oversight

Electronic Rulemaking: Efforts to Facilitate Public Participation Can Be Improved

Published by the Government Accountability Office on 2003-09-17.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                 United States General Accounting Office

GAO              Report to the Committee on
                 Governmental Affairs, U.S. Senate



September 2003
                 ELECTRONIC 

                 RULEMAKING

                 Efforts to Facilitate
                 Public Participation
                 Can Be Improved




GAO-03-901

                 a

                                                September 2003


                                                ELECTRONIC RULEMAKING

                                                Efforts to Facilitate Public Participation
Highlights of GAO-03-901, a report to the       Can Be Improved
Committee on Governmental Affairs, U.S.
Senate




Information technology can greatly              The Web sites for the Environmental Protection Agency (EPA), the lead
facilitate the public’s ability to              agency for the administration’s electronic rulemaking initiative, and the
comment on proposed rules that                  Department of Transportation (DOT) each identified only about 20 percent
affect them. The E-Government                   of the agencies’ proposed rules that were published from February 2003
Act of 2002 made the Office of                  through April 2003 and that were open for comment on May 1, 2003.
Management and Budget (OMB)
responsible for overseeing
                                                However, a Web site for an agency within DOT identified most of the
electronic government initiatives.              department’s other rules. Neither the EPA nor the DOT systems were
We examined the extent to which                 originally designed to include rules originating outside of the agencies’
agency-specific Web sites and the               headquarters offices. The Department of Agriculture’s Web site did not
new governmentwide                              identify open proposed rules, but Web sites for agencies within the
Regulations.gov Web site permit                 department collectively identified almost all of the rules. The
the public to electronically                    Regulations.gov Web site identified nearly all of these agencies’ open
(1) identify proposed rules that are            proposed rules, but its design sometimes made finding the rules difficult.
open for comment, (2) comment on
proposed rules, and (3) access                  Regulations.gov allowed the public to provide electronic comments (e­
regulatory supporting materials                 comments) on about 91 percent of the 411 proposed rules that were
(e.g., economic analyses) and the
comments of others.
                                                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
This report contains                            as a commenting option. Perhaps, as a result, few comments were
recommendations intended to                     submitted via Regulations.gov during this period.
improve the public’s awareness of
rules open for comment and the                  Some agencies permitted the public to access regulatory supporting
Regulations.gov system, and to
                                                materials for some of their proposed rules. Although Regulations.gov did
improve the operation of
Regulations.gov. OMB generally                  not permit access to these materials, EPA officials said such access would
agreed with the report’s                        be available when the second module of the electronic rulemaking initiative
recommendations and indicated                   is fully implemented (by the end of 2005).
that actions had already begun to
address some of them. EPA                       About One-Third of Proposed Rules Did Not Permit E-Comments
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.
Contents




Letter
                                                                                                 1
                             Results in Brief 
                                                         3
                             Background                                                                 5

                             Regulations.gov Identified More Rules Open for Comment Than

                               Major Rulemaking Agencies’ Web Sites                                     8
                             Regulations.gov Permitted Electronic Comments on More Proposed
                               Rules Than Agencies’ Systems                                            18
                             Some Agencies Provided Electronic Access to Supporting Materials,
                               but Regulations.gov Does Not Currently Do So                            24
                             Conclusions                                                               27
                             Recommendations for Executive Action                                      28
                             Agency Comments and Our Evaluation                                        29


Appendixes
              Appendix I:    Objectives, Scope, and Methodology                                        33
             Appendix II:	 Agencies Varied in Extent to Which They Provided for
                           Electronic Comments on Proposed Rules                                       35
             Appendix III:   Comments from the Environmental Protection Agency                         37
             Appendix IV:    Comments from the Office of Management and Budget                         40


Figures	                     Figure 1: Three Federal Agencies Accounted for More Than Half of 

                                       the 411 Proposed Rules Published from February 2003 

                                       through April 2003                                               9

                             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                                                            10

                             Figure 3: Different Steps Required to Identify Airworthiness 

                                       Directives and Other DOT Rules That Were Open for 

                                       Comment                                                         13

                             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                                                     15

                             Figure 5: About Two-Thirds of the 411 Proposed Rules Published 

                                       from February 2003 through April 2003 Provided for 

                                       Some Type of Electronic Comments                                19





                             Page i                                       GAO-03-901 Electronic Rulemaking
Contents




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




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Page ii                                                GAO-03-901 Electronic Rulemaking
A

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



                                    September 17, 2003


                                    The Honorable Susan M. Collins

                                    Chairman

                                    The Honorable Joseph I. Lieberman

                                    Ranking Minority Member

                                    Committee on Governmental Affairs

                                    United States Senate


                                    Each year, federal agencies publish thousands of regulations that can affect 

                                    almost every aspect of citizens’ lives—from allowing a fireworks display 

                                    over the Columbia River in Vancouver, Wash., to registering food facilities 

                                    in light of the potential for bioterrorism.1 The public can play a role in the 

                                    rules that affect them through the notice and comment provisions of the 

                                    Administrative Procedure Act of 1946, as amended. In fact, involvement of 

                                    the public in rulemaking has been described as possibly “the most complex 

                                    and important form of political action in the contemporary American 

                                    political system.”2 However, in order to be involved in rulemaking 

                                    effectively, the public must be able to (1) know whether proposed rules are 

                                    open for public comment, (2) prepare and submit comments to relevant 

                                    decisionmakers, and (3) access regulatory supporting materials (e.g.,

                                    agencies’ economic analyses) and the comments of others so that their 

                                    comments can be more informed and useful. 


                                    Information technology (IT) can greatly enhance the public’s ability to

                                    accomplish each of these comment-related tasks, and can also improve 

                                    federal agencies’ ability to analyze and respond to those comments. In 

                                    June 2000, we reported on agencies’ initial efforts to use IT to facilitate 

                                    public participation in rulemaking.3 Since then, there have been several 

                                    legislative and executive branch initiatives in this area. For example, 

                                    Congress enacted the “E-Government Act of 2002,” which contained



                                    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).




                                    Page 1                                               GAO-03-901 Electronic Rulemaking
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 www.regulations.gov
(Regulations.gov), which allows the public to find and submit comments on
federal rules and other documents that are open for comment and
published in the Federal Register. Although some agencies had previously
established Web sites that identified open rules and permitted the public to
comment electronically, the Regulations.gov Web site was the first to
facilitate both of these functions governmentwide.4 The second module of
the e-rulemaking initiative will move beyond rule identification and
commenting by establishing a governmentwide electronic docket
management system into which all relevant regulatory supporting materials
and public comments will be placed. The third and final module will create
an electronic regulatory desktop to facilitate the rule development process.

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




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.




Page 2                                                 GAO-03-901 Electronic Rulemaking
                    A detailed description of our methodology is provided in appendix I.
                    Briefly, we focused most of our review on the 411 proposed rules that were
                    published in the Federal Register from February 1, 2003, through April 30,
                    2003 (the first 3 full months that the Regulations.gov Web site was in
                    operation).5 Three agencies—EPA, the Department of Transportation
                    (DOT), and the Department of Agriculture (USDA)—accounted for more
                    than half of these proposed rules.6 To address our first objective, we
                    determined how many of these three agencies’ proposed rules that were
                    published during that 3-month period and open for comment as of May 1,
                    2003, were identified on the agencies’ and the Regulations.gov Web sites as
                    open for comment. To address our second objective, we determined how
                    many of the 411 proposed rules provided the public with an electronic
                    commenting option (e.g., an e-mail address to which comments could be
                    submitted) and how many could be commented on via Regulations.gov. To
                    address our third objective, we reviewed selected agencies’ electronic
                    docket systems and the Regulations.gov Web site to determine whether
                    they permitted the public to identify regulatory supporting materials and
                    the comments of others.7 We did our work in the Washington, D.C. offices
                    of the three selected agencies and OMB from February 2003 through June
                    2003 in accordance with generally accepted government auditing
                    standards.



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


                    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.




                    Page 3                                                    GAO-03-901 Electronic Rulemaking
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



Page 4                                          GAO-03-901 Electronic Rulemaking
              open for comment and the Regulations.gov system, and improve the
              operation of Regulations.gov. OMB generally agreed with the report’s
              recommendations and indicated that actions had already begun to address
              some of them. EPA expressed concerns about how the report
              characterized its docket system but expected to implement our
              recommendations regarding Regulations.gov.



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

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




              8
              GAO/GGD-00-135R.




              Page 5                                         GAO-03-901 Electronic Rulemaking
Legislative and Executive   In recent years, Congress has taken a number of actions to promote e-
Branch E-Rulemaking         government functions in general and e-rulemaking in particular. For
                            example, the Paperwork Reduction Act of 1995 provides that the Director
Initiatives                 of OMB should promote the use of IT “to improve the productivity,
                            efficiency, and effectiveness of Federal programs.” 9 In 1998, Congress
                            enacted the Government Paperwork Elimination Act (GPEA), which
                            requires that by October 21, 2003, federal agencies provide the public,
                            when practicable, with the option of submitting, maintaining, and
                            disclosing information electronically, instead of on paper. 10 GPEA makes
                            OMB responsible for ensuring that federal agencies meet the act’s
                            implementation deadline.11 Although GPEA does not specifically mention
                            rulemaking, both OMB and rulemaking agencies have indicated that its
                            requirements have provided an impetus for developing IT-based
                            approaches to regulatory management.12

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




                            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).




                            Page 6                                                  GAO-03-901 Electronic Rulemaking
practice are included in the rulemaking docket under section 553(c) of
title5, United States Code, whether or not submitted electronically.” The E-
Government Act also established an Office of Electronic Government
within OMB, headed by an Administrator appointed by the President.15 The
act requires the Administrator of that office to work with the Administrator
of OMB’s Office of Information and Regulatory Affairs in establishing the
strategic direction of the e-government program, and to oversee its
implementation. We have previously reported that OMB leadership of
these efforts is extremely important to their success.16

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

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



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).




Page 7                                                  GAO-03-901 Electronic Rulemaking
                            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             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
Identified More Rules       were open for comment as of May 1, 2003. DOT’s Web site also identified
Open for Comment            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
Than Major                  those rules. Neither the EPA system nor the DOT system was originally
Rulemaking Agencies’        designed to include rules originating outside of the agencies’ headquarters
Web Sites                   offices. USDA did not have a Web site that listed the department’s proposed
                            rules that were open for comment, but various Web sites for the agencies
                            within the department collectively did so for most of the open rules.
                            Regulations.gov identified nearly all of the DOT, EPA, and USDA proposed
                            rules that were open for comment. However, the design of both
                            Regulations.gov and the agencies’ Web sites sometimes posed barriers to
                            the identification of open rules.



Some Agency Web Sites Did   From February 1, 2003, through April 30, 2003, federal agencies published
Not Identify All Proposed   411 proposed rules in the Federal Register. As figure 1 shows, three
                            agencies—DOT, EPA, and USDA—published more than half of these
Rules Open for Comment
                            proposed rules (122, 78, and 34 rules, respectively).18




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




                            Page 8                                                    GAO-03-901 Electronic Rulemaking
Figure 1: Three Federal Agencies Accounted for More Than Half of the 411
Proposed Rules Published from February 2003 through April 2003




                        30%              DOT

         43%



                        19%              EPA

               8%




                                        USDA


                                        Other
Source: GAO.



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

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



Page 9                                            GAO-03-901 Electronic Rulemaking
proposed rules that were open for comment, but a separate Web site for an
agency within the department identified the 41 remaining open DOT
proposed rules. EPA’s Web site only identified 6 of the agency’s 33
proposed rules that were open for comment and that had been published
during the 3-month period. The Web sites for the individual offices within
EPA did not identify additional proposed rules that were open for
comment.



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

                                    52          52

50



40
                                                             33
                                                41
30



20         17          16



10                                                                       6
                                               11

 0
                USDA                     DOT                      EPA
      Agency

                Open for comment

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

                Identified as open for comment on Web site for agency

Source: GAO.



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




Page 10                                                                 GAO-03-901 Electronic Rulemaking
USDA	   USDA did not have a link from its home page that allowed the public to
        identify proposed rules open for comment throughout the department.
        However, all but 2 of the 19 agencies within USDA had such links on their
        home pages. Using those links we were able to identify 16 of the 17 USDA
        proposed rules that were published from February 2003 through April 2003
        and that were open for comment on May 1, 2003. Some of the USDA
        agencies directly provided a list of their open rules, but others (e.g., the
        Farm Service Agency and the Animal and Plant Health Inspection Service)
        simply provided a link to the lists available on Regulations.gov. Only one
        USDA agency did not have any type of link or list of open rules—the
        Cooperative State Research, Education, and Extension Service (CSREES).
        CSREES had one proposed rule published during the 3-month period that
        was open for comment on our target date.

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

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


        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.




        Page 11                                                    GAO-03-901 Electronic Rulemaking
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.




Page 12                                       GAO-03-901 Electronic Rulemaking
Figure 3: Different Steps Required to Identify Airworthiness Directives and Other DOT Rules That Were Open for Comment



                DOT                                                                 FAA
              home page                                                           home page




                                                                          FAA Regulations, Advisory
        Dockets/Regulations                                               Circulars, and Airworthiness
                                                                                    Directives




        Docket Management                     Final Rules and NPRMs             Current Federal                   Airworthiness Directives
              System                                                          Aviation Regulations




            Open Dockets                                                   Regulations and rulemaking             Airworthiness Directive




                                                  Documents                Airworthiness Directives                 New Airworthiness
                                                Open for Comment              Open for Comment                    Directives (last 60 days)




Source: DOT and FAA sites.



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


                                         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.




                                         Page 13                                                         GAO-03-901 Electronic Rulemaking
       officials that a member of the public may not know that “Open Dockets”
       contains a list of proposed rules open for comment, they said the term
       “dockets” is used because the department's system includes more than just
       rules (e.g., adjudicatory proceedings).

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

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


       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.




       Page 14                                                  GAO-03-901 Electronic Rulemaking
                             www.regulations.gov.” EPA also recently noted on its “About EDOCKET”
                             Web page that it “contains Headquarters regulatory and non-regulatory
                             dockets and documents,” suggesting (although not specifically stating) that
                             it does not contain regional office material.



Regulations.gov Identified   As figure 4 shows, Regulations.gov listed 101 of the 102 USDA, DOT, and
More Proposed Rules Open     EPA proposed rules that were published between February 2003 and April
                             2003 and that were open for comment as of May 1, 2003. Although
for Comment Than Major
                             Regulations.gov was, in general, more comprehensive than the three major
Rulemaking Agencies’ Web     rulemaking agencies’ Web sites, we concluded that users could face
Sites                        difficulty finding these open rules on the governmentwide site because of
                             limitations related to its design and operation.



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

                                                                 52          51
                             50



                             40

                                                                                          33          33

                             30



                             20         17          17



                             10


                              0
                                             USDA                     DOT                       EPA
                                   Agency

                                             Open for comment


                                             Identified on Regulations.gov by agency subunit


                                             Identified on Regulations.gov by agency


                             Source: GAO.




                             Page 15                                                              GAO-03-901 Electronic Rulemaking
                              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



                              Page 16                                         GAO-03-901 Electronic Rulemaking
                         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           Both Regulations.gov and the agency-specific rule identification systems
Identification Systems   discussed above are “passive” systems, requiring users to take the initiative
                         and find out about recently proposed rules. As we reported in our June
                         2000 report, some agencies have begun using more proactive mechanisms
                         for alerting the interested public about impending or recently issued rules
                         and opportunities for participation.

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



                         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.




                         Page 17                                                     GAO-03-901 Electronic Rulemaking
Regulations.gov            About 66 percent of the 411 proposed rules that were published
                           governmentwide during the relevant 3-month period provided some
Permitted Electronic       method by which the public could provide comments electronically.
Comments on More           However, the agencies varied substantially in this regard. Some agencies
                           provided an electronic commenting option in virtually all of their proposed
Proposed Rules Than        rules, although the method of commenting often varied. Other agencies
Agencies’ Systems          (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       As figure 5 shows, about 66 percent of the 411 proposed rules published
Electronic Commenting on   from February 2003 through April 2003 provided the public with some type
                           of electronic commenting option (e.g., an e-mail address to which
About Two-Thirds of
                           comments could be sent). However, there were significant differences
Proposed Rules             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.




                           Page 18                                          GAO-03-901 Electronic Rulemaking
Figure 5: About Two-Thirds of the 411 Proposed Rules Published from February
2003 through April 2003 Provided for Some Type of Electronic Comments




                                                                            43%        EPA



               66%                   34%
                                                                            21%        US Coast Guard



                                                                            36%        Other




          Rules that provided an electronic comment option

          Rules that did not provide an electronic comment option

Source: GAO.



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

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




Page 19                                                             GAO-03-901 Electronic Rulemaking
                         comments could be sent.25 EPA officials said that a review of this issue by
                         the agency’s Office of the General Counsel concluded that the statement
                         included in these rules was probably caused by the inadvertent use of an
                         outdated Federal Register notice template.

Methods of Submitting    The 270 proposed rules that provided for electronic comments instructed
Electronic Comments to   the public to submit these comments either through an e-mail address, an
Agencies Varied	         agency’s Web-based electronic docket system, or both. In more than 80
                         percent of these proposed rules (224 of the 270 rules), the agencies
                         provided an e-mail address to which comments could be submitted.
                         However, the addressees of the comments varied by agency and, in some
                         cases, by rule within agencies. For example, in some cases the public was
                         instructed to send the e-mail comments to an individual (e.g.,
                         secretary@cftc.gov). In other cases the address provided was an agency
                         rulemaking docket (e.g., OW-docket@epamail.epa.gov or air-and-r­
                         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.2002-018@gsa.gov, cottoncomments@usda.gov or 9-asw­
                         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 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


                         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.”




                         Page 20                                                  GAO-03-901 Electronic Rulemaking
                               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        In Regulations.gov, users wanting to submit comments through the system
Electronic Commenting on       simply type their comments in a “Comments” box, complete any other
                               required or optional identifying information, review the comment upon
Virtually All Proposed Rules
                               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).




                               Page 21                                      GAO-03-901 Electronic Rulemaking
Figure 6: Regulations.gov Permitted Electronic Comments on Nearly All of the 411
Proposed Rules Published from February 2003 through April 2003




                                                                                      40%        NMFS


                                                                                      14%        CMS
               91%                        9%


                                                                                      46%        Other




          Regulations.gov. provided electronic comment option

          Regulations.gov. did not provide an electronic comment option

Source: GAO.



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

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

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



Page 22                                                                   GAO-03-901 Electronic Rulemaking
                          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   The information that the public was required to provide when submitting a
Regulations.gov Varied    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   In May 2003, an EPA official involved in the e-rulemaking initiative told us
Received through          that about 400 comments had been filed on rules governmentwide through
Regulations.gov           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



                          Page 23                                        GAO-03-901 Electronic Rulemaking
                           changes to the new source review program—EPA received only 8 public
                           comments through Regulations.gov. Similarly, DOT officials told us that
                           from February 2003 through April 2003, the department had received only
                           21 comments through the Regulations.gov Web site. During the same
                           period, DOT said it had received nearly 18,000 comments through its
                           document management system, of which nearly 16,000 were electronic.

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



Some Agencies              Several federal agencies (e.g., EPA and DOT) allowed the public to have
                           electronic access to regulatory supporting materials and the comments of
Provided Electronic        others for some of their proposed rules. Other agencies provided no
Access to Supporting       electronic access to these materials. Regulations.gov does not provide
                           electronic access to regulatory supporting materials or the comments of
Materials, but             others. However, EPA officials noted that Regulations.gov was not
Regulations.gov Does       designed to provide that function, and said that the second module of the
Not Currently Do So        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     Regulatory agencies are required to prepare supporting materials for many
Electronic Access to       of their proposed and final rules. Those supporting materials can include
                           the agency’s economic analysis (describing, for example, the alternatives
Supporting Materials and
                           the agency considered and the costs and benefits of the alternative
Comments                   selected) and descriptions of how the agencies have complied with various

                           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).




                           Page 24                                                 GAO-03-901 Electronic Rulemaking
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



Page 25                                          GAO-03-901 Electronic Rulemaking
                               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     Regulations.gov provided electronic access to copies of the proposed rules
Permit Access to Comments   as they appeared in the Federal Register. However, the Web site did not
                            permit the public to access the comments of others or regulatory
or Supporting Materials
                            supporting materials.27 EPA officials noted that Regulations.gov is the first
                            module of the administration’s e-rulemaking initiative, and is currently
                            limited to a “pointer or communication” focus that allows the public to
                            electronically identify and comment on rules. They said that when the
                            second module of the e-rulemaking initiative is complete, all agencies’ rules
                            and docket materials would be in a single electronic docket. At that point,



                            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.




                            Page 26                                                  GAO-03-901 Electronic Rulemaking
               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



               Page 27                                        GAO-03-901 Electronic Rulemaking
                        improvements to both the visibility and the operation of Regulations.gov
                        should be made. If Regulations.gov is to be a success as a commenting
                        option, the public needs to know that the option exists. One way to
                        improve its visibility (although clearly not the only way) is to mention
                        Regulations.gov in agencies’ proposed rules as a commenting option.

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

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



Recommendations for 	   We recommend that the Director of OMB issue guidance to the rulemaking
                        agencies on ways to improve the electronic commenting process for
Executive Action	       proposed rules. Specifically, the guidance should instruct the agencies to
                        (1) provide a link to Regulations.gov on their Web sites to allow users to
                        identify proposed rules open for comment, and (2) note in the preambles of
                        their proposed rules the availability of Regulations.gov as an electronic
                        commenting option.




                        Page 28                                         GAO-03-901 Electronic Rulemaking
                      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   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
Our Evaluation        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



                      Page 29                                         GAO-03-901 Electronic Rulemaking
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



Page 30                                       GAO-03-901 Electronic Rulemaking
implemented. The Administrator pointed out that some aspects of the
second module had already begun and the module would be completed by
October 2005. As noted previously, in response to informal comments that
we had received from EPA after the draft report had been provided to
OMB, we changed the report to reflect that implementation of the second
module began in 2003 and would be completed by the end of 2005.

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

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


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




Page 31                                          GAO-03-901 Electronic Rulemaking
Major contributors to this report include Joe Santiago, Mary Martin, and
John Ripper.




Victor S. Rezendes
Managing Director
Strategic Issues




Page 32                                       GAO-03-901 Electronic Rulemaking
Appendix I

Objectives, Scope, and Methodology



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

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

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


              1
               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.”




              Page 33                                                   GAO-03-901 Electronic Rulemaking
Appendix I

Objectives, Scope, and Methodology





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

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

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

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




Page 34                                        GAO-03-901 Electronic Rulemaking
Appendix II

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


                                                      Number of        Number of           Number of
                                                 proposed rules            rules in    rules in which
                                                 published from     which agency      agency did not
                                                  February 2003      provided for         provide for
                                                   through April        electronic          electronic
               Department/agency                           2003        comments            comments
               Departments
               Department of Agriculture                     34                 29                  5
               Department of Commerce                        18                  3                 15
               Department of Defense                         13                  7                  6
               Department of Education                        1                  1                  0
               Department of Energy                           4                  4                  0
               Department of Health and Human
               Services                                      19                 14                  5
               Department of Homeland Security               18                  1                 17
               Department of Housing and Urban
               Development                                    3                  0                  3
               Department of the Interior                    22                 20                  2
               Department of Justice                          3                  0                  3
               Department of Labor                            6                  6                  0
               Department of Transportation                 122                107                 15
               Department of the Treasury                    17                 15                  2
               Department of Veterans Affairs                 3                  3                  0
               Agencies
               Commodity Futures Trading
               Commission                                     3                  3                  0
               Court Services and Offenders
               Supervision Agency                             2                  0                  2
               Environmental Protection Agency               78                 17                 61
               Farm Credit Administration                     2                  2                  0
               Federal Communications
               Commission                                    11                 11                  0
               Federal Election Commission                    1                  1                  0
               Federal Emergency Management
               Agency                                         1                  1                  0
               Federal Housing Finance Board                  1                  1                  0
               Federal Maritime Commission                    1                  1                  0
               Federal Reserve System                         2                  2                  0
               Federal Trade Commission                       2                  2                  0




               Page 35                                             GAO-03-901 Electronic Rulemaking
Appendix II

Agencies Varied in Extent to Which They 

Provided for Electronic Comments on 

Proposed Rules





(Continued From Previous Page)
                                                Number of          Number of           Number of 

                                           proposed rules              rules in    rules in which

                                           published from       which agency      agency did not 

                                            February 2003        provided for         provide for 

                                             through April          electronic          electronic

Department/agency                                    2003          comments            comments

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

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




Page 36                                                        GAO-03-901 Electronic Rulemaking
Appendix III

Comments from the Environmental
Protection Agency




               Page 37        GAO-03-901 Electronic Rulemaking
Appendix III

Comments from the Environmental 

Protection Agency





Page 38                             GAO-03-901 Electronic Rulemaking
Appendix III

Comments from the Environmental 

Protection Agency





Page 39                             GAO-03-901 Electronic Rulemaking
Appendix IV

Comments from the Office of Management
and Budget




              Page 40         GAO-03-901 Electronic Rulemaking
Appendix IV

Comments from the Office of Management

and Budget





Page 41                                   GAO-03-901 Electronic Rulemaking
           Appendix IV

           Comments from the Office of Management

           and Budget





(450187)   Page 42                                   GAO-03-901 Electronic Rulemaking
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