Executive summary

Over the last ten years, information technology has begun to realize its potential for improving the flow of information from citizens to federal agencies and the dissemination of public information from federal agencies. Now, information technology's capacity to improve the flow of information in rulemaking and adjudicatory proceedings is beginning to be realized. This report examines the efforts of two federal agencies, the Department of Transportation and the Nuclear Regulatory Commission, to apply information technology in automating rulemaking and adjudicatory processes. The Department of Transportation is well into implementing its docket management system ("DMS") which makes the flow of information in regulatory dockets -- both rulemaking and adjudicatory -- paperless. Based on imaging technology, the DOT system has concentrated on meeting the needs of internal decisionmakers first, saving electronic filing and electronic dissemination for later stages.

The Nuclear Regulatory Commission, having pioneered the use of imaging systems to manage agency litigation documents in its high level nuclear waste repository licensing support system ("LSS"), now is embarked on a number of initiatives to expand its regulatory automation. NRC is using Internet and World Wide Web technology to involve the public in informal notice-and-comment rulemaking, and has enlisted involvement of regulated entities and nonproprietary standard setting bodies to develop electronic templates for electronic filing of adjudicatory documents. Having committed to public access through terminals in public reference rooms for its LSS, the NRC is considering a variety of techniques to provide electronic public access to its newer electronic regulatory initiatives.

As the NRC and DOT initiatives have proceeded, a number of agency personnel have raised concerns about the legal implications of automating rulemaking and adjudication.

There is little reason to be concerned that running an adjudicatory or rulemaking proceeding electronically would violate the basic requirements of the Administrative Procedure Act. With respect to rulemaking, the notice and comment provisions of 5 U.S.C. 553 are flexible, and if electronic notices and opportunities to comment electronically are organized so as to enhance the opportunity for broader segments of the public to know about agency rulemaking proposals and to submit their views, the purpose of 553 will be advanced by automation. Provisions must be made, however, for persons lacking the economic or technological capability to participate electronically on their own, either through specially equipped public reference rooms and by mobilizing the involvement of private trade associations, professional, nonprofit, and commercial entities.

Similarly, there is ample room within the language of 5 U.S.C. 556-558 to use electronic formats for most communications occurring in agency adjudication, except perhaps for live hearings themselves.

There are no impediments to providing agency records for judicial review in electronic form, but agencies automating their regulatory dockets must use the electronic formats as the basis for agency decisionmaking if they expect to offer those as the record, rather than paper versions of the same information. Certain types of evidence cannot be accommodated by electronic record keeping systems. An obvious example is real evidence. When such items of evidence are part of the agency record, they must be indexed in the electronic system and managed so that they can be produced at the same time the electronic record is produced. Certification and authentication of electronic records is not problematic as long as the sponsoring agencies can provide certifying officers and witnesses who understand the basic operation of the electronic docket systems.

At least two matters warrant further attention and remedial action.

Sometimes, participants in rulemaking or adjudicatory proceedings submit information on which the copyright is held by themselves or someone else. When information technology is used to manage these submissions within the agency, no particular problems arise with respect to the integrity of the copyright. But when information technology is used to disseminate submissions widely, the availability of the copyrighted work from the agency may dilute economic return available to the copyright owner. It obviously is undesirable, and unwarranted by existing law, to conclude that filing of a copyrighted work and subsequent dissemination by the agency constitutes a taking of the copyrighted work for public purposes. Thus, the copyright remains intact. It also appears unwarranted by existing law and undesirable as a matter of policy for access to the copyrighted work through the agency by a member of the public to reduce the rights of the copyright holder vis a vis that member of the public. Yet, there are no obvious means to assure the copyright owner of compensation for that access through the agency, though it may deprive the copyright owner of a sale. Agencies contemplating significant incidence of filing of copyrighted materials should formulate rules in light of these concerns.

Arguments can be made that electronic conferences, such as those likely to be involved in notice-and-comment rulemaking, constitute advisory committees under the Federal Advisory Committee Act. This is an undesirable result, and would be inconsistent with the historic nonapplication of that Act to notice-and- comment rulemaking and adjudicatory proceedings even though they involve the channeling of private advice to agencies. The General Services Administration should amend its rules to make it clear that the Federal Advisory Committee Act does not apply to such electronic proceedings.

The low priority that DOT's systems managers and contractors apparently give to electronic dissemination and remote access to DMS information by members of the public is troubling and contrasts with NRC's active exploration of diverse dissemination technologies.

Recent use of the Internet as a means of disseminating public information by some 650 federal agencies, the House of Representatives Thomas System, and the commitment by the executive branch to use the Internet as a part of its Government Information Locator System legitimate the Internet as an attractive channel for disseminating public information. Yet, many agencies are reluctant to use the Internet because of preconceptions about its reliability, the number of citizens with access through it, and its security. Agencies should make greater use of the Internet, where applications like the World Wide Web provide a low cost, widely accessible means for disseminating their public information.

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