Electronic Rulemaking
Efforts to Facilitate Public Participation Can Be Improved Gao ID: GAO-03-901 September 17, 2003Information 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.
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 (e-comments) 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).
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-03-901, Electronic Rulemaking: Efforts to Facilitate Public Participation Can Be Improved
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Report to the Committee on Governmental Affairs, U.S. Senate:
September 2003:
ELECTRONIC RULEMAKING:
Efforts to Facilitate Public Participation Can Be Improved:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-03-901] GAO-03-901:
GAO Highlights:
Highlights of GAO-03-901, a report to the Committee on Governmental
Affairs, U.S. Senate
Why GAO Did This Study:
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.
What GAO Found:
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 (e-
comments) 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).
What GAO Recommends:
This report contains recommendations intended to improve the public‘s
awareness of rules open for comment and the Regulations.gov system,
and to improve the operation of Regulations.gov. OMB generally agreed
with the report‘s recommendations and indicated that actions had
already begun to address some of them. EPA expressed concerns about
how the report characterized its Web site but expected to implement
our recommendations regarding Regulations.gov.
www.gao.gov/cgi-bin/getrpt?GAO-03-901.
To view the full product, including the scope and methodology, click
on the link above. For more information, contact Victor Rezendes at
(202) 512-6806 or rezendesv@gao.gov.
[End of section]
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:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Agencies Varied in Extent to Which They Provided for
Electronic Comments on Proposed Rules:
Appendix III: Comments from the Environmental Protection Agency:
Appendix IV: Comments from the Office of Management and Budget:
Figures:
Figure 1: Three Federal Agencies Accounted for More Than Half of the 411
Proposed Rules Published from February 2003 through April 2003:
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:
Figure 3: Different Steps Required to Identify Airworthiness Directives
and Other DOT Rules That Were Open for Comment:
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:
Figure 5: About Two-Thirds of the 411 Proposed Rules Published from
February 2003 through April 2003 Provided for Some Type of Electronic
Comments:
Figure 6: Regulations.gov Permitted Electronic Comments on Nearly All
of the 411 Proposed Rules Published from February 2003 through April
2003:
Letter 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.[Footnote 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."[Footnote 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.[Footnote 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
several provisions specifically designed to encourage electronic
rulemaking ("e-rulemaking"). In 2001 the administration identified e-
rulemaking 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 [Hyperlink,
www.regulations.gov] 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.[Footnote 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.
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).[Footnote 5] Three agencies--EPA, the Department
of Transportation (DOT), and the Department of Agriculture (USDA)--
accounted for more than half of these proposed rules.[Footnote 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.[Footnote 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 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.[Footnote 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.
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." [Footnote 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.[Footnote 10] GPEA makes OMB responsible for ensuring that
federal agencies meet the act's implementation deadline.[Footnote 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.[Footnote 12]
The E-Government Act of 2002[Footnote 13] has been described as "the
most far-reaching federal government effort to date for promoting
online public involvement,"[Footnote 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
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.[Footnote 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.[Footnote 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.[Footnote 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.
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 Not Identify All Proposed Rules Open for
Comment:
From February 1, 2003, through April 30, 2003, federal agencies
published 411 proposed rules in the Federal Register. As figure 1
shows, three agencies--DOT, EPA, and USDA--published more than half of
these proposed rules (122, 78, and 34 rules, respectively).[Footnote
18]
Figure 1: Three Federal Agencies Accounted for More Than Half of the
411 Proposed Rules Published from February 2003 through April 2003:
[See PDF for image]
[End of figure]
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:
[See PDF for image]
[End of figure]
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).[Footnote 19] According to an FAA
official, airworthiness directives were 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:
[See PDF for image]
[End of figure]
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."[Footnote 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 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.[Footnote 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).[Footnote 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 [Hyperlink, www.regulations.gov."]
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 More Proposed Rules Open for Comment Than
Major Rulemaking Agencies' Web Sites:
As figure 4 shows, Regulations.gov listed 101 of the 102 USDA, DOT, and
EPA proposed rules that were published between February 2003 and April
2003 and that were open for comment as of May 1, 2003. Although
Regulations.gov was, in general, more comprehensive than the three
major rulemaking agencies' Web sites, we concluded that users could
face 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:
[See PDF for image]
[End of figure]
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.
* 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.
* 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.[Footnote
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.[Footnote 24]
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:
[See PDF for image]
[End of figure]
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.[Footnote 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 Electronic Comments to Agencies Varied:
The 270 proposed rules that provided for electronic comments instructed
the public to submit these comments either through an e-mail address,
an 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.,
[Hyperlink, secretary@cftc.gov] secretary@cftc.gov). In other cases
the address provided was an agency rulemaking docket (e.g., [Hyperlink,
OW-docket@epamail.epa.gov] OW-docket@epamail.epa.gov or air-and-r-
[Hyperlink, docket@epa.gov] docket@epa.gov). In still other cases the
public was directed to a designated mailbox for the rule or a group of
related rules (e.g., farcase. [Hyperlink, 2002-018@gsa.gov] 2002-
018@gsa.gov, [Hyperlink, cottoncomments@usda.gov]
cottoncomments@usda.gov or 9-asw-[Hyperlink, adcomments@faa.gov]
adcomments@faa.gov. In about 29 percent of the proposed rules (77 of
the 270 rules), the agencies instructed the public to submit comments
via their Web-based electronic docket systems. For example, in DOT
rules (other than airworthiness directives), users were permitted to
submit comments to [Hyperlink, http://dms.dot.gov] 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 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:
[See PDF for image]
[End of figure]
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 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.
Required Information in Regulations.gov Varied:
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).
Relatively Few Comments Received through Regulations.gov:
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.[Footnote 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 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.
* 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").
* 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.
* 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).
* 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.[Footnote 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, 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 Executive Action:
We recommend that the Director of OMB issue guidance to the rulemaking
agencies on ways to improve the electronic commenting process for
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 [Hyperlink, http://www.gao.gov] 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.
Signed by:
Victor S. Rezendes Managing Director Strategic Issues:
[End of section]
Appendixes:
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)];[Footnote 28] (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 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.
[End of section]
Appendix II: Agencies Varied in Extent to Which They Provided for
Electronic Comments on Proposed Rules:
Department/agency: Departments:
Department/agency: Department of Agriculture; Number of proposed rules
published from February 2003 through April 2003: Departments: 34;
Number of rules in which agency provided for electronic comments:
Departments: 29; Number of rules in which agency did not provide for
electronic comments: Departments: 5.
Department/agency: Department of Commerce; Number of proposed rules
published from February 2003 through April 2003: Departments: 18;
Number of rules in which agency provided for electronic comments:
Departments: 3; Number of rules in which agency did not provide for
electronic comments: Departments: 15.
Department/agency: Department of Defense; Number of proposed rules
published from February 2003 through April 2003: Departments: 13;
Number of rules in which agency provided for electronic comments:
Departments: 7; Number of rules in which agency did not provide for
electronic comments: Departments: 6.
Department/agency: Department of Education; Number of proposed rules
published from February 2003 through April 2003: Departments: 1; Number
of rules in which agency provided for electronic comments: Departments:
1; Number of rules in which agency did not provide for electronic
comments: Departments: 0.
Department/agency: Department of Energy; Number of proposed rules
published from February 2003 through April 2003: Departments: 4; Number
of rules in which agency provided for electronic comments: Departments:
4; Number of rules in which agency did not provide for electronic
comments: Departments: 0.
Department/agency: Department of Health and Human Services; Number of
proposed rules published from February 2003 through April 2003:
Departments: 19; Number of rules in which agency provided for
electronic comments: Departments: 14; Number of rules in which agency
did not provide for electronic comments: Departments: 5.
Department/agency: Department of Homeland Security; Number of proposed
rules published from February 2003 through April 2003: Departments: 18;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 17.
Department/agency: Department of Housing and Urban Development; Number
of proposed rules published from February 2003 through April 2003:
Departments: 3; Number of rules in which agency provided for electronic
comments: Departments: 0; Number of rules in which agency did not
provide for electronic comments: Departments: 3.
Department/agency: Department of the Interior; Number of proposed rules
published from February 2003 through April 2003: Departments: 22;
Number of rules in which agency provided for electronic comments:
Departments: 20; Number of rules in which agency did not provide for
electronic comments: Departments: 2.
Department/agency: Department of Justice; Number of proposed rules
published from February 2003 through April 2003: Departments: 3; Number
of rules in which agency provided for electronic comments: Departments:
0; Number of rules in which agency did not provide for electronic
comments: Departments: 3.
Department/agency: Department of Labor; Number of proposed rules
published from February 2003 through April 2003: Departments: 6; Number
of rules in which agency provided for electronic comments: Departments:
6; Number of rules in which agency did not provide for electronic
comments: Departments: 0.
Department/agency: Department of Transportation; Number of proposed
rules published from February 2003 through April 2003: Departments:
122; Number of rules in which agency provided for electronic comments:
Departments: 107; Number of rules in which agency did not provide for
electronic comments: Departments: 15.
Department/agency: Department of the Treasury; Number of proposed rules
published from February 2003 through April 2003: Departments: 17;
Number of rules in which agency provided for electronic comments:
Departments: 15; Number of rules in which agency did not provide for
electronic comments: Departments: 2.
Department/agency: Department of Veterans Affairs; Number of proposed
rules published from February 2003 through April 2003: Departments: 3;
Number of rules in which agency provided for electronic comments:
Departments: 3; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Agencies:
Department/agency: Commodity Futures Trading Commission; Number of
proposed rules published from February 2003 through April 2003:
Departments: 3; Number of rules in which agency provided for electronic
comments: Departments: 3; Number of rules in which agency did not
provide for electronic comments: Departments: 0.
Department/agency: Court Services and Offenders Supervision Agency;
Number of proposed rules published from February 2003 through April
2003: Departments: 2; Number of rules in which agency provided for
electronic comments: Departments: 0; Number of rules in which agency
did not provide for electronic comments: Departments: 2.
Department/agency: Environmental Protection Agency; Number of proposed
rules published from February 2003 through April 2003: Departments: 78;
Number of rules in which agency provided for electronic comments:
Departments: 17; Number of rules in which agency did not provide for
electronic comments: Departments: 61.
Department/agency: Farm Credit Administration; Number of proposed rules
published from February 2003 through April 2003: Departments: 2; Number
of rules in which agency provided for electronic comments: Departments:
2; Number of rules in which agency did not provide for electronic
comments: Departments: 0.
Department/agency: Federal Communications Commission; Number of
proposed rules published from February 2003 through April 2003:
Departments: 11; Number of rules in which agency provided for
electronic comments: Departments: 11; Number of rules in which agency
did not provide for electronic comments: Departments: 0.
Department/agency: Federal Election Commission; Number of proposed
rules published from February 2003 through April 2003: Departments: 1;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Federal Emergency Management Agency; Number of
proposed rules published from February 2003 through April 2003:
Departments: 1; Number of rules in which agency provided for electronic
comments: Departments: 1; Number of rules in which agency did not
provide for electronic comments: Departments: 0.
Department/agency: Federal Housing Finance Board; Number of proposed
rules published from February 2003 through April 2003: Departments: 1;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Federal Maritime Commission; Number of proposed
rules published from February 2003 through April 2003: Departments: 1;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Federal Reserve System; Number of proposed rules
published from February 2003 through April 2003: Departments: 2; Number
of rules in which agency provided for electronic comments: Departments:
2; Number of rules in which agency did not provide for electronic
comments: Departments: 0.
Department/agency: Federal Trade Commission; Number of proposed rules
published from February 2003 through April 2003: Departments: 2; Number
of rules in which agency provided for electronic comments: Departments:
2; Number of rules in which agency did not provide for electronic
comments: Departments: 0.
Department/agency: General Services Administration; Number of proposed
rules published from February 2003 through April 2003: Departments: 1;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Library of Congress; Number of proposed rules
published from February 2003 through April 2003: Departments: 1; Number
of rules in which agency provided for electronic comments: Departments:
0; Number of rules in which agency did not provide for electronic
comments: Departments: 1.
Department/agency: National Archives and Records Administration;
Number of proposed rules published from February 2003 through April
2003: Departments: 1; Number of rules in which agency provided for
electronic comments: Departments: 1; Number of rules in which agency
did not provide for electronic comments: Departments: 0.
Department/agency: National Credit Union Administration; Number of
proposed rules published from February 2003 through April 2003:
Departments: 2; Number of rules in which agency provided for electronic
comments: Departments: 2; Number of rules in which agency did not
provide for electronic comments: Departments: 0.
Department/agency: Nuclear Regulatory Commission; Number of proposed
rules published from February 2003 through April 2003: Departments: 6;
Number of rules in which agency provided for electronic comments:
Departments: 6; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Office of Government Ethics; Number of proposed
rules published from February 2003 through April 2003: Departments: 1;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Office of Personnel Management; Number of proposed
rules published from February 2003 through April 2003: Departments: 3;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 2.
Department/agency: Peace Corps; Number of proposed rules published from
February 2003 through April 2003: Departments: 1; Number of rules in
which agency provided for electronic comments: Departments: 0; Number
of rules in which agency did not provide for electronic comments:
Departments: 1.
Department/agency: Pension Benefit Guaranty Corporation; Number of
proposed rules published from February 2003 through April 2003:
Departments: 1; Number of rules in which agency provided for electronic
comments: Departments: 1; Number of rules in which agency did not
provide for electronic comments: Departments: 0.
Department/agency: Small Business Administration; Number of proposed
rules published from February 2003 through April 2003: Departments: 2;
Number of rules in which agency provided for electronic comments:
Departments: 2; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Securities and Exchange Commission; Number of
proposed rules published from February 2003 through April 2003:
Departments: 3; Number of rules in which agency provided for electronic
comments: Departments: 3; Number of rules in which agency did not
provide for electronic comments: Departments: 0.
Department/agency: Social Security Administration; Number of proposed
rules published from February 2003 through April 2003: Departments: 1;
Number of rules in which agency provided for electronic comments:
Departments: 1; Number of rules in which agency did not provide for
electronic comments: Departments: 0.
Department/agency: Thrift Savings Plan; Number of proposed rules
published from February 2003 through April 2003: Departments: 1; Number
of rules in which agency provided for electronic comments: Departments:
0; Number of rules in which agency did not provide for electronic
comments: Departments: 1.
Department/agency: Total; Number of proposed rules published from
February 2003 through April 2003: Departments: 411; Number of rules in
which agency provided for electronic comments: Departments: 270; Number
of rules in which agency did not provide for electronic comments:
Departments: 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.
[End of table]
[End of section]
Appendix III: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
WASHINGTON, D.C. 20460:
AUG 28 2003:
OFFICE OF ENVIRONMENTAL INFORMATION:
Mr. Victor S. Rezendes:
Managing Director, Strategic Issues General Accounting Office:
441 G Street, NW Washington, DC 20548:
Dear Mr. Rezendes:
Thank you for the opportunity to comment on the draft report titled
"Electronic Rulemaking Efforts to Facilitate Public Participation Can
Be Improved (GAO-03-901)." On behalf of the eRulemaking team, I welcome
the General Accounting Office's (GAO) long standing and continued
interest in efforts to improve the federal rulemaking process -
particularly improvements that will enhance the public's ability to
participate effectively and fully in the federal regulatory process. We
look forward to working with you in achieving the goals of the
eRulemaking Initiative.
Increasing and simplifying public access to government services and
strengthening participatory democracy through a more citizen-centric
government are major goals of the President's Management Agenda. The
Administration launched the interagency eRulemaking initiative to
overcome barriers to public participation in the federal regulatory
process. We will accomplish this by improving the public's ability to
find, view, understand, and comment on federal regulatory actions. In
addition, the initiative will enhance rulemaking practices within
federal agencies through the use of electronic tools and services.
Ultimately, this initiative will improve agency processes, save
taxpayer resources, enhance public participation, and yield more timely
regulatory decisions.
Because the public's ability to participate in the notice and comment
part of the regulatory development process is a major aspect of the
initiative, the interagency team conducted an independent validation
and verification analysis of seven federal agency electronic docket
management systems, including the Environmental Protection Agency's
(EPA) recently launched EDOCKET system. This independent evaluation,
conducted in 2002, concluded that EDOCKET was, "...the closest to ideal
of the existing [federal docket management] systems," based on its
management of content, processing of public comment, and search
functions. EPA, as one 140 federal rulemaking agencies, was asked to
lead the interagency initiative because of this conclusion.
The report also stated that EDOCKET's "commenting capabilities are well
integrated with the regulation/dockets information, and the search
facility is robust, containing full-text search, wildcard-searching and
Boolean arguments, and allows the user to sort results easily. These
solid facilities combined with the fact that EPA's platform contains no
significant weaknesses or omissions, functional or otherwise, accounts
for its [top rating among federal systems]." Based on the public's use
of the EPA's EDOCKET system (averaging more than 300,000 hits per
month) and the numerous public awards it has received, EDOCKET has been
a tremendous success.
In reviewing the draft GAO report, we have concluded it requires
careful, but substantial revision to accurately and fairly characterize
existing federal electronic docket systems. As written, it will not
provide the candid, useful, and insightful information about the
performance and capabilities of electronic docket systems the public,
Congress, and Executive agencies need to enhance the public's ability
to use such systems. In particular, GAO's findings, while sometimes
accurate on their face, are presented in a manner that could easily
cause an objective reader to reach unsupportable conclusions.
For example, EPA's EDOCKET system had been recently launched and was
actively being rolled out across the agency (and continues to be so)
when the GAO acquired the data upon which its report is based. This
snap shot of a point in time during the roll out of an information
technology system, by definition, cannot accurately or fairly present
the functional capabilities and status of a system - regardless of any
caveats GAO may include at our request in the body of its report. Nor
can it provide a reader the ability to compare such a system to other
mature, long established systems. As a result, the draft report will
not provide the public and Congress the useful information they need to
evaluate, critique, and otherwise perform their appropriate and
necessary functions.
As a result of this snap shot, the draft report does not accurately
reflect EDOCKET'S original design or intended use. The EDOCKET system
was designed to provide initial public access to EPA's highest priority
regulatory actions and supporting materials (e.g., scientific and
economic analyses, public comments, etc.). These regulations have
national applicability, often generate the greatest amount of public
interest and comment, and have the greatest potential for improving
human health and the environment. Regional actions, while large in
number, are typically administrative in nature or are of limited
geographic scope (e.g., Clean Air Act State Implementation Plan
revisions). This latter category is part of a second phase expansion of
EDOCKET that will add docket materials from EPA's regional offices and
field operations.
The draft GAO report also addresses the recently launched
Regulations.gov web site, the first module of the eRulemaking
Initiative. The Regulations.gov system currently supplements existing
paper-based and electronic docket operations. It provides the public
with its first ever, one-stop shopping ability to electronically find,
view, and submit comments on regulatory actions. The interagency
members of the eRulemaking Initiative and EPA as the managing partner
are very proud of Regulations. gov's accomplishments. It has received
widespread attention and use since its launch in January, 2003 (the
system receives over 180,000 hits per month, on average). Public
awards include the 2003 SecurE-Biz Leadership Award, 2003 E-Gov Pioneer
Award, and the 2003 Colborn Award for Innovation in rulemaking. It was
also a finalist for the 2003 FOSE Showcase in Excellence Award.
Regulations.gov was intended to be an interim, quick solution for
providing enhanced public participation in the notice and comment
process. Due to the creativity, dedication, and ingenuity of the
federal agency employees involved, it was deployed in less than three
months at a very modest expense. It had been in operation less than two
weeks when GAO started collecting data on the system for its report.
The eRulemaking team is not surprised by many of GAO's findings that
identify shortcomings associated with its intentionally limited scope
and short life span. Expanding the functional capability of
Regulations.gov to include a wider range of public services would have
substantially delayed its launch and precluded the public from being
able to take advantage of any benefits associated with such an
electronic government service.
The second module of the eRulemaking Initiative will replace
Regulations. gov. It will take longer to develop, have far greater
functional capabilities, and provide the public with a far greater
ability to participate in the regulatory process. The system will allow
hundreds of federal rulemaking entities to deposit rulemakings and
supporting materials into a central repository enabling the public to
search, view, and submit comments on virtually all rules and Federal
Register Notices. EPA and its fellow team members welcome GAO's
recommended enhancements to Regulations. gov. The team is reviewing
these recommendations and expects to implement many of those not
already included in the Initiative's second module.
Thank you again for the opportunity to review and comment on the draft
report. We look forward to working with you in the future as we both
strive to improve the federal regulatory system. If you have any
further questions, please feel free to contact me at (202) 564-6665, or
Oscar Morales, Director of the eRulemaking Initiative, at (202) 632-
0331 (morales.oscar@Epa.gov).
Sincerely
Signed by:
Richard D. Otis, Jr.
eRulemaking Initiative, Program Manager and Deputy Assistant
Administrator:
Enclosure:
cc: Mark Luttner
Oscar Morales
Steve Tiber
eRulemaking Initiative members:
[End of section]
Appendix IV: Comments from the Office of Management and Budget:
EXECUTIVE OFFICE OF THE PRESIDENT:
OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D. C. 20503:
ADMINISTRATOR:
OFFICE OF INFORMATION AND REGULATORY AFFAIRS:
AUG 29 2003:
Mr. Victor Rezendes
Managing Director
Strategic Issues Team
U.S. General Accounting Office
441 G Street, N.W.
Washington, D.C. 20548:
Dear Mr. Rezendes:
Thank you for the opportunity to comment on the draft report titled,
Electronic Rulemaking Efforts to Facilitate Public Participation Can Be
Improved (GAO-03-901). As you know, the Administration's vision for
Government reform is guided by three principles --Government should be
citizen-centered, results-oriented, and market-based. These principles
have been woven into the five government-wide reform goals outlined in
the President's Management Agenda. The effective implementation of E-
Government is important in making Government more responsive and cost-
effective. The success of E-Government depends on agencies working as a
team across traditional boundaries to better serve the American people,
focusing on citizens rather than individual agency needs.
The goal of the Administration's E-Rulemaking initiative is to create a
government-wide docket system that will provide citizens and businesses
with a single Internet access point to all Federal regulatory material.
The first module of this initiative was to create a cross-agency portal
that would allow citizens to find, review, and comment on proposed
federal rules. This was accomplished with the creation of Regulations.
gov. The Office of Management and Budget (OMB) is pleased with the
progress of Regulations.gov which allows the public to comment on more
than 90 percent of proposed rules --a 38 percent increase over
individual agency sites. We are pleased that your draft report
highlights this fact.[NOTE 1]:
The second module of the initiative --to create a government-wide e-
docket system --is currently underway. The cross-agency team has been
working on business process reengineering (BPR) analysis of individual
agency requirements, the statement of work (SOW) is on the street and a
draft migration plan has been submitted to OMB. The draft plan calls
for 51 rulemaking entities to be migrated/converted to the government-
wide system by October of 2004. This represents approximately 50
percent of rules and proposed rules. The remaining 71 entities will be
migrated/converted by October of 2005.
While we are pleased with the progress of Regulations.gov and the E-
Rulemaking initiative, there is always room to improve. We have already
begun exploring GAO's recommendations to improve Regulations. gov that
were made in the report. However, we would also like to clarify a few
of your comments and/or key points made in the report.
Specific comments and recommendations on Regulations.gov:
The draft report states "...it is not clear when that second phase (of
the e-rulemaking initiative) will be implemented" while other portions
of the report cite another, now outdated timetable. The initiative is
organized into three Modules: Module 1 (deployment of Regulations.
gov), Module 2 (deployment of a federal-wide docket management system),
Module 3 (deployment of a rulemaking virtual workspace based on best
practices and expert tools). Module 2 is organized into a 6-phase
schedule, with agencies migrating into the federal-wide docket
management system during a given phase. For instance, as currently
planned Phase 1 will conclude at the end of September 2004 while Phase
6 concluding at the end of September 2005. The necessary work to be
successful in Module 2 is already underway.
Your report recommends "that the Director of OMB issue guidance to the
rulemaking agencies on ways to improve the electronic commenting
process for proposed rules." We are pleased to say that this work has
already begun. On August 1 st, OMB issued general guidance to the
rulemaking agencies in its Implementation Guidance for the E-Government
Act of 2002. In it OMB states that all agencies were expected to make
their public regulatory dockets electronically accessible and
searchable using Regulations.gov and that they had to accept electronic
submissions to their online dockets.
The report recommends "that the Director of OMB make changes to
Regulations.gov to improve its capabilities." It is important to note
that the current Regulations.gov site represents the completion of
Module 1 of the E-Rulemaking initiative and was only intended to
provide citizens with the ability to easily find, review and comment on
proposed rules. The enhanced functionality sited in the report will be
achieved with completion of Module 2 - a government wide electronic
docket management system, which will provide the public online access
to the comments of others as well as supporting materials.
The report recommends, specifically, that "Regulations. gov should
allow users to identify all proposed open rules for comment within a
cabinet department, and should list rules using the titles as they
appear in the Federal Register." We agree with this recommendation and
have
begun working with the Rulemaking team to take the necessary steps to
comply.
Finally, your report recommends specifically that the "guidance (from
the Director of OMB) should instruct 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
agree that these two specific recommendations will make it easier for
citizens to comment and it is our understanding that the Office of
Federal Register has already requested it of all the agencies. We will
work with the Office of Federal Register and the E-Rulemaking team to
follow through with these recommendations.
Thank you again for providing us with a draft copy of the report to
review and provide our comments.
Sincerely,
Signed by:
John D. Graham, Ph.D.
Administrator:
NOTES:
[1] "Regulations.gov allowed the public to provide electronic comments
(e-comments) on more than 90 percent of the 411 proposed rules that
were published this 3-month period." (Highlights page, GAO draft
report, Electronic Rulemaking Efforts to Facilitate Public
Participation Can Be Improved (GAO-03-901)).
[End of section]
(450187):
FOOTNOTES
[1] Safety 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).
[2] Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law
and Make Policy, Second Edition (Washington D.C.: CQ Press, 1999).
[3] U.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).
[4] The 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.
[5] As 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).
[6] Unless otherwise indicated, "agencies" in this report refers to
both cabinet departments and independent agencies.
[7] As 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.
[8] GAO/GGD-00-135R.
[9] 44 U.S.C. 3504(h)(5).
[10] 44 U.S.C. 3504 note.
[11] See 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).
[12] U.S. General Accounting Office, Regulatory Management:
Communication About Technology-Based Innovations Can Be Improved, GAO-
01-232 (Washington, D.C.: Feb. 12, 2001).
[13] 44 U.S.C.A. 3601 note.
[14] Thomas C. Beierle, Discussing the Rules: Electronic Rulemaking and
Democratic Deliberation, Discussion Paper 03-22 (Washington, D.C.:
Resources for the Future, 2003).
[15] 44 U.S.C.A. 3602.
[16] U.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).
[17] For 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).
[18] See appendix II for a list of the other agencies that published
proposed rules during this period.
[19] These 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.
[20] The 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.
[21] EPA 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.
[22] EPA 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.
[23] DOT's list serve can be accessed at http://dms.dot.gov/
emailNotification/index.cfm.
[24] EPA's list serves can be accessed at http://www.epa.gov/epahome/
listserv.htm.
[25] By 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."
[26] NARA 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).
[27] Although 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.
[28] The 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."
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