June30-2000_gg00135r.txt

Results in Brief
All five of the regulatory agencies that we examined were using
some form of IT to notify the public about opportunities to
participate in rulemaking and to facilitate the receipt of public
comments. All of these agencies had web sites that conveyed
rulemaking information to the public and/or maintained some
rulemaking records in electronic form, and all of them accepted
electronic comments for at least some of their proposed rules.
However, the specific features and uses of IT differed
significantly between and sometimes within the agencies. For
example, DOT had established an Internet web site that housed
regulatory information for every agency within the department and
was searchable in a variety of ways. Other agencies either had no
such information electronically available or the nature of the
information available varied from one part of the agency to
another. Some of the agencies were beginning to use targeted,
proactive notifications of forthcoming rules, and some were
experimenting with interactive comment processes.
The individuals and organizations with whom we spoke did not
identify any potentially beneficial ITbased public participation
applications that had not been adopted by at least one of the
regulatory agencies that we examined. However, some of them
indicated that certain IT practices (e.g., proactive notification
systems, portals and gateways to information for particular groups,
and interactive participation mechanisms) should be more widely
used. Several individuals and organizations suggested that agencies
move to a more consistent organization, content, and presentation
of information to allow for a more common "look and feel" to
agencies' ITbased public participation mechanisms in
rulemaking.
Although some of the individuals and organizations that we
contacted said that standardization of ITbased public participation
innovations across agencies could lead to more participation in the
rulemaking process, the agency representatives that we contacted
generally did not believe that crossagency standardization was
either necessary or appropriate. They said that each agency needed
to develop systems appropriate for their particular circumstances
and that there were no data indicating that the current lack of
standardization was a problem, or that standardization would
improve either the quantity or the quality of the participation
that agencies receive during the rulemaking process. They also said
that standardization would require substantial resources and that
those resources might be better used in other endeavors.


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

Governmentwide IT Applications to Inform the Public of
Opportunities to Participate
Federal regulatory agencies have used both governmentwide and
agencyspecific vehicles to notify the public about opportunities
for public comment on upcoming rules. Some of the traditional
governmentwide notification vehicles are now being offered to the
public in both paper and electronic forms. For example, the Unified
Agenda of Federal Regulatory and Deregulatory Actions is published
in the Federal Register twice each year by the Regulatory
Information Service Center (RISC), 1 and provides uniform reporting
of data on regulatory activities under development throughout the
federal government. The activities included in the Unified Agenda
are, in general, those expected to have a regulatory action within
the next 12 months, although agencies may include activities with
an even longer time frame. The Unified Agenda contains a wealth of
information-so much, in fact, that locating information about
specific rulemaking actions can prove daunting. For example, the
most recent edition of the Unified Agenda (April 2000) describes
4,441 rulemaking actions under development or recently completed by
60 federal departments and agencies. However, IT has demonstrably
improved access to this information. Since October 1995, the
Unified Agenda has been published electronically and is searchable
either through RISC's web site (http://reginfo.gov) or the
Government Printing Office's GPO Access web site (which can be
accessed through http://www.access.gpo.gov).2
Shorterterm notice of upcoming rules is provided by the NPRMs
that agencies publish each day in the Federal Register. Agencies
also publish information on scheduled hearings and
1
RISC is part of the General Services Administration, and works
closely with OMB to provide information to the president, Congress,
and the public about federal regulations.
2
GPO Access is funded by the Federal Depository Library Program,
and has grown out of the Government Printing Office Electronic
Information Access Enhancement Act of 1993 (P. L. 10340). It
provides free online access to over 1,000 databases, including the
Code of Federal Regulations, the Congressional Record, and the
Commerce Business Daily.
other opportunities for public participation in the Federal
Register. Like the Unified Agenda, the printed version of the
Federal Register is so voluminous as to be daunting. Federal
agencies publish thousands of proposed rules each year, and finding
a particular rule on which comments are being solicited can be
difficult. This task has been greatly facilitated by making the
Federal Register available electronically and searchable through
the GPO Access web site. GPO Access can be used to search the
Federal Register back to 1995 with particular search parameters
(e.g., proposed rules issued during December 1999 containing the
phrase "air quality standards").3
Using Agency Web Sites to Identify Proposed Rules
All of the federal regulatory agencies that we examined also
used their own web sites to disseminate information about their
rulemaking plans and activities. However, the agencies' web sites
differed widely in the content and organization of rulemaking
information, the array of tools they offer to facilitate use, and
the extent to which they support customized dissemination of
information to the public. These differences are apparent from the
first page in the agencies' web sites-referred to as the agencies'
home pages. Some of the agencies' home pages feature direct links
to their rules and regulations. For example, EPA's home page
(http://www.epa.gov) has a link called "Legislation &
Regulations," which leads to another link entitled "Regulations and
Proposed Rules." Similarly, DOT's home page (http://www.dot.gov)
includes a link to "Dockets, Rules & References," and DOL's
home page (http://www.dol.gov) contains a link entitled "Laws &
Regs." In contrast, neither USDA's (http://www.usda.gov) nor HHS'
(http://www.hhs.gov) home pages had visible information about
general rulemaking activities in the departments.
The regulatory links on the agencies' home pages did not always
directly identify rules available for comment.


•
EPA's "Regulations and Proposed Rules" link on its home
page allowed the user to transfer to the electronic Federal
Register on the GPO Access web site. The user was then required to
exit EPA's site and use the GPO site's search tools to identify EPA
proposed rules among those of every other federal agency. Although
the "Regulations and Proposed Rules" link also permitted the user
to identify "Environmental Documents" in the Federal Register, the
search tools identified any document related to a date or keyword,
not just proposed rules.


•
DOT's "Dockets, Rules & References" link on its home
page takes the user to a second page with other links, including
"Transportation Legislation and Regulation," "DOT Legislative and
Rulemaking Documents," and "DOT Regulations, Orders, Policies, and
Regulation." However, none of these links provided a listing of DOT
proposed rules available for comment. Like the EPA site, the "DOT
Regulations, Orders, Policies, and Regulations" link directs the
viewer to the GPO Access web site.


•
DOL's "Laws and Regs" link on its home page ultimately
allows the user to identify proposed rules within each of the
department's various agencies and offices, and provides a hypertext
link that allows the user to view a copy of the proposed rules.
However, some of the rules


The 1994 Federal Register database is also available through GPO
Access. Although it can be searched by keyword, it contains no
fields or section identifiers to facilitate searches.
Page 4 GAO/GGD00135R Federal Rulemaking
that were listed had been published more than a year previously,
and were no longer available for comment.
Some of the smaller organizational units within these
departments and agencies provided a listing of proposed rules
available for comment. For example, USDA's Animal and Plant Health
Inspection Service's (APHIS) web page contained a "Regulations"
link that provides a listing of recently published rules, along
with text or Adobe Portable Document Format (PDF) files allowing
viewers to read the rules on line. HHS's Administration for
Children and Families (ACF) had a web page on "ACF Regulations
Currently Open for Comment." However, it was not immediately
apparent how to locate that page from the HHS home page; the user
had to click on "HHS Agencies" and, at the ACF web page, use a
"dropdown menu" entitled "Select a Topic" within which the
"Regulations Currently Open for Comment" page is located. Other HHS
agencies (e.g., the Administration on Aging and the Agency for
Toxic Substances and Disease Registry) did not list rules that were
available for comment. Similarly, EPA's Office of Air and Radiation
provided a listing of proposed rules available for public comment.
Again, however, locating that information from EPA's home page was
not easy or immediately apparent. One route required the user to
access the "Information Sources," "Dockets," and "Air and Radiation
Docket and Information Center" web pages before arriving at a link
to proposed rules available for comment. Similar listings of
recently proposed rules available for comment were not available
using this procedure for other EPA offices (e.g., Water and Solid
Waste and Emergency Response) and programs (e.g., Underground
Storage Tanks).4
Featuring Rules of Interest
Some of the agencies featured links on their home pages
notifying the public about particular regulatory issues of
widespread public interest. For example, the home page of both DOL
and the Occupational Safety and Health Administration (OSHA) within
DOL pointed to a separate web site for OSHA's November 1999
proposed rule on ergonomics, which pulled together in one place all
of the electronic information related to this rulemaking (e.g., the
rule, its economic analysis, and hearings transcripts). As will be
discussed in more detail later, the USDA home page identified a
separate web site for the department's Agricultural and Marketing
Service's (AMS) proposed rule establishing standards for
organically produced food. That site provided a wealth of
information about the proposed rule, including the text of the
rule, the agency's regulatory impact assessment, and how to submit
comments and search the comments that have already been
submitted.
Portals and Gateways
Some of the agencies had also developed portals or gateways
providing customized information for particular target audiences.
HHS supports a number of these gateways and has a "Gateways" button
on its home page identifying them, which includes both HHSsponsored
sites (e.g., "Organ Donation" and "YouthInfo") and other sites
(e.g., "U.S. State &
However, EPA's Office of Prevention, Pesticides and Toxic
Substances home page did have a "Laws & Regulations" link that
contains a link to a list of proposed rules available for
comment.
Page 5 GAO/GGD00135R Federal Rulemaking
Local Gateway"). The state and local gateway was designed to
give state and local government officials and employees easy access
to federal information, and includes a link to a "Laws/Regulations"
page that organizes the information by topic (e.g.,
"Families/Children") or by related links (e.g., "Federal
Laws/Regs/Presidential Documents," where the user can link to the
GPO Access site). One such related link, entitled "Electronic
Rulemaking," identified several electronic rulemaking initiatives
across the federal government (e.g., the DOT docket management
system discussed later), and provided links to these initiatives.
EPA had a link on its home page for particular audience groups. One
such link was a "Small Business Gateway," which organizes
regulatory information of special interest to small businesses.
This gateway guides small businesses to a variety of environmental
information sources, and provides links to related resources
outside EPA, such as the Small Business Administration's Business
Advisor. The EPA Small Business Gateway also provides a link to
environmental regulations and laws, including "new regulations,
proposed rules, important notices, and the regulatory agenda of
future regulations." However, this is a link to electronic
documents available in the Federal Register through the GPO Access
web site, not EPA- specific proposed rules, and the viewer is then
required to use that site's search tools to identify particular
proposed rules.
Proactive Notification Systems
All of the governmentwide and agencyspecific resources discussed
thus far are passive information systems, requiring users to take
the initiative and find out about upcoming and recently proposed
rules. Some agencies are beginning to use more proactive mechanisms
for alerting the interested public about impending regulatory
actions and opportunities for participation. For example, HHS
created a web site for the administrative simplification provisions
of the Health Insurance Portability and Accountability Act of 1996
that provided information on several related proposed rules. The
site permitted the interested public to subscribe to a list server
that would notify subscribers by email when NPRMs and final rules
are published or posted. Similarly, the APHIS web page on recently
published rules and regulations allowed users to enter keywords and
receive email when certain key words appear on the pages.


Using IT to Facilitate the Receipt of Public Comments
All of the regulatory agencies that we examined explicitly
permitted the public to submit electronic comments on some, but not
all, of their recent proposed rules. By creating electronic
dockets, some agencies were expanding the options for public review
and comment not only on proposed rules, but also on regulatory
analyses and the variety of other materials that make up the public
record for the rulemaking. Agencies were also beginning to offer
the public more interactive options for participating in
rulemaking. However, there were significant differences in how the
agencies had implemented these capabilities.
Filing Comments Electronically
NPRMs that are published in the Federal Register have
traditionally instructed interested parties to submit written
comments on a proposed rule to the appropriate rulemaking docket,
and have provided a mailing address where such comments can be
filed. Legislative and administrative initiatives have encouraged,
and in some cases required, agencies to allow the public to provide
information to them electronically. For example, the Government
Paperwork Elimination Act requires OMB to ensure that federal
agencies, "when practicable," allow individuals and other entities
the option to submit information to the agency electronically and
maintain records electronically by October 21, 2003.
For the five regulatory agencies on which we focused in this
review, we examined the 576 proposed rules that they published in
the Federal Register during calendar year 1999 to determine the
extent to which they explicitly noted that public comments could be
submitted electronically or by facsimile.5 The results, presented
in figure 1, indicate that the agencies varied substantially in
those dimensions. EPA and DOL explicitly permitted electronic
comments in more than half of the rules they proposed during 1999,
while HHS allowed electronic comments in less than 10 percent of
its proposed rules. The agencies also varied in the extent to which
they explicitly permitted comments via facsimile, with EPA not
calling for facsimile comments in any of its proposed rules during
1999.
We excluded from this review proposed rules that were routine or
administrative in nature (e.g., within DOT, U.S. Coast Guard rules
establishing bridgeopening schedules). A DOT official said that the
Department permits the public to submit comments electronically on
all of its proposed rules.
Page 7 GAO/GGD00135R Federal Rulemaking
Figure 1: Agencies Varied in Percentage of Proprosed Rules
Published During Calendar Year 1999 Explicitly Permitting
Electronic or Facsimile Comments

Note: Comments were considered "electronic" when the rule
explicitly provided for comments to be submitted through the
Internet, by email, or on a computer disk. In 39 of the 93 DOT
rules that did not explicitly provide for electronic comments, DOT
referred the reader to its docket management system for more
information about the rule. In that system, users could file
electronic comments.
Source: Federal Register via GPO Access.
In some cases, the agencies did not allow "standalone"
electronic or facsimile comments. For example, in one EPA rule and
four DOL rules, any electronic comments that were submitted had to
be accompanied by paper comments as well.6 In other cases,
attachments or additional materials, such as studies or journal
articles, could not be submitted electronically; commenters had to
submit those materials separately (in duplicate) to the appropriate
docket office. In 12 of the 25 DOL rules allowing participation by
facsimile, commenters had to submit original written comments as
well.
EPA said that any public comments submitted electronically for
the agency's Superfund Docket must also be submitted as a paper
copy.
Page 8 GAO/GGD00135R Federal Rulemaking
We accessed the Federal Register notices for each of these 576
proposed rules electronically through the GPO Access web site.
Although many of the NPRMs provided an email address to which
comments could be filed, the current system for electronic Federal
Register notices does not permit the user to provide a "hypertext"
link to a site where comments could be immediately filed. An
official at the Office of the Federal Register told us that the
Government Printing Office was experimenting with upgrading its
publishing system to permit the use of hypertext links in
electronic rules. He also noted that any such upgrade would be a
large and expensive effort, and that it was unclear when, if ever,
hypertext links could be added to the Federal Register. Some of the
agencies' web sites currently provide for such hypertext links, but
not for comments on rules.7 For example, a button is provided at
the end of each EPA press release that immediately permits the
interested public to file a comment on the announcement. However,
none of the EPA rules that we could access through the agency's web
site had this feature. Some of the agencies rules with their own
dedicated web sites provided separate links to both the rules and
electronic comment procedures (e.g., the AMS organic standards rule
site within USDA's site).
Providing Access to Regulatory Supporting Materials
Regulatory agencies are required to prepare supporting materials
for many of their proposed and final rules, including economic
analyses (i.e., the alternatives considered, and the costs and
benefits of the alternative selected); and descriptions of how the
agencies have complied with various rulemaking requirements (e.g.,
the Regulatory Flexibility Act, the Paperwork Reduction Act, and
Executive Order 12866). These materials, as well as the comments
filed by the public in response to an NPRM, have traditionally been
housed in agencies' rulemaking dockets. Access to these materials
can permit public comments filed on rules to be more informed and
targeted to particular issues.
Some of the agencies that we reviewed had begun to make
supporting materials and public comments electronically available
to the public. DOT had the most extensive docket system-an
electronic, imagebased database covering every agency and every
rulemaking action within the department. The database contained
over 800,000 pages of regulatory and adjudicatory information
stored online for research and retrieval via the Internet. The
information in the docket was searchable by keyword, docket
identification number, or in other ways. For example, entering the
word "airbag" in the keyword search box yielded a listing of 39
rulemaking documents, including agency reports, hearing summaries,
and comments filed by other interested parties. Each of these
documents could then be obtained from the DOT docket management
system. DOT officials told us that the electronic docket has become
the official rulemaking record for the department, enabling DOT to
save over a million dollars each year in administrative costs and
facilitating the rulemaking process in other ways (e.g., permitting
agency professionals to review comments at their desks or at
home).
The closest to this type of electronic commenting system that we
found was in the Federal Aviation Administration at DOT. There, a
user could read a copy of a proposed rule in Microsoft Word, click
on a link for DOT's docket management system, and then access that
system's electronic commenting process. However, the link did not
transfer the user to a comment box particular to the rule at
issue.
Other agencies either had no such electronic dockets or their
systems were not as comprehensive or sophisticated as DOT's system.
Neither DOL nor OSHA systematically provided regulatory background
information to the public through their web sites. To view most
OSHA rulemaking materials in the official record, even if they were
submitted electronically, interested individuals must go to the
docket office in OSHA headquarters and examine the paper files. The
information electronically available in the agencies' rulemaking
dockets sometimes varied within the agencies. For example, the web
site for EPA's pesticides docket contained risk assessments for
many of 49 organophosphate pesticides. The page for just one of
these pesticides contained hundreds of pages of information about
the rule (e.g., health effects assessment, environmental fate and
effects assessment, EPA correspondence, and registrant comments).
On the other hand, EPA's Office of Water docket site contained a
narrative description of the docket, an email address, and other
written descriptions; no electronic rulemaking materials were
available. EPA officials said the agency recognized that this
varying level of service was being provided to many of the same
customers, and therefore was in the process of improving the
quality and consistency of their electronic dockets.
As previously noted, agencies sometimes provided electronic
access to docket information for particular rules. For example, the
web page for OSHA's proposed ergonomics rule provides full
transcripts of its public hearings and copies of both its health
effects and economic analyses for the rule, including the expected
effects on small businesses and other small entities. In some
cases, though, this information can be difficult to locate. For
example, EPA's web site provided detailed information on its 1999
proposed rules on lead and lead compounds and other persistent
bioaccumulative toxins. However, to obtain this information from
EPA's home page a user must maneuver through a series of pages
(e.g., "Programs," a "Toxics & Chemicals" sublink, and "Toxic
Release Inventory") before arriving at a page featuring links to
the rules and related documents.
Viewing/Responding to Comments of Others
Several of the agencies that we examined were using IT to permit
the public to view the comments the agencies had received on
proposed and final rules. However, the extent to which these
comments were electronically available and the role that this
access played in the rulemaking process varied substantially. In
each of these dimensions, DOT's docket management system appeared
to allow substantial public access and utility.


•
In some cases, comments were available to the public only
if those comments had been filed electronically. However, in DOT's
document management system, comments received on paper are scanned
into the system, thereby permitting the public to view all of the
comments submitted by others, regardless of the medium that was
used.


•
In some cases, the public could view comments only for
rules issued by certain agencies or offices, or for certain rules
within certain agencies or offices. However, public comments were
accessible through the DOT's document management system for
virtually all rules issued in the department.


•
In at least one case, the public could access the
comments filed only after the comment period had closed. However,
in other cases the comments were available while the comment period
was open, thereby allowing the public to respond to the comments
filed by others. For example, DOT's docket management system
maintained all materials submitted during the


rulemaking in the official electronic record. As a result, the
online user could review all comments on a rulemaking and file a
responding comment while the comment period was still open.
Other agencies made comments available electronically for
certain rules or groups of rules. For example, EPA made an index of
public comments and the text of the comments electronically
available for selected regulatory documents as part of a pilot
program. Comments filed electronically in relation to the HHS
administrative simplification initiative were stored automatically
in a database, and the comments were then publicly available via
the initiative's web site. Users could search for comments either
overall, for particular rules, or within particular sections of the
rules. USDA's APHIS had experimented with several approaches to
accepting and posting electronic comments on about 10 different
proposed rules in recent years. In one of these approaches, users
were asked to answer specific questions identified as areas where
APHIS most needed comments, the answers to the questions were
entered into a database with a web interface, and commenters were
allowed to review all the electronic comments posted and to post
other comments to the site. At the time of our review, APHIS
officials were attempting to identify the circumstances in which
electronic comment approaches work best. For example, they said
that electronic comment processes for controversial rules on which
a large number of comments are filed may ultimately yield little
more than a count of supporters and opponents. However, they also
said that electronic comments appeared particularly helpful on less
controversial rules with technical elements and on which commenter
interaction was possible-in essence, a realtime, informal "peer
review."
Use of IT in Other Forms of Interactive Participation
Agencies have also used IT to facilitate other forms of public
participation in the rulemaking process. For example, the Small
Business Regulatory Enforcement Fairness Act (SBREFA) requires that
EPA and OSHA convene a special review panel before issuing a
proposed rule that the agency believes will have a significant
economic impact on a substantial number of small entities. The
panels are to collect advice and recommendations from
representatives of affected small entities as part of their
deliberative process. An EPA official told us that the agency is
using email as a way to facilitate the delivery of documents to the
small entity representatives and to receive their comments. He also
said that EPA had created web sites for several rules that were
used in conjunction with SBREFA panels to pull together information
that commenters needed.
The related literature indicates that some other agencies have
begun to experiment with online dialogs or interactions among
participants during the rulemaking process. For example, as a part
of its rulemaking to develop rates that would finance Internet
connections in schools and libraries, the Federal Communications
Commission sponsored "moderated, online policy dialogues" for
educators and librarians that, according to an unpublished report,
enabled over 500 participants from across the nation to learn about
the proposed rule, share their views with each other, and offer
comments to the Federal Communications Commission. A DOT official
also indicated that the Department's Research and Special Programs
Administration had used a "chat room" arrangement during some of
the agency's rulemaking comment periods.
Multidimensional Electronic Rulemaking
Some of the agencies' electronic rulemaking systems contained
several of the innovative dimensions previously discussed. As noted
previously, DOT's docket management system permits comments to be
submitted electronically or on paper, allows the public to comment
on other users' comments, and permits access to a wide range of
regulatory supporting materials. Other agencies' had these and, in
some cases, other innovative features. However, unlike the DOT
system that is applicable to all of the Department's rules, the
other agencies' multidimensional systems focused on just a few
rules, or even a single rule.
For example, AMS within USDA has been conducting an electronic
rulemaking for nearly 3 years that encompasses a number of
innovative design elements. The proposed rule was published in
December 1997, and is intended to establish standards for
organically produced food. The program manager for the National
Organic Program said that AMS knew that the rule would be
controversial, so AMS decided to take advantage of IT's potential
to facilitate the comment process, allowing comments to be provided
via mail, fax, and email. Comments were posted for public view and
response in the agency's web site, along with transcripts of
national public meetings. AMS received more than 275,000 comments
on the rule, which were assigned key words to facilitate subsequent
analysis. As a result of the comments received, AMS changed the
proposed rule and it was republished for comment in March 2000. AMS
said in the proposal that it was the agency's intention to have all
comments, regardless of media, available for viewing on the
program's home page or at the agency's docket room. As previously
noted, USDA maintains a link to this rule on its home page, and the
organic standards site contains the text of the proposed rule, its
regulatory impact statement, and instructions on how to submit
comments and search the comments that had already been submitted.
The AMS system also allows users to search the full text of the
public comments, identifies form letter comments and ex parte
communications,8 and provides a list of related government web
sites-features that are currently not available in the DOT docket
management system. Although currently limited to this one rule, the
program manager said that AMS plans to use these electronic
rulemaking features in other potentially controversial
rulemakings.
According to the AMS program manager, the interactive comment
process changed the dynamic of rulemaking participation.
Previously, he said, commenters typically waited until the last
minute to file comments so that no one could see their views until
after the comment period was over. In the organic standards rule,
however, people submitted comments early in the process to have the
greatest influence on the evolving discussion. The Under Secretary
of Agriculture for Marketing and Regulatory Programs said that
fullscale Internet access had dramatically increased public
awareness and participation, and had saved taxpayers and USDA more
than $100,000 in administrative costs associated with the
rulemaking.
According to AMS, form letter comments are separately identified
because they share the same themes and are received by the
Department in large volumes. AMS said an ex parte communication is
an oral or written private communication from someone outside of
the United States Department of Agriculture to a Department
official who is involved in decisionmaking on a pending rulemaking
proceeding. The ex parte communication is received through channels
not prescribed by the Department, and it concerns the merits of
that proceeding.



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


•
One organization representing small businesses indicated
that it would be helpful if there was a single portal or
"electronic clearinghouse" to which small businesses could turn to
obtain information about rulemaking activities throughout the
federal government (i.e., similar to EPA's small business portal).
More generally, one commenter said there should be a single
regulatory portal for all federal rulemaking activity.


•
Other commenters suggested greater use of proactive and
customized regulatory notification systems. For example, the State
of Washington has established a list server, centrally managed by
the state's Division of Information Services, which can be used by
all state agencies to selectively notify citizens of opportunities
to participate in government decisionmaking, including rulemaking.
Citizens are able to register to be placed on the listserver for
particular topics.


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Other commenters suggested greater use of interactive
participation mechanisms, including online dialogs and meetings,
and the use of video. For example, the State of Washington
currently uses a statewide video network for meetings and
collaboration, with videos available over the Internet. The State
of Hawaii is also using networked cameras to conduct legislative
hearings, through which geographically dispersed citizens can
participate. Although it was not clear whether these video networks
had been used in a regulatory context in these states, the
commenters suggested that they could be used to facilitate
participation in rulemaking.


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Some of the commenters also said that federal agencies
should more commonly provide access to the economic analyses and
other underlying rulemaking information that frequently resides in
agencies' dockets. One commenter suggested that a central,
governmentwide site be established linking together the information
available in individual agencies' sites, thereby enabling the
public to "drill down" into individual agencies as well as obtain
similar information across agencies.


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This observer also said that the fully electronic
rulemaking at AMS on organic standards should be replicated in
other parts of USDA. However, he also noted that parts of the
electronic system for the organic standards rule were developed by
a contractor using proprietary software, and because USDA does not
own the application, even AMS cannot use it for other
rulemakings.


Several of the individuals and organizations that we contacted
also suggested that agencies move to a more consistent
organization, content, and presentation of information to allow for
a more common "look and feel" to agencies' ITbased public
participation mechanisms in rulemaking.


•
One representative of state governments said that
coordination or standardization across the agencies in a state is
"almost mandatory." He said that many states are establishing state
chief information officers who are generally responsible for
creating an interoperable infrastructure and common data standards
for all agencies within the state.


•
Several of the federal agency representatives also
indicated that a common structure or approach for public
participation in rulemaking made sense. For example, one agency
representative said that the use of commonly accepted models for
such administrative tasks as receiving and logging correspondence
and storing documents could save money and facilitate access. He
specifically cited the DOT docket management system as the type of
model that could have broader applicability.


•
Similarly, a public interest group representative said
that it would be very helpful to have a regulatory taxonomy or
thesaurus relating similar terms, which could be used to improve
the quality of searches in different agencies' search engines. More
generally, another public interest group representative said that a
"common look and feel" for regulatory information within federal
agencies could make it much easier for the public to locate, read,
and digest relevant information. However, he cautioned that
agencies have important differences, which may suggest that a
"onesizefitsall" approach would not be desirable.




Agencies Generally Questioned Need for Standardized Uses of IT
to Facilitate Rulemaking Participation
Several of the individuals and organizations that we contacted
during this review indicated that standardizing innovative uses of
IT to facilitate public participation in rulemaking could have
advantages when compared with the current fragmented system. For
example, some of them generally indicated that standardization
could make the current system more accessible to the public,
thereby leading to more participation in the rulemaking process.
Other observers simply indicated that greater standardization made
sense. Representatives from the agencies included in our review
also indicated a few areas in which standardization, or at least
more coordination, among agencies in this area could be helpful.
First, they said that standardization is probably a good approach
for resolving legal issues that each agency will have ultimately to
face, such as the use of copyrighted material and censorship of
comments received by the public that might be accessible to minors.
They also said that coordination could facilitate information
sharing among the agencies, thereby speeding the diffusion of
innovations that are appropriate and useful within the agencies'
particular context, keeping each agency from having to "reinvent
the wheel." Currently, they said, there is no structured way for
agencies to learn about best practices in other agencies. For
example, one agency representative told us that she was unaware
until recently of the DOT docket management system.
Overall, though, the agency representatives questioned the need
for a standardized approach to using IT to facilitate public
participation in rulemaking. They said that each agency and each
rulemaking is somewhat different. Therefore, they said, the
agencies need to be able to design their public participation
procedures to fit the particular circumstances appropriate for each
rulemaking (within the parameters of the APA and other applicable
statutes). They said that the current system reflects that
diversity, with agencies developing new participation processes and
information management systems as needed for their individual
programs and communities. For example, one agency representative
said that DOT's docket management system could not simply be
replicated at HHS or USDA because of differences in the degree of
management centralization and independence afforded the
departments' constituent agencies. Standardization, they said,
could decrease the agencies' ability to tailor regulatory
approaches and inhibit further agency innovation by "freezing into
place" the particular practices that have been developed so far.
They also said that the current flexible arrangement permits agency
officials to ensure that the use of IT in rulemaking is carried out
within the agency's overall IT strategic planning efforts.
The agency representatives also said that they were not aware of
any data suggesting that the lack of a standardized approach to
regulatory participation was a problem to either the public in
general or to the regulated entities that are most likely to
participate in rulemaking. Therefore, they said, determining
whether there is a problem by gathering information from the public
through surveys or other means might be a good first step before
proceeding to a standardization "solution." Several of the agency
representatives also questioned whether moving toward a standard,
electronic system would enhance public participation, either in
terms of the number of comments submitted or the quality of those
comments, or would improve the quality of the rule under
consideration.
The agency representatives said that standardization of ITbased
public participation vehicles would require scarce agency
resources, and that any resources provided to the agencies to
improve their IT systems might be better spent in areas other than
public participation in rulemaking (e.g., using IT to facilitate
regulatory compliance or some nonregulatory area). They did not
believe that every agency should be required to have a
"regulations" link on its home page, noting that many different
organizational units and interests are vying for space on agencies'
home pages. They also saw no need for agencies to always provide an
email address or web site to which electronic comments on proposed
rules could be addressed. Doing so for all rules, they said, could
overwhelm the agencies' systems; may be unnecessary for some
relatively uncontroversial rules; and may be a less effective use
of the agency's resources than more traditional methods (e.g.,
placing notices in trade publications or setting up a call
center).9 They also said that, once established, agencies would
have to be concerned about ongoing maintenance of some of these
standardized systems to make sure that the information therein is
timely, accurate, and complete.
The agency representatives also made a number of other points
that suggested that standardization of participation processes was
not needed or could be undesirable.
• Several of the agency representatives indicated that standard
electronic approaches to learning about participation opportunities
already exists-the electronic Unified Agenda and
One of the agency representatives indicated that the system
overload problem could be solved by developing information
retrieval systems ahead of time that would accommodate large
traffic volumes. For example, he said his agency had developed a
format into which electronic comments could be filed, which greatly
facilitated the subsequent analysis of the comments.
Page 15 GAO/GGD00135R Federal Rulemaking
Federal Register on the GPO Access web site. They said that
anyone could use that site to find out about any upcoming and
recently proposed rules.


•
One of the representatives indicated that an ITbased
"solution" to improving public participation in rulemaking could
underscore the "digital divide" that currently exists in the
country between those members of the public that currently have
regular access to a computer and those that do not.


•
One of the representatives said that differences in
agencies' current hardware and software systems could make it
difficult to adopt standards, and that some agencies' current
systems may not allow them to receive and archive nontextual
materials such as graphs, compact discs, or physical items that are
part of many rulemaking records. Another representative said that
IT is changing so rapidly that establishing a standardized
electronic approach to public participation may have some real
disadvantages later on, locking agencies into outmoded
technologies.


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


Conclusions
Participation in the rulemaking process requires (1) the public
to be aware of opportunities to participate and (2) systems that
will allow agencies to receive comments in an efficient and
effective manner. Agencies can use IT to inform the public about
participation opportunities either through passive systems that
require users to take the initiative to discover rules available
for comment or proactive systems that alert interested individuals
or organizations about impending regulatory actions. Passive
systems include both governmentwide web sites that allow users to
find out about proposed rules in any agency (e.g., GPO Access) and
web sites for particular agencies or offices that have identified
rules available for comment (e.g., USDA/APHIS, HHS/ACF, or EPA's
Office of Air and Radiation). However, none of the five departments
and agencies that we contacted had links on their home pages that
identified all rules available for comment within their entire
organizations. Proactive systems permit the interested public to be
notified by email when proposed rules are published (e.g., the HHS
web site for its administrative simplification initiative), but
were much less common than passive systems.
One relatively simple way for agencies to facilitate the receipt
of public comments is to provide an email address at the end of
proposed rules to which the public could respond electronically.
Agencies could also state that comments could be provided by
facsimile. However, the agencies that we contacted differed
substantially in the extent to which they explicitly provided for
these modes of comment during calendar year 1999, and none of the
agencies permitted either mode of communication for all of their
proposed rules. Some of the rules with their own dedicated web
sites (e.g., the DOL/OSHA ergonomics rule and the USDA/AMS organic
standards rule) provided links to both the rules and electronic
comment procedures.
One way to facilitate the receipt of informed public comments is
to permit electronic access to regulatory supporting materials,
such as economic analyses and the comments of others. DOT had the
most developed electronic docket system of the agencies that we
contacted, covering every rulemaking action in the department and
including all public comments received regardless of medium. DOT
officials said the system had saved the department more than a
million dollars each year in administrative costs and facilitated
the rulemaking process in other ways. Some agencies have begun to
use IT to facilitate interactive public comments, permitting users
to comment on the comments filed by others (e.g., at DOT and in the
USDA/AMS organic standards site) or to participate in online
dialogs with rule makers (e.g., DOT's Research and Special Programs
Administration).
All of the departments and agencies that we contacted during
this review were developing the ITbased public participation
vehicles that they believed were best suited to their particular
needs. As a result, the agencies' participation vehicles varied
substantially. Several of the individuals and organizations that we
contacted said that the agencies should move to a more standardized
approach, and said that standardization could make the current
system of participation more accessible to the public. However,
many of the agency officials and staff questioned the need for
standardization. They said that (1) agencies need to be able to
design their procedures to fit their particular circumstances
(e.g., the degree of management centralization in the agencies);
(2) standardization would require scarce agency resources that
might be better spent elsewhere; and (3) a good first step might be
to determine whether lack of standardization is really a problem.
On the other hand, the officials and staff were supportive of
efforts to better coordinate the use of ITbased participation
mechanisms in order to avoid each agency "reinventing the wheel."
Such coordination will require better communication within and
among the agencies. The ultimate adoption of particular approaches
within those agencies will require sufficient resources and an
understanding of how the approaches will fit into the agencies'
overall IT strategic plans.


Agency Comments
We provided a draft of this letter to the OMB Director for his
review and comment on May 17, 2000, but we did not receive any
official OMB comments on the report within the time allowed.
However, OMB staff provided information during and at the
conclusion of the review that was incorporated where
appropriate.
As we arranged with your offices, unless you publicly announce
this letter's contents earlier, we plan no further distribution of
it until 30 days after the date of this letter. We will then send
copies to Representative Dan Burton, Chairman of the House
Committee on Government Reform; and to Senator Fred Thompson,
Chairman of the Senate Committee on Governmental Affairs. We will
also provide copies to the Honorable Jacob J. Lew, Director, OMB;
the Honorable Dan Glickman, Secretary of Agriculture; the Honorable
Donna E. Shalala, Secretary of Health and Human Services; the
Honorable Alexis M. Herman, Secretary of Labor; the Honorable
Rodney E. Slater, Secretary of Transportation; and the Honorable
Carol M. Browner, Administrator, EPA. We will also make copies
available to others on request.
Please contact me or Curtis Copeland at (202) 5128676 if you or
your staff have any questions.

Michael Brostek
Associate Director, Federal Management and Workforce Issues

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