Federal “good government” agency addresses the regulatory process in the digital age.
At its latest plenary session, the Administrative Conference of the United States (ACUS) adopted recommendations on several legal issues arising from the recent shift from paper to electronic rulemaking procedures. The ACUS recommendations address issues such as how agencies can best review comments, comply with privacy requirements, archive e-comments, and maintain a record for judicial review.
ACUS concluded that agency staff need not read every comment submitted in a rulemaking proceeding under the Administrative Procedure Act when some comments are identical or nearly identical to others. In such cases, agency staff may rely on content management software to identify and group together nearly identical comments for review.
Addressing issues of privacy and the submission of potentially sensitive information, ACUS also recommended that each agency independently assess whether the online Federal Docket Management System (FDMS) complies with the requirements of the Privacy Act. The FDMS is a restricted website that allows agency staff to monitor and tailor its content on Regulations.gov, a website that allows the public to view and comment on proposed agency rules.
ACUS also determined that the decision to destroy paper records when electronic copies are available should be governed by each agency’s internal policies. On the issue of judicial review, ACUS advised agencies to provide courts with electronic copies of their rulemaking records whenever possible.
ACUS is an independent federal agency that researches and provides advice on how to improve federal agency procedures. Its recommendations are not binding on agencies.