Electronic Rulemaking:

Efforts to Facilitate Public Participation Can Be Improved

GAO-03-901: Published: Sep 17, 2003. Publicly Released: Oct 17, 2003.

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Information technology can greatly facilitate the public's ability to comment on proposed rules that affect them. The E-Government Act of 2002 made the Office of Management and Budget (OMB) responsible for overseeing electronic government initiatives. We examined the extent to which agency-specific Web sites and the new governmentwide Regulations.gov Web site permit the public to electronically (1) identify proposed rules that are open for comment, (2) comment on proposed rules, and (3) access regulatory supporting materials (e.g., economic analyses) and the comments of others.

The Web sites for the Environmental Protection Agency (EPA), the lead agency for the administration's electronic rulemaking initiative, and the Department of Transportation (DOT) each identified only about 20 percent of the agencies' proposed rules that were published from February 2003 through April 2003 and that were open for comment on May 1, 2003. However, a Web site for an agency within DOT identified most of the department's other rules. Neither the EPA nor the DOT systems were originally designed to include rules originating outside of the agencies' headquarters offices. The Department of Agriculture's Web site did not identify open proposed rules, but Web sites for agencies within the department collectively identified almost all of the rules. The Regulations.gov Web site identified nearly all of these agencies' open proposed rules, but its design sometimes made finding the rules difficult. Regulations.gov allowed the public to provide electronic comments (e-comments) on about 91 percent of the 411 proposed rules that were published during this 3-month period. In contrast, the rulemaking agencies provided for e-comments in only about 66 percent of the rules. Some agencies (e.g., EPA) did not provide for e-comments in most of their proposed rules. Where agencies permitted e-comments, the methods provided varied. Only 2 of the 411 proposed rules mentioned Regulations.gov as a commenting option. Perhaps, as a result, few comments were submitted via Regulations.gov during this period. Some agencies permitted the public to access regulatory supporting materials for some of their proposed rules. Although Regulations.gov did not permit access to these materials, EPA officials said such access would be available when the second module of the electronic rulemaking initiative is fully implemented (by the end of 2005).

Status Legend:

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  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: The Director of the Office of Management and Budget should issue guidance to the rulemaking agencies on ways to improve the electronic commenting process for proposed rules. Specifically, the guidance should instruct the agencies to (1) provide a link to Regulations.gov on their Web sites to allow users to identify proposed rules open for comment, and (2) note in the preambles of their proposed rules the availability of Regulations.gov as an electronic commenting option.

    Agency Affected: Executive Office of the President: Office of Management and Budget

    Status: Closed - Implemented

    Comments: The Office of Management and Budget (OMB) issued a memorandum to the President's Management Council dated March 1, 2004. In the memorandum, OMB asked agencies to take steps to encourage public use of www.regulations.gov. The first step was to include a link to www.regulations.gov on their websites. The second step was to include in the preamble to any regulatory action a reference directing the public to www.regulations.gov. Agencies were asked to ensure these steps were taken by March 31, 2004. Instructions related to the second step were attached to the memorandum.

    Recommendation: The Director of OMB should 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 Affected: Executive Office of the President: Office of Management and Budget

    Status: Closed - Implemented

    Comments: In his response to our report, the Administrator for the Office of Information and Regulatory Affairs (OIRA) noted that OIRA would "work with the Office of the Federal Register and the E-Rulemaking team to follow through with these recommendations." An email from the Director of Legal Affairs and Policy Staff for the Office of the Federal Register (dated December 8, 2003) confirmed that the change was made and that it was made in response to GAO's recommendations. "Many of these things were stuck in the pipeline until validated in your report."

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