Legal Considerations in e-Rulemaking

Legal Considerations in e-Rulemaking in stage 8. Implementation

Project Stages:

1. Gather ideas - Completed
2. Select ideas - Completed
3. Council approval - Completed
4. Picking a researcher - Completed
5. Committee consideration - Completed
6. Back to the council - Completed
7. Consideration by the full conference - Completed
8. Implementation - Current
8. Implementation
Status Notes:  
Adopted by the Assembly on June 16, 2011.


Implementation Contact
In-House Researcher
Policy Analyst

This study focused on the many legal issues that arise in e-Rulemaking, including how agencies may use software to determine that submitted comments are identical or nearly identical, and whether agencies can (and should) destroy paper copies of comments scanned to electronic form. The resulting recommendation identifies approaches that agencies can lawfully use to reduce costs and improve efficiency in e-Rulemaking.

The research report for this project was subsequently published as Bridget C.E. Dooling, Legal Issues in E-Rulemaking, 63 Admin. L. Rev. 893 (2011).


Final Recommendation

Agencies are increasingly turning to e-Rulemaking to conduct and improve regulatory proceedings.  “E-Rulemaking” has been defined as “the use of digital technologies in the development and implementation of regulations”[1] before or during the informal rulemaking process, i.e., notice-and-comment rulemaking under the Administrative Procedure Act (APA).  It may include many types of activities, such as posting notices of proposed...


In the past several years, the Administrative Conference has adopted a number of recommendations that address various subjects related to e-Rulemaking.  These recommendations share a common focus and goal and represent incremental contributions to an evolving body of work.  The Conference is accordingly pursuing joint implementation of these recommendations, including the following:

Recommendation 2011-1, Legal Considerations in e-Rulemaking.  This recommendation provides guidance on various legal issues agencies face in e-Rulemaking, including how to efficiently and effectively deal with large numbers of identical comments and how to transfer paper comments to electronic dockets.

Recommendation 2011-2, Rulemaking Comments.  This recommendation identifies best practices in the comment process, including with respect to minimum comment periods, reply comments, late comments, and anonymous comments.

Recommendation 2011-8, Agency Innovations in e-Rulemaking.  This recommendation suggests ways in which agencies can improve their websites to facilitate public accessibility and engagement in the rulemaking process, so as to achieve the promise of e-Rulemaking.

Recommendation 2013-5, Social Media in Rulemaking.  This recommendation provide guidance to agencies on whether, when, and how to use social media to lawfully and effectively support rulemaking activities.

Agencies that are planning or pursuing innovative strategies to leverage technology to improve public engagement in the rulemaking process are encouraged to consider these recommendations.  They are also invited to contact staff counsels Emily S. Bremer or Reeve T. Bull with any questions, concnerns, or updates related to these activities.  Suggestions for new studies that may lead to recommendations further contributing to this body of work are also welcome.

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