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
Highlights of GAO-03-901, a report to the 

Committee on Governmental Affairs, U.S. 

Senate 

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. 

This report contains 

recommendations intended to 

improve the public’s awareness of 

rules open for comment and the 

Regulations.gov system, and to 

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 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. 

September 2003 

ELECTRONIC RULEMAKING 

Efforts to Facilitate Public Participation 

Can Be Improved 

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 (ecomments) 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). 

About One-Third of Proposed Rules Did Not Permit E-Comments 
Contents


Letter


Results in Brief 


Background 


Regulations.gov Identified More Rules Open for Comment Than


Major Rulemaking Agencies’ Web Sites 

Regulations.gov Permitted Electronic Comments on More Proposed 

Rules Than Agencies’ Systems 

Some Agencies Provided Electronic Access to Supporting Materials, 

but Regulations.gov Does Not Currently Do So 

Conclusions 

Recommendations for Executive Action 

Agency Comments and Our Evaluation 

1 

3 

5 

8 

18 

24 

27 

28 

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: 

Figure 2: 

Figure 3: 

Figure 4: 

Figure 5: 

Three Federal Agencies Accounted for More Than Half of 


the 411 Proposed Rules Published from February 2003 


through April 2003 9


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


Different Steps Required to Identify Airworthiness 


Directives and Other DOT Rules That Were Open for 


Comment 13


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


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 
Page 1 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 erulemaking 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 

Branch E-Rulemaking 

Initiatives 

In recent years, Congress has taken a number of actions to promote egovernment functions in general and e-rulemaking in particular. For 

example, the Paperwork Reduction Act of 1995 provides that the Director 

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 farreaching 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). 

1044 U.S.C. 3504 note. 

11See 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). 

12U.S. General Accounting Office, Regulatory Management: Communication About 

Technology-Based Innovations Can Be Improved, GAO-01-232 (Washington, D.C.: Feb. 12, 

2001). 

1344 U.S.C.A. 3601 note. 

14Thomas 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 EGovernment 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. 

1544 U.S.C.A. 3602. 

16U.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). 

17For 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 

Identified More Rules 

Open for Comment 

Than Major 

Rulemaking Agencies’ 

Web Sites 

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 

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 

those rules. Neither the EPA system nor the DOT system was originally 

designed to include rules originating outside of the agencies’ headquarters 

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 

Rules Open for Comment agencies—DOT, EPA, and USDA—published more than half of these 

proposed rules (122, 78, and 34 rules, respectively).18 

18See 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 

43% 

30% 

19% 

8% 

DOT 

EPA 

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 

30 

20 

10 

0 

USDA DOT EPA 

Agency 

17 16 

33 

6 

41 

11 

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 

19These 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 

FAA 

home page 

FAA Regulations, Advisory 

Circulars, and Airworthiness 

Directives 

New Airworthiness 

Directives (last 60 days) 

Dockets/Regulations 

Current Federal 

Aviation Regulations 

DOT 

home page 

Open Dockets 

Airworthiness Directives 

Regulations and rulemaking Airworthiness Directive

Airworthiness Directives 

Open for Comment 

Documents 

Open for Comment 

Docket Management Final Rules and NPRMs

System 

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 

20The 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 

21EPA 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. 

22EPA 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 

for Comment Than Major 2003 and that were open for comment as of May 1, 2003. Although 

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 

50 

40 

30 

20 

10 

0 

USDA DOT EPA 

Agency 

17 17 

51 

33 33 

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 

Identification Systems 

Both Regulations.gov and the agency-specific rule 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 

23DOT’s list serve can be accessed at http://dms.dot.gov/emailNotification/index.cfm. 

24EPA’s list serves can be accessed at http://www.epa.gov/epahome/listserv.htm. 

Page 17 GAO-03-901 Electronic Rulemaking 
Regulations.gov 

Permitted Electronic 

Comments on More 

Proposed Rules Than 

Agencies’ Systems 

About 66 percent of the 411 proposed rules that were published 

governmentwide during the relevant 3-month period provided some 

method by which the public could 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 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 

Electronic Commenting on 

About Two-Thirds of 

Proposed Rules 

As figure 5 shows, about 66 percent of the 411 proposed rules published 

from February 2003 through April 2003 provided the public with some type 

of electronic commenting option (e.g., an e-mail address to which 

comments could be sent). However, there were significant differences 

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 

66% 34% 

Rules that provided an electronic comment option 

43% EPA

21% 

36% 

US Coast Guard 

Other 

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-rdocket@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-aswadcomments@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 

25By 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 

Electronic Commenting on 

Virtually All Proposed Rules 

In Regulations.gov, users wanting to submit comments through the system 

simply type their comments in a “Comments” box, complete any other 

required or optional identifying information, review the comment upon 

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 

91% 9% 

40% NMFS

46% 

14% CMS 

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 
Required Information in 

Regulations.gov Varied 

Relatively Few Comments 

Received through 

Regulations.gov 

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. 

The information that the public was required to provide when submitting a 

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). 

In May 2003, an EPA official involved in the e-rulemaking initiative told us 

that about 400 comments had been filed on rules governmentwide through 

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 

Provided Electronic 

Access to Supporting 

Materials, but 

Regulations.gov Does 

Not Currently Do So 

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 materials. Regulations.gov does not provide 

electronic access to regulatory supporting materials or the comments of 

others. However, EPA officials noted that Regulations.gov was not 

designed to provide that function, and said that the second module of the 

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 

Electronic Access to 

Supporting Materials and 

Comments 

Regulatory agencies are required to prepare supporting materials for many 

of their proposed and final rules. Those supporting materials can include 

the agency’s economic analysis (describing, for example, the alternatives 

the agency considered and the costs and benefits of the alternative 

selected) and descriptions of how the agencies have complied with various 

26NARA 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 

Permit Access to Comments 

or Supporting Materials 

Regulations.gov provided electronic access to copies of the proposed rules 

as they appeared in the Federal Register. However, the Web site did not 

permit the public to access the comments of others or regulatory 

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, 

27Although 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 egovernment 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 

Our Evaluation 

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 

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 

Department/agency 

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 

2003 comments comments 

Departments 

Department of Agriculture 34 29 

Department of Commerce 18 3 

Department of Defense 13 7 

Department of Education 1 1 

Department of Energy 4 4 

Department of Health and Human 

Services 19 14 

Department of Homeland Security 18 1 

Department of Housing and Urban 

Development 3 0 

Department of the Interior 22 20 

Department of Justice 3 0 

Department of Labor 6 6 

Department of Transportation 122 107 

Department of the Treasury 17 15 

Department of Veterans Affairs 3 3 

Agencies 

Commodity Futures Trading 

Commission 3 3 

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 

5 

15 

6 

0 

0 

5 

17 

3 

2 

3 

0 

15 

2 

0 

0 
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 

Library of Congress 1 0 

National Archives and Records 

Administration 1 1 

National Credit Union 

Administration 2 2 

Nuclear Regulatory Commission 6 6 

Office of Government Ethics 1 1 

Office of Personnel Management 3 1 

Peace Corps 1 0 

Pension Benefit Guaranty 

Corporation 1 1 

Small Business Administration 2 2 

Securities and Exchange 

Commission 3 3 

Social Security Administration 1 1 

Thrift Savings Plan 1 0 

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 

0 

1 

0 

0 

0 

0 

2 

1 

0 

0 

0 

0 

1 
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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