Agencies may get inappropriate comments on e-dockets, advisory group says

As federal agencies adopt more electronic rulemaking, they may become bogged down by legal and ethical questions about how to handle all the public comments and materials submitted, members of the Administrative Conference of the United States federal advisory committee said June 16.

Agencies may face difficulties in identifying and managing “inappropriate” or “confidential” material in a public e-docket published on the Web, they said.

The conference members debated questions such as how to judge which material was inappropriate or confidential, how to define “inappropriate” and “confidential,” who should make those judgments, and under what conditions or guidelines.

Conference to advise agencies on e-rulemaking

“The system will be gamed,” Payton said. “There will be people trying to get the government to publish scurrilous information and people flooding the government with information.”

The solution might be authorizing agencies to develop a continuous process of identifying and sharing best practices, anticipating that problems and solutions will continue to evolve, Payton added.

The agencies' concern should be not just about maintaining decorum and avoiding abuses of individual rights, but there also should be concerns about other possible types of gaming the system for commercial or political gains, she said.

The conference, which makes nonbinding proposals for improving agencies' operations, was considering more than a dozen proposals for adoption. They included measures on e-rulemaking, public comment collection, video teleconferencing and contractor ethics.

Regarding e-rulemaking, the conference suggested that agencies take advantage of specialized software to help categorize and evaluate public comments. Such software could identify whether a comment is identical, or nearly identical, to other comments submitted. In such cases, the agency may not be required to review each of the identical comments.

The conference also is considering recommending that agencies allow the public to flag potentially inappropriate comments and to set up different procedures for comments that include confidential information or trade secrets.

The agency also was to review a proposal that the Federal Acquisition Council develop model language for federal contracts that could be at risk from conflicts of interest or from misuse of information.