DRAFT  REPORT  ʹ  Mar.  17,  2011

L E G A L I SSU ES I N E -R U L E M A K I N G :
A R E P O R T T O T H E A D M I N IST R A T I V E C O N F E R E N C E O F T H E U N I T E D S T A T ES
Bridget C.E. Dooling*

Since the Administrative Procedure Act (APA) was enacted in 1946, the technological
landscape has changed dramatically, while the basic framework for notice and comment
rulemaking has largely gone unchanged. Federal regulators, looking to embrace the benefits of
e-Rulemaking, face considerable ambiguity about how established legal requirements apply to
the web.1 For example, does the APA permit agencies to require comments to be submitted
online? Are agencies required to screen the content of public comments before they are placed
on Regulations.gov? Are electronic dockets a legally sufficient means of preserving the
rulemaking record? Many of these issues, and others, have been swirling around e-Rulemaking
since its inception, and exist whether rulemaking is accomplished entirely on paper, or using
more electronic means.2 This Report focuses on the legal issues that present themselves entirely,
or more prominently, when agencies engage in e-Rulemaking.
This Report examines the legal issues agencies face in e-Rulemaking, and suggests how
agencies can best approach those issues. Following a short background section on e
*

J.D., George Mason University; B.B.A. The George Washington University. This report was prepared
while the author was on detail as Special Assistant to the Chairman of the Administrative Conference of the United
States, but the views expressed are those of the author and do not necessarily reflect those of the members of the
Conference or its committees. The author is grateful for discussions of these issues with knowledgeable Federal
agency staff. The author kindly thanks Frank Massaro for research assistance and the ACUS staff for their support.
1
Others have taken stock of these legal issues. See generally Neil Eisner, Presentation at Joint ACUS%URRNLQJV(YHQW³7KH)XWXUHRI(-5XOHPDNLQJ´(-Rulemaking: Digital Dilemmas (Nov. 30, 2010),
http://www.brookings.edu/~/media/Files/events/2010/1130_electronic_rulemaking/1130_electronic_rulemaking_eis
ner.pdf; Jeffrey S. Lubbers, The Transformation of the U.S. Rulemaking Process² For Better or Worse , 34 OHIO
N.U. L. REV. 469 (2008); Jeffrey S. Lubbers, The Future of Electronic Rulemaking: A Research Agenda, Regulatory
Policy Program Working Paper RPP-2002-04 (Mar. 2002), http://www.hks.harvard.edu/m-rcbg/research/rpp/RPP2002-04.pdf; Barbara H. Brandon & Robert D. Carlitz, 54 ADMIN. L. REV. 1421, 1471-78 (2002); Henry H. Perritt,
Jr., Electronic Dockets: Use of Information Technology in Rulemaking and Adjudication (1995) (unpublished
manuscript) [hereinafter Perritt Report],
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/electronic_dockets.htm.
2
This report follows up on previous work of the Administrative Conference. On October 19, 1995, a mere
12 days before the Administrative Conference closed its doors on October 31, 1995, Professor Henry H. Perritt, Jr.
GHOLYHUHGDUHSRUWHQWLWOHG³(OHFWURQLF'RFNHWV8VHRI,QIRUPDWLRQ7HFKQRORJ\LQ5XOHPDNLQJDQG$GMXGLFDWLRQ´
3URIHVVRU3HUULWW¶VUHSRUWIRFXVHGRQWKHHIIRUWVRIWZR)HGHUDODJHQFLHVWKH'HSDUWPHQWRI7UDQVSRUWDWLRQDQGWKH
Nuclear Regulatory Commission, to use information technology to automate certain agency proceedings. Although
it was not published, the Perritt Report continues to be a helpful resource on the legal issues and policy choices
facing increased use of IT in administrative proceedings and is available here:
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/electronic_dockets.htm.

1

DRAFT  REPORT  ʹ  Mar.  17,  2011

Rulemaking, Part I explains why updating the APA to address e-Rulemaking is unnecessary.
Part II explores whether and how agencies should screen public comments before sharing them
online, and suggests a fundamental change to the way comments are posted on the biggest online
rulemaking website, Regulations.gov. Part III analyzes the legal issues associated with using an
electronic docket to compile the rulemaking record, finding that well-designed electronic dockets
pose no significant legal risks but that the courts could probably do more to embrace electronic
filing. Part IV shows that the most basic of Federal requirements, the recordkeeping
requirements of the Federal Records Act apply to e-Rulemaking and suggests ways to ensure
compliance. The Report concludes with Part V, a recap of the RHSRUW¶Vrecommendations for
consideration by the Rulemaking Committee of the Administrative Conference of the United
States.
Background
E-5XOHPDNLQJKDVEHHQGHVFULEHGDV³WKHXVHRIGLJLWDOWHFKQRORJLHVLQWKHGHYHORSPHQW
DQGLPSOHPHQWDWLRQRIUHJXODWLRQV´3 While there are many ideas about how agencies might use
technology to enforce or otherwise implement their rules, for the purposes of this Report, eRulemaking is defined as using web technologies EHIRUHRUGXULQJWKH$3$¶VLQIRUPDO
rulemaking process, i.e., notice-and-comment rulemaking under Title 5 of the U.S. Code, section
553. This includes many types of activities, such as posting notices of proposed and final
rulemakings, sharing supporting materials, accepting public comments, managing the rulemaking
record in electronic dockets, and hosting public meetings online or using social media, blogs, and
other web applications to promote public awareness of and participation in regulatory
proceedings.4
A system that brings several of these activities together is operated by the eRulemaking
program management office (PMO), which is housed at the Environmental Protection Agency
and funded by contributions from partner Federal agencies. This program contains two
components: Regulations.gov, which is a public website where members of the public can view
and comment on regulatory proposals, and the Federal Docket Management System (FDMS),
which is a restricted-access website agency staff can use to manage their internal files and the
content on Regulations.gov. According to the Office of Management and Budget, FDMS
³SURYLGHVEHWWHULQWHUQDOGRFNHWPDQDJHPHQWIXQFWLRQDOLW\DQGWKHability to publicly post all
relevant documents on regulations.gov (e.g., Federal Register documents, proposed rules,

3

Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process at 2 (2004) (working
paper), http://lsr.nellco.org/upenn_wps/108.
4
For a detailed discussion on the timeline and development of e-Rulemaking, see Cary Coglianese, ERulemaking: Information Technology and the Regulatory Process at 9-12 (2004) (working paper),
http://lsr.nellco.org/upenn_wps/108. See also Comm. on the Status & Future of Fed. e-Rulemaking, Achieving the
Potential: The Future of Federal e-Rulemaking 8-10,  http://ceri.law.cornell.edu/documents/report-web-version.pdf;
Cynthia Farina et al., Rulemaking 2.0, 65 U. MIAMI L. REV. 399-404 (2011).

2

DRAFT  REPORT  ʹ  Mar.  17,  2011

QRWLFHVVXSSRUWLQJDQDO\VHVDQGSXEOLFFRPPHQWV ´5 A recent report estimated the Federal
JRYHUQPHQW¶VFRVWVDYLQJVDWPLOOLRQRYHU five years when compared to paper-based
docketing.6 Additionally, electronic docketing enables the agencies to make proposed and final
regulations, supplemental materials, and public comments widely available to the public. These
incentives and the statutory prompt of the E-Government Act of 2002, which required agencies
to post rules online, accept electronic comments on rules, and keep electronic rulemaking
dockets,7 have helped ensure that over 90% of agencies post regulatory material on
Regulations.gov.8
The Obama Administration recently placed its imprimatur on Regulations.gov in
Executive Order 13563, which directs agencies to provide, inter alia , ³timely online access to the
rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an
open format that can be easily searched and downloaded.´9 As more agencies explore eRulemaking as a way to promote openness in government, its benefits and its challenges are
becoming more apparent.10 The time may be right to evaluate the legal frameworks that
surround rulemaking. The most central of these is the APA.
I.

Do W e Need an A PA 2.0?

Given that the APA was enacted in 1946, well ahead of the Internet, one could question
whether the statute needs to be amended to account for and support the rise of e-Rulemaking. In
1995, towards the beginning of the Federal JRYHUQPHQW¶VHIIRUWVWRH[SORUHways to use the
Internet in rulemaking, Professor Henry H. Perritt, Jr. explored this issue in a report to the
Administrative Conference (the Perritt Report) and concluded that the APA provided no legal

5

OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, FY 2009 REPORT TO CONGRESS ON
THE IMPLEMENTATION OF THE E-GOVERNMENT ACT OF 2002, at 10 (2009),
http://www.whitehouse.gov/sites/default/files/omb/assets/egov_docs/2009_egov_report.pdf.
6
OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, REPORT TO CONGRESS ON THE
BENEFITS OF THE E-GOVERNMENT INITIATIVES 10-11 (2010),
http://www.whitehouse.gov/sites/default/files/omb/assets/egov_docs/FY10_E-Gov_Benefits_Report.pdf.
7
Pub. L. 107-347 § 206.
8
Improving Electronic Dockets on Regulations.gov and the Federal Docket Management System: Best
Practices for Federal Agencies, p. D-1(Nov. 30, 2010),
http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.p
df. Some agencies rely on their own electronic docketing systems, such as the Federal Trade Commission (which
uses a system called CommentWorks) and the Federal Communications Commission, which has its own electronic
comment filing system (http://fjallfoss.fcc.gov/ecfs/).
9
Executive Order 13563 § 2(b) (Jan. 18, 2011), http://www.whitehouse.gov/the-pressoffice/2011/01/18/improving-regulation-and-regulatory-review-executive-order.
10
See, e.g., Jeffrey S. Lubbers, $6XUYH\RI)HGHUDO$JHQF\5XOHPDNHUV¶$WWLWXGHV$ERXWH-Rulemaking, 62
ADMIN. L. REV. 451, 474 (2010) (³>:@KLOHUXOHPDNHUVDUHTXLWHLPSUHVVHGZLWKWKHLQWHUQDODGPLQLVWUDWLYHDQG
coordination benefits provided by the new technology, they also have heightened concerns about hacking and the
potential problems of inappropriate worldwide exposure of certain information LQWKHLUHOHFWURQLFGRFNHWV´

3

DRAFT  REPORT  ʹ  Mar.  17,  2011

barriers to what is now known as e-Rulemaking.11 Since then, many Federal agencies have
adopted at least some form of e-Rulemaking.
The apparent compatibility between e-Rulemaking and the APA may result from the
$3$¶VGHVLJQDVDIOH[LEOH procedural statute. The statute provides agencies with flexibility to
use different procedural devices so long as they meet the basic statutory requirements.12 For
example, the APA requires an agency to provide notice on proposed rules in the Federal
Register, but does not prevent it from doing more. Agencies have developed other devices, not
described in the APA, to engage the public ahead of a proposed rule. For example, agencies
sometimes use an advance notice of proposed rulemaking (ANPRM) to gather early feedback on
regulatory issues.13 The APA contains no reference to ANPRMs RURWKHU³SUH-UXOH´HIIRUWVVXFK
as Requests for Information (RFIs),14 but that has not precluded the practice. Similarly, agencies
seeking to conduct other pre-rule activities online, such as encouraging the public to participate
in an online forum to discuss ideas for regulatory reform, can do so without concern of violating
the APA. Of course, in both the online and offline contexts, the APA requires agencies to
conduct notice-and-comment rulemaking if the agency intends to revise or promulgate new
regulations.
Still, some have questioned whether the )HGHUDOJRYHUQPHQW¶V current approach to APA
rulemaking in general, and e-Rulemaking in particular, does enough to engage the public.15 This
includes a concern that e-Rulemaking merely moves the $3$¶Vexisting notice-and-comment
procedure online, rather than using technology in a more transformational manner, thus failing to
³H[SORLWRSSRUWXQLWLHVWRHQKDQFHRQ-line deliberation and more robust forms of interpersonal
FRPPXQLFDWLRQ´LQUXOHPDNLQJ16 7KLVLVQRWDFULWLTXHRIWKH$3$¶VQRWLFH-and-comment
framework, but rather a critique of how the government uses technology to operate within that
framework. Expanding on this concept, one scholar recently called on the Federal government to

11

³7KHUHLVQRUHDVRQWKDWHOHFWURQLFIRUPDWVPD\QRWEHXVHGIRUDOODVSHFWVRIDQLQIRUPDOUXOHPDNLng
SURFHHGLQJDVORQJDVDQDSSURSULDWH1350LVSXEOLVKHGLQWKH)HGHUDO5HJLVWHU´Perritt Report, supra note 1, at
VII.A., http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#A. The
Perritt Report also notes that the Federal Register was only available in paper format. While the paper copy is still
the official record, the Federal Register is now available online, going back to 1994.
12
See generally Peter L. Strauss, Changing Times: The APA at F ifty, 63 U. CHI. L. REV. 1389 (1996). See
also George B. Shepherd, F ierce Compromise: The Administrative Procedure Act E merges from New Deal Politics ,
90 NW. U. L. REV.    H[SODLQLQJWKDWWKH$3$³KDVSURYLGHGDJHQFLHVZLWKEURDGIUHHGRP´
13
E.g., Department of Labor, Occupational Safety and Health Administration, Combustible Dust, Advance
notice of proposed rulemaking, 74 Fed. Reg. 54333 (Oct. 21, 2009).
14
E.g., Department of Health and Human Services, Office for Civil Rights, HIPAA Privacy Rule Accounting
of Disclosures Under the Health Information Technology for Economic and Clinical Health Act; Request for
Information, 75 Fed. Reg. 23214 (May 3, 2010).
15
See generally Mariano-Florentino Cuellar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411
(2005); Beth Simone Noveck, Future of Citizen Participation in the Electronic State , 1 J. L. & POLICY INFO. SOC. 1
(2004).
16
Noveck, supra note 15 at 7-8. See also Cary Coglianese, E-Rulemaking: Information Technology and the
Regulatory Process at 27 (2004) (working paper), http://lsr.nellco.org/upenn_wps/108 ³H-rulemaking has the
SRWHQWLDOWRJRZHOOEH\RQGMXVWGLJLWL]LQJWKHFXUUHQWSURFHVV´

4

DRAFT  REPORT  ʹ  Mar.  17,  2011

use social media to seek public feedback before rules are drafted and solicit evidence-backed
proposals from the public on problems the government plans to address.17 Both of these ideas
are pre-rule activities that do not implicate the APA.
In keeping with scholarly critiques of e-Rulemaking, which have not sought amendments
to the APA, this Report concludes that at this point the APA does not need to be amended to
support e-Rulemaking. Some scholars have called for innovative approaches to supplement the
$3$¶VQRWLFHDQGFRPPHQWUHTXLUHPHQWV with more meaningful engagement, such as consulting
members of the public who might not otherwise take an interest in the regulation,18 or using
social media to improve pre-rule consultation.19 These suggestions are consistent with the notion
that the APA contains adequate flexibility for agencies to explore alternative ways to engage the
public²online and offline.
Moving on from this general concern, this Report turns to two other APA-related
inquiries. First, the following will explore whether an increased number of organized mail
FDPSDLJQVSUHVHQWFKDOOHQJHVIRUDJHQF\³FRQVLGHUDWLRQ´RISXEOLFFRPPHQWVDVUHTXLUHGE\WKH
APA. Second, the Report will address whether the APA permits agencies to require the public to
comment electronically.
A . (QVXULQJ³&RQVLGHUDWLRQ´RI2UJDQL]HG0DLO&DPSDLJQV
If e-Rulemaking tends to increase the number of comments received by agencies, how
can agencies ensure consideration of material received, as required by the APA? A threshold
issue is whether e-Rulemaking increases the number of comments. One scholar explored eRulemaking by the Federal Communications Commission between 1999 and 2004, finding that,
in general, e-Rulemaking merely shifted commenters from paper to online means.20 That is, with
a few exceptions, the increase of electronic comments was offset by the decrease in paper
comments.21 The study uncovered notable exceptions when the number of electronic comments

17

Beth S. Noveck, Turning Rule Writers Into Problem Solvers: Creating a 21st CentXU\*RYHUQPHQW7KDW¶V
Open and Competent by Improving Regulation and Regulatory Review (Jan. 26, 2011),
http://cairns.typepad.com/blog/2011/01/turning-rule-writers-into-problem-solvers-creating-a-21st-centurygovernment-thats-open-and-competen.html.
18
Cuellar, supra note 15, at 493-95. This proposal includes an acknowledgement that the benefits of a
redesigned process that engages the public more fully must be weighed against its costs, which might include
increased staff and other resources. See id. at 492 n.245.
19
%HWK61RYHFN7XUQLQJ5XOH:ULWHUV,QWR3UREOHP6ROYHUV&UHDWLQJDVW&HQWXU\*RYHUQPHQW7KDW¶V
Open and Competent by Improving Regulation and Regulatory Review (Jan. 26, 2011),
http://cairns.typepad.com/blog/2011/01/turning-rule-writers-into-problem-solvers-creating-a-21st-centurygovernment-thats-open-and-competen.html.
20
John M. de Figueiredo, E-Rulemaking: Bringing Data to Theory to the F ederal Communications
Commission, 55 DUKE L.J. 969, 986 (2006).
21
Id.

5

DRAFT  REPORT  ʹ  Mar.  17,  2011

³VSLNHG´2QHRIWKHVHHYHQWVZDVGXULQJWKH)&&¶VUHYLVLRQ of the media ownership rules.22
7KHVWXG\IRXQGGHVSLWHWKH³FRPSOH[´VXEMHFWPDWWHURIWKHUXOHPDNLQJLWGUHZWHQVRI
WKRXVDQGVRISXEOLFFRPPHQWVPDQ\RIZKLFKZHUH³ODUJHO\LGHQWLFDOWH[WV´DQG³mass
HOHFWURQLFPDLOLQJV´23
While this is no comprehensive study of how online commenting behavior differs from
its offline counterpart, the results of the study on FCC suggest that, at least for some subset of
rules, e-Rulemaking increases the number of comments received due to organized mail
campaigns, or to the increased ease of commenting in general.
This conclusion is consistent with anecdotal evidence of other sporadic increases in
comments received through online advocacy campaigns, which have sometimes generated the
submission of hundreds of thousands of comments.24 One scholar has described this
phenomenon DV³QRWLFHDQGVSDP´25 As currently designed, e-Rulemaking reduces the costs of
viewing proposals and submitting comments, especially when the proposals and calls for
comments are aggregated on a government-wide website such as Regulations.gov.26 The risk of
this approach to e-Rulemaking is that ³TXDOLW\LQSXWZLOOEHORVWPDOLFLRXVLUUHOHYDQWPDWHULDO
will rise to the surface, and information will not reach those who need it. In short, e-rulemaking
will frustrate the gRDOVRIFLWL]HQSDUWLFLSDWLRQ´27 Those concerned with the strain on agency
resources caused by large spikes in comments echo this sentiment.28

22

Press Release, Federal Communications Commission (Nov. 5, 2002),
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-2980A1.pdf.
23
de Figueiredo supra note 20, DW7KHFRPPHQWVVRRYHUZKHOPHGWKH)&&¶VV\VWHPWKDWVWDII
FRQWDFWHGRQH³PDVVPDUNHWHU´WRVORZGRZQWKHVXEPLVVLRQV Id. at 989.
24
Stuart Shulman has written most extensively on this topic. E.g., Stuart W. Shulman, Perverse Incentives:
The Case against Mass Email Campaigns (working paper) (2007),
http://shulman.ucsur.pitt.edu/Doc/Papers/APSA07-Perverse.pdf; Stuart W. Shulman, Whither Deliberation? Mass
E-Mail Ca mpaigns and U.S. Regulatory Policy, 3 J. E-GOV¶T 41, 44-47 (2006); Stuart W. Shulman, The Internet
6WLOO0LJKW %XW3UREDEO\:RQ¶W &KDQJH(YHU\WKLQJ, 1 I/S 111, 115 (2005),
http://people.umass.edu/stu/eRulemaking/IS.pdf.
25
Beth Simone Noveck, The Electronic Revolution in Rulemaking , 53 EMORY L.J. 433, 441 (2004).
26
See id. at 441-42. See also de Figueiredo, supra note 20, DW ³>7@KHUHDUHLQGLFDWLRQVWKDWHOHFWURQLF
filings and e-PDLOPD\PDNHLWFKHDSHUIRUSDUWLHVWRH[SUHVVSUHIHUHQFHV´ -HIIUH\6/XEEHUV A Survey of F ederal
$JHQF\5XOHPDNHUV¶$WWLWXGHV$ERXWH-Rulemaking, 62 ADMIN. L. REV. 451, 455   ³%OL]]DUGVRIFRPPHQWV
have become increasingly common in controversial rulemakings, and e-UXOHPDNLQJFDQRQO\IXUWKHUWKLVWUHQG´
27
Noveck, supra note 25, at 442. Professor Cuellar has suggested that several factors, such as the topic of the
regulation, the level of media interest, and the dynamics of the relevant interest groups, can influence the likelihood
of an organized mail campaign on a particular proposed rule. Mariano-Florentino Cuellar, Rethinking Regulatory
Democracy, 57 ADMIN. L. REV. 411, 470 (2005).
28
See, e.g., Cynthia Farina et al., Rulemaking 2.0, 65 U. MIAMI L. REV. 408 (2011); Nina A. Mendelson,
Rulemaking, Democracy, and Mountains of E-Mail (working paper, on file with author).

6

DRAFT  REPORT  ʹ  Mar.  17,  2011

Of course, organized mail campaigns are not unique to e-Rulemaking; letter-writing
campaigns have long been used to convey views to regulators.29 The legal question for eRulemaking is the extent to which agencies must consider duplicative comments received online.
The Supreme Court has explained that not all comments must be scrutinized in exhaustive detail:
³FRPPHQWVPXVWEHVLJQLILFDQWHQRXJKWRVWHSRYHUDWKUHVKROGUHTXLUHPHQWRIPDWHULDOLW\EHIRUH
DQ\ODFNRIFRQVLGHUDWLRQEHFRPHVRIFRQFHUQ´30 It is reasonable to argue that duplicative
comments, perhaps except for some acknowledgment of the number of them, do not cross the
materiality threshold.31 TKH$3$¶VSURYLVLRQVRQIRUPDOKHDULQJVZKLFKQRWHWKDW³>D@Q\RUDORU
documentary evidence may be received, but the agency as a matter of policy shall provide for the
exclusion of irrelevant, immaterial, or unduly repetitious evidence,´32 provide some support for
this. Although this provision technically applies only to formal adjudication and the rarely used
formal rulemaking, it suggests that the APA does not require slavish consideration of repetitive
submissions.
An overly cautious approach to APA requirements in mass comments scenarios forces
agencies to sink considerable staff resources into reading or at least skimming comments that are
word-for-word identical. For example, if an agency takes this approach with a docket that
contains 250,000 comments from an organized mail campaign, even if it takes less than 10
seconds to identify and skim each comment that effort still accounts for almost 700 staff hours or
$21,000.33 This excludes any time needed to summarize the comments for use internally or for
the preamble of the final rule. The voluminous influx of comments can drive some agencies to
turn to contractors, either to help organize and save public comments in the docket, or to actually
review and summarize those comments.34
The APA, however, does not require such an exhaustive approach to identical or nearly
identical comments. It permits agencies to leverage technology to bolster consideration by
sorting through comments once they have been loaded into the electronic docket. Software that

29

Letter-writing campaigns are sometimes directed at Members of Congress, too. See Reggie Beehner, Does
Congress Read Its E mail?, PCWORLD (Apr. 30, 2001),
http://www.pcworld.com/article/48788/does_congress_read_its_email.html.
30
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council , 435 U.S. 519, 553 (1978).
See also North Carolina v. F ederal Aviation Admin. )G WK&LU  ³$QDJHQF\HVWDEOLVKLQJDUXOH
need not respond to every comment. It must, however, reasonably respond to those comments that raise significant
SUREOHPV´
31
This does not imply that rulemaking is a plebiscite. That point is settled. See, e.g., Farina et al., supra note
28, at 430 (citing Stuart Shulman¶VZRUNRQWKLVWRSLF . Some have characterized duplicDWLYHFRPPHQWVDV³WKH
SRVWHUFKLOGIRUSXEOLFSDUWLFLSDWLRQWKDWFRPSOHWHO\PLVVHGWKHSRLQWRIWKHSURFHVV´ Id. at 417. This Report does
not opine on the value of these comments, it just explores whether they trigger any legal issues. For an interesting
discussion of the weight that agencies could assign to this type of public comments, see Nina A. Mendelson,
Rulemaking, Democracy, and Mountains of E-Mail (working paper, on file with author).
32
5 U.S.C. § 556(d) (emphasis added).
33
Assuming staff are paid at the level of GS-11, Step 1 in Washington, D.C. Based on 2011 Salary Tables
published by the Office of Personnel Management.
34
See Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 EMORY L.J. 433, 443 (2004).

7

DRAFT  REPORT  ʹ  Mar.  17,  2011

uses natural language processing is one promising technology,35 because it could help staff
identify duplicate comments, providing confidence that all unique comments are considered
efficiently. This helps agencies cope with duplicate comments, and could also help staff focus
on personalized portions of partially duplicate comments.36 This time-saving approach does not
diminish agency consideration because it would still give agencies access to the number and
content of all comments received.
Agencies should cooperate with each other and the eRulemaking PMO to explore
whether the use of these tools makes sense for them. While some agencies are already using or
exploring software to perform more efficient review of public comments, for others such
software is unavailable, either because of budget or procurement constraints, or because agency
staff are unaware of or uncertain about the value of using software in this manner. This Report
recommends that agencies assess how much staff time and other resources are devoted to
organizing and considering duplicative comments. If the amount is high, this Report
recommends evaluating whether software could help. Additionally, interagency discussion
might help raise awareness and encourage agency staff to explore whether these technologies are
worth pursuing. Such interagency discussion should include the staff of the eRulemaking PMO,
who are already exploring whether natural language comment analysis tools could be
incorporated into FDMS.37 Steps in this direction would alleviate the need for agencies to

35

Here is a description of how this would work:
Text analysis software can identify letters that are exact duplicates (e.g., form letters from a
letter-writing campaign) and near-GXSOLFDWHV HJ ³IRUP´ OHWWHUV WKDW KDYH EHHQ PRGLILHG WR
represent their opinions better or append extra information). Simple phrase recognition techniques
FDQLGHQWLI\FRQFHSWVWKDWSHRSOHPHQWLRQIUHTXHQWO\ZKLFKFDQVHUYHDVDVWDUWLQJSRLQWIRU³GULOO
GRZQ´ DFWLYLWLHV WKDW H[DPLQH FRPPHQWV DGGUHVVLQJ SDUWLFXODU WRSLFV RU SRLQWV RI YLHZ  3HRple
often identify their roles with respect to a particular regulation²IRU H[DPSOH ³$V D PRWKHU ,
EHOLHYH´RU³,KDYHEHHQDWUXFNGULYHUIRU\HDUVDQG´5HODWLYHO\VLPSOHWHFKQLTXHVFDQ
be used to find and organize such references, enabling policy makers, rule writers, and other
interested parties to understand better who commented on a particular aspect of the rule.
These and a wide variety of similar techniques are possible in the near future. Today
regulatory agencies are struggling with basic ICT issues related to capturing public comments
electronically. Soon these will be mastered, and attention will turn to better use of language
analysis and text mining software. At present there is an opportunity to provide better tools for
rapidly analyzing large public comment databases, and, consequently, for increasing transparency
and efficacy in the comment submission and analysis process.
Stuart W. Shulman, 7KH,QWHUQHW6WLOO0LJKW %XW3UREDEO\:RQ¶W &KDQJH(YHU\WKLQJ, 1 I/S 111, 116-17 (2005),
http://people.umass.edu/stu/eRulemaking/IS.pdf (noting that ³[a]lthough computers cannot understand human
language the way people do, they can still be useful in helping people make sense of large public comment
GDWDEDVHV´ See also Cynthia Farina et al., Rulemaking 2.0, 65 U. MIAMI L. REV. 408, 435, 445 (2011) (discussing
QDWXUDOODQJXDJHVRIWZDUHDQG³DOJRULWKPVWKDWDJJUHJDWHFDWHJRUL]HRUVXPPDUL]HFRPPHQWWH[W´ ; Beth S. Noveck,
7XUQLQJ5XOH:ULWHUV,QWR3UREOHP6ROYHUV&UHDWLQJDVW&HQWXU\*RYHUQPHQW7KDW¶V2SHQDQG&RPSHWHQWE\
Improving Regulation and Regulatory Review (Jan. 26, 2011), http://cairns.typepad.com/blog/2011/01/turning-rulewriters-into-problem-solvers-creating-a-21st-century-government-thats-open-and-competen.html.
36
Mariano-Florentino Cuellar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411, 487 (2005)
QRWLQJWKDW³VRPHVHQGHUVHGLWWKHXQGHUO\LQJODQJXDJHDQGRWKHUVOHDYHLWLQSODFH´
37
Improving Electronic Dockets on Regulations.gov and the Federal Docket Management System: Best
Practices for Federal Agencies, at 23 (Nov. 30, 2010),

8

DRAFT  REPORT  ʹ  Mar.  17,  2011

evaluate and purchase these tools separately, while learning from agencies that have already used
these tools.
B. A n E lectronic Comment Requirement?
Whether the APA permits agencies to require comments to be submitted electronically is
less clear, but there are policy reasons why the time may not be right for such an approach.
$OWKRXJKWKH$3$GRHVQ¶WH[SOLFLWO\DGGUHVVWKLVLVVXHLWGRHVUHTXLUHDJHQFLHVWR³give
interested persons an opportunity to participate in the rule making through submission of written
data, views, or arguments´38 One could argue that this language prohibits agencies from
restricting the methods by which interested persons are given the opportunity to participate. The
problem with this argument is that agencies already do restrict the ways in which members of the
public can file comments. At present, agencies typically offer many ways to submit comments²
by mail, courier, fax, email, or Regulations.gov, for example. If, however, a member of the
public wanted to file a comment by leaving a voicemail, this would generally not be accepted
into the docket without prior agreement from the agency to provide a voicemail transcription
service. This may be because agencies have determined that the cost of operating such a system
for each proposed rule is prohibitive, despite the fact that this decision may preclude some
individuals from participating in rulemaking in the manner they prefer. To argue, however, that
the APA requires agencies to offer a voicemail transcription service, or translation of comments
in foreign languages, or other accommodations, suggests that by requiring agencies to provide
³DQ´RSSRUWXQLW\WKH$3$UHTXLUHVWKDWDJHQFLHVSURYLGH³HYHU\´RSSRUWXQLW\, without
consideration of costs. In balancing efficiency against the goal of public participation, it appears
that agencies are already operating under the perspective that it is lawful to place some limits on
commenting practice for the sake of efficiency or cost reduction, so long as those limits do not
foreclose the SXEOLF¶V opportunity to participate.39
Whether agencies could require electronic submission of comments without statutory
amendment to the APA may depend on the availability of the Internet40 and an understanding of
how it is used. If almost all members of the public have access to the Internet, even if that access

http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.p
df.
38
5 U.S.C. § 553(c).
39
Henry H. Perritt, Jr., The Electronic Agency and the Traditional Paradigms of Administrative Law, 44
ADMIN. L. REV. 79, 88-89 (1992).
40
(VWLPDWHVIURPWKH86&HQVXV%XUHDX¶V&XUUHQW3RSXODWLRQ6XUYH\VKRZWKDW,QWHUQHWDFFHVVDWKRPHLV
on the rise, with the 2009 figure at 68.7%. http://www.census.gov/cps/. However, this estimate does not give the
FRPSOHWHSLFWXUHRI$PHULFDQV¶,QWHUQHWDFFHVVEHFDXVHLWGRHVQRWLQFOXGH,QWHUQHWDFFHVVIURPZRUNSXEOLF
libraries, schools, or other locations. As a result, these are underestimates of overall Internet access. Based on
updated statistics from the U.S. Department of Commerce, one could argue that availability of Internet access in the
United States is approaching 100%. See generally U.S. Department of Commerce, National Telecommunications &
Information Administration, Digital Nation (Feb. 2010),
http://www.ntia.doc.gov/reports/2010/NTIA_internet_use_report_Feb2010.pdf.

9

DRAFT  REPORT  ʹ  Mar.  17,  2011

is not at home, it is at least conceivable that concerns about foreclosing WKHSXEOLF¶V opportunity
to participate are outweighed by the efficiency gains of electronic commenting.41
To be clear, this Report does not advocate that agencies require electronic submission of
comments in the near future. There may be good policy reasons why it is not the best practice in
2011. For example, studies that have explored the extent to which different groups have access
to the Internet have found that certain segments of the population lag behind others.42 Instead,
this Report more modestly suggests that the APA does not, in and of itself, preclude an electronic
commenting requirement as long as the agency can demonstrate that it has provided the public
with an opportunity to participate in its rulemakings.
In summary, while some might welcome the opportunity to update the APA for other
reasons, it does not appear that explicit inclusion of e-Rulemaking is a necessary statutory
update. In fact, revised statutory language specifically requiring the use of certain technologies
to engage the public would build rigidity into what is now a very flexible set of procedures.
5HJDUGLQJKRZWRHQVXUH³FRQVLGHUDWLRQ´RIRUJDQL]HGPDLOFDPSDLJQVWKLVReport encourages
agencies to explore the use of software to assist staff review. If, now or in the future, agencies
seek to require electronic commenting, a statutory change could clear up any ambiguity around
whether the move would impermissibly narrow the SXEOLF¶Vopportunity to comment. But it is
probably not necessary. It is also important to note that there may continue to be sound policy
reasons not to require electronic comments. Overall, this Report finds that the APA, despite
having been drafted well before the Internet was a communications channel between the public
and government agencies, does not impede agencies from using e-Rulemaking techniques.
I I.

Processing Public Comments

As agencies are directed to place their regulatory dockets online,43 they face questions
about whether and how to screen the content of public comments placed on Regulations.gov and
other websites. First, this section will explore why agencies might screen comments in the first

41

Any analysis should include a consideration of costs to process comments. While the expense of
processing paper comments does not entirely disappear when comments are sent electronically, it is reduced. This is
discussed in some more detail in Part II.A.
42
See, e.g., Pew Internet, Americans living with disability and their technology profile,
http://www.pewinternet.org/Reports/2011/Disability/Report/Section-3.aspx. A recent report from the Federal
Communications Commission found that 29% of survey respondents did not use the Internet, for reasons including
cost and lack of interest. John B. Horrigan, Broadband Adoption and Use in America 25, 27 (2010) (working paper)
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296442A1.pdf.
43
E.g., Executive Order 13563 § 2(b) (Jan. 18, 2011), http://www.whitehouse.gov/the-pressoffice/2011/01/18/improving-regulation-and-regulatory-review-executive-order. Previous guidance clarified
20%¶VH[SHFWDWLRQWKDWDJHQFLHV³SRVWSXEOLFFRPPHQWVDQGSXEOLc submissions to the electronic docket on
Regulations.gov in a timely manner, regardless of whether they were received via postal mail, email, facsimile, or
ZHEIRUPGRFXPHQWVVXEPLWWHGGLUHFWO\YLD5HJXODWLRQVJRY´Memorandum from OIRA Administrator Cass
6XQVWHLQWRWKH3UHVLGHQW¶V0DQDJHPHQW&RXQFLO 0D\
http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/edocket_final_5-28-2010.pdf.

10

DRAFT  REPORT  ʹ  Mar.  17,  2011

place. It will then explore what kind of information they might be required to redact, and
suggest how agencies can manage these requirements.
A . W hy Process Comments?
Members of the public might be surprised to learn that their comments are processed
before they are placed in the public regulatory docket. Some measure of organizational
processing is essential²after an agency receives a paper comment it must be routed to the
correct agency staff, logged in, and either scanned into the electronic docket or placed into
physical files. For an electronic comment received online through Regulations.gov, little
organizational processing is necessary because FDMS automatically generates and saves metadata associated with the comment (e.g., date received), even if that meta-data is not displayed on
Regulations.gov.44 Organizational processing is generally limited to posting the comments on
Regulations.gov. These practices ensure that comments are retrievable by the public, by staff
preparing the final rule, and by staff preparing the regulatory record for judicial review.
Another kind of processing is more akin to screening than organizing, and it can apply
equally to electronic and paper comments. Some scenarios might help illustrate the dilemmas an
agency might face, and why they might screen the content of comments before posting them
online.
Scenario 1:
A Social Security beneficiary, used to writing her Social Security number (SSN) on
correspondence to the Social Security Administration (SSA), might include her SSN on a
letter providing comments on a proposed SSA regulation. Even if the agency included a
disclaimer in its preamble, alerting all commenters that comments will be posted as they are
received, agency staff may be reluctant to place the unredacted comment on a public website
such as Regulations.gov.

44

A feature recently added to Regulations.gov permits any website user to download a table that lists the
contents of the public docket (e.g., notices, public comments, supplemental documents) for any rulemaking. This
includes a column for the date a comment was received and the date a comment was posted. The difference between
these two provides some insight into the length of total processing time. Although this measure does not provide
insight into how much time is spent organizing comments versus screening them, it can be used by agencies to track
their own performance with posting comments online.

11

DRAFT  REPORT  ʹ  Mar.  17,  2011

Scenario 2:
A teacher sends a letter to the Department of Education explaining his perspective on a
proposed regulation for programs aimed at students with disabilities. The letter includes
information about his professional background, with detailed examples about how his
approach to teaching will be different under the proposed regulations. As support, he
provides a summary of the learning disabilities of particular students in his class, using their
names. Although the comment might shed light on possible effects of the proposed rule, it
also shares private information about individuals other than the commenter. While the
commenter may be free to share his own information, it is not clear that he has permission to
share information about his students, and so staff at the Department of Education may wrestle
with whether to include this private information in the online, electronic docket.
There is no statute or government-wide manual that explicitly instructs agency staff how
to handle situations like these. While all agencies take steps to organize public comments in the
docket, only a subset screen the content of comments. These agencies have constructed their
own approaches to screening for a variety of issues, from inappropriate disclosures (e.g., private
information, information protected by intellectual property rights, illegally-obtained information)
to inappropriate conduct (e.g., obscenity, threatening language).
E-Rulemaking amplifies, but did not create, the issue of whether to screen comments.
Decades before the Internet was popular or agencies adopted electronic dockets, the public had
access to dockets in reading rooms at agency offices.45 Under this system, comments, including
any inappropriate disclosures or inappropriate conduct therein, were available to the public.
While technically a public resource, the arrangement provided little access as a practical matter
to individuals outside of Washington.46 Agencies began placing all or part of their rulemaking
dockets online in the 1990s, a transition that continues today. Public comments posted online are
lifted out of the ³SUDFWLFDOREVFXULW\´RIWKHSXEOLFUHDGLQJURRPDQGPDGHPRUHDFFHVVLEOH47 In

45

Barbara H. Brandon & Robert D. Carlitz, 54 ADMIN. L. REV. 1421, 1426 (2002). Perritt Report, supra note
1, at III.F.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/technological_context.htm#F.
46
See Brandon & Carlitz, supra note 45, at 1426.
47
This issue is similar to issues that have faced the courts regarding how and whether to protect the privacy of
the data in their electronic dockets. In paper form, court filings, which might rightly include SSNs, bank account
QXPEHUVDQGRWKHUSHUVRQDOLQIRUPDWLRQZHUHSDUWLDOO\VKURXGHGE\SUDFWLFDOREVFXULW\LQWKHFOHUN¶VRIILFH E.g.,
Peter A. Winn, Judicial Information Management in an Electronic Age: Old Standards, New Challenges, 3 FED.
COURTS L. REV. 135 (2009); Arminda Bradford Bepko, Public Availability or Practical Obscurity: The Debate Over
Public Access to Court Records on the Internet , 49 N.Y. LAW SCHOOL L. REV. 967 (2005). While filings were
technically available to the public, the costs of obtaining the information²particularly time spent²gave the filings,
and most importantly the data therein, a measure of protection. Winn at 153. To address this issue, courts adopted
new rules placing the onus on filers to redact certain personal information. Fed. R. Civ. P. 5.2.

12

DRAFT  REPORT  ʹ  Mar.  17,  2011

short, while concerns about the content of comments may always have been present to some
degree, they were mitigated by the practical obscurity of the comments themselves.
So long as agencies keep the unredacted version of each comment in the docket, the
$3$¶VOHJDOUHTXLUHPHQWWRFRPSLOHWKHDGPLQLVWUDWLYHUHFRUGLVSUREDEO\IXOILOOHG%XWJUHDWHU
accessibility to rulemaking documents via the web brings greater urgency to whether and how to
screen comments. While a letter including DFRPPHQWHU¶V661PLJKWEHUHDVRQDEO\VDIHLQWKH
confines of a public reading room, placing the same letter online increases the chances that it will
be seen by those who might use it for harm. In light of this reality, some agencies direct staff to
identify and redact certain content before a comment is placed on a public, government website.
While comments placed online might be redacted, the original, unredacted versions are retained
for the rulemaking record.
A key assumption is that the agency bears some responsibility²legal or otherwise²to
monitor the content of Regulations.gov, even if the content was not crafted by the agency. The
setup of Regulations.gov encourages this assumption, because it requires agencies to
affirmatively post materials, including public comments. As of this writing, agencies do not
have the option to permit public comments to post automatically to Regulations.gov. Instead,
staff must act to post comments on Regulations.gov.48 The question is whether screening is
required before comments are posted. If not, agencies should consider whether screening is
worth the costs involved.
Screening, undertaken in the spirit of protecting the public, is not free. First, screening
comments occupies staff time that could be directed elsewhere. For example, screening 10,000
comments for 2 minutes each accounts for over 333 staff hours or $8200.49 This excludes any
time taken to redact comments. Second, screening comments before posting them online delays
their posting.50 This delay might range from a few hours to a few weeks, depending on the
number of comments received and the level of screening taking place. But comments advance
the public debate, so any delays should be scrutinized. Third, and less tangible, screening raises
legal and policy questions about the appropriateness of screening under the First Amendment

48

³&RPPHQWVUHPDLQLQWKHµ5HFHLYHG&RPPHQWV¶VHFWLRQRI>)'06@XQWLOWKH\DUHSRVWHGRUVHWWRWKH
Deferred, Do Not Post or Withdrawn status. However, the comments are pending post until the Docket Manager
chooses to post the Public Submissions out to the Public using the Posting function. Users can choose to post all
comments as listed, or can choose to select and order the comments to be posted using the Posting Wizard. Users
FDQDOVRSRVWFRPPHQWVGLUHFWO\IURPWKH&RPPHQWVVFUHHQ´$JHQF\+HOS*XLGHDW19.2.2,
http://fdms.erulemaking.net/fdms-web-agency/help/en/AgencyHelpGuide/19_2_2_Post_Received_Comments.htm.
49
Assuming staff are paid at the level of GS-9, Step 1 in Washington, D.C. Based on 2011 Salary Tables
published by the Office of Personnel Management.
50
As described in a 2002 article, agencies range from a 24-hour delay to delays in posting until after the
comment period has closed. See Brandon & Carlitz, supra note 45, at 1436. While this article does not explore the
reasons for the delay, one contributor is likely to be WKHDJHQF\¶Vscreening policy.

13

DRAFT  REPORT  ʹ  Mar.  17,  2011

and the standards used to screen, and also a more general concern about why Regulations.gov
does not work like other popular websites that allow users to post comments instantly.51
B. Is Screening Required?
Agencies face legal questions with regard to how, when, and whether to screen
comments. Agencies are legally required to prevent the disclosure of some types of information,
and must therefore establish some mechanism to prevent it from being posted online. Other
information is not subject to such a requirement. This section of the Report H[SORUHVDQDJHQF\¶V
legal responsibilities with regard to certain categories of information, including personal
information, trade secret or confidential information, copyrighted information, illegally-obtained
information, and obscene or threatening content.

i. Personal Information
As highlighted above in scenarios 1 and 2, agency staff might screen comments because
WKH\DUHFRQFHUQHGWKDWSRVWLQJDFRPPHQWHU¶VSHUVRQDOLQIRUPDWLRQRUWKDWRIDQRWKHULQGLYLGXDO
discussed in a comment, on Regulations.gov is an unlawful disclosure or otherwise violates a
policy of protecting personal information. In general, the Privacy Act protects against
disclosures of records about individuals.52 FDMS is an example of a system of records subject to
the Privacy Act, in part because it contains records with the names of individuals who submit
public comments. The fact that FDMS is subject to the Privacy Act triggers an obligation to
protect the information in the system from impermissible disclosure.
The Privacy Act contains twelve types of permissible disclosures, one of which is an
DJHQF\¶V³URXWLQHXVH´53 7RHVWDEOLVKURXWLQHXVHVDQDJHQF\FDQSXEOLVKD³V\VWHPVRIUHFRUGV
QRWLFH´LQWKH)Hderal Register. The eRulemaking PMO issued a Privacy Act System of Records
Notice54 for FDMS. This notice helps to demonstrate compliance with the Privacy Act, and
along with the Privacy Impact Assessment,55 it helps explain aspects of the system including
how data is collected, accessed, and disclosed. However, as the FDMS system of records notice

51

The Frequently Asked Questions for 5HJXODWLRQVJRYDGGUHVVHVWKLV³:K\FDQ¶W,VHHDFRPPHQW,
submitted? Once your comment is received, the appropriate agency must process it before it is posted to
Regulations.gov. Given the fact that certain regulations may have thousands of comments, processing may take
several weeks before it may be viewed online. . . . . If several weeks have elapsed and you still do not see your
FRPPHQWLWPD\EHLQFRQVLVWHQWZLWKWKHDJHQF\¶VJXLGHOLQHVIRUSosting comments.´Regulations.gov, Frequently
Asked Questions, http://www.regulations.gov/#!faqs.
52
5 U.S.C. § 552a(a).
53
5 U.S.C. § 552a(b).
54
Environmental Protection Agency, Establishment of a New System of Records Notice for the Federal
Document Management System, 70 Fed. Reg. 15086 (Mar. 24, 2005), http://www.epa.gov/privacy/notice/epa-govt2.htm.
55
Environmental Protection Agency, Privacy Impact Assessment,
http://www.epa.gov/privacy/assess/fdms.htm.

14

DRAFT  REPORT  ʹ  Mar.  17,  2011

explains, agencies may need to publish a separate system of records notice if they disclose
personal information in ways that are not described by the FDMS system of records notice.56
Regarding personal information, this Report recommends that the eRulemaking PMO
consider whether these documents should be updated in light of system upgrades and other
changes. This Report also recommends that agencies assess whether their use of
Regulations.gov results in disclosures beyond those contemplated in the FDMS system of
records notice.57 If so, agencies should work with each other and the eRulemaking PMO to
update the FDMS system of records notice to account for cross-cutting routine uses or update
agency-specific systems of records notices for agency-specific disclosures.
Beyond technical compliance with the Privacy Act, agency staff may seek to protect
members of the public who inadvertently disclose personal information in comments. The
concern is that members of the public may not understand that their information will be posted
online, rather than just being read internally at the agency. To address this concern,
Regulations.gov places the following warning on the webpage where comments are submitted:
Any information (e.g., personal or contact) you provide on this
comment form or in an attachment may be publicly disclosed and
searchable on the Internet and in a paper docket and will be
provided to the Department or Agency issuing the notice. To view
any additional information for submitting comments, such as
anonymous or sensitive submissions, refer to the Privacy and Use
Notice, the Federal Register notice on which you are commenting,
and the Web site of the Department or Agency.58
Some agencies include similar notifications in the preambles of their proposed rules. At present,
each agency independently decides whether to rely on a notification like this or to screen
comments before posting them.

ii. Trade Secret or Confidential Information
Agencies may need to screen comments to protect intellectual property rights. A recent
case highlights the potential liabilities agencies may face if they fail to engage in such screening.
A drug company recently sought $1.5 billion in damages under the Federal Tort Claims Act
claiming that FDA misappropriated trade secrets and breached a confidential relationship when

56

See Environmental Protection Agency, Establishment of a New System of Records Notice for the Federal
Document Management System, 70 Fed. Reg. 15086 (Mar. 24, 2005), http://www.epa.gov/privacy/notice/epa-govt2.htm.
57
E.g., Department of Defense, Notice to add a system of records, 71 Fed. Reg. 586 (Jan. 5, 2006),
http://privacy.defense.gov/notices/osd/DWHSE01-DoD.shtml.
58
See also Regulations.gov, Privacy Notice, http://www.regulations.gov/#!privacyNotice.

15

DRAFT  REPORT  ʹ  Mar.  17,  2011

)'$SRVWHGWKHGUXJFRPSDQ\¶VLQIRUPDWLRQRQ)'$¶VZHEVLWH59 After the district court
dismissed these claims for lack of subject matter jurisdiction,60 the U.S. Court of Appeals for the
District of Columbia Circuit reinstated them and remanded to the district court for additional
proceedings.61 1RWDEO\WKLVFDVHDURVHXQGHUD³1HZ'UXJ$SSURYDO´SURFeeding before the
FDA, not a rulemaking, but it highlights potential liabilities for disclosure of confidential or trade
secret information. In addition to claims of damages, agency staff could theoretically face
criminal sanction under section 1905 of Title 18 of the U.S. Code, which contains a provision
that subjects a Federal employee to a fine, imprisonment, and removal if he or she discloses
information obtained through official duties including trade secrets and other confidential
information.62
The potential penalties for failing to protect certain information are eye-opening, but it is
not clear whether agencies are legally required to screen information submitted by a commenter
if the commenter provides no indication that the information should be protected. Some
agencies discourage commenters from providing confidential or trade secret information in
comments, but they also recognize that including such information may sometimes be
appropriate. To handle this possibility, some agencies have adopted procedures for handling
confidential or trade secret information.63 These procedures differ from agency to agency. For
example, in a recent joint proposed rule from the Environmental Protection Agency and the
Department of Transportation, the preamble included the following language:64

59

Jerome Stevens Pharms., Inc. v. Food & Drug Admin. , 402 F.3d 1249 (D.C. Cir. 2005).
M. Jerome Stevens Pharms, Inc. v. Food and Drug Administration , 319 F. Supp. 2d 45 (D.D.C. 2004).
61
Jerome Stevens Pharms., Inc. v. Food & Drug Admin. , 402 F.3d 1249 (D.C. Cir. 2005).
62
18 U.S.C. § 1905. Jerry Cohen, F ederal Issues in Trade Secret Law, 2 J. HIGH TECH. L. 1, 2-3 (2003)
(discussing Trade Secrets Acts penalties for Federal employees). But see United States v. Wallington, 889 F.2d 573,
Q WK&LU  QRWLQJWKDW³FRQYLFWLRQVIRUYLRODWLRQVRI86&DUHYHU\UDUH´ 3HWHU-*7RUHQ
The Prosecution of Trade Secrets Thefts Under F ederal Law, 22 PEPP. L. REV. 59 n.36 (1994) (explaining that §
LV³RQO\YHU\LQIUHTXHQWO\XVHGLQSURVHFXWLRQDQGLVOLPLWHGLQVFRSH´
63
Perritt Report, supra note 1, at VIII.F.2,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#F2 (discussing
Executive Order 12600 on the treatment of confidential commercial information by Federal agencies). See also
Heather E. Kilgore, Note, S igned, Sealed, Protected: Solutions to Agency Handling of Confidential Business
Information in Informal Rulemaking, 56 ADMIN. L. REV. 519 (2004).
64
Environmental Protection Agency & Department of Transportation, Proposed Rule, Revisions and
Additions to Motor Vehicle Fuel Economy Label, 75 Fed. Reg. 58078, 58080 (Sept. 23, 2010).
60

16

DRAFT  REPORT  ʹ  Mar.  17,  2011

How Do I Submit Confidential Business Information?
Any confidential business information (CBI) submitted to one of the agencies will also be available to
the other agency.* However, as with all public comments, any CBI information only needs to be
VXEPLWWHGWRHLWKHURQHRIWKHDJHQFLHV¶GRFNHWVDQGLWZLOOEHDYDLODEOHWRWKHRWKHU)ROORZLQJDUH
specific instructions for submitting CBI to either agency.
EPA: Do not submit CBI to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to
EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or
CD ROM the specific information that is claimed as CBI. In addition to one complete version of the
comment that includes information claimed as CBI, a copy of the comment that does not contain the
information claimed as CBI must be submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. In addition, you
should submit a copy from which you have deleted the claimed confidential business information to the
Docket by one of the methods set forth above.
NHTSA: If you wish to submit any information under a claim of confidentiality, you should submit
three copies of your complete submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER
INFORMATION CONTACT. When you send a comment containing confidential business information,
you should include a cover letter setting forth the information specified in our confidential business
information regulation. In addition, you should submit a copy from which you have deleted the claimed
confidential business information to the Docket by one of the methods set forth above.
* This statement constitutes notice to commenters pursuant to 40 CFR 2.209(c) that EPA will share
confidential information received with NHTSA unless commenters specify that they wish to submit their
CBI only to EPA and not to both agencies.

After a comment is submitted with a claim of confidentiality or trade secret status, agency
attorneys review the claim to make a determination before placing the material in the public
docket.

iii. Copyrighted Information
Copyrighted material finds its way into the regulatory docket every day. This is because
of how copyright protection is afforded in the United States ± it is automatically granted to
creative works at the moment of their creation.65 Therefore, a member of the public holds the
copyright on her comment, even when she sends it to the agency through Regulations.gov. It
would be peculiar for a commenter to complain of a copyright violation upon seeing his or her
comment posted to Regulations.gov, because by submitting the comment to a public docket the
commenter was on notice that the material would be shared with the public. If challenged, an

65

17 U.S.C. § 302.

17

DRAFT  REPORT  ʹ  Mar.  17,  2011

agency could assert that it had an implied license to post the material, especially if the preamble
or the proposed rule explained that comments will be shared online.66
A more pressing concern is presented by comments that include material apparently
copyrighted by a third party. Suppose, for example, that the owner of a small business submits a
copy of a voluntary industry standard or a trade journal article as part of her argument that
government regulation is unnecessary. Suppose also that this individual does not hold the
copyright on the voluntary standard or the article. The legal issue facing the agency is whether
this material may be posted on Regulations.gov without permission from the copyright holder.
In practical terms, this issue does not appear to present significant litigation risk.67
However, agency attorneys may be called upon to provide guidance to docket staff on how to
handle comments that appear to contain copyrighted material. In some instances, legal
uncertainty causes agencies to avoid posting material that appears to be copyrighted. The
downside of this practice is that it keeps potentially useful information out of the online docket.
This Report finds that if agencies limit the amount of copyrighted information posted, it is very
unlikely that this would be copyright infringement EHFDXVHRIWKHGRFWULQHRI³IDLUXVH´
³Fair use´ is determined using a four-IDFWRUVWDWXWRU\WHVWWKDWH[SORUHV³ 1) the purpose
and character of the use, including whether such use is of a commercial nature or is for nonprofit
educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon
WKHSRWHQWLDOPDUNHWIRURUYDOXHRIWKHFRS\ULJKWHGZRUN´68 Fair use analysis is nuanced and
fact-intensive, but a good practice is to share only the pertinent portions of copyrighted material
in the online docket. For example, if a commenter sends a book, the agency could merely scan
and share the relevant pages or a table of contents, rather than uploading the entire volume.
Some agencies are already doing this. This approach provides members of the public with
enough information to locate the book if they are interested, while avoiding the costs and legal
risks of adding an entire book in the online docket. If an agency is approached by someone
asserting to be copyright holder who is concerned about the amount of his or her work that is
included in the docket, this Report encourages agencies to consider WKHFRS\ULJKWKROGHU¶V
request to display less material. This is FRQVLVWHQWZLWKWKH³QRWLFHDQGWDNHGRZQ´DSSURDFKRI
the Digital Millennium Copyright Act, which provides a safe harbor for certain entities that
³H[SHGLWLRXVO\UHPRYH or disable access´WRDOOHJHGO\LQIULQJLQJPDWHULDO upon notice.69

iv. Illegally-Obtained Information

66

See 3-10 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 10.03 (2010).
Perritt Report, supra note 1, at VIII.G.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#G.
68
17 U.S.C. § 107; 4-13 NIMMER ON COPYRIGHT § 13.05.
69
17 U.S.C. § 512(b)-(d).
67

18

DRAFT  REPORT  ʹ  Mar.  17,  2011

Agencies may also be concerned that, in posting comments online, they are legally
obligated to remove information that was obtained illegally. An example of such information
would be that obtained using an illegal wiretap. However, even more so than with confidential,
trade secret, or copyrighted information, it is not clear how agency staff would be in a position to
know that a comment contains material that was obtained illegally unless it was brought to their
attention. Absent notification, it is not clear that even the most well-intentioned agency would
be able to identify this material during pre-posting screening. Once notified, however, the
requirements of section 2511 of Title 18 of the U.S. Code may apply, which prohibits disclosure
or use of illegally-obtained information. A good practice upon receiving notice that the
information was obtained illegally is therefore to investigate the material and remove it from
Regulations.gov if warranted.

v. Obscene or Threatening Comments
Comments containing language that some might deem inappropriate, such as obscene or
threatening comments, pose a challenge for agencies. There are no specific statutory
requirements that compel an agency to redact obscene or threatening comments posted to
Regulations.gov. However, concerns about how to treat such comments in e-Rulemaking are
real. In an admittedly exploratory and non-representative survey, Professor Jeffrey Lubbers
polled Federal agency staff on their attitudes towards various issues in e-Rulemaking.70 Asked
whether they worry about the disclosure of docket materials WKDW³PLJKWFRQWDLQLQGHFHQWRU
REVFHQHODQJXDJH´ most respondents indicated that they were more worried about the issue in eRulemaking than under a paper-based comments system.71 While agency staff may be
concerned about posting offensive comments on Regulations.gov, they might also be sensitive to
First Amendment concerns and uncertain about the standards to apply.
C . A n A lternative A pproach
While screening is well-intentioned, it is resource-intensive and causes delays between
when comments are received and when they are posted. As mentioned above, comments are not
automatically posted on Regulations.gov, which builds in sRPHDPRXQWRI³SURFHVVLQJ,´ even if
agencies do not screen for content.
An alternative approach could involve making system changes to Regulations.gov.
These two changes together would allow to post on Regulations.gov much faster, while
providing a feedback loop to the agencies about any inappropriate content. First, the
eRulemaking PMO could explore changing Regulations.gov to auto-post comments received
online, with the exception of confidential or trade secret information. Second, the eRulemaking

70

Jeffrey S. Lubbers, $6XUYH\RI)HGHUDO$JHQF\5XOHPDNHUV¶$WWLWXGHV$ERXWH -Rulemaking, 62 ADMIN. L.
REV. 451, 457-58 (2010).
71
Id. at 463-64.

19

DRAFT  REPORT  ʹ  Mar.  17,  2011

PMO could explore creating a flag for inappropriate content that can be used by those reading
comments on Regulations.gov. Part of this analysis should include a consideration of how other
governmental and non-governmental websites handle issues of screening, i.e., content
moderation, and whether there is good reason for Regulations.gov to differ.
Agencies should consider whether a system of flagging could replace a policy of
screening comments for illegally-obtained information, or obscene or threatening language. This
Report finds that there is no legal requirement to screen for such information before posting
comments on Regulations.gov or other websites. Perhaps a different approach could better serve
agency policies in favor of protecting such information from disclosure, while also furthering the
goals and purposes of e-Rulemaking. Agencies that place a premium on ensuring a civil
discourse on its portion of Regulations.gov could work with the eRulemaking PMO to explore a
flag for Regulations.gov users to report inappropriate content already posted. Of course,
agencies would still face questions about the standards to use when deciding how to handle any
flagged comments. This could perhaps be added as a discussion item for the interagency
working groups that advise the eRulemaking PMO.
It may help to broaden the discussion beyond rulemaking. The issue of online content
moderation is not isolated to Regulations.gov. Rather, administrators of other government
websites that accept comments from the public must grapple with whether to moderate content
submitted by the public. One resource to consider is the ongoing work of the U.S. General
6HUYLFHV$GPLQLVWUDWLRQZKLFKRSHUDWHV:HE&RQWHQWJRY³the online guide to managing U.S.
government websites, helps agency web managers share experiences, common challenges,
lessons learned, successes, and new ideas about best practices, content management, as well as
usability and design issues.´72 Deeper collaboration between the eRulemaking PMO and the
General Services Administration could be helpful here in sharing best practices for content
moderation.
Agencies should develop procedures to handle this information appropriately.73
Agencies could work with the eRulemaking PMO to develop a way to allow commenters to
notify an agency that their comments contain confidential or trade secret information. While this
does not alleviate the need for agency staff to review claims of confidentiality or trade secret
status, it may help reduce confusion for commenters that submit this information to more than

72

U.S. General Services Administration, http://www.gsa.gov/portal/content/103353. ³WebContent.gov is
managed by the Federal Web Managers Council, an inter-agency group of about 40 web managers from every
cabinet-level agency and many independent agencies. Representatives from both headquarters and field operations
participate in the grouS´ Id.
73
6XFKSURFHGXUHVVKRXOGSUREDEO\DOUHDG\EHLQSODFHXQGHU([HFXWLYH2UGHUZKLFKVWDWHVWKDW³)RU
confidential commercial information . . ., the head of each Executive department or agency shall, to the extent
permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at
the time the information is submitted to the Federal government or a reasonable time thereafter, any information the
disclosure of which the submitter claims could reasRQDEO\EHH[SHFWHGWRFDXVHVXEVWDQWLDOFRPSHWLWLYHKDUP´
http://www.archives.gov/federal-register/codification/executive-order/12600.html.

20

DRAFT  REPORT  ʹ  Mar.  17,  2011

one agency. It may also reduce some of the processing burden by alerting the docket manager
that a comment needs or is under review, and help ensure that submissions are docketed in a
timely fashion. If the system permits comments to auto-post to Regulations.gov, such a flag
would be essential to prevent inappropriate disclosures.
When a commenter submits material that appears to be copyrighted, agencies should
include only the pertinent portion of the material in the online docket. This will require some
staff resources, but this tailored approach strikes an appropriate balance between protecting the
copyrights of others while making the online docket as useful as possible.
I I I.

T he E lectronic Record on Review

A key component of e-Rulemaking is the use of electronic docketing to compile the
rulemaking record. This refers to the use of an electronic system to hold files that may be
needed in court if the rulemaking is challenged. :KHQDQDJHQF\¶VLQIRUPDOrulemaking action
is reviewed under the APA³WKHFRXUWVKDOOUHYLHZWKHZKROHUHFRUGRUWKRVHSDUWVRILWFLWHGE\
DSDUW\´74 Therefore, agencies recognize that taking care in preparing the rulemaking record is a
critical task for rule writers.75 While many agencies had already begun to explore ways to use
technology to make their dockets more efficient, the E-Government Act of 2002 required
regulatory agencies, to the extent practicable, to move their regulatory dockets to electronic
systems.76 As agencies take steps to fulfill this statutory requirement, they encounter issues
regarding how well electronic docketing satisfies the legal obligations for rulemaking record.
The APA does not specify the contents of the rulemaking record on review before a
court. Instead, the Federal Rules of Appellate Procedure (FRAP) explain that the record on
77

74

5 U.S.C. § 706. 8QOHVVDQHQDEOLQJVWDWXWHSURYLGHVDVWDQGDUGRIUHYLHZWKH$3$¶VVWDQGDUGRIUHYLHZ
controls. See, e.g., $ODVND'HS¶WRI(QYWO&RQVHUYDWLRQY(3$, 540 U.S. 461, 496-97 (2004) (noting that section
706 of the Administrative Procedure Act applies becausH³WKH$FWLWVHOIGRHVQRWVSHFLI\DVWDQGDUGIRUMXGLFLDO
UHYLHZ´  See also 42 U.S.C. § 7607(d)(9) (limiting judicial review of Clean Air Act regulations and allowing
UHYHUVDORIWKH$GPLQLVWUDWRU¶VDFWLRQLIIRXQG³ $ DUELWUDU\FDSULFLRXVDQDEXVHRf discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right; or (D) without observance of procedure required by
ODZ´ 86& F  %  OLPLWLQJMXGLFLDOUHYLHZ7R[LF6XEVWDQFHV&RQWURO$FWUHJXODWLRQVDQGUHTXLULQJ
WKDW6HFUHWDU\¶VGHWHUPLQDWLRQVEHXSKHOG³LIVXSSRUWHGE\VXEVWDQWLDOHYLGHQFHLQWKHUXOHPDNLQJUHFRUGWDNHQDV
a whole); 29 U.S.C. § 655(f) (limiting judicial review of Occupational Safety and Health Act regulations and
UHTXLULQJWKH6HFUHWDU\¶VGHWHUPLQDWLRQVEHXSKHOG³LIVXSSRUWHGE\VXEVWDQWLDOHYLGHQFHLQWKHUHFRUGFRQVLGHUHGDV
DZKROH´ 86&J F  OLPLting judicial review of Medical Device Amendments of 1976 and requiring that
RUGHUVEHXSKHOGLIVXSSRUWHG³E\VXEVWDQWLDOHYLGHQFHLQWKHUHFRUGWDNHQDVDZKROH´
75
See, e.g., Memorandum from David L. Bernhardt, Deputy Solicitor, U.S. Department of the Interior,
Standardized Guidance on Compiling a Decision File and an Administrative Record (Jun. 27, 2006),
http://www.fws.gov/policy/e1282fw5.pdf.
76
Pub. L. 107-347 § 206(d). Memorandum from Joshua B. Bolten, Director, Office of Management and
Budget, to Department and Agency Heads, Implementation Guidance for the E-Government Act of 2002 (Aug. 1,
2003), http://www.whitehouse.gov/sites/default/files/omb/memoranda/m03-18.pdf
77
$KHOSIXOVRXUFHRQPDQ\DVSHFWVRIWKH$3$WKH$WWRUQH\*HQHUDO¶V0DQXDOGRHVQ¶WH[SORUHWKLVLVVXH
H[FHSWWRFLWHD6HQDWH+HDULQJUHSRUWIRUWKHLGHDWKDW³WKHSKUDVHµZKROHUHFRUG¶ZDVQRWLntended to require

21

DRAFT  REPORT  ʹ  Mar.  17,  2011

review before the court ³FRQVLVWVRI  WKHRUGHULQYROYHG  DQ\ILQGLQJVRUUHSRUWRQZKLFKLW
LVEDVHGDQG  WKHSOHDGLQJVHYLGHQFHDQGRWKHUSDUWVRIWKHSURFHHGLQJEHIRUHWKHDJHQF\´78
The FRAP also place WKHEXUGHQRQWKHDJHQF\WRILOH³ $ RULJLQDORUDFHUWLILed copy of the
entire record or parts designated by the parties; or (B) a certified list adequately describing all
documents, transcripts of testimony, exhibits, and other material constituting the record, or
describing those parts designated by the partieV´79 Therefore, while the APA does not explicitly
require an agency to keep a rulemaking record, the FRAP essentially imposes that requirement
for items under judicial review. Because agencies do not always know which rules will be
reviewed in court, a common practice is to compile a rulemaking record for each regulation,
rather than assembling it after the fact.80 This approach may also aid agency compliance with
the 6XSUHPH&RXUW¶Vholding in Burlington Truck v. United States, which prohibits agencies from
proffering post hoc rationalizations of agency decisions while rules are under judicial review.81
The Administrative Conference has explored the content of the rulemaking record in at
least two recommendations.82 Most recently, in 1993, the Administrative Conference
UHFRPPHQGHGWKDWDQDJHQF\SUHSDUHD³UXOHPDNLQJILOH´LQDGYDQFHRIMXGLFLDOUHYLHZWKDW
includes the following:
1. All notices pertaining to the rulemaking;
2. Copies or an index of all written factual material, studies, and reports substantially relied
on or seriously considered by agency personnel in formulating the proposed or final rule
(except insofar as disclosure is prohibited by law);
3. All written comments submitted to the agency (including electronic submissions); and

reviewing courts to weigh the evidence and make independent findings of fact; rather, it means that in determining
whether agency action is supported by substantial evidence, the reviewing court should consider all of the evidence
and noWPHUHO\WKHHYLGHQFHIDYRULQJRQHVLGH6HQDWH+HDULQJV  S´86'HSDUWPHQWRI-XVWLFH
$WWRUQH\*HQHUDO¶V0DQXDORQWKH$GPLQLVWUDWLYH3URFHGXUH$FWQ  DYDLODEOHDW
http://www.law.fsu.edu/library/admin/1947ix.html.
78
Fed. R. App. P. 16(a).
79
Fed. R. App. P. 17(b)(1). If an agency does not provide the entire record, it must retain the portions not
submitted and provide them upon request by the court or a party. Fed. R. App. P. 17(b)(3).
80
See, e.g., U.S. Department of the Interior, Fish and Wildlife Service Manual, 282 FW 5, available at
http://www.fws.gov/policy/282fw5.html. For an interesting discussion of agency procedures in compiling a
rulemaking record after the fact, see William F. Pederson, Jr., Formal Records and Informal Rulemaking, 85 Yale
L.J. 38, 66-70 (1975-76) (discussing EPA procedures and incentives for over-inclusive records).
81
³7KHFRXUWVPD\QRWDFFHSWDSSHOODWHFRXQVHO VSRVWKRFUDWLRQDOL]DWLRQVIRUDJHQF\DFWLRQ Chenery
UHTXLUHVWKDWDQDJHQF\¶VGLVFUHWLRQDU\RUGHUEHXSKHOGLIDWDOORQWKHVDPHEDVLVDUWLFXODWHGLQWKHRUGHUE\WKH
agency itself.´ Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962) (citing Securities &
([FKDQJH&RPP¶QY&KHQHU\&RUS, 332 U.S. 194, 196 (1947)). See also Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 419 (1971).
82
Admin. Conf. Rec. 74-4 (1974); Admin. Conf. Rec. 93-4 (1993).

22

DRAFT  REPORT  ʹ  Mar.  17,  2011

4. Any other material required by statute, executive order, or agency rule to be made public
in connection with the rulemaking.83
While not binding, this recommendation gives a sense of the items that agencies include
in a rulemaking record. Some agencies have promulgated regulations to outline the contents of
or ground rules for their rulemaking dockets WR³JXLGHDOOSHUVRQVLQWKHLUGHDOLQJVZLWKWKH
agency.´84 For a complex or controversial rule that generates hundreds of thousands of public
comments,85 the rulemaking record can be incredibly large, time consuming to assemble, costly
WRPDLQWDLQRYHUWLPHDQGIUXVWUDWLQJWRFRXUWVSUHVHQWHGZLWKODUJHDQG³XQZLHOG\´UHFRUGV.86
The stakes are high because an inaccurately compiled regulatory record can cause significant
problems on judicial review.87
Electronic dockets can help address these concerns. As noted above, FDMS is the largest
Federal docket system. It is a restricted-access website for use by agency staff to manage their
internal files and the content on Regulations.gov. By using electronic dockets like FDMS,
agencies may be able to lower their costs by abandoning or seriously curtailing the use of paper
dockets. As agencies look to FDMS or other systems for electronic docketing, they must grapple
with how requirements to preserve the rulemaking record apply to electronic items. For
example, may agencies destroy a comment received by mail or fax once it is scanned into the
electronic docket? How can agencies provide good faith certification for large electronic
records? What should agencies do with physical objects or organized mail campaigns that are a
part of the rulemaking record? Should online public collaborations always be included in the
docket? Although these questions are in the weeds of day-to-day agency activities, they
illustrate the kinds of questions presented to Federal agency attorneys.

83

Admin. Conf. Rec. 93-4. In 1974, the Administrative Conference made the following recommendation on
the contents of the record in the absence of a specific statutory requirement: (1) the notice of proposed rulemaking
and any documents referred to therein; (2) comments and other documents submitted by interested persons; (3) any
transcripts of oral presentations made in the course of the rulemaking; (4) factual information not included in the
foregoing that was considered by the authority responsible for promulgation of the rule or that is proffered by the
DJHQF\DVSHUWLQHQWWRWKHUXOH  UHSRUWVRIDQ\DGYLVRU\FRPPLWWHHVDQG  WKHDJHQF\¶VFRQFLVHJHQHUDO
statement or final order and any documents referred to therein. Admin Conf. Rec 74-4 (May 30-31, 1974). This
recommendation grew out of a report from now-Chairman Paul Verkuil. Paul R. Verkuil, Judicial Review of
Informal Rulemaking, 60 VA. L. REV. 185 (1974).
84
Food and Drug Administration, Preamble to Proposed Rule on Administrative Practices and Procedures, 43
)HG5HJ 1RY )'$¶VUHJXODWLRQRQWKHFRQWHQWVRIWKHDGPLQLVWUDWLYHUHFRUGLVLQ
C.F.R. § 10.40(g). See also 49 C.F.R. § 5.7 (Department of Transportation).
85
See generally Stuart W. Shulman, Whither Deliberation? Mass e-Mail Ca mpaigns and U.S. Regulatory
Rulemaking, 3 J. E-GOV 41, 44 (2006) (discussing several rulemakings with hundreds of thousands of public
comments each).
86
William F. Pederson, Jr., Formal Records and Informal Rulemaking, 85 YALE L.J. 38, 61, 70 n.119 (197576) (discussing presentation of large records to courts).
87
For example, while promulgating a rulemaking on potato products, FDA failed to make its entire factual
record available to the public during the comment period in the FDA docket office. At litigation, FDA initially
certified that the record was complete, but later asserted that the record was not complete. The Third Circuit
remanded the regulation to FDA to formulate its rule based on what was actually included in the docket office.
Hanover Potato Prods., Inc. v. Shalala , 989 F.2d 123 (3d. Cir. 1993).

23

DRAFT  REPORT  ʹ  Mar.  17,  2011

A . Destroying Paper Comments
Many agencies permit the public to submit comments through Regulations.gov, in
addition to other means such as mail, courier, fax, or email. As noted above, one of the central
goals of an electronic docket is to reduce costs and improve efficiency, and this includes the
integration of non-electronic items into the electronic docket. The full benefits of electronic
docketing, including costs savings estimated at $30 million over five years,88 cannot be realized
if an agency keeps comments received on paper in one place and electronic items in another.
However, if a comment comes in by fax, for example, does an agency face legal risks if it scans
the fax, saves it in the electronic docket (e.g., FDMS), and destroys the paper copy?
One could question whether items received electronically, or converted to electronic
versions from paper, would be admissible on judicial review. However, admissibility is not a
significant concern. As noted in the Perritt Report, admissibility would only be an issue if the
rulemaking were subject to de novo review, which would be highly unusual given the APA¶V
provision for judicial review in an appellate proceeding.89 A review of federal cases reveals no
instances of de novo review of rulemaking under APA § 706(2)(F) or cases in which the
admissibility of the rulemaking record was otherwise challenged. However, even if de novo
review was granted, recent decisions in non-APA contexts suggest that courts do not exclude
electronic evidence solely because of its electronic nature; rather, courts have admitted electronic
evidence under the Federal Rules of Evidence.90 In this remote instance of de novo review, the
key issue would be reliability of the electronic docket, which agencies may be called upon to
explain.91 This is discussed in additional detail in the Perritt Report.92
Another concern, which appears similarly unfounded, is that electronic dockets are not
reliable and might not preserve documents adequately. While some degree of risk is probably

88

OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, REPORT TO CONGRESS ON THE
BENEFITS OF THE E-GOVERNMENT INITIATIVES 10 (2010),
http://www.whitehouse.gov/sites/default/files/omb/assets/egov_docs/FY10_E-Gov_Benefits_Report.pdf.
89
Perritt Report, supra note 1, at VIII.C.2.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#C2 (citing Citizens
to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402 (1971)). Absent de novo UHYLHZ³WKHHYLGHQWLDU\LVVXHLVQRW
whether the evidence would be admitted in federal court, but whether it was in fact admitted and became part of the
UHFRUGLQWKHDJHQF\SURFHHGLQJ´ Id.
90
See, e.g., Lorraine v. Markel , 241 F.R.D. 534 (D. Md. 2007). See generally Hon. Paul W. Grimm et al.,
Back to the Future: Lorraine v. Markel A merican Insurance Co. and New F indings on the Admissibility of
Electronically Stored Information, 42 AKRON L. REV. 357 (2009). But see Colin Miller, Even Better than the Real
Thing: How Courts Have Been Anything But Liberal in F inding Genuine Questions Raised as to the Authenticity of
Originals Under Rule 1003, 68 MD. L. REV. 160 (2008) (suggesting that courts have been too permissive in
admitting electronic evidence).
91
Perritt Report, supra note 1, at VIII.C.2.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#C2.
92
Id.

24

DRAFT  REPORT  ʹ  Mar.  17,  2011

inevitable in a remote storage database, that risk is probably not greater than the risk presented
by relying on paper records, which can be destroyed by water or fire, or simply misplaced. 93
While there may be lingering reluctance to destroy paper documents that have been
scanned into the electronic docket, the law does not appear to validate it. From a legal
perspective, once a paper comment has been scanned and saved into the docket, this Report
concludes that agencies may rely on the electronic version to preserve the rulemaking record.
B. Recording Physical O bjects & O rganized M ail C ampaigns in the E lectronic Docket
Two types of comments pose particular challenges to electronic docketing²physical
objects received with comments and comments received as part of organized mail campaigns. If
an agency relies on an electronic docket to compile a regulatory record for judicial review, but
fails to capture these kinds of comments adequately, it may pose a risk, however slight, to the
agency in certifying that the electronic record is the complete rulemaking record.94

i. Physical Objects
From time to time, a commenter might send a physical object, such as a large poster
board display or a model, to lend support his or her submission. For an agency that relies on
electronic dockets, submission of physical objects may challenge the agency¶VDELOLW\WRfulfill its
obligation to include it in the docket. In reading rooms, this might be less of a concern, because
the object could be placed in the docket alongside other documents and made available for public
review. However, when an agency relies on an electronic docket, how can an agency ensure that
it does not misplace a physical object?
There are several solutions for coping with this challenge. One potential solution is to
place an entry in the electronic docket with a summary of where to find the physical object.
FDMS is already configured to permit this type of entry. When agency staff add a paper
comment into FDMS, they can classify WKH³GRFXPHQWW\SH´RIWKHFRPPHQWDV³Public
Submissions´ Staff can also indicate that a comment has attachments. Working within this
framework but applying it to a physical object received with a public comment, agency staff
could add an entry into FDMS for the comment, with an attachment that includes a description of
the item and an explanation of where the item is located LQWKHDJHQF\¶VRIILFHEXLOGLQJ. The
eRulemaking PMO could also cRQVLGHUDGGLQJ³SK\VLFDOLWHP´RUVRPHWKLQJVLPLODUDVD
document subtype as part of its Best Practices work.95 On the item itself, the agency could label

93

Perritt Report, supra note 1, at VIII.C.3.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#C3.
94
Cited above, a case involving FDA is illustrative. Although this case did not involve electronic docketing, it
highlights the risks of storing parts of the record in different, undocumented locations. See Hanover Potato Prods.,
Inc. v. Shalala , 989 F.2d 123 (3d. Cir. 1993).
95
See generally Improving Electronic Dockets on Regulations.gov and the Federal Docket Management
System: Best Practices for Federal Agencies (Nov. 30, 2010),

25

DRAFT  REPORT  ʹ  Mar.  17,  2011

the physical object with the docket number and a warning that the object should not be thrown
away or moved without an DJHQF\DWWRUQH\¶VFRQVHQWDVDZD\WRGHPRQVWUDWHWKHREMHFW¶V
importance for any well-intentioned de-clutterers. An alternative to retaining the physical object
might be to take photos of it or describe it in writing, but either practice may raise concerns upon
judicial review if the agency is viewed as altering the public comment or failing to properly
consider the submission.

ii. Organized Mail Campaigns
A more common problem agencies face is how to docket duplicative items, such as those
sent in as part of an organized letter-writing, email, or postcard campaign. An agency can
receive tens of thousands of these in a matter of days, which can be costly to process. A highspeed scanner could seriously shorten this amount of time, but not all agencies have immediate
access to one. If an agency only occasionally receives the proceeds of organized letter
campaigns, it might be better to have an informal partnership with another agency to handle
processing.
FDMS provides a useful feature that permits agencies to scan and save batches of letters
into one file, note how many times the letter was received, and upload them together.96 This cuts
down on staff hours needed to scan and provide metadata for comments that are almost
completely identical, but it does not entirely eliminate the administrative burden. At the
moment, this appears to be the best option. Another option is to scan one letter and save it into
FDMS, noting how many times it was received.97 However, this raises the legal issue of how to
handle docketing the letters that were not scanned, which might differ in minor ways such as
their signature block. For completeness of the record, agencies might retain copies of the
unscanned letters in physical form, partially defeating the purpose of electronic docketing. To
fully rely on the electronic docket, the better practice is probably to upload all letters into the
electronic docket.
These two examples show that, despite some initial puzzlement, agencies can leverage
electronic dockets to record physical objects and organized mail campaigns. A work-around
solution for physical objects falls short of the full promise of electronic docketing, because it
require agencies to retain physical objects. As agencies move or reorganize offices, it may
become difficult to use the location descriptions in the electronic docket to ensure that these
physical items remain connected to the rulemaking record. However, at least by logging the
items into the electronic docket the agency has a chance to pass some clues on to those who need

http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.p
df.
96
The Department of Education took this approach in a recent regulation. See, e.g.,
http://www.regulations.gov/#!documentDetail;D=ED-2010-OPE-0012-14265.1
97
The Environmental Protection Agency took this approach in a recent regulation. See, e.g.,
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2010-0753-0094

26

DRAFT  REPORT  ʹ  Mar.  17,  2011

to assemble a rulemaking record down the road. In handling organized mail campaigns, agencies
that frequently receive these may find it cost-beneficial to invest in a high-speed scanner to help
process these items into the docket. Agencies that only infrequently encounter these campaigns
might seek out partner agencies to help shoulder the burden of processing these comments.
C . Docketing O nline, Public Collaborations
Another challenge in e-Rulemaking arises when members of the public convene in an
open, online forum to discuss their reactions to a proposed rule. In one sense, this collection of
views could be considered a public comment on the proposed rule, whether or not the comments
are formally submitted to the agency, because they are publicly available on the Internet.
Agency staff might wonder whether they have obligations to collect and preserve these
discussions for the record, or if they can rely on interested parties to submit comments to the
record.
In these or similar situations, the APA does not require agency staff to seek out public
comments and capture them in the rulemaking record. The APA provides³>D@fter notice
required by this section, the agency shall give interested persons an opportunity to participate in
the rule making through submission of written data, views, or arguments with or without
opSRUWXQLW\IRURUDOSUHVHQWDWLRQ´ HPSKDVLVDGGHG 98 7KHZRUG³VXEPLVVLRQ´connotes that
members of the public must elect to send their comments to the rulemaking docket before they
are subject to agency consideration. This textual argument is supported by policy considerations.
First, members of the public might use online fora to discuss preliminary ideas leading to a
decision about whether to file a comment, or the content of that comment. It is not clear why
Federal agencies should be required to capture these iterative discussions in their dockets.
Second, it may not be wise to expend limited agency resources to scour the Internet for ongoing
dialogs, ZKHQWKHSXEOLFFRPPHQWSURFHVVLVDOUHDG\RSHQWRUHFHLYHWKHSXEOLF¶VYLHZV if they
choose to send them.
Agencies are, however, taking action to explore the benefits of online collaboration. In a
recent experiment, the Department of Transportation (DOT) joined with Cornell University
eRulemaking Initiative (CeRI) to engage the public in regulatory development using web 2.0
technologies.99 In this pilot project, CeRI opened a blog on RegulationRoom.org that focused
HQWLUHO\RQWKH'27¶VSURSRVHGUXOHRn distracted driving. As comments flowed in from the
public to RegulationRoom.org, Cornell law students and researchers moderated the comments
and ³attempted to summarize the diverse, often impassioned, and not always substantive

98

5 U.S.C. § 553(c).
Press Release, Cornell University Law School, Cornell e-Rulemaking Initiative (CeRI) Partners with U.S.
Department of Transportation for Open Government (Apr. 1, 2010), http://www.lawschool.cornell.edu/newscenter/press-kits/regulation-room/upload/Regulation_Room_DOT_Press_Release.pdf ; Aliya Sternstein, Law school
tries to get the public hooked on rule-making (Apr. 1, 2010),
http://www.nextgov.com/nextgov/ng_20100401_9153.php.
99

27

DRAFT  REPORT  ʹ  Mar.  17,  2011

FRPPHQWVIRUWKHGHSDUWPHQW¶s benefit.´100 CeRI submitted this summary, without attribution to
specific public participants, to the DOT docket through Regulations.gov.101 Submission of the
comments to the DOT by CeRI was a critical step because in the preamble of the proposed rule,
'27H[SODLQHGWKDW³Regulation Room is not an official DOT website, and so participating in
discussion on that site is not the same as submitting comments to the rulemaking docket.´102 The
preamble invited members of the public to submit individual comments to the DOT docket
through Regulations.gov. This nuanced approach folded innovative use of technology into
'27¶Vexisting docket regulations, which provide WKDW³FRPPHQWV received in response to
>SURSRVHGUXOHV@´DUHLQFOXGHGLQWKHUHJXODWRU\GRFNHW103
This approach is echoed by other agency uses of the web. The Department of Education,
for example, maintains a blog to promote current events and usually permits website users to
post comments in response to agency blog posts.104 This type of forum provides one way for
agencies to interact with members of the public. However, the Department of Education recently
used its blog to encourage the public to comment on a proposal published in the Federal
Register.105 Rather than permit website users to post comments in response to this blog entry,
the Department disabled the commenting function. Instead, the blog entry explained how the
public could comment through Regulations.gov or using offline means. This approach to rerouting potential commenters is one way to ensure that public comments are sent to the docket
for agency considerationUDWKHUWKDQXQLQFRUSRUDWHGRQRWKHUSRUWLRQVRIDQDJHQF\¶Vwebsite.
D. C ertifying the E lectronic Docket
As discussed above, rulemaking records, electronic or non-electronic, can be very
lengthy, up to hundreds of thousands of pages. Upon judicial review, a copy of this record, or
selections of it along with a joint appendix, must be presented to the court. An agency must
certify that the copy is the same as the original.106 One legal question is whether use of an
electronic docket presents any challenges to making this certification. In that unlikely instance,
the original record might be files saved on FDMS or other agency servers. To submit the record,
agency staff could either print paper copies or provide a copy of the electronic files to the court.
The decision about whether to provide paper or electronic files²or both²can be a
negotiation between the parties and the judge. If the agency provides paper copies of the
rulemaking record, this can be costly (e.g., labor, printing costs, courier costs) and can take up a

100

Charles Clark, E-rule-making has potential, but kinks must be ironed out, expert says (Dec. 1, 2010),
http://www.nextgov.com/nextgov/ng_20101201_6557.php (based on remarks of Cynthia Farina at Archives speech).
101
http://www.regulations.gov/#!documentDetail;D=DOT-OST-2010-0140-1510
102
U.S. Dept of Transportation, Limiting the Use of Wireless Communications Devices, Notice of proposed
rulemaking; request for comments. 75 Fed. Reg. 16391, 16391-92 (Apr. 1, 2010).
103
49 C.F.R. § 5.7(a) (emphasis added).
104
http://www.ed.gov/blog/
105
http://www.ed.gov/blog/2009/10/investing-in-innovation-webinar/
106
Fed. R. App. P. 17(b)(1).

28

DRAFT  REPORT  ʹ  Mar.  17,  2011

significant amount of physical space. This Report finds that the better approach is to default to
providing the rulemaking record (i.e., the entire record or just the parts designated by the parties)
electronically, overriding the default if is a very compelling reason to provide paper. The U.S.
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) allows for electronic filing,
ZLWKDUXOHWKDWUHTXLUHVSDUWLHVWRWKHXVHWKHFRXUW¶VFDVHPDQDJHPHQWDQGHOHFWURQLFFDVHILOLQJ
system, rather than provide paper service.107 One caveat is that motions, briefs, pleadings,
memoranda, and some other documents must be provided in paper even if they are filed
electronically.108 This may be due to WKHFRXUW¶Vlimited resources for printing these documents.
Another caveat is that items that exceed 500 pages or 1500 kilobytes may not be filed
electronically.109 If an agency has a lengthy rulemaking record that needs to be provided to the
court, one practice is to save the files onto a CD-ROM that is provided to the court. As of this
Report, the website of the Judicial Conference of the United States shows that eleven of the
twelve U.S. Courts of Appeal accept electronic filing.110 This Report encourages the work of the
Judicial Conference of the United States and the U.S. Courts of Appeals in taking steps to
embrace electronic filing. While it may be a cost-sharing step to require paper copies, this
Report finds that agencies would benefit from a filing system that does not require paper
submission.
Whether the docket is paper or electronic, the next step is for the agency to submit the
docket along with a certification affidavit that looks something like the following: 111

107

See Administrative Order Regarding Electronic Case Filing, ECF-1 (May 15, 2009), available at
http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20May%2015,%202009%20%20Administrative%20Order%20Regarding%20Electronic%20Case%20Filing/$FILE/Admin%20Order%20ECF%
20May%202009.pdf
108
Id. at ECF-6.
109
Id. at ECF-8(C).
110
Judicial Conference of the United States, Courts Accepting Electronic Filing,
http://www.uscourts.gov/FederalCourts/CMECF/Courts.aspx.
111
Adapted by the author from a sample certification provided by staff at FDA. See also Memorandum from
David L. Bernhardt, Deputy Solicitor, U.S. Department of the Interior, Standardized Guidance on Compiling a
Decision File and an Administrative Record, Appendix 3 (Jun. 27, 2006), http://www.fws.gov/policy/e1282fw5.pdf.

29

DRAFT  REPORT  ʹ  Mar.  17,  2011

Declaration of [Certifying Official]
I, [name of certifying official], declare under penalty of perjury that the following is true and
correct to the best of my knowledge, information, and belief:
1.
,DPWKH>FHUWLI\LQJRIILFLDO¶VWLWOH@
2.
In this capacity, I have participated, in connection with the above-captioned
lawsuit, in the compilation and preparation of the administrative record related to
[description of subject matter of the administrative record].
3.
7KLV'HFODUDWLRQLVSDUWRI>DJHQF\@¶VFHUWLILFDWLRQRIWKHFRQWHQWVDQG
completeness of the administrative record for its final agency decision in [description
of final agency decision]. [Agency] is not filing the administrative record with the
Court because of the volume of the records involved.
4.
Attached and incorporated by reference as if fully set forth herein is an index
itemizing the contents of the administratLYHUHFRUGIRU>DJHQF\@¶VILQDODJHQF\GHFLVLRQ
in [description of final agency decision].
5.
I certify that the documents listed in the attached indices comprise the
FRPSOHWHDGPLQLVWUDWLYHUHFRUGIRU>DJHQF\@¶VILQDODJHQF\GHFLVLRQLQ>GHVFULSWLRQRI
final agency action], and are official records of [agency].
[Date]
[Signature & Signature Block]

As such, a staff member at the agency certifies to the fact that the copy reflects the record
as reviewed by the agency, nothing more. If the validity of a certification were challenged, that
challenge might focus on the reliability of the electronic docket. In that instance, an agency
might need to demonstrate that the electronic docket itself is a reliable storage and retrieval
system. While this issue does not appear to have presented itself yet, the Perritt Report explored
these issues in some depth, concluding that electronic copies of paper files do not present
significant authentication issues so long as they can be shown to be reliable.112 This Report finds
no reason to disturb that conclusion or the suggestions for how to demonstrate reliability.113 If
an electronic docket is maintained and audited well, it may, in fact, be easier to demonstrate the
reliability of an electronic system than the reliability of a paper recordkeeping system. 114 As the

112

Perritt Report, supra note 1, at VIII.C.3.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#C3.
113
Id. at VIII.C.4.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#C4.
114
As noted by one author, the U.S. Court of Appeals for the Fifth Circuit appears to have accepted the notion
that electronic records can be more reliable WKDQSDSHUUHFRUGVZKHQWKH\DUH³QRWHYHQWRXFKHGE\WKHKDQGRI
PDQ´/HLJK9RLJW5RPDQR Developments in the Law: VI. Electronic Evidence and the Federal Rules , 38 LOY.
L.A. L. REV. 1745, 1750-51 & n.33 (2005) (quoting page 90 of the Fifth Circuit decision in United States v. Vela ,
673 F.2d 86 (1982)).

30

DRAFT  REPORT  ʹ  Mar.  17,  2011

3HUULWW5HSRUWVWDWHV³>W@KHPRUHLQIOH[LEOHWKHURXWLQHDQGWKHOHVVhuman intervention in the
GHWDLOVRIWKHFRPSXWHU¶VPDQDJHPHQWRIWKHGDWDEDVHWKHEHWWHUWKHHYLGHQFH´115 Overall, the
use of electronic dockets does not appear to present any greater risk than a paper docket, and
may in fact provide greater protection. To the extent that courts can fully support electronic
filing of the rulemaking record, this will help Federal agencies.
In summary, from a legal perspective, electronic dockets do not present significant legal
issues that would discourage their use, and may in fact provide additional benefits. Agencies
may rely on the electronic version to preserve the rulemaking record, which allows them to
destroy the paper copies of submissions that are captured in the electronic docket. With some
creativity, agencies can also use electronic dockets to record physical objects and organized mail
campaigns. While agencies are exploring different methods for online collaboration with the
public, the APA does not require them to capture online discussions in the record unless they are
submitted. Finally, while the courts have taken steps to embrace electronic filing, they could
also consider additional steps like not also requiring paper copies of certain documents.
I V.

Recordkeeping Requirements

$QRWKHUVHWRI³UHFRUGV´LVVXHVSUHVHQWWKHPVHOYHVLQWKHFRXUVHRIH-Rulemaking, apart
from questions about how to preserve the e-Rulemaking items into the ³UXOHPDNLQJUHFRUG´IRU
litigation purposes (discussed above in Part II). How do the requirements of the Federal Records
Act intersect with e-Rulemaking activities? For example, might aQDJHQF\RIILFLDO¶VWZHHWDERXt
a rulemaking, or a public comment submitted on a blog entry about the rule, trigger the
requirements of the Federal Records Act? This section explores these issues.
The Federal Records Act of 1950 requires the head of each Federal agency to preserve
records to document the ³SROLFLHVGHFLVLRQV>DQG@SURFHGXUHV´RIWKHDJHQF\.116 A key concept
LVZKHWKHUDQLWHPLVD³)HGHUDOUHFRUG´± the statutory definition includes ³DOOERRNVSDSHUV
or other documentary materials, regardless of physical form or characteristics, made or received
by an agency of the United States Government . . . and . . . appropriate for preservation . . . as
evidence of the . . . policies, decisions, procedures, operations, or other activities . . . or because
of WKHLQIRUPDWLRQDOYDOXHRIGDWDLQWKHP´117 If an item is a Federal record, agencies must
establish and maintain schedules to:
(1) identify whether records are temporary or permanent, and
(2) determine instructions for disposition of records when they are no longer needed.

115

Perritt Report, supra note 1, at VIII.C.4.,
http://www.kentlaw.edu/faculty/rstaudt/classes/oldclasses/internetlaw/casebook/legal_issues.htm#C4.
116
44 U.S.C. § 3101.
117
44 U.S.C. § 3301.

31

DRAFT  REPORT  ʹ  Mar.  17,  2011

Schedules must be approved by National Archives and Records Administration (NARA).118
NARA also maintains General Records Schedules (GRS) for the items common to Federal
agencies, such as records on personnel, accounting, and procurement. NARA estimates that
these schedules cover approximately one-third of agency records.119 Notably, and although
rulemaking is a common function of most Federal agencies, the GRS do not include records
developed or received during the rulemaking process.
In the course of rulemaking, an agency might prepare or receive several different types of
documentary materials. This includes, for example, comments received from the public or
agency guidance documents regarding the rule. These are likely to be Federal records because
WKH\DUHGRFXPHQWDU\PDWHULDOV³PDGHRUUHFHLYHG´E\DQDJHQF\, depending on their evidentiary
or informational value.120 NARA guidance indicates that files related to the ³development,
clearance, and processing of proposed and final rules for publication in the Federal Register . . .
may be, but are not necessarily, permanent,´121 DQGQRWHVWKDWWKH\³must be scheduled
individually by each agency so NARA can conduct an analysis and appraisal to determine their
DSSURSULDWHGLVSRVLWLRQ´
Turning to e-Rulemaking, agency officials might make statements through social media
to drum up interest in the rulemaking or encourage the public to comment. These statements and
resulting public comments present a novel question for records management²aUHWKH\³)HGHUDO
UHFRUGV´" To determine the answer, agencies may consult NARA¶VOctober 2010 guidance that
explores the intersection between Web 2.0 technologies and Federal records management
requirements.122 First, the guidance states that the medium of the content (i.e., online) does not
GHWHUPLQHLWVVWDWXVDVDUHFRUGVRWKHLVVXHRIZKHWKHURQOLQHFRQWHQWLV³GRFXPHQWDU\PDWHULDO´
does not appear to be open. Second, the guidance sets out five questions to consider when
determining whether content is a Federal record:
1. Is the information unique and not available anywhere else?
2. 'RHVLWFRQWDLQHYLGHQFHRIDQDJHQF\¶VSROLFLHVEXVLQHVVPLVVLRQHWF"
3. ,VWKLVWRROEHLQJXVHGLQUHODWLRQWRWKHDJHQF\¶VZRUN"

118

See 36 C.F.R. § 1228.26 ; 44 U.S.C. 3303.
National Archives and Records Administration, General Records Schedules, Introduction (Apr. 2010)
http://www.archives.gov/records-mgmt/grs/intro.html.
120
For example, several agencies have approved records schedules for public comments collected during
rulemaking. The Department of Commerce, for example, has an approved records schedule for public comments
collected in the course of changes to its Export Administration Regulations. http://www.archives.gov/recordsmgmt/rcs/schedules/departments/department-of-commerce/rg-0476/n1-476-93-001_sf115.pdf. See also Department
of Education Records Schedule, http://www.archives.gov/records-mgmt/rcs/schedules/departments/department-ofeducation/rg-0441/n1-441-09-004_sf115.pdf.
121
National Archives and Records Administration, General Records Schedule 16: Administrative Management
Records (Apr. 2010), http://www.archives.gov/records-mgmt/grs/grs16.html.
122
National Archives and Records Administration, Guidance on Managing Records in Web 2.0/Social Media
Platforms (Oct. 20, 2010), http://www.archives.gov/records-mgmt/bulletins/2011/2011-02.html.
119

32

DRAFT  REPORT  ʹ  Mar.  17,  2011

4. Is use of the tool authorized by the agency?
5. Is there a business need for the information?123
The guidance H[SODLQVWKDWDQVZHULQJ³\HV´WRDQ\RIWKHVHTXHVWLRQVVXJJHVWVWKDWDQLWHPLV
likely to be a Federal record. However, the guidance provides an escape hatch ± agencies may
consider duplicate content to be non-records, citing the example of re-posting public affairs
content through social media platforms.
A . Agency Statements
An agency might use blogs or other social media to drum up interest in the rulemaking.
%DVHGRQ1$5$¶VJXLGDQFHWhese efforts are not Federal records if they simply duplicate
existing content (e.g., Federal Register notice, fact sheet designed to explain a regulation, press
release) or post a link to that content. For example, consider )'$¶VUHFHQWWZLWWHUSRVW on a new
investigational new drug rule:

Note that it includes DOLQNWR)'$¶VZHEVLWH.124 $SSO\LQJ1$5$¶VJXLGDQFHWhis is not a
Federal record because it simply directs followers to other FDA website content.125 In contrast, a
statement issued by an agency official through social media that presents previously unavailable
information²such as a statement that explains a fresh perspective on the rationale or benefits of
the rule²may be a Federal record because of its uniqueness.
Limiting the use of social media to duplicative content is one way to minimize the
applicability of Federal Records Act requirements. Agencies may choose to develop internal
policies along these lines. However, some have questioned this limitation as holding the
government back from a fully collaborative web presence.126 Instead, agencies could consider
refreshing their records schedules to account for uses of social media in e-Rulemaking. Some
agencies have already begun this process, including the Department of Justice,127 which has an
approved records schedule for the content it places on social media websites. Even before
NARA approves the records schedule, this can serve as a way to convene internal conversations

123

Id.
http://twitter.com/FDA_Drug_Info.
125
Note, however, that the website content may itself be a Federal record that may be subject to the Federal
Records Act.
126
See, e.g., Alice Lipowicz, Is every tweet and Facebook post worth archiving? (Nov. 17, 2010),
http://fcw.com/articles/2010/11/29/home-page-nara-social-media-records.aspx.
127
U.S. Department of Justice, Request for Records Disposition Authority (Oct. 13, 2009),
http://www.archives.gov/records-mgmt/rcs/schedules/departments/department-of-justice/rg-0060/n1-060-10002_sf115.pdf.
124

33

DRAFT  REPORT  ʹ  Mar.  17,  2011

with program staff, communications or public affairs staff, records management staff, and
counsel about how the agency plans to use these tools to communicate with the public about
rulemakings. Agencies might also consider confirming that they have adequate rulemaking
records schedules in place, with an eye to synching records retention policies with the length of
time agencies hold these records for judicial review.
B. Public Comments in Agency Fora
Agencies might use social media to encourage public participation in a rulemaking while
the comment period is open. As discussed in Part III.C., an agency might post an entry on its
blog altering readers that the agency has published a new proposed rule. Sometimes agencies
open the blog entry to receive comments from the public. One question is whether any
comments received on the blog entry are Federal records. Applying 1$5$¶VJXLGDQFHLf the
comment is unique to the blog (i.e., not otherwise a part of the rulemaking docket) and provides
evidentiary or informational value, the answer is probably yes. However, the question of
evidentiary or informational value may turn on whether these comments will become part of the
rulemaking record where they will be considered by agency staff. Above in Part III.C., this
Report encouraged agencies to signal on their blogs whether they intend to treat comments
received there as public comments for the rulemaking record. If an agency incorporates blog
comments into the rulemaking record, they are subject to recordkeeping provisions just like other
items in the rulemaking record. In this scenario, however, there would be no need to preserve
the blog comments as separate Federal records, because they would already be swept into the
recordkeeping provisions for the rulemaking record. If, on the other hand, an agency does not
incorporate blog comments into the rulemaking record, this diminishes the evidentiary or
information value of the comments, which also reduces the likelihood that they are Federal
records.
In sum, agencies should be aware that e-Rulemaking activities, just like other activities,
may carry Federal Records Act requirements. As agencies explore new technologies, they
should ensure they continue to consider Federal Records Act implications of fresh approaches to
the regulatory process.
V.

Recommendations
1.
2.

3.

The Administrative Procedure Act contains sufficient flexibility to support eRulemaking and does not need to be amended for this purpose at the present time.
Agencies should work together and with the eRulemaking PMO to share
experiences and best practices in the use of comment analysis software to
organize and consider public comments.
Agencies should assess whether the FDMS system of records notice provides
sufficient Privacy Act compliance for their uses of Regulations.gov. This could

34

DRAFT  REPORT  ʹ  Mar.  17,  2011

4.

5.

6.

7.

8.
9.
10.
11.

12.

include working with the eRulemaking PMO should consider whether changes to
the FDMS system of records notice are warranted.
The eRulemaking PMO, working with its interagency counterparts, should
explore the merits of providing a method for members of public who read
Regulations.gov to flag inappropriate content.
The eRulemaking PMO, working with its interagency counterparts, should
explore how to permit a commenter to indicate upon submittal that a comment
filed on Regulations.gov contains confidential or trade secret information.
The eRulemaking PMO, working with its interagency counterparts, should
explore changing the defaults on Regulations.gov to permit public comments
(with the exception of those flagged as containing confidential or trade secret
information) to post automatically to Regulations.gov without agency processing.
For comments flagged as containing confidential or trade secret information,
agencies should confirm that they have procedures in place to review these
submissions before posting them in the online docket.
Agencies receiving material that appears to be copyrighted should consider
posting only the pertinent portion to the online docket.
Agencies using electronic dockets need not retain paper copies of comments
stored therein.
Agencies should include a descriptive entry in the electronic docket for all
physical objects received during the comment period.
In judicial actions involving regulations, parties should strive to provide
electronic copies of relevant materials. Courts should continue their efforts to
embrace electronic filing and curtail requirements to file additional paper copies.
Regard recordkeeping requirements under the Federal Records Act, agencies
should consider whether their records schedules should be updated to include
records that are generated during e-Rulemaking.

Conclusion
This Report has shown that the legal issues that present themselves in e-Rulemaking are
varied, but surmountable. With the analysis and recommendations above, this Report aims to
address legal issues that have been raised by e-Rulemaking since its inception. As Federal rule
writers explore new ways to engage the public and solicit their views for the record, new legal
issues may arise. Overall, agency staff have found, and continue to find, creative ways to satisfy
their legal obligations while exploring the possibilities of e-Rulemaking.

35