Recommendations

1. All agencies begin automating rulemaking and adjudicatory processes to improve agency efficiency and increase public involvement. 2. Agencies should provide for remote public access to all documents filed in electronic rulemaking or adjudication systems through the Internet, regardless of whether they also provide for other means of public access.

3. Agencies should use open network technologies and applications rather than entirely proprietary networks. 4. DOT should begin now to conduct limited pilot testing of public access to a subset of its DMS through its existing Internet server.

5. Agencies automating their dockets should allow electronic filing.

6. DOT and other agencies should write their procedural regulations to require the advance submission of documentary exhibits so they can be input into electronic docket systems. Such procedural regulations also should explicitly allow or require counsel to offer electronic versions of exhibits rather than paper versions as evidence, and require ALJs to rule on and accept or reject electronic versions.

7. When agencies impose requirements for the format of electronically filed documents, they should base their requirements on SGML and EDI standards and take into account standards and transactions sets developed by standard setting organizations such as the JEDDI Corporation.

8. An agency with an oath or affirmation requirement should encourage as a part of its demonstration project the use of electronic notaries, either under the emerging standard being developed by the Science and Technology Section of the ABA, or more simply by an existing state notary who simply provides services electronically.

9. To the extent that agencies anticipate uncertainty with respect to the admissibility of electronic records, they can largely reduce the uncertainty by amending their own rules of procedure to make it clear that electronic records are admissible in administrative proceedings before ALJs and otherwise.

10. Any agency rules requiring paper formats, limiting the admissibility of electronic records based on their electronic character, requiring handwritten signatures, or requiring notarization of filings so as to preclude electronic filings should be amended to impose functional rather than format-specific requirements.

11. Agencies should design systems for automating regulatory proceedings so that they have quality assurance subsystems sufficient to sustain the admissibility of material output from the systems in agency proceedings and in court.

12. Agencies should gain more experience before seeking to address potential problems of copyrighted submissions in a general way. For the time being, if a copyright owner protests the inclusion of a copyrighted work in public dissemination systems, the work should be removed, or tagged with a copyright notice, on a case-by-case basis.

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