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DOD memo on Federal Docket Management System

The Defense Department doesn’t consider itself a typical rulemaking agency, but with legislative mandates pointing the way, it has moved to the front lines of a govermentwide push toward an open e-rulemaking process. A DOD memo issued at the end of April formally directed all of the department’s entities to use the online Federal Docket Management System (FDMS), a component of the federal e-Rulemaking Initiative, for their public regulatory proceedings.

The initiative began with the E-Government Act of 2002, which directed government to become more transparent and accountable and more citizen-centric by providing Web-based access to agency records and allowing a broader spectrum of the public to participate in the rulemaking process.

By using the FDMS, the public has direct access to documents and can electronically file submissions or comments in response. The Office of Management and Budget and the Environmental Protection Agency launched the FDMS in 2005. Their intent was that agencies responsible for more than 90 percent of federal rulemaking activity would be using the system by the end of 2007, according to milestones issued by OMB.

The move to FDMS is significant for DOD. Before FDMS, “we had just one entity in the whole of the DOD that had an electronic system where the public could look for documents and file comments,” said Robert Cushing, lead agent for e-rulemaking at DOD’s Executive Services Directorate (ESD). “Now the public can see all of our rulemakings and can comment on them electronically.”

DOD agencies have been using the FDMS since the end of 2005. An OMB milestone anticipated DOD coming online with the system by the end of the current fiscal year’s first quarter. “We did meet that,” Cushing said.

The DOD memo was a “quick and dirty issuance” to set the use of the FDMS as departmental policy, he added. More extensive guidelines will come later this year.

The e-Rulemaking Initiative was originally planned as a three-step program. The first resulted in a governmentwide Web site, Regulations (www.regulations.gov), which is a one-stop site that allows citizens to search, find, view and comment on all published federal rulemaking.

The FDMS phase of the program is an expanded version of the Regulations Web site. It provides a central repository for government rulemaking documents and related material.

The third phase will create IT tools that agency rule writers can use to develop, publish and review regulations.

E-rulemaking has been a collaborative effort among agencies, said Karen Evans, administrator of e-government and information technology at OMB, which oversees the initiative. “Many of them have been able to accelerate their activities because of this, because they haven’t had to do it on their own,” Evans said. “From our perspective, agencies have really jumped on this.”

However, the effect of the initiative and FDMS in particular on the rulemaking process might take some time to determine, she added.

Simply having access to documents in one place is useful, said Steven Balla, an associate professor at George Washington University and associate director of the public policy graduate program at the Elliott School of International Affairs.

For academics and researchers such as Balla, however, the system’s true value will become apparent as more agencies participate and the FDMS software and feature set become more sophisticated, Balla said.

Agencies likely consider the FDMS to be a double-edged sword, he said.

“In one sense, it automates the way documents are gathered and made available to the public, and agencies have been looking for something like this for a long time,” Balla said. “On the downside, there’s the potential for spam to overwhelm the system, and agencies will have to spend a lot more time responding to outside opinion.”

Cushing said that is a concern, but he added that DOD entities can handle whatever happens. DOD rulemaking mainly occurs in just a few organizations, he said, and they have sufficient resources for dealing with comments.

“The Defense Acquisition Regulations System (DARS) is used to handling comments, and they have a tremendous staff that’s well-equipped to do that,” Cushing said. “The Army Corps of Engineers [doesn’t] have as much of a capability, but they have geared up to handle comments in the past when they’ve had to.”

Because of those capabilities, DARS and the Army corps, along with the Office of the Secretary of Defense’s Directives and Records Division, have been permitted to function as subagency administrators for implementing e-rulemaking at DOD. Those offices manage docket and document creation within the FDMS.

The ESD’s Information Management Division takes care of all other DOD e-rulemaking needs as subagency administrator for Army, Navy and Air Force regulatory entities.

“We decided to implement the FDMS in this manner because [the three entities] seldom promulgate rulemaking actions, and we have the expertise and stability of personnel,” Cushing said. “This arrangement will be formalized by a memorandum of agreement between my organization and the rulemaking entity and will be reviewed periodically.”

Light workload
Judging by early indications the arrangement is unlikely to place onerous demands on ESD’s Information Management Division. Since the FDMS went live in December 2005, the division has handled only about 100 electronic comments, Cushing said.

Funding has been an issue, according to some, because Congress has been reluctant to divert many dollars for e-rulemaking. DOD has coped with that so far. From fiscal 2003 to 2006, it has used an e-government funding line controlled by DOD’s chief information officer to address many of the President’s Management Agenda requirements.

In fiscal 2008 and beyond, Cushing said, his organization will take responsibility for funding DOD’s e-rulemaking efforts. The only dicey period, he added, could be fiscal 2007 because of the uncertainty throughout government about e-government funding. “I would submit that DOD will do its best to honor its obligations,” he said.

Despite the additional work it entails, Cushing said, moving to the FDMS has created little resistance. “The philosophical point to all of this is how do you help the public provide more substantive comments” on rulemakings, he said. “To their credit, I think everyone has been very focused on that.”