notifications about a
    variety of issues, including Federal Register documents concerning the
    agency's air program, water program, and pesticide programs.24

    23DOT's list serve can be accessed at
    http://dms.dot.gov/emailNotification/index.cfm. 24EPA's list serves can be
    accessed at http://www.epa.gov/epahome/listserv.htm.

      Regulations.gov Permitted Electronic Comments on More Proposed Rules Than
      Agencies' Systems

    About 66 percent of the 411 proposed rules that were published
    governmentwide during the relevant 3-month period provided some method by
    which the public could provide comments electronically. However, the
    agencies varied substantially in this regard. Some agencies provided an
    electronic commenting option in virtually all of their proposed rules,
    although the method of commenting often varied. Other agencies (e.g., EPA)
    did not allow electronic comments on most of their rules. In contrast,
    Regulations.gov permitted the public to comment electronically on about 91
    percent of the agencies' proposed rules-including many of the rules for
    which the agencies themselves did not provide an electronic commenting
    option. However, the agencies mentioned Regulations.gov as a commenting
    option in only 2 of the 411 proposed rules. Perhaps as a result, as of May
    2003 relatively few comments had been submitted on proposed rules through
    Regulations.gov.

        Agencies Allowed for Electronic Commenting on About Two-Thirds of Proposed
        Rules

    As figure 5 shows, about 66 percent of the 411 proposed rules published
    from February 2003 through April 2003 provided the public with some type
    of electronic commenting option (e.g., an e-mail address to which comments
    could be sent). However, there were significant differences among the
    agencies in the extent to which they permitted electronic comments. Some
    agencies (e.g., the Federal Communications Commission) provided for
    electronic comments in all or virtually all of their proposed rules. Other
    agencies provided an electronic commenting option in few if any of their
    rules. (See app. II for a list showing the extent to which each department
    or agency that published proposed rules during this period provided for
    electronic comments.) Figure 5 also shows that most of the proposed rules
    that did not provide for electronic comments were published by two
    agencies-EPA and the U.S. Coast Guard.

    Figure 5: About Two-Thirds of the 411 Proposed Rules Published from
    February 2003 through April 2003 Provided for Some Type of Electronic
    Comments

    EPA

    US Coast Guard

    Other

    Rules that did not provide an electronic comment option

    Source: GAO.

    EPA accounted for 43 percent of the proposed rules published during the
    relevant 3-month period without an electronic commenting option. In fact,
    61 of the 78 EPA proposed rules published during this period (about 80
    percent) did not provide for electronic comments. Most of these EPA
    proposed rules were state- or region-specific rules that originated in the
    agency's regional offices-the same type of rules that EPA did not identify
    on its Web site as open for comment. EPA representatives said the regional
    offices were using an outdated template that reflected the agency's
    historical method of soliciting comments, and noted that electronic
    comments were allowed on most of the agencies' significant rules.

    In most cases, EPA did not mention an electronic commenting option in the
    preamble to its proposed rules, and in some cases EPA specifically
    prohibited electronic comments. For example, in a number of proposed SIPs
    published by EPA's Philadelphia regional office, the rule included the
    following statement: "Please note that while questions may be posed via
    telephone and e-mail, formal comments must be submitted in writing, as
    indicated in the ADDRESSES section of this document." The addresses
    section of the rules only provided a mailing address to which paper

    comments could be sent.25 EPA officials said that a review of this issue
    by the agency's Office of the General Counsel concluded that the statement
    included in these rules was probably caused by the inadvertent use of an
    outdated Federal Register notice template.

    Methods of Submitting The 270 proposed rules that provided for electronic
    comments instructed

    Electronic Comments to the public to submit these comments either through
    an e-mail address, an

    Agencies Varied	agency's Web-based electronic docket system, or both. In
    more than 80 percent of these proposed rules (224 of the 270 rules), the
    agencies provided an e-mail address to which comments could be submitted.
    However, the addressees of the comments varied by agency and, in some
    cases, by rule within agencies. For example, in some cases the public was
    instructed to send the e-mail comments to an individual (e.g.,
    secretary@cftc.gov). In other cases the address provided was an agency
    rulemaking docket (e.g., OW-docket@epamail.epa.gov or
    air-and-rdocket@epa.gov). In still other cases the public was directed to
    a designated mailbox for the rule or a group of related rules (e.g.,
    farcase.2002-018@gsa.gov, cottoncomments@usda.gov or
    9-aswadcomments@faa.gov. In about 29 percent of the proposed rules (77 of
    the 270 rules), the agencies instructed the public to submit comments via
    their Web-based electronic docket systems. For example, in DOT rules
    (other than airworthiness directives), users were permitted to submit
    comments to http://dms.dot.gov. That link took users to the department's
    docket management system page on the DOT Web site, which contained a link
    entitled "Comments/Submissions." For airworthiness directives, users were
    instructed that they could submit comments to the e-mail address for the
    FAA regional office responsible for the rule.

    The agencies permitting electronic comments also varied in other respects.
    For example, EPA and the Department of Health and Human Services permitted
    the public to attach documents to their electronic comments (e.g., studies
    supporting their point of view), while the General Services Administration
    did not allow attachments. Also, EPA and the Patent and Trademark Office
    permitted the public to submit comments anonymously, but other agencies,
    such as the Department of the Interior, the Department

    25By July 2003, EPA began providing an e-mail address for these SIPs.
    Specifically, the rules state that comments can be provided either by mail
    or electronically, and that electronic comments should be sent either to
    an e-mail address within EPA "or to http://www.regulations.gov, which is
    an alternative method for submitting electronic comments to EPA."

    of the Treasury, and the Federal Communications Commission, required
    commenters to provide some type of identifying information (e.g., name,
    address, and/or organizational affiliation).

        Regulations.gov Allowed Electronic Commenting on Virtually All Proposed
        Rules

    In Regulations.gov, users wanting to submit comments through the system
    simply type their comments in a "Comments" box, complete any other
    required or optional identifying information, review the comment upon
    completion and (where permitted) attach related documents, and then click
    on the "Submit Comments" button provided. At that point the electronic
    comment is sent to EPA's National Computing Center. From there, comments
    are batched and sent each night to a designated address for the rulemaking
    agency.

    As figure 6 shows, Regulations.gov allowed the public to comment
    electronically on about 91 percent of the 411 proposed rules that were
    published from February 2003 through April 2003. As noted previously, the
    rulemaking agencies themselves only provided for electronic comments in
    about 66 percent of these rules. Therefore, Regulations.gov provided the
    only electronic commenting option for more than one-quarter of the
    proposed rules published during this period. This was the case for 61 of
    EPA's 78 proposed rules (about 78 percent).

    Figure 6: Regulations.gov Permitted Electronic Comments on Nearly All of
    the 411 Proposed Rules Published from February 2003 through April 2003

    NMFS

    CMS

    Other

    Regulations.gov. provided electronic comment option

    Regulations.gov. did not provide an electronic comment option

    Source: GAO.

    Figure 6 also shows that two agencies accounted for more than half of the
    proposed rules on which electronic comments were not allowed through
    Regulations.gov-the National Marine Fisheries Service (NMFS) with the
    Department of Commerce and the Centers for Medicare & Medicaid Services
    (CMS) within the Department of Health and Human Services. Selecting the
    "Submit a Comment" link for one of these rules yielded the following
    statement:

    "This Agency does NOT accept electronic comments for this Federal Register
    document. You must print out this comment and submit it to the agency by
    any method identified in the Federal Register document for the rule you
    are commenting on. The agency's contact information will also appear on
    the printed comment form. Your comment will not be considered until this
    agency receives it. For further information, follow directions in the
    specific Federal Register document or contact the specific agency
    directly."

    A Department of Commerce official told us that NMFS has had a written
    policy since October 1999 of not accepting public comments on its proposed
    rules via e-mail or the Web. However, he said that NMFS is in the process
    of repealing that policy and that the agency anticipates accepting
    electronic comments later this year. He also said that NMFS had developed
    a pilot program that would not only permit the acceptance of electronic
    comments, but would also facilitate their analysis. According to the "How

    Required Information in Regulations.gov Varied

    Relatively Few Comments Received through Regulations.gov

    to Comment" section for the CMS rules listed on Regulations.gov, the
    agency does not accept comments by facsimile or e-mail "because of staff
    and resource limitations."

    An EPA official involved in the e-rulemaking initiative said that
    Regulations.gov follows whatever commenting procedure the agencies tell
    EPA to use. If an agency does not want to receive electronic comments, he
    said Regulations.gov would instruct users to print out and mail their
    comments.

    The information that the public was required to provide when submitting a
    comment using Regulations.gov varied. Most commonly (e.g., for many of the
    rules from DOT, EPA, and the Department of Veterans Affairs), the only
    required information was the comment itself, with space provided in which
    other information (e.g., name, address, and organization) could (but was
    not required to) be submitted. However, for other rules (such as those
    rules published by the Forest Service and the Food and Drug
    Administration), commenters were required to provide additional
    information such as their names, mailing addresses, or other identifying
    information. In still other cases, Regulations.gov only provided users
    with a comment box; users were not even given the option of providing
    identifying information.

    An EPA official involved in the e-rulemaking initiative told us that each
    agency is responsible for determining whether that agency's comment page
    on Regulations.gov includes fields identifying the commenter, and whether
    those fields were mandatory or optional. He said the e-rulemaking
    initiative had not considered how certain fields might affect the public's
    willingness or ability to comment (e.g., whether certain members of the
    public would feel comfortable identifying themselves as a requirement to
    comment on a proposed rule).

    In May 2003, an EPA official involved in the e-rulemaking initiative told
    us that about 400 comments had been filed on rules governmentwide through
    Regulations.gov. However, the official said this total included "test
    comments" that had been submitted from within the federal government, and
    estimated (because no data were readily available) that only about 200 of
    the 400 comments that federal agencies had received through
    Regulations.gov by that date were from the general public. He also said
    that of all the public comments that EPA had received on its various
    rules- including the more than 300,000 comments received through the
    agency's own e-rulemaking Web site and traditional methods for the
    proposed

    changes to the new source review program-EPA received only 8 public
    comments through Regulations.gov. Similarly, DOT officials told us that
    from February 2003 through April 2003, the department had received only 21
    comments through the Regulations.gov Web site. During the same period, DOT
    said it had received nearly 18,000 comments through its document
    management system, of which nearly 16,000 were electronic.

    EPA officials responsible for the e-rulemaking initiative suggested that
    the relatively infrequent use of Regulations.gov in its first 3 full
    months of operation could be because commenters have become used to filing
    comments in a particular way, and are not comfortable using the new
    system. However, another possible explanation is that major rulemaking
    agencies have not mentioned Regulations.gov as a commenting option in
    their proposed rules. Specifically, of the 411 proposed rules published
    from April through May 2003, only 2 mentioned Regulations.gov in their
    preambles as a way for the public to provide comments. 26

      Some Agencies Provided Electronic Access to Supporting Materials, but
      Regulations.gov Does Not Currently Do So

    Several federal agencies (e.g., EPA and DOT) allowed the public to have
    electronic access to regulatory supporting materials and the comments of
    others for some of their proposed rules. Other agencies provided no
    electronic access to these materials. Regulations.gov does not provide
    electronic access to regulatory supporting materials or the comments of
    others. However, EPA officials noted that Regulations.gov was not designed
    to provide that function, and said that the second module of the
    governmentwide e-rulemaking initiative would, when fully implemented,
    permit users to access supporting materials and the comments of others for
    all proposed rules. EPA currently expects such access to begin by the end
    of 2005.

        Some Agencies Provided Electronic Access to Supporting Materials and
        Comments

    Regulatory agencies are required to prepare supporting materials for many
    of their proposed and final rules. Those supporting materials can include
    the agency's economic analysis (describing, for example, the alternatives
    the agency considered and the costs and benefits of the alternative
    selected) and descriptions of how the agencies have complied with various

    26NARA Facilities; Public Use (68 Fed. Reg. 19168, Apr. 18, 2003) and Size
    for Purposes of the Multiple Award Schedule and Other Multiple Award
    Contracts; Small Business Size Regulations; 8(a) Business
    Development/Small Disadvantaged Business Status Determinations (68 Fed.
    Reg. 20350, Apr. 25, 2003).

    rulemaking requirements (e.g., the Regulatory Flexibility Act, the
    Paperwork Reduction Act of 1995, and Executive Order 12866). These
    materials, as well as the comments filed by the public in response to a
    notice of proposed rulemaking, have traditionally been housed in agencies'
    rulemaking dockets. Access to these materials during the period in which
    proposed rules are open for comment can permit those comments to be more
    informed and targeted to particular issues.

    Several of the major rulemaking agencies had electronic docket systems in
    which the pubic could obtain access to regulatory supporting materials and
    the comments of others during the public comment period for some (but not
    all) of their proposed rules. As the following examples illustrate, the
    features of those systems varied.

    o 	As noted previously, DOT's document management system did not include
    airworthiness directives published by FAA's regional offices. However, the
    system provided electronic access to supporting materials and the comments
    of others for some of the department's other proposed rules. Docket
    materials available through the system included the text of the proposed
    rules, any related Federal Register notices (e.g., advanced notices of
    proposed rulemaking, notices, and corrections), environmental assessments,
    environmental impact statements, regulatory flexibility analyses, and some
    of the comments received on the rules. The identities of the commenters
    were provided when available (e.g., "John Doe" or "XYZ Organization").

    o 	As noted previously, EPA's electronic docket system did not include
    proposed rules that originated in the agency's regional offices. For
    proposed rules in the system that were issued by EPA headquarters offices,
    the system permits users to obtain such items as the agency's economic
    analyses for the rules, paperwork estimates, e-mails between EPA and OMB,
    and the comments already provided (with the identities of the commenters
    provided). In those cases where the documents may have copyrighted
    information and are not available electronically, the electronic docket
    system provided a reference to where hard copies of the documents may be
    reviewed.

    Some agencies provided electronic access to only certain types of
    supporting materials, or for certain rules, as the following illustrates.

    o 	USDA did not have a link from its home page providing electronic access
    to supporting materials or the comments for all of its proposed

    rules. However, a "Federal Rulemaking" link from the Agricultural
    Marketing Service's home page ultimately provided electronic access to
    "public comments received on rules and notices." However, the link did not
    provide access to any regulatory supporting materials. The rules and
    related comments were categorized under the commodity related to the
    proposed rule (e.g., cotton, dairy, or poultry).

    o 	Similarly, the Department of Health and Human Services did not have a
    link to public comments or supporting materials from its home page, but a
    "Dockets" link was available from the Food and Drug Administration's Web
    site. The agency's docket system provided a great deal of supporting
    materials and comments of others filed regarding the agency's rules and
    other publications, but we found the system somewhat difficult to
    navigate. In particular, although the Web site contained a link (updated
    monthly) entitled "Dockets - Closing with comment period ending within the
    next two months," the agency did not clearly identify proposed rules that
    were open for comment. Also, the list provided did not appear to contain
    all proposed rules.

    Other agencies that made at least some supporting documents available to
    the public included the Occupational Safety and Health Administration, the
    Federal Communications Commission, and the Social Security Administration.
    These agency-specific Web sites allowed the public access to, among other
    things, the comments that had already been received, the agencies'
    regulatory impact analyses, and related notices.

        Regulations.gov Did Not Permit Access to Comments or Supporting Materials

    Regulations.gov provided electronic access to copies of the proposed rules
    as they appeared in the Federal Register. However, the Web site did not
    permit the public to access the comments of others or regulatory
    supporting materials.27 EPA officials noted that Regulations.gov is the
    first module of the administration's e-rulemaking initiative, and is
    currently limited to a "pointer or communication" focus that allows the
    public to electronically identify and comment on rules. They said that
    when the second module of the e-rulemaking initiative is complete, all
    agencies' rules and docket materials would be in a single electronic
    docket. At that point,

    27Although Regulations.gov did not provide these materials directly, in
    some cases, the electronic copies of the rules provided on Regulations.gov
    contained links to agencies' docket systems where public comments and
    supporting materials could be obtained.

    the public would be able to access supporting materials and public
    comments for all rules electronically.

    The governmentwide docket system was originally scheduled to be completed
    by July 2003, with full implementation by the end of September 2004.
    However, EPA officials told us during this review that the implementation
    of the second module is currently scheduled to be completed by the end of
    2005. They also said a number of legal and policy issues still must be
    resolved as part of the development and implementation of this module
    (e.g., whether the electronic docket will be the official record and what
    types of supporting materials would be included in this governmentwide
    docket). EPA officials pointed out that the implementation of this module
    does not depend upon the resolution of the legal issues. However, unless
    the electronic docket is recognized as the official record, duplicative
    agency-specific dockets will not be eliminated and the expected $100
    million in savings will not be realized.

    Conclusions	Our study indicated that Regulations.gov more directly and
    more comprehensively allowed the public to identify proposed rules that
    were open for comment than the three major rulemaking agencies' electronic
    systems that we examined. Other agencies that publish fewer proposed rules
    may be even less likely to have clear, complete, and up-to-date electronic
    systems to identify rules that are open for comment. Rather than create
    new agency-specific rule identification systems or invest significant
    resources to improve agencies' existing systems, the agencies could do
    what EPA and some of the agencies within USDA are already doing-simply
    provide a link to Regulations.gov on their Web sites and tell users that
    Regulations.gov identifies all of their rules that are open for comment.

    Our study also indicated that Regulations.gov more consistently permitted
    the public to comment on proposed rules electronically than the agencies'
    systems. However, almost none of the proposed rules published in
    Regulations.gov's first 3 months of existence mentioned the Web site as a
    commenting option-including nearly 100 rules for which Regulations.gov was
    the public's only electronic commenting option. We recognize that Federal
    Register notices are not the only way that the public learns how to
    comment on proposed rules. We also recognize that Regulations.gov is an
    interim system, in place only until the second module of the
    administration's e-rulemaking initiative is fully operational. Until that
    occurs (currently scheduled for the end of 2005), we believe that

    improvements to both the visibility and the operation of Regulations.gov
    should be made. If Regulations.gov is to be a success as a commenting
    option, the public needs to know that the option exists. One way to
    improve its visibility (although clearly not the only way) is to mention
    Regulations.gov in agencies' proposed rules as a commenting option.

    Although we believe that Regulations.gov is superior to the agencies'
    notice and comment systems in some respects, users currently are unable to
    identify all proposed rules open for comment within a cabinet department,
    and must search through a dozen or more links to obtain a complete list or
    to locate a particular rule within the department. Also, Regulations.gov
    currently does not always identify rules using their titles as they appear
    in the Federal Register, thereby making it difficult for users to locate
    particular rules. Perhaps the biggest advantage that the agency-specific
    commenting systems have when compared to Regulations.gov is the public's
    ability to access electronically regulatory supporting materials and the
    comments of others. However, as EPA officials pointed out, Regulations.gov
    was not designed for that function, and the next module of the
    administration's e-rulemaking initiative will hopefully provide that
    capability. Until that capability is provided and proven, we do not
    believe that agencies should be required to abandon docket systems that
    already permit the public to review regulatory supporting materials and
    the comments of others.

    The E-Government Act of 2002 established an Office of Electronic
    Government within OMB, and requires the Administrator of that office to
    work with the Administrator of OMB's Office of Information and Regulatory
    Affairs in establishing the strategic direction of the e-government
    program and to oversee its implementation. In light of our findings, OMB
    could issue guidance to rulemaking agencies that could improve the
    public's ability to comment on the rules that affect their lives.

    Recommendations for 	We recommend that the Director of OMB issue guidance
    to the rulemaking agencies on ways to improve the electronic commenting
    process for

    Executive Action	proposed rules. Specifically, the guidance should
    instruct the agencies to (1) provide a link to Regulations.gov on their
    Web sites to allow users to identify proposed rules open for comment, and
    (2) note in the preambles of their proposed rules the availability of
    Regulations.gov as an electronic commenting option.

     We also recommend that the Director make changes to Regulations.gov to improve
     its capabilities. Specifically, Regulations.gov should allow users to identify
    all proposed rules open for comment within a cabinet department, and should list
             rules using the titles as they appear in the Federal Register.

      Agency Comments and Our Evaluation

    On August 8, 2003, we provided a draft of this report to OMB and to EPA
    for review and comment. We also provided a draft for technical review to
    USDA and DOT. DOT provided us with a few technical suggestions, which we
    incorporated as appropriate. USDA indicated that it agreed with the report
    and would take action regarding its findings.

    On August 22, 2003, we met with EPA officials and received informal
    comments on the draft report. As a result of those comments, we clarified
    several issues in the report. For example, EPA officials pointed out that
    the different parts of the e-rulemaking initiative should be referred to
    as "modules" instead of "phases," and said the implementation of the
    second module began in 2003 and would be completed by the end of 2005.
    They also said that the implementation of the second module did not depend
    on the resolution of outstanding legal issues.

    On August 28, 2003, the EPA Program Manager and Deputy Assistant
    Administrator for the e-rulemaking initiative provided written comments on
    the draft report. (Comments are reprinted in app. III.) In general, the
    Program Manager said that the report required "substantial revision to
    accurately and fairly characterize existing federal electronic docket
    systems." He also said that the report's findings were "presented in a
    manner that could easily cause an objective reader to reach unsupportable
    conclusions." For example, he said that "EPA's EDOCKET system had been
    recently launched" when we conducted our review, and that "this snapshot
    of a point in time...cannot accurately or fairly present the functional
    capabilities and status" of the system. However, EPA's Web site indicated
    that the EDOCKET system had been in operation since at least September
    2001. Also, the Program Manager's letter indicated that a 2002 study
    concluded that the EDOCKET system was "the closest to ideal of the
    existing [federal docket management] systems," and quoted the study as
    saying that the EPA system "contains no significant weaknesses or
    omissions, functional or otherwise." Therefore, it is not clear how EPA
    can claim that at the time of our review (May 2003) the EDOCKET system had
    been "recently launched," or how the agency can suggest that the system
    identified as the best in the government should not have been part of our
    review. We believe that the information in our report about the contents
    of

    EDOCKET as of May 2003 (that it identified only 6 of 33 EPA proposed rules
    that were open for comment) is an accurate characterization of the system
    at that point in time.

    The Program Manager also indicated that the draft report did not reflect
    EDOCKET's original design or intended use-that is, that it was designed to
    include "EPA's highest priority regulatory actions" and that regional
    office actions (which were described in his letter as "administrative in
    nature or are of limited geographic scope") would be included in a
    subsequent expansion of EDOCKET. However, the draft report that we
    provided to EPA noted that EDOCKET was originally designed to include only
    headquarters regulations and that regional office rules would eventually
    be added to the system. Also, EDOCKETS contained only half of the
    headquarters proposed rules that were open for comment. Finally, most of
    the items open for comment in EPA's EDOCKET system are general docket
    notices and are not part of the rulemaking docket. It is not clear why EPA
    considers proposed rules emanating from the agency's regional offices
    (e.g., rules implementing the Clean Air Act within a region) less
    important than these notices.

    Finally, the Program Manager indicated that Regulations.gov was intended
    to be an interim comment system and had been in operation for only a short
    period at the time of our review. Therefore, he said the e-rulemaking team
    was not surprised by many of the shortcomings that we identified and said
    the team would review the recommendations and expected to implement many
    of those not already included in the initiative's second module. He also
    said that expanding the functional capabilities of Regulations.gov to
    include a "wider range of public services" would have delayed its launch.
    However, we did not suggest that Regulations.gov's functional capabilities
    be expanded, and noted in the draft report provided to EPA that certain
    functions not currently part of Regulations.gov (e.g., access to
    regulatory supporting material) would be added in the second module of the
    e-rulemaking initiative.

    On August 29, 2003, the Administrator of Office of Information and
    Regulatory Affairs provided written comments on the draft report.
    (Comments are reprinted in app. IV.) In general, the Administrator agreed
    with the draft report's recommendations and indicated that actions had
    already begun to address some of the recommendations. However, he
    suggested clarifications to a few of the points made in the report. For
    example, the draft report provided to OMB stated that it was not clear
    when the second module of the e-rulemaking initiative would be

    implemented. The Administrator pointed out that some aspects of the second
    module had already begun and the module would be completed by October
    2005. As noted previously, in response to informal comments that we had
    received from EPA after the draft report had been provided to OMB, we
    changed the report to reflect that implementation of the second module
    began in 2003 and would be completed by the end of 2005.

    Also, in reference to our recommendation that OMB issue guidance to the
    rulemaking agencies on how to improve electronic commenting, the
    Administrator noted that on August 1, 2003, OMB had issued implementation
    guidance on the E-Government Act of 2002. Although that guidance addresses
    certain aspects of the e-rulemaking initiative, it does not address the
    issues in our recommendation (and that the Administrator agreed should be
    implemented).

    Finally, noting that our draft report recommended that OMB make changes to
    Regulations.gov to improve its capabilities, the Administrator indicated
    that the functionality of Regulations.gov would be enhanced with the
    completion of the second module. However, the draft report provided to OMB
    already indicated that certain functions not currently included in
    Regulations.gov (e.g., access to supporting material) would be added with
    the completion of the second module, and we did not recommend the addition
    of those functions.

    As agreed with your offices, unless you publicly announce its contents
    earlier, we plan no further distribution of this report until 30 days from
    its date. At that time, we will send copies to the Director of OMB, the
    Secretary of Agriculture, the Secretary of Transportation, and the
    Administrator of EPA. It will also be available at no charge on GAO's Web
    site at http://www.gao.gov. If you have any questions concerning this
    report, please call Curtis Copeland or me at (202) 512-6806.

    Major contributors to this report include Joe Santiago, Mary Martin, and
    John Ripper.

    Victor S. Rezendes Managing Director Strategic Issues

    Appendix I

                           Objectives, Scope, and Methodology

    The objectives of our review were to determine the extent to which
    individual agencies and the new governmentwide Regulations.gov Web site
    permitted the public to electronically (1) identify proposed rules that
    are open for comment, (2) comment on proposed rules, and (3) access the
    comments of others and regulatory supporting materials.

    To address these objectives, we focused on the period from February 1,
    2003, through April 1, 2003-the first 3 full months that Regulations.gov
    was in operation. Some items published in the "proposed rule" section of
    the Federal Register did not appear to be proposed rules in the
    traditional sense of the word and/or did not request public comments.
    Therefore, we developed criteria for what constituted a "proposed rule"
    for purposes of our study: (1) the item must be a "rule" as defined under
    the Administrative Procedure Act [5 U.S.C. sec. 551(4)];1 (2) the "action"
    line in the preamble to the proposed rule must either say "proposed rule,"
    "notice of proposed rulemaking," or "supplemental notice of proposed
    rulemaking;" and (3) the rule must specify a defined comment period.
    Applying these criteria, we determined that 411 proposed rules had been
    published in the Federal Register by 38 agencies during the targeted
    3-month period. Three agencies published more than half of these 411
    proposed rules. The Department of Transportation (DOT) issued 122 of the
    rules (30 percent), the Environmental Protection Agency (EPA) issued 78
    rules (19 percent), and the Department of Agriculture (USDA) issued 34 of
    the rules (8 percent).

    Because reviewing all federal agencies' Web sites for open proposed rules
    would have taken an unreasonable amount of time, we decided to focus our
    efforts in relation to the first objective on the above three. We then
    developed a list of proposed rules that were open for comment as of the
    day after our target period ended (May 1, 2003). Of the 122 DOT proposed
    rules published from February 2003 through April 2003, 52 were open for
    comment as of May 1, 2003. Thirty-three of the 78 EPA rules were open as
    of that date, as were 17 of the 34 USDA rules. We then compared our list
    of open proposed rules for these three agencies with lists of proposed
    rules that were identified as open for comment on the three agencies' Web
    sites and the Regulations.gov Web site on that date. We also examined the
    Web

    1The Administrative Procedure Act defines a rule as "the whole or a part
    of an agency statement of general or particular applicability and future
    effect designed to implement, interpret, or prescribe law or policy or
    describing the organization, procedure, or practice requirements of an
    agency."

    Appendix I
    Objectives, Scope, and Methodology

    sites for the three agencies and Regulations.gov to determine how easy it
    would be for users to identify proposed rules open for comment.

    To address our second objective, we examined each of the 411 rules to
    determine whether the issuing agency had provided some type of electronic
    commenting option (e.g., an E-mail or a Web site to which comments could
    be sent). We also examined Regulations.gov to determine whether that Web
    site permitted electronic comments for the rules. In doing so, we noted
    differences in how comments were required or permitted to be submitted in
    both the agencies' and the Regulation.gov systems.

    To address the third objective, we examined the Regulations.gov Web site
    and the Web sites for agencies that published 10 or more proposed rules
    during the time period covered by our review. Among those agencies were
    DOT, EPA, and USDA as well as the Federal Communications Commission, the
    Department of Health and Human Services, the Department of Labor, the
    Department of the Interior, and the Department of Commerce. We attempted
    to assess whether the agencies permitted users to access the comments of
    others and/or regulatory supporting materials such as agencies' economic
    analyses.

    During the course of this review we interviewed agency officials
    responsible for regulatory matters within DOT, EPA, and USDA, including
    EPA officials who were responsible for the electronic rulemaking
    initiative. We also interviewed officials at the Office of Management and
    Budget who were responsible for the governmentwide e-rulemaking
    initiative. At the end of our review we provided a draft of this report to
    the Director of the Office of Management and Budget and the Acting
    Administrator of EPA for their review and comment. We also provided drafts
    to the Secretary of Agriculture and the Secretary of Transportation for
    technical review. Because our review focused on proposed rules published
    during a 3-month period, the results cannot be extrapolated to rules
    published during other time frames. Also, both the agencies' electronic
    rulemaking systems and the new Regulations.gov Web site are constantly
    changing, thereby making any description of those systems time sensitive.
    We conducted this review from February 2003 through June 2003 in
    accordance with generally accepted government auditing standards.

    Appendix II

    Agencies Varied in Extent to Which They Provided for Electronic Comments on
    Proposed Rules

                         Department/agency Departments Agencies

                                               Number of    Number of   Number of
                                                             rules in    rules in
                                          proposed rules                    which
                                          published from which agency  agency did
                                                                              not
                                          February 2003  provided for provide for
                                          through April    electronic  electronic
                                                    2003     comments    comments

                            Department of Agriculture      34                  29
                               Department of Commerce      18             3
                                Department of Defense      13             7
                              Department of Education       1             1
                                 Department of Energy       4             4
                       Department of Health and Human
                                             Services      19                  14
                      Department of Homeland Security      18             1
                      Department of Housing and Urban
                                          Development       3             0
                           Department of the Interior      22                  20
                                Department of Justice       3             0
                                  Department of Labor       6             6
                         Department of Transportation      122                107
                           Department of the Treasury      17                  15
                       Department of Veterans Affairs       3             3

                          Commodity Futures Trading
                                         Commission     3         3
                       Court Services and Offenders
                                 Supervision Agency     2         0             2
                    Environmental Protection Agency    78        17            61
                         Farm Credit Administration     2         2             0
                             Federal Communications
                                         Commission    11        11             0
                        Federal Election Commission     1         1             0
                       Federal Emergency Management
                                             Agency     1         1             0
                      Federal Housing Finance Board     1         1             0
                        Federal Maritime Commission     1         1             0
                             Federal Reserve System     2         2             0
                           Federal Trade Commission     2         2             0

    Appendix II
    Agencies Varied in Extent to Which They
    Provided for Electronic Comments on
    Proposed Rules

    (Continued From Previous Page)

                                                    Number of Number of Number of
                                           proposed rules rules in rules in which
                                       published from which agency agency did not
                                           February 2003 provided for provide for
                                              through April electronic electronic
                                         Department/agency 2003 comments comments

                   General Services Administration     1          1
                               Library of Congress     1          0
                     National Archives and Records
                                    Administration     1          1
                             National Credit Union
                                    Administration     2          2
                     Nuclear Regulatory Commission     6          6
                       Office of Government Ethics     1          1
                    Office of Personnel Management     3          1
                                       Peace Corps     1          0
                          Pension Benefit Guaranty
                                       Corporation     1          1
                     Small Business Administration     2          2
                           Securities and Exchange
                                        Commission     3          3
                    Social Security Administration     1          1
                               Thrift Savings Plan     1          0
                                             Total    411        270          141

    Source: GAO.

    Note: Eight of the 411 rules were joint rules between two or more federal
    agencies. These rules were included under the first agency listed in the
    Federal Register notice.

    Appendix III

    Comments from the Environmental Protection Agency

    Appendix III
    Comments from the Environmental
    Protection Agency

    Appendix III
    Comments from the Environmental
    Protection Agency

    Appendix IV

    Comments from the Office of Management and Budget

    Appendix IV
    Comments from the Office of Management
    and Budget

    Appendix IV
    Comments from the Office of Management
    and Budget

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