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the comments submitted on the proposed rule. It should
also operate as a repository for the background materials that the
agency used in developing a proposal. Finally, agencies should post
educational materials in the docket room and use this as an opportunity
to explain both the regulatory background and the technocratic complexities
to lay audiences.
10. J. Clarence Davies and Jan Mazurek, Pollution Control in the
United States: Evaluating the System (Washington D.C.: Resources
for the Future, 1998) 155-56.
11. Three legal scholars have concluded that the Administrative
Procedure Act does not pose a bar to electronic rulemaking. See
Henry H. Perritt, Electronic Dockets: The Use of Information Technology
in Rulemaking and Adjudication (Washington D.C: The Administrative
Conference of the United States, 1995); Jeffrey S. Lubbers, A Guide
to Federal Agency Rulemaking, 151-53; (Chicago: American Bar Association,
1998); Stephen M. Johnson, "The Internet Changes Everything:
Revolutionizing Public Participation and Access to Government Information
Through the Internet" 50 Admin. L. Rev. 277 (1998).
12. www.info-ren.org/universal-service/network-democracy.html. The
seminar actually ran after the formal public comment period had
expired but the FCC entertained the comments because the docket
was still open.
13. Richard Pildes and Cass Sunstein, "Reinventing the Regulatory
State," 62 University of Chicago Law Review 1,7 (1995).
14. Conversations between the FCC staff and Robert Carlitz.
15. www.fcc.gov/e-file/ecfs.html.
16. http://ruleforum.llnl.gov/.
17. http://dms.dot.gov/. This online docket system is clearly of
great value for the rulemaking offices and the legal staff at DOT.
The interface to however, can be difficult for members of the public
to use. There is no index listing all the proposed rules that are
open for comment. A user must know the docket number of a given
rule to access the docket room for that rule. Lacking the docket
number, the online search engine typically fails to find the relevant
docket room. And, while the site provides valuable information which
tracks a regulation's progress through the bureaucracy, access to
this information requires registration and a password.
18. www.fda.gov/ohrms/dockets/default.htm. The FDA has also done
an excellent job in creating an electronic reading room under the
1996 amendments to the Freedom of Information Act.
19. The National Telecommunications and Information Administration
in the Department of Commerce set up an electronic docket room for
its rulemaking on the Internet Domain Name transition, www.ntia.doc.gov/ntiahome/domainname/domainname130,
but the agency has not established this as a permanent feature of
its rulemaking activities. In addition, the domain name docket system
was not well indexed.
In its recent rulemaking on the Federal Advisory Committee Act Management
process, the General Services Administration created a limited electronic
docket room by posting comments slowly at a Web page; from its operations
it appears that email comments are not directly posted on to the
page. Comments submitted electronically by Information Renaissance
were promptly acknowledged but were posted only after the comment
period had closed. http://policyworks.gov/org/main/mc/rulecom.htm.
Several other agencies maintain Web pages which list the rules open
for comment and explain how to submit comments by email. See for
instance the web page of the Bureau of Land Management in the Department
of Interior. www.blm.gov/nhp/news/regul/regul.html.
20. The SEC and the Animal and Plant Health Inspection Service in
the Department of Agriculture, and the Administration for Children
and Families in the Department of Health and Human Services have
allowed resource constraints to preclude scanning postal submissions
into the electronic docket thereby depriving the public of access
to all the commentary. This failure to create a single docket online
greatly limits the utility of an electronic docket to the agency.
Having all the comments online allows the agency to categorize the
submissions easily; this should significantly minimize the agency's
burden in preparing the comment response document, a key part of
the final rulemaking
21. The GAO notes that DOT has saved over a million dollars a year
through electronic docketing.GAO Report at 9. In addition, the Agricultural
Marketing Service estimated that its electronic docket saved more
than $100,000 in administrative costs and dramatically increased
public awareness at the same time. Id at 12.
22. Neither the Administrative Procedure Act nor the case law presently
require agencies to entertain rebuttal submissions. The Clean Air
Act does provide for such comments where the proposed rule is national
in scope. See Section 307 (d)(5), 42 USC 7607(d)(5). The FCC does
so as a matter of practice. FCC Rules of Practice, 47 CFR 1.145.
23. The Administrative Conference was a useful governmental agency
that was abolished by the 104th Congress. Established in 1968, the
Conference served as an advisory agency on administrative law and
procedure. See Toni M. Fine, "A Legislative Analysis of the
Demise of the Administrative Conference of the United States,"
30 Ariz, State Law Journal 19 (1998).
24. Lubbers, Ibid at 214. The heightened transparency provided by
electronic docket rooms should also diminish the likelihood that
a reviewing court would overturn a rule because the agency failed
to provide the public with adequate notice that a particular issue
was under consideration. At present the federal courts are split
as to whether or not issues raised in the comments but not in the
proposed rule provide adequate notice to other members of the public.
Lubbers, Id.
25. Electronic docket rooms should permit anonymous browsing and
copying just like paper docket rooms. However, we do think registration
is appropriate where a person is submitting comments during a rulemaking.
Both the governmental entity and other participants have a legitimate
interest in knowing who is commenting. Moreover, anonymous filings
are not accepted under the existing rules for paper dockets during
rulemakings or adjudicatory proceedings.
26. In a recent report the GAO made two salient observations in
this area. First, it noted that the voluminous nature of the Register
makes it daunting to peruse and while it is now electronically searchable
it is not easy to master. Secondly, they pointed out that Washington
State uses a list serve to notify those registered of opportunities
to participate in upcoming rulemakings. GAO Report at 4 and 11.
During the FCC rulemaking, we reached out to teachers and librarians
through electronic contacts with professional organizations and
through online interest groups frequented by our target audience.
This greatly expanded the input from these groups.
27. http://roadless.fs.fed.us/
28. http://www.epa.gov/owow/tmdl/
29. EPA's Air Office maintains a page that announces the rules that
are presently open for comment.
30. Davis and Mazurek, Ibid.
31. Stephen P. Croley and William F. Funk, "The Federal Advisory
Committee Act and Good Government," 14 Yale Journal of Regulation
451, 453 (1997). The authors, two law professors, had conducted
a study of the Federal Advisory Committee Act for the Administrative
Conference of the United States just prior to the Conference's abolition.
32. 64 Fed. Reg. 28,469, May 26, 1999.
33. While the Register is now available online, it is not an effective
notification tool; broader use of listserves would do a much better
and more targeted job.
34. Croley and Funk, Ibid at 453. The authors had conducted this
study on the Federal Advisory Committee Act for the Administrative
Conference of the United States just prior to the Conference's abolition.
35. http://www.epa.gov/region3/mtntop/index.htm
36. J. Clarence Davies and Jan Mazurek, Pollution Control in the
United States: Evaluating the System (Washington D.C.: Resources
for the Future, 1998) 159-60.
37. Obscure placement of these notices can effectively deprive citizens
of their opportunity to comment on a particular application. See
description of permitting notification difficulties faced by a minority
community challenging the siting of waste disposal facilities in
Chester Pennsylvania in Sheila Foster, "Justice from the Ground
Up: Distributive Inequities, Grassroots Resistance, and the Transformative
Politics of the Environmental Justice Movement," 86 California
Law Review 775, 814-15 (1998).
38. Davis and Mazurek, Ibid.
39. The RACT/BACT/LAER Clearinghouse can be found at http://mapsweb.rtpnc.epa.gov/RBLC/b102.htm.
The Clean Air Act requires new sources to install differing levels
of technology depending on the region's air quality. Simply put,
dirtier air requires new sources to install more expensive technology.
State or local agencies make most of these decisions.
40. Pildes and Sunstein, Ibid at 91; John Felleman, "Internet
Facilitated Open Modeling: A Keystone of Adaptive Management,"
http://www.esf.edu/es/felleman/OM-Paper.html
41. One argument that business interests often make against disclosure
- that the agency data may be inaccurate- has no applicability in
this context. Archives of applications and issued permits reflect
the regulatory status quo in licensing matters.
42. Much of this data may already be archived on state and federal
Intranets and could easily be transferred to public sites.
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