E-rulemaking efforts expanding, OMB official says

Digital dockets are part of open government, says Cass Sunstein

The Obama administration encourages e-rulemaking by federal agencies as a part of its open government and transparency agenda, an official from the Office of Management and Budget said today.

Publishing regulatory dockets online in digital formats helps increase diversity of public input, expands access to knowledge, and improves accountability, Cass Sunstein, administrator of OMB's Office of Information and Regulatory Affairs, said at a Brookings Institution event.

“E-rulemaking tries to use disclosure and new access to get comments from diverse people and make regulations better," Sunstein said. "Electronic rulemaking, if it is done right, is a partner of accountability.”

Related story:

OMB tells agencies to standardize electronic regulatory dockets

However, there are problems with moving on e-rulemaking while also ensuring national security, privacy, information security and integrity of the deliberative process, he added.

To help agencies adjust to the digital formats, Sunstein has issued a series of memos outlining several requirements of federal e-rulemaking, including a Nov. 22 memo on the need to write regulations in plain language. Sunstein expects to publish guidance on best practices for e-rulemaking shortly, he said.

Although some people might consider collecting public comments on an agency's proposed rule to be “Kabuki theater” and “artificial,” getting public feedback is a very important step in rulemaking and helps to create better regulations, he said.

“We take public comments exceedingly seriously,” Sunstein said. “I read a lot of them myself.”

But many obstacles must be dealt with before e-rulemaking can proceed smoothly, Neil Eisner, assistant general counsel for the Transportation Department, said at the event.

In addition to staffing and budgetary limitations, many legal issues are involved, including some that pose “a tremendous burden," Eisner added. He outlined several legal questions, including:

  • Consistency – Must all federal agencies be consistent in e-rulemaking protocols?
  • Legal Record -- Does the e-docket constitute a legal record or must there be a paper record as well? Must the e-docket contain all linked documents?
  • Signatures -- Should agencies verify the identities of people who submit comments to an e-rulemaking docket? Are anonymous submissions acceptable?
  • Obscenity – Must agencies review e-dockets for obscenity? Should obscenity be censored in the e-docket and, if so, under what standard?
  • Copyright – Should agencies determine whether the e-docket has copyrighted material? May copyrighted material be included in the e-docket?
  • Privacy – Are agencies obligated to review the e-rulemaking docket to determine whether privacy is infringed upon?
  • Formats – Is it fair for an agency to accept only electronic submissions for a rulemaking? Is it fair for an agency to accept only certain electronic formats for a submission?

“These questions are difficult to resolve, and difficult to ignore,” Eisner added.

In addition, Paul Verkuil, chairman of the Administrative Conference of the United States, announced that the conference will deal with some of the concerns raised by e-rulemaking in its upcoming meetings. The conference, a federal advisory committee, also will examine federal pre-emption of state laws, ethics for government contractors, open government, immigration adjudication, science in the administrative process, and other topics.

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

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