Recommendation 2011-1 – Legal Considerations in e-Rulemaking provides guidance on issues that have arisen in light of the change from paper to electronic rulemaking procedures. It recommends that agencies (1) consider using content analysis software to reduce the need for agency staff to spend time reading identical or nearly identical comments, (2) provide timely, online access to all studies and reports upon which they rely, (3) implement appropriate procedures for the handling of confidential, trade secret, or other protected information, (4) consider the potential need to revise Privacy Act notices and recordkeeping schedules to accommodate e-Rulemaking, and (5) replace paper files with electronic records in the rulemaking docket and in the record for appellate review.
Citation: Admin. Conf. of the U.S., Recommendation 2011-1, Legal Considerations in e-Rulemaking, 76 Fed. Reg. 48789 (Aug. 9, 2011).
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” before or during the informal rulemaking process, i.e., notice-and-comment rulemaking under the Administrative Procedure Ac