Legal Issues in e-Rulemaking

Report for the Administrative Conference of the United States
March 8, 2011

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Executive Summary

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. 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 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. 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-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, 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 Report's recommendations for consideration by the Rulemaking Committee of the Administrative Conference of the United States