Federal Rulemaking: Agencies' Use of Information Technology to Facilitate
Public Participation (Correspondence, 06/30/2000, GAO/GGD-00-135R).

Pursuant to a congressional request, GAO reviewed how federal agencies
are using information technology (IT) to facilitate public participation
in the rulemaking process, focusing on the: (1) potentially beneficial
uses of IT in the rulemaking process that have not yet been adopted by
federal agencies; and (2) benefits and drawbacks of standardizing
innovative uses of IT across multiple agencies.

GAO noted that: (1) all five of the regulatory agencies that GAO
examined were using some form of IT to notify the public about
opportunities to participate in rulemaking and to facilitate the receipt
of public comments; (2) all of these agencies had web sites that
conveyed rulemaking information to the public or maintained some
rulemaking records in electronic form, and all of them accepted
electronic comments for at least some of their proposed rules; (3)
however, the specific features and uses of IT differed significantly
between and sometimes within the agencies; (4) for example, the
Department of Transportation (DOT) had established an Internet web site
that housed regulatory information for every agency within DOT and was
searchable in a variety of ways; (5) other agencies either had no such
information electronically available or the nature of the information
available varied from one part of DOT to another; (6) some of the
agencies were beginning to use targeted, proactive notifications of
forthcoming rules, and some were experimenting with interactive comment
processes; (7) the individuals and organizations with whom GAO spoke did
not identify any potentially beneficial IT-based public participation
applications that had not been adopted by at least one of the regulatory
agencies that GAO examined; (8) however, some of them indicated that
certain IT practices should be more widely used; (9) several individuals
and organizations 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; (10) although some of the individuals and
organizations that GAO contacted said that standardization of IT-based
public participation innovations across agencies could lead to more
participation in the rulemaking process, the agency representatives that
GAO contacted generally did not believe that cross-agency
standardization was either necessary or appropriate; (11) they said that
each agency needed to develop systems appropriate for their particular
circumstances and that there were no data indicating that the lack of
standardization was a problem, or that standardization would improve
either the quantity or the quality of the participation that agencies
receive during the rulemaking process; and (12) they also said that
standardization would require substantial resources and that those
resources might be better used in other endeavors.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  GGD-00-135R
     TITLE:  Federal Rulemaking: Agencies' Use of Information
	     Technology to Facilitate Public Participation
      DATE:  06/30/2000
   SUBJECT:  Information technology
	     Standards and standardization
	     Regulatory agencies
	     Agency proceedings
	     Proposed legislation
	     Information resources management
	     Electronic publications
	     Electronic government
	     Web sites
	     Internet
IDENTIFIER:  DOT Docket Management System
	     USDA National Organic Program

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GAO/GGD-00-135R

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GAO

GAO/GGD-00-135R

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B-284527

Page 9                      GAO/GGD-00-135R Federal Rulemaking

B-284527

June 30, 2000

The Honorable Henry A. Waxman
Ranking Minority Member
Committee on Government Reform
House of Representatives

The Honorable Joseph I. Lieberman
Ranking Minority Member
Committee on Governmental Affairs
United States Senate
 
Subject:  Federal Rulemaking:  Agencies' Use of Information
Technology
                to Facilitate Public Participation

This letter responds to your requests that we provide examples
of how federal agencies are using information technology (IT)
to facilitate public participation in the rulemaking process.
You also asked us to identify potentially beneficial uses of
IT in the rulemaking process that have not yet been adopted by
federal agencies, and to discuss the benefits and drawbacks of
standardizing innovative uses of IT across multiple agencies.

The basic process by which federal agencies develop and issue
regulations is spelled out in section 553 of the
Administrative Procedure Act of 1946 (APA). Among other
things, the APA 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. Various legislative and administration
initiatives have emphasized IT's potential to improve the
federal government's performance. For example, the Paperwork
Reduction Act of 1995 says that the Director of the Office of
Management and Budget (OMB) should promote the use of IT "to
improve the productivity, efficiency, and effectiveness of
Federal programs, including through dissemination of public
information and the reduction of information collection
burdens on the public." One of the recommendations of the
National Performance Review in September 1993 was to "[u]se
information technology and other techniques to increase
opportunities for early, frequent, and interactive public
participation during the rulemaking process and to increase
program evaluation efforts." A December 17, 1999, presidential
memorandum on "Electronic Government" noted that "as public
awareness and Internet usage increase, the demand for on line
Government interaction and simplified, standardized ways to
access Government information and services becomes
increasingly important," and directs federal agencies to take
steps to address that growing demand.

To accomplish all three of our objectives, we interviewed
officials and staff at OMB and selected agencies with
significant responsibilities for health, safety, or
environmental regulation: the Departments of Agriculture
(USDA), Health and Human Services (HHS), Labor (DOL), and
Transportation (DOT), and the Environmental Protection Agency
(EPA). We also spoke with representatives of the Office of the
Federal Register, the National Governors Association, and
other individuals and organizations interested in federal IT
and rulemaking issues (e.g., the National Federation of
Independent Businesses, Public Citizen, OMB Watch, and authors
of published and unpublished material on regulatory IT
issues). We attempted to contact other organizations that have
been active in the rulemaking process but were unsuccessful.
We also reviewed the agencies' World Wide Web sites,
information they submitted to OMB that was used to prepare the
Information Collection Budget for fiscal year 2000, and other
information that identified innovative IT applications in the
federal government. Finally, we examined the rules that the
agencies proposed during calendar year 1999 to determine the
extent to which they permitted electronic comments. We did not
attempt to catalogue all innovative IT applications in the
rulemaking process or to evaluate the quality of those
practices identified. We conducted our review between February
and May 2000 in accordance with generally accepted government
auditing standards.

Results in Brief

All five of the regulatory agencies that we examined were
using some form of IT to notify the public about opportunities
to participate in rulemaking and to facilitate the receipt of
public comments. All of these agencies had web sites that
conveyed rulemaking information to the public and/or
maintained some rulemaking records in electronic form, and all
of them accepted electronic comments for at least some of
their proposed rules. However, the specific features and uses
of IT differed significantly between and sometimes within the
agencies. For example, DOT had established an Internet web
site that housed regulatory information for every agency
within the department and was searchable in a variety of ways.
Other agencies either had no such information electronically
available or the nature of the information available varied
from one part of the agency to another. Some of the agencies
were beginning to use targeted, proactive notifications of
forthcoming rules, and some were experimenting with
interactive comment processes.

The individuals and organizations with whom we spoke did not
identify any potentially beneficial IT-based public
participation applications that had not been adopted by at
least one of the regulatory agencies that we examined.
However, some of them indicated that certain IT practices
(e.g., proactive notification systems, portals and gateways to
information for particular groups, and interactive
participation mechanisms) should be more widely used. Several
individuals and organizations 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.

Although some of the individuals and organizations that we
contacted said that standardization of IT-based public
participation innovations across agencies could lead to more
participation in the rulemaking process, the agency
representatives that we contacted generally did not believe
that cross-agency standardization was either necessary or
appropriate. They said that each agency needed to develop
systems appropriate for their particular circumstances and
that there were no data indicating that the current lack of
standardization was a problem, or that standardization would
improve either the quantity or the quality of the
participation that agencies receive during the rulemaking
process.  They also said that standardization would require
substantial resources and that those resources might be better
used in other endeavors.

Agencies Differed in Their Use of IT to Facilitate Public
Participation in Rulemaking

In order to participate in the rulemaking process, the public
must first be aware that agencies are considering rules that
could affect their interests. Therefore, we examined the
agencies' use of IT both to inform the public of opportunities
to participate in rulemaking and to facilitate the receipt of
public comments. All of the agencies that we examined had IT
initiatives in both of these areas, but the size, scope, and
specific elements of those initiatives differed both between
and within the agencies.

Governmentwide IT Applications to Inform the Public of
Opportunities to Participate

Federal regulatory agencies have used both governmentwide and
agency-specific vehicles to notify the public about
opportunities for public comment on upcoming rules. Some of
the traditional governmentwide notification vehicles are now
being offered to the public in both paper and electronic
forms.  For example, the Unified Agenda of Federal Regulatory
and Deregulatory Actions is published in the Federal Register
twice each year by the Regulatory Information Service Center
(RISC), 1 and provides uniform reporting of data on regulatory
activities under development throughout the federal
government. The activities included in the Unified Agenda are,
in general, those expected to have a regulatory action within
the next 12 months, although agencies may include activities
with an even longer time frame. The Unified Agenda contains a
wealth of information-so much, in fact, that locating
information about specific rulemaking actions can prove
daunting. For example, the most recent edition of the Unified
Agenda (April 2000) describes 4,441 rulemaking actions under
development or recently completed by 60 federal departments
and agencies. However, IT has demonstrably improved access to
this information. Since October 1995, the Unified Agenda has
been published electronically and is searchable either through
RISC's web site (http://reginfo.gov) or the Government
Printing Office's GPO Access web site (which can be accessed
through http://www.access.gpo.gov).2

Shorter-term notice of upcoming rules is provided by the NPRMs
that agencies publish each day in the Federal Register.
Agencies also publish information on scheduled hearings and
other opportunities for public participation in the Federal
Register.  Like the Unified Agenda, the printed version of the
Federal Register is so voluminous as to be daunting. Federal
agencies publish thousands of proposed rules each year, and
finding a particular rule on which comments are being
solicited can be difficult. This task has been greatly
facilitated by making the Federal Register available
electronically and searchable through the GPO Access web site.
GPO Access can be used to search the Federal Register back to
1995 with particular search parameters (e.g., proposed rules
issued during December 1999 containing the phrase "air quality
standards").3

Using Agency Web Sites to Identify Proposed Rules

All of the federal regulatory agencies that we examined also
used their own web sites to disseminate information about
their rulemaking plans and activities. However, the agencies'
web sites differed widely in the content and organization of
rulemaking information, the array of tools they offer to
facilitate use, and the extent to which they support
customized dissemination of information to the public. These
differences are apparent from the first page in the agencies'
web sites-referred to as the agencies' home pages. Some of the
agencies' home pages feature direct links to their rules and
regulations. For example, EPA's home page (http://www.epa.gov)
has a link called "Legislation & Regulations," which leads to
another link entitled "Regulations and Proposed Rules."
Similarly, DOT's home page (http://www.dot.gov) includes a
link to "Dockets, Rules & References," and DOL's home page
(http://www.dol.gov) contains a link entitled "Laws & Regs."
In contrast, neither USDA's (http://www.usda.gov) nor HHS'
(http://www.hhs.gov) home pages had visible information about
general rulemaking activities in the departments.

The regulatory links on the agencies' home pages did not
always directly identify rules available for comment.

ï¿½EPA's "Regulations and Proposed Rules" link on its home page
allowed the user to transfer to the electronic Federal
Register on the GPO Access web site. The user was then
required to exit EPA's site and use the GPO site's search
tools to identify EPA proposed rules among those of every
other federal agency. Although the "Regulations and Proposed
Rules" link also permitted the user to identify "Environmental
Documents" in the Federal Register, the search tools
identified any document related to a date or keyword, not just
proposed rules.
ï¿½DOT's "Dockets, Rules & References" link on its home page
takes the user to a second page with other links, including
"Transportation Legislation and Regulation," "DOT Legislative
and Rulemaking Documents," and "DOT Regulations, Orders,
Policies, and Regulation." However, none of these links
provided a listing of DOT proposed rules available for
comment. Like the EPA site, the "DOT Regulations, Orders,
Policies, and Regulations" link directs the viewer to the GPO
Access web site.
ï¿½DOL's "Laws and Regs" link on its home page ultimately allows
the user to identify proposed rules within each of the
department's various agencies and offices, and provides a
hypertext link that allows the user to view a copy of the
proposed rules. However, some of the rules that were listed
had been published more than a year previously, and were no
longer available for comment.

Some of the smaller organizational units within these
departments and agencies provided a listing of proposed rules
available for comment. For example, USDA's Animal and Plant
Health Inspection Service's (APHIS) web page contained a
"Regulations" link that provides a listing of recently
published rules, along with text or Adobe Portable Document
Format (PDF) files allowing viewers to read the rules on line.
HHS's Administration for Children and Families (ACF) had a web
page on "ACF Regulations Currently Open for Comment." However,
it was not immediately apparent how to locate that page from
the HHS home page; the user had to click on "HHS Agencies"
and, at the ACF web page, use a "drop-down menu" entitled
"Select a Topic" within which the "Regulations Currently Open
for Comment" page is located. Other HHS agencies (e.g., the
Administration on Aging and the Agency for Toxic Substances
and Disease Registry) did not list rules that were available
for comment. Similarly, EPA's Office of Air and Radiation
provided a listing of proposed rules available for public
comment. Again, however, locating that information from EPA's
home page was not easy or immediately apparent.  One route
required the user to access the "Information Sources,"
"Dockets," and "Air and Radiation Docket and Information
Center" web pages before arriving at a link to proposed rules
available for comment. Similar listings of recently proposed
rules available for comment were not available using this
procedure for other EPA offices (e.g., Water and Solid Waste
and Emergency Response) and programs (e.g., Underground
Storage Tanks).4

Featuring Rules of Interest

Some of the agencies featured links on their home pages
notifying the public about particular regulatory issues of
widespread public interest. For example, the home page of both
DOL and the Occupational Safety and Health Administration
(OSHA) within DOL pointed to a separate web site for OSHA's
November 1999 proposed rule on ergonomics, which pulled
together in one place all of the electronic information
related to this rulemaking (e.g., the rule, its economic
analysis, and hearings transcripts). As will be discussed in
more detail later, the USDA home page identified a separate
web site for the department's Agricultural and Marketing
Service's (AMS) proposed rule establishing standards for
organically produced food. That site provided a wealth of
information about the proposed rule, including the text of the
rule, the agency's regulatory impact assessment, and how to
submit comments and search the comments that have already been
submitted.

Portals and Gateways

Some of the agencies had also developed portals or gateways
providing customized information for particular target
audiences. HHS supports a number of these gateways and has a
"Gateways" button on its home page identifying them, which
includes both HHS-sponsored sites (e.g., "Organ Donation" and
"YouthInfo") and other sites (e.g., "U.S. State & Local
Gateway"). The state and local gateway was designed to give
state and local government officials and employees easy access
to federal information, and includes a link to a
"Laws/Regulations" page that organizes the information by
topic (e.g., "Families/Children") or by related links (e.g.,
"Federal Laws/Regs/Presidential Documents," where the user can
link to the GPO Access site). One such related link, entitled
"Electronic Rulemaking," identified several electronic
rulemaking initiatives across the federal government (e.g.,
the DOT docket management system discussed later), and
provided links to these initiatives. EPA had a link on its
home page for particular audience groups. One such link was a
"Small Business Gateway," which organizes regulatory
information of special interest to small businesses. This
gateway guides small businesses to a variety of environmental
information sources, and provides links to related resources
outside EPA, such as the Small Business Administration's
Business Advisor. The EPA Small Business Gateway also provides
a link to environmental regulations and laws, including "new
regulations, proposed rules, important notices, and the
regulatory agenda of future regulations." However, this is a
link to electronic documents available in the Federal Register
through the GPO Access web site, not EPA-specific proposed
rules, and the viewer is then required to use that site's
search tools to identify particular proposed rules.

Proactive Notification Systems

All of the governmentwide and agency-specific resources
discussed thus far are passive information systems, requiring
users to take the initiative and find out about upcoming and
recently proposed rules. Some agencies are beginning to use
more proactive mechanisms for alerting the interested public
about impending regulatory actions and opportunities for
participation. For example, HHS created a web site for the
administrative simplification provisions of the Health
Insurance Portability and Accountability Act of 1996 that
provided information on several related proposed rules. The
site permitted the interested public to subscribe to a list
server that would notify subscribers by e-mail when NPRMs and
final rules are published or posted. Similarly, the APHIS web
page on recently published rules and regulations allowed users
to enter keywords and receive e-mail when certain key words
appear on the pages.

Using IT to Facilitate the Receipt of Public Comments

All of the regulatory agencies that we examined explicitly
permitted the public to submit electronic comments on some,
but not all, of their recent proposed rules. By creating
electronic dockets, some agencies were expanding the options
for public review and comment not only on proposed rules, but
also on regulatory analyses and the variety of other materials
that make up the public record for the rulemaking. Agencies
were also beginning to offer the public more interactive
options for participating in rulemaking. However, there were
significant differences in how the agencies had implemented
these capabilities.

Filing Comments Electronically

NPRMs that are published in the Federal Register have
traditionally instructed interested parties to submit written
comments on a proposed rule to the appropriate rulemaking
docket, and have provided a mailing address where such
comments can be filed. Legislative and administrative
initiatives have encouraged, and in some cases required,
agencies to allow the public to provide information to them
electronically. For example, the Government Paperwork
Elimination Act requires OMB to ensure that federal agencies,
"when practicable," allow individuals and other entities the
option to submit information to the agency electronically and
maintain records electronically by October 21, 2003.

For the five regulatory agencies on which we focused in this
review, we examined the 576 proposed rules that they published
in the Federal Register during calendar year 1999 to determine
the extent to which they explicitly noted that public comments
could be submitted electronically or by facsimile.5 The
results, presented in figure 1, indicate that the agencies
varied substantially in those dimensions. EPA and DOL
explicitly permitted electronic comments in more than half of
the rules they proposed during 1999, while HHS allowed
electronic comments in less than 10 percent of its proposed
rules. The agencies also varied in the extent to which they
explicitly permitted comments via facsimile, with EPA not
calling for facsimile comments in any of its proposed rules
during 1999.

Figure 1: Agencies Varied in Percentage of Proprosed Rules
Published During Calendar Year 1999 Explicitly Permitting
Electronic or Facsimile Comments

Note:  Comments were considered "electronic" when the rule
explicitly provided for comments to be submitted through the
Internet, by e-mail, or on a computer disk. In 39 of the 93
DOT rules that did not explicitly provide for electronic
comments, DOT referred the reader to its docket management
system for more information about the rule. In that system,
users could file electronic comments.
Source:  Federal Register via GPO Access.

In some cases, the agencies did not allow "stand-alone"
electronic or facsimile comments.  For example, in one EPA
rule and four DOL rules, any electronic comments that were
submitted had to be accompanied by paper comments as well.6 In
other cases, attachments or additional materials, such as
studies or journal articles, could not be submitted
electronically; commenters had to submit those materials
separately (in duplicate) to the appropriate docket office. In
12 of the 25 DOL rules allowing participation by facsimile,
commenters had to submit original written comments as well.

We accessed the Federal Register notices for each of these 576
proposed rules electronically through the GPO Access web site.
Although many of the NPRMs provided an e-mail address to which
comments could be filed, the current system for electronic
Federal Register notices does not permit the user to provide a
"hypertext" link to a site where comments could be immediately
filed. An official at the Office of the Federal Register told
us that the Government Printing Office was experimenting with
upgrading its publishing system to permit the use of hypertext
links in electronic rules. He also noted that any such upgrade
would be a large and expensive effort, and that it was unclear
when, if ever, hypertext links could be added to the Federal
Register. Some of the agencies' web sites currently provide
for such hypertext links, but not for comments on rules.7 For
example, a button is provided at the end of each EPA press
release that immediately permits the interested public to file
a comment on the announcement. However, none of the EPA rules
that we could access through the agency's web site had this
feature. Some of the agencies rules with their own dedicated
web sites provided separate links to both the rules and
electronic comment procedures (e.g., the AMS organic standards
rule site within USDA's site).

Providing Access to Regulatory Supporting Materials

Regulatory agencies are required to prepare supporting
materials for many of their proposed and final rules,
including economic analyses (i.e., the alternatives
considered, and the costs and benefits of the alternative
selected); and descriptions of how the agencies have complied
with various rulemaking requirements (e.g., the Regulatory
Flexibility Act, the Paperwork Reduction Act, and Executive
Order 12866). These materials, as well as the comments filed
by the public in response to an NPRM, have traditionally been
housed in agencies' rulemaking dockets. Access to these
materials can permit public comments filed on rules to be more
informed and targeted to particular issues.

Some of the agencies that we reviewed had begun to make
supporting materials and public comments electronically
available to the public. DOT had the most extensive docket
system-an electronic, image-based database covering every
agency and every rulemaking action within the department. The
database contained over 800,000 pages of regulatory and
adjudicatory information stored on-line for research and
retrieval via the Internet. The information in the docket was
searchable by keyword, docket identification number, or in
other ways. For example, entering the word "airbag" in the
keyword search box yielded a listing of 39 rulemaking
documents, including agency reports, hearing summaries, and
comments filed by other interested parties. Each of these
documents could then be obtained from the DOT docket
management system. DOT officials told us that the electronic
docket has become the official rulemaking record for the
department, enabling DOT to save over a million dollars each
year in administrative costs and facilitating the rulemaking
process in other ways (e.g., permitting agency professionals
to review comments at their desks or at home).

Other agencies either had no such electronic dockets or their
systems were not as comprehensive or sophisticated as DOT's
system. Neither DOL nor OSHA systematically provided
regulatory background information to the public through their
web sites. To view most OSHA rulemaking materials in the
official record, even if they were submitted electronically,
interested individuals must go to the docket office in OSHA
headquarters and examine the paper files. The information
electronically available in the agencies' rulemaking dockets
sometimes varied within the agencies. For example, the web
site for EPA's pesticides docket contained risk assessments
for many of 49 organophosphate pesticides. The page for just
one of these pesticides contained hundreds of pages of
information about the rule (e.g., health effects assessment,
environmental fate and effects assessment, EPA correspondence,
and registrant comments). On the other hand, EPA's Office of
Water docket site contained a narrative description of the
docket, an e-mail address, and other written descriptions; no
electronic rulemaking materials were available. EPA officials
said the agency recognized that this varying level of service
was being provided to many of the same customers, and
therefore was in the process of improving the quality and
consistency of their electronic dockets.

As previously noted, agencies sometimes provided electronic
access to docket information for particular rules. For
example, the web page for OSHA's proposed ergonomics rule
provides full transcripts of its public hearings and copies of
both its health effects and economic analyses for the rule,
including the expected effects on small businesses and other
small entities. In some cases, though, this information can be
difficult to locate. For example, EPA's web site provided
detailed information on its 1999 proposed rules on lead and
lead compounds and other persistent bioaccumulative toxins.
However, to obtain this information from EPA's home page a
user must maneuver through a series of pages (e.g.,
"Programs," a "Toxics & Chemicals" sublink, and "Toxic Release
Inventory") before arriving at a page featuring links to the
rules and related documents.

Viewing/Responding to Comments of Others

Several of the agencies that we examined were using IT to
permit the public to view the comments the agencies had
received on proposed and final rules. However, the extent to
which these comments were electronically available and the
role that this access played in the rulemaking process varied
substantially. In each of these dimensions, DOT's docket
management system appeared to allow substantial public access
and utility.

ï¿½In some cases, comments were available to the public only if
those comments had been filed electronically. However, in
DOT's document management system, comments received on paper
are scanned into the system, thereby permitting the public to
view all of the comments submitted by others, regardless of
the medium that was used.
ï¿½In some cases, the public could view comments only for rules
issued by certain agencies or offices, or for certain rules
within certain agencies or offices. However, public comments
were accessible through the DOT's document management system
for virtually all rules issued in the department.
ï¿½In at least one case, the public could access the comments
filed only after the comment period had closed. However, in
other cases the comments were available while the comment
period was open, thereby allowing the public to respond to the
comments filed by others. For example, DOT's docket management
system maintained all materials submitted during the
rulemaking in the official electronic record. As a result, the
on-line user could review all comments on a rulemaking and
file a responding comment while the comment period was still
open.

Other agencies made comments available electronically for
certain rules or groups of rules. For example, EPA made an
index of public comments and the text of the comments
electronically available for selected regulatory documents as
part of a pilot program.  Comments filed electronically in
relation to the HHS administrative simplification initiative
were stored automatically in a database, and the comments were
then publicly available via the initiative's web site. Users
could search for comments either overall, for particular
rules, or within particular sections of the rules. USDA's
APHIS had experimented with several approaches to accepting
and posting electronic comments on about 10 different proposed
rules in recent years. In one of these approaches, users were
asked to answer specific questions identified as areas where
APHIS most needed comments, the answers to the questions were
entered into a database with a web interface, and commenters
were allowed to review all the electronic comments posted and
to post other comments to the site. At the time of our review,
APHIS officials were attempting to identify the circumstances
in which electronic comment approaches work best. For example,
they said that electronic comment processes for controversial
rules on which a large number of comments are filed may
ultimately yield little more than a count of supporters and
opponents. However, they also said that electronic comments
appeared particularly helpful on less controversial rules with
technical elements and on which commenter interaction was
possible-in essence, a real-time, informal "peer review."

Use of IT in Other Forms of Interactive Participation

Agencies have also used IT to facilitate other forms of public
participation in the rulemaking process. For example, the
Small Business Regulatory Enforcement Fairness Act (SBREFA)
requires that EPA and OSHA convene a special review panel
before issuing a proposed rule that the agency believes will
have a significant economic impact on a substantial number of
small entities. The panels are to collect advice and
recommendations from representatives of affected small
entities as part of their deliberative process. An EPA
official told us that the agency is using e-mail as a way to
facilitate the delivery of documents to the small entity
representatives and to receive their comments. He also said
that EPA had created web sites for several rules that were
used in conjunction with SBREFA panels to pull together
information that commenters needed.

The related literature indicates that some other agencies have
begun to experiment with on-line dialogs or interactions among
participants during the rulemaking process. For example, as a
part of its rulemaking to develop rates that would finance
Internet connections in schools and libraries, the Federal
Communications Commission sponsored "moderated, on-line policy
dialogues" for educators and librarians that, according to an
unpublished report, enabled over 500 participants from across
the nation to learn about the proposed rule, share their views
with each other, and offer comments to the Federal
Communications Commission. A DOT official also indicated that
the Department's Research and Special Programs Administration
had used a "chat room" arrangement during some of the agency's
rulemaking comment periods.

Multidimensional Electronic Rulemaking

Some of the agencies' electronic rulemaking systems contained
several of the innovative dimensions previously discussed. As
noted previously, DOT's docket management system permits
comments to be submitted electronically or on paper, allows
the public to comment on other users' comments, and permits
access to a wide range of regulatory supporting materials.
Other agencies' had these and, in some cases, other innovative
features. However, unlike the DOT system that is applicable to
all of the Department's rules, the other agencies'
multidimensional systems focused on just a few rules, or even
a single rule.

For example, AMS within USDA has been conducting an electronic
rulemaking for nearly 3 years that encompasses a number of
innovative design elements. The proposed rule was published in
December 1997, and is intended to establish standards for
organically produced food. The program manager for the
National Organic Program said that AMS knew that the rule
would be controversial, so AMS decided to take advantage of
IT's potential to facilitate the comment process, allowing
comments to be provided via mail, fax, and e-mail. Comments
were posted for public view and response in the agency's web
site, along with transcripts of national public meetings. AMS
received more than 275,000 comments on the rule, which were
assigned key words to facilitate subsequent analysis. As a
result of the comments received, AMS changed the proposed rule
and it was republished for comment in March 2000. AMS said in
the proposal that it was the agency's intention to have all
comments, regardless of media, available for viewing on the
program's home page or at the agency's docket room. As
previously noted, USDA maintains a link to this rule on its
home page, and the organic standards site contains the text of
the proposed rule, its regulatory impact statement, and
instructions on how to submit comments and search the comments
that had already been submitted. The AMS system also allows
users to search the full text of the public comments,
identifies form letter comments and ex parte communications,8
and provides a list of related government web sites-features
that are currently not available in the DOT docket management
system. Although currently limited to this one rule, the
program manager said that AMS plans to use these electronic
rulemaking features in other potentially controversial
rulemakings.

According to the AMS program manager, the interactive comment
process changed the dynamic of rulemaking participation.
Previously, he said, commenters typically waited until the
last minute to file comments so that no one could see their
views until after the comment period was over. In the organic
standards rule, however, people submitted comments early in
the process to have the greatest influence on the evolving
discussion. The Under Secretary of Agriculture for Marketing
and Regulatory Programs said that full-scale Internet access
had dramatically increased public awareness and participation,
and had saved taxpayers and USDA more than $100,000 in
administrative costs associated with the rulemaking.

Several Observers Suggested Greater Diffusion of IT
Innovations and Consistency

The individuals and organizations that we contacted for this
portion of the review included academicians, interest group
representatives, and agency officials and staff who were
knowledgeable about electronic government and rulemaking
issues. Although not inclusive of all such individuals and
organizations, those we contacted did not identify any
entirely new categories of potentially beneficial IT-based
public participation applications that had not been adopted by
at least one of the regulatory agencies that we examined.
However, they noted that the current uses of IT in rulemaking
are often pilot projects of limited scope, and suggested more
widespread adoption of some of those innovations by federal
agencies, or by the federal government as a whole. The
examples that they cited included the following.

ï¿½One organization representing small businesses indicated that
it would be helpful if there was a single portal or
"electronic clearinghouse" to which small businesses could
turn to obtain information about rulemaking activities
throughout the federal government (i.e., similar to EPA's
small business portal). More generally, one commenter said
there should be a single regulatory portal for all federal
rulemaking activity.
ï¿½Other commenters suggested greater use of proactive and
customized regulatory notification systems.  For example, the
State of Washington has established a list server, centrally
managed by the state's Division of Information Services, which
can be used by all state agencies to selectively notify
citizens of opportunities to participate in government
decisionmaking, including rulemaking. Citizens are able to
register to be placed on the listserver for particular topics.
ï¿½Other commenters suggested greater use of interactive
participation mechanisms, including online dialogs and
meetings, and the use of video. For example, the State of
Washington currently uses a statewide video network for
meetings and collaboration, with videos available over the
Internet. The State of Hawaii is also using networked cameras
to conduct legislative hearings, through which geographically
dispersed citizens can participate. Although it was not clear
whether these video networks had been used in a regulatory
context in these states, the commenters suggested that they
could be used to facilitate participation in rulemaking.
ï¿½Some of the commenters also said that federal agencies should
more commonly provide access to the economic analyses and
other underlying rulemaking information that frequently
resides in agencies' dockets. One commenter suggested that a
central, governmentwide site be established linking together
the information available in individual agencies' sites,
thereby enabling the public to "drill down" into individual
agencies as well as obtain similar information across
agencies.
ï¿½This observer also said that the fully electronic rulemaking
at AMS on organic standards should be replicated in other
parts of USDA. However, he also noted that parts of the
electronic system for the organic standards rule were
developed by a contractor using proprietary software, and
because USDA does not own the application, even AMS cannot use
it for other rulemakings.

Several of the individuals and organizations that we contacted
also 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.

ï¿½One representative of state governments said that
coordination or standardization across the agencies in a state
is "almost mandatory." He said that many states are
establishing state chief information officers who are
generally responsible for creating an interoperable
infrastructure and common data standards for all agencies
within the state.
ï¿½ Several of the federal agency representatives also indicated
that a common structure or approach for public participation
in rulemaking made sense. For example, one agency
representative said that the use of commonly accepted models
for such administrative tasks as receiving and logging
correspondence and storing documents could save money and
facilitate access. He specifically cited the DOT docket
management system as the type of model that could have broader
applicability.
ï¿½Similarly, a public interest group representative said that
it would be very helpful to have a regulatory taxonomy or
thesaurus relating similar terms, which could be used to
improve the quality of searches in different agencies' search
engines. More generally, another public interest group
representative said that a "common look and feel" for
regulatory information within federal agencies could make it
much easier for the public to locate, read, and digest
relevant information. However, he cautioned that agencies have
important differences, which may suggest that a "one-size-fits-
all" approach would not be desirable.

Agencies Generally Questioned Need for Standardized Uses of IT
to Facilitate Rulemaking Participation

Several of the individuals and organizations that we contacted
during this review indicated that standardizing innovative
uses of IT to facilitate public participation in rulemaking
could have advantages when compared with the current
fragmented system. For example, some of them generally
indicated that standardization could make the current system
more accessible to the public, thereby leading to more
participation in the rulemaking process. Other observers
simply indicated that greater standardization made sense.
Representatives from the agencies included in our review also
indicated a few areas in which standardization, or at least
more coordination, among agencies in this area could be
helpful. First, they said that standardization is probably a
good approach for resolving legal issues that each agency will
have ultimately to face, such as the use of copyrighted
material and censorship of comments received by the public
that might be accessible to minors. They also said that
coordination could facilitate information sharing among the
agencies, thereby speeding the diffusion of innovations that
are appropriate and useful within the agencies' particular
context, keeping each agency from having to "reinvent the
wheel." Currently, they said, there is no structured way for
agencies to learn about best practices in other agencies. For
example, one agency representative told us that she was
unaware until recently of the DOT docket management system.

Overall, though, the agency representatives questioned the
need for a standardized approach to using IT to facilitate
public participation in rulemaking. They said that each agency
and each rulemaking is somewhat different. Therefore, they
said, the agencies need to be able to design their public
participation procedures to fit the particular circumstances
appropriate for each rulemaking (within the parameters of the
APA and other applicable statutes). They said that the current
system reflects that diversity, with agencies developing new
participation processes and information management systems as
needed for their individual programs and communities. For
example, one agency representative said that DOT's docket
management system could not simply be replicated at HHS or
USDA because of differences in the degree of management
centralization and independence afforded the departments'
constituent agencies. Standardization, they said, could
decrease the agencies' ability to tailor regulatory approaches
and inhibit further agency innovation by "freezing into place"
the particular practices that have been developed so far. They
also said that the current flexible arrangement permits agency
officials to ensure that the use of IT in rulemaking is
carried out within the agency's overall IT strategic planning
efforts.

The agency representatives also said that they were not aware
of any data suggesting that the lack of a standardized
approach to regulatory participation was a problem to either
the public in general or to the regulated entities that are
most likely to participate in rulemaking. Therefore, they
said, determining whether there is a problem by gathering
information from the public through surveys or other means
might be a good first step before proceeding to a
standardization "solution." Several of the agency
representatives also questioned whether moving toward a
standard, electronic system would enhance public
participation, either in terms of the number of comments
submitted or the quality of those comments, or would improve
the quality of the rule under consideration.

The agency representatives said that standardization of IT-
based public participation vehicles would require scarce
agency resources, and that any resources provided to the
agencies to improve their IT systems might be better spent in
areas other than public participation in rulemaking (e.g.,
using IT to facilitate regulatory compliance or some
nonregulatory area). They did not believe that every agency
should be required to have a "regulations" link on its home
page, noting that many different organizational units and
interests are vying for space on agencies' home pages. They
also saw no need for agencies to always provide an e-mail
address or web site to which electronic comments on proposed
rules could be addressed. Doing so for all rules, they said,
could overwhelm the agencies' systems; may be unnecessary for
some relatively uncontroversial rules; and may be a less
effective use of the agency's resources than more traditional
methods (e.g., placing notices in trade publications or
setting up a call center).9 They also said that, once
established, agencies would have to be concerned about ongoing
maintenance of some of these standardized systems to make sure
that the information therein is timely, accurate, and
complete.

The agency representatives also made a number of other points
that suggested that standardization of participation processes
was not needed or could be undesirable.

ï¿½Several of the agency representatives indicated that standard
electronic approaches to learning about participation
opportunities already exists-the electronic Unified Agenda and
Federal Register on the GPO Access web site. They said that
anyone could use that site to find out about any upcoming and
recently proposed rules.
ï¿½One of the representatives indicated that an IT-based
"solution" to improving public participation in rulemaking
could underscore the "digital divide" that currently exists in
the country between those members of the public that currently
have regular access to a computer and those that do not.
ï¿½One of the representatives said that differences in agencies'
current hardware and software systems could make it difficult
to adopt standards, and that some agencies' current systems
may not allow them to receive and archive nontextual materials
such as graphs, compact discs, or physical items that are part
of many rulemaking records. Another representative said that
IT is changing so rapidly that establishing a standardized
electronic approach to public participation may have some real
disadvantages later on, locking agencies into outmoded
technologies.

Other individuals and organizations that we contacted, including
a public interest group, a business group, and an academician,
also cited concerns about a "one-size-fits-all" approach being
applied to agencies with vastly different missions. Also, a
small business representative told us that, although she
believed that there is a need for more coordination and
cooperation across federal agencies, small businesses are
generally skeptical about the benefits of standardization
because their interests may be neglected.

Conclusions

Participation in the rulemaking process requires (1) the
public to be aware of opportunities to participate and (2)
systems that will allow agencies to receive comments in an
efficient and effective manner. Agencies can use IT to inform
the public about participation opportunities either through
passive systems that require users to take the initiative to
discover rules available for comment or proactive systems that
alert interested individuals or organizations about impending
regulatory actions. Passive systems include both
governmentwide web sites that allow users to find out about
proposed rules in any agency (e.g., GPO Access) and web sites
for particular agencies or offices that have identified rules
available for comment (e.g., USDA/APHIS, HHS/ACF, or EPA's
Office of Air and Radiation). However, none of the five
departments and agencies that we contacted had links on their
home pages that identified all rules available for comment
within their entire organizations. Proactive systems permit
the interested public to be notified by e-mail when proposed
rules are published (e.g., the HHS web site for its
administrative simplification initiative), but were much less
common than passive systems.

One relatively simple way for agencies to facilitate the
receipt of public comments is to provide an e-mail address at
the end of proposed rules to which the public could respond
electronically. Agencies could also state that comments could
be provided by facsimile.  However, the agencies that we
contacted differed substantially in the extent to which they
explicitly provided for these modes of comment during calendar
year 1999, and none of the agencies permitted either mode of
communication for all of their proposed rules. Some of the
rules with their own dedicated web sites (e.g., the DOL/OSHA
ergonomics rule and the USDA/AMS organic standards rule)
provided links to both the rules and electronic comment
procedures.

One way to facilitate the receipt of informed public comments
is to permit electronic access to regulatory supporting
materials, such as economic analyses and the comments of
others.  DOT had the most developed electronic docket system
of the agencies that we contacted, covering every rulemaking
action in the department and including all public comments
received regardless of medium. DOT officials said the system
had saved the department more than a million dollars each year
in administrative costs and facilitated the rulemaking process
in other ways. Some agencies have begun to use IT to
facilitate interactive public comments, permitting users to
comment on the comments filed by others (e.g., at DOT and in
the USDA/AMS organic standards site) or to participate in on-
line dialogs with rule makers (e.g., DOT's Research and
Special Programs Administration).

All of the departments and agencies that we contacted during
this review were developing the IT-based public participation
vehicles that they believed were best suited to their
particular needs.  As a result, the agencies' participation
vehicles varied substantially. Several of the individuals and
organizations that we contacted said that the agencies should
move to a more standardized approach, and said that
standardization could make the current system of participation
more accessible to the public. However, many of the agency
officials and staff questioned the need for standardization.
They said that (1) agencies need to be able to design their
procedures to fit their particular circumstances (e.g., the
degree of management centralization in the agencies); (2)
standardization would require scarce agency resources that
might be better spent elsewhere; and (3) a good first step
might be to determine whether lack of standardization is
really a problem. On the other hand, the officials and staff
were supportive of efforts to better coordinate the use of IT-
based participation mechanisms in order to avoid each agency
"reinventing the wheel." Such coordination will require better
communication within and among the agencies. The ultimate
adoption of particular approaches within those agencies will
require sufficient resources and an understanding of how the
approaches will fit into the agencies' overall IT strategic
plans.

Agency Comments

We provided a draft of this letter to the OMB Director for his
review and comment on May 17, 2000, but we did not receive any
official OMB comments on the report within the time allowed.
However, OMB staff provided information during and at the
conclusion of the review that was incorporated where
appropriate.

As we arranged with your offices, unless you publicly announce
this letter's contents earlier, we plan no further
distribution of it until 30 days after the date of this
letter. We will then send copies to Representative Dan Burton,
Chairman of the House Committee on Government Reform; and to
Senator Fred Thompson, Chairman of the Senate Committee on
Governmental Affairs. We will also provide copies to the
Honorable Jacob J. Lew, Director, OMB; the Honorable Dan
Glickman, Secretary of Agriculture; the Honorable Donna E.
Shalala, Secretary of Health and Human Services; the Honorable
Alexis M. Herman, Secretary of Labor; the Honorable Rodney E.
Slater, Secretary of Transportation; and the Honorable Carol
M. Browner, Administrator, EPA. We will also make copies
available to others on request.

Please contact me or Curtis Copeland at (202) 512-8676 if you
or your staff have any questions.

Michael Brostek
Associate Director, Federal Management
   and Workforce Issues
 
_______________________________
1RISC is part of the General Services Administration, and
works closely with OMB to provide information to the
president, Congress, and the public about federal regulations.
2GPO Access is funded by the Federal Depository Library
Program, and has grown out of the Government Printing Office
Electronic Information Access Enhancement Act of 1993 (P. L.
103-40).  It provides free on-line access to over 1,000
databases, including the Code of Federal Regulations, the
Congressional Record, and the Commerce Business Daily.
3The 1994 Federal Register database is also available through
GPO Access.  Although it can be searched by keyword, it
contains no fields or section identifiers to facilitate
searches.
4However, EPA's Office of Prevention, Pesticides and Toxic
Substances home page did have a "Laws & Regulations" link that
contains a link to a list of proposed rules available for
comment.
5We excluded from this review proposed rules that were routine
or administrative in nature (e.g., within DOT, U.S. Coast
Guard rules establishing bridge-opening schedules).  A DOT
official said that the Department permits the public to submit
comments electronically on all of its proposed rules.
6EPA said that any public comments submitted electronically
for the agency's Superfund Docket must also be submitted as a
paper copy.
7The closest to this type of electronic commenting system that
we found was in the Federal Aviation Administration at DOT.
There, a user could read a copy of a proposed rule in
Microsoft Word, click on a link for DOT's docket management
system, and then access that system's electronic commenting
process.  However, the link did not transfer the user to a
comment box particular to the rule at issue.
8According to AMS, form letter comments are separately
identified because they share the same themes and are received
by the Department in large volumes. AMS said an ex parte
communication is an oral or written private communication from
someone outside of the United States Department of Agriculture
to a Department official who is involved in decisionmaking on
a pending rulemaking proceeding. The ex parte communication is
received through channels not prescribed by the Department,
and it concerns the merits of that proceeding.
9One of the agency representatives indicated that the system
overload problem could be solved by developing information
retrieval systems ahead of time that would accommodate large
traffic volumes.  For example, he said his agency had
developed a format into which electronic comments could be
filed, which greatly facilitated the subsequent analysis of
the comments.
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