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 [email protected].
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
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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.,
[email protected]). In other cases the address provided was an agency
rulemaking docket (e.g., [email protected] or
[email protected]). In still other cases the public was directed to
a designated mailbox for the rule or a group of related rules (e.g.,
[email protected], [email protected] or
[email protected]. 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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