Advisory group recommends electronic rule-making records

Agencies should use comment analysis software to make reviewing public feedback less onerous, panel says.

Federal agencies should save public comments from their proposed regulations in electronic rather than paper form whenever practical, a government advisory panel has recommended.

Agencies also should provide electronic copies of comments to courts hearing cases involving a federal rule-making whenever possible, according to the recommendation from the rule-making committee of the Administrative Conference of the United States.

The ACUS panel also suggested agencies that receive a large volume of public observations on proposed regulations use comment analysis software to pull together similar or identical public remarks.

The section of the U.S. Code that mandates agencies consider all input on proposed regulations does not require them to read comments that analysis software has indicated are identical or nearly identical to previous ones, the committee said.

The full conference will review and vote on the recommendations from the rule-making committee during a plenary session on June 16.

ACUS, which was reinstated in 2010 after a 14-year funding lapse, is a public-private partnership charged with advising federal agencies on sound administrative procedures. The 101-member assembly is made up of 61 government employees and 40 private sector members from administrative law firms and other companies with administrative expertise.

ACUS recommendations aren't binding on any government agencies.

Electronic rule-making ranked high during the initial project selection process ACUS members undertook when the committee was re-established and was a good fit for conference review because of its growing prevalence in the past decade, ACUS spokeswoman Kathy Kyle said.

Agency confusion and concerns about electronic rule-making had been pointed out in a 2006 report by the House Judiciary Subcommittee on Commercial and Administrative Law and by the American Bar Association's Administrative Law and Agency Practice Section, she said.

The committee also recommended that agencies create a method for readers to flag inappropriate comments on, the main portal for individuals, businesses and interest groups to comment on proposed regulations.

In addition, the government should allow visitors to alert an agency that a comment they've posted or will post contains confidential or trade secret information, and every agency should have a plan for how to handle such remarks under applicable law, the committee said.

During the ACUS plenary session the conference also will consider a proposal from its committee on adjudication recommending that agencies explore holding administrative hearings through videoconferencing wherever it might save money without prejudicing the hearing participants.

Several agencies are already holding hearings over video links. The Social Security Administration, for instance, hosts some disability benefits hearings over video.

The committee recommended that agencies always retain an option for an in-person hearing if the subject of the hearing prefers it.