Introduction

I. Agency Decisionmaking Tools

II. Accessing "Shadow Law" and Other Government Information - Past and Future

III. Why the Internet?

IV. Limits of the Internet

V. Electronic Notice and Comment Rulemaking

VI. Conclusion

During the last half decade, federal administrative agencies have increasingly relied on informal adjudication, interpretive rules, and policy statements, rather than formal procedures or notice and comment rulemaking, to implement and administer federal law.⁽¹⁾ This trend has two fundamental, and obvious, shortcomings. First, when agencies abandon formal procedures and notice and comment rulemaking, they create a body of "shadow" law that is inaccessible, or not easily accessible, to most of the citizens of this country. Citizens can't comply with the law if they can't find or decipher it. Second, when agencies make policy through these streamlined processes, they reduce the opportunities for public participation in the decisionmaking process. When citizens are shut out of the decisionmaking process, agencies are held less accountable for their actions, and citizens are more likely to question the legitimacy of those actions.

Many legal academics have explored ways to streamline the notice and comment rulemaking process, or to change judicial review standards, in order to encourage agencies to return to that more traditional and inclusive policymaking tool.⁽²⁾ While agencies should be encouraged to re-emphasize notice and comment rulemaking, there is another tool that is available to empower citizens and increase opportunities for public participation in agency decisionmaking even when agencies do not use notice and comment rulemaking.

The Internet and modern technological innovations can expand public access to decisions that agencies make through informal adjudication, interpretive rules and policy statements. To the extent that agencies are willing, or forced, to use the technologies, the Internet and similar technological innovations can bring agency "shadow law" into the light of day.

These technologies can also increase the public's ability to participate in agency decisionmaking processes. Once citizens know how an agency is interpreting and applying the law, it will be easier for them to identify inconsistencies or flaws in the agency's decisionmaking process. Citizens can then use that information to lobby the legislature or the agency to change agency policies or decisions.⁽³⁾ In some cases, citizens may even be able to challenge those decisions in court.⁽⁴⁾ When the agency makes its decisions through informal adjudications, interpretive rules and policy statements, most of these opportunities for public participation will come after the fact, as efforts to change agency policy, rather than in the initial development of the policy. The Internet holds far greater promise, though, when agencies affirmatively use it to solicit public participation and input in the initial development of agency policies through notice and comment rulemaking, or in the initial development of interpretive rules, guidelines, or policies.

The Clinton Administration has embraced this vision, and many federal agencies are actively using the Internet to disseminate government information and solicit public input on important policy matters. This article explores the manner in which the Internet and similar technological innovations can be, and are being, used to expand public access to government information and to increase public participation in all forms of agency decisionmaking. Part I of the article reviews the factors that initially encouraged agencies to make policy through notice and comment rulemaking, the factors that have encouraged agencies to move away from that process, and the disadvantges of the move toward "shadow law." Part II explores the efforts of Congress and the Federal government to encourage agencies to use technology to make government information and law more accessible. Part III explores the manner in which the Internet could be, and is being, used to disseminate government information. It also explores the Internet's benefits as a means of disseminating information and increasing public participation in government decisionmaking. Part IV focuses on some of the limitations or problems with using the Internet in this manner. Finally, Part V examines the manner in which the Internet could be used to develop rules through notice and comment rulemaking. It explores the benefits and drawbacks of the use of the technology, as well as the legal questions raised by its use.

In 1887, Congress created the "first great federal regulatory agency," the Interstate Commerce Commission.⁽⁵⁾ Since that time, Congress has increasingly enacted broadly worded statutes and has delegated expansive authority to administrative agencies to interpret and administer those laws.⁽⁶⁾ Many of those laws also grant agencies broad authority to gather information from the public and the regulated community to enable the agency to determine how to interpret and administer the law in a rational and defensible manner.⁽⁷⁾

Generally, agencies administer and interpret laws either through rulemaking or through adjudication.⁽⁸⁾ Rulemaking is the process that an agency uses to formulate "rules" that implement or interpret the law that the agency administers.⁽⁹⁾ In adjudication, agencies apply the law or agency rules to specific individuals or situations.⁽¹⁰⁾ To the extent that a statute authorizes agencies to interpret statutes either through rulemaking or adjudication, agencies generally have discretion to choose the vehicle that they feel is appropriate, and courts will defer to their choice of rulemaking or adjudication as long as the choice is reasonable.⁽¹¹⁾

Depending on the intent of Congress, agencies can use formal procedures or informal procedures for rulemaking or adjudication. The Administrative Procedures Act (APA) establishes trial-type procedures for formal agency rulemaking or adjudication proceedings.⁽¹²⁾ The Act creates a streamlined "notice and comment" procedure for informal rulemaking⁽¹³⁾, and does not include specific procedures for informal adjudication.⁽¹⁴⁾

Since formal procedures are expensive and time-consuming, agencies have historically preferred to use informal processes to interpret and administer laws when they have a choice between formal or informal processes.⁽¹⁵⁾ For decades, agencies have used informal "notice and comment" rulemaking procedures to interpret and administer federal laws. Courts have created a preference for informal rulemaking over formal rulemaking.⁽¹⁶⁾

Today, though, the informal rulemaking process is almost as time consuming and expensive as the formal rulemaking process. A recent study estimated that it generally takes more than three years for an agency to comply with the informal rulemaking procedures of the APA, excluding the time that it takes for the agency to develop the rule before it begins the APA procedures.⁽¹⁷⁾ Over the last few decades, Congress⁽¹⁸⁾, courts⁽¹⁹⁾, and the Executive Branch⁽²⁰⁾ imposed procedural requirements on agencies for informal rulemaking beyond the minimal requirements of the APA. Those requirements have contributed to the current "ossification" of the informal rulemaking process.⁽²¹⁾

The ossification of the informal rulemaking process has, in turn, motivated agencies to rely more heavily on informal adjudication⁽²²⁾, interpretive rules⁽²³⁾, and policy statements⁽²⁴⁾ to administer and interpret laws.⁽²⁵⁾ In many agencies, policy statements and interpretive rules account for more than 90% of the agencies' "rules."⁽²⁶⁾ The notice and comment rulemaking procedures of the APA do not apply to agency policy statements or interpretive rules⁽²⁷⁾, and the APA does not impose any procedural limits on informal adjudication.⁽²⁸⁾ The APA merely requires agencies to publish "statements of general policy or interpretations of general applicability" in the Federal Register⁽²⁹⁾, and to make adjudicative decisions and the remainder of the agencies' policy statements and interpretive rules "available for public inspection and copying."⁽³⁰⁾ Accordingly, these policymaking vehicles are much less costly and time consuming than notice and comment rulemaking or formal rulemaking or adjudication.⁽³¹⁾

However, the policies announced in interpretive rules, policy statements, and informal adjudication do not bind the courts or the public to the same degree as an agency's legislative rules.⁽³²⁾ When an agency interprets a statute through informal adjudication, the agency can rely on that decision, and use or cite it as precedent in future adjudications only if the agency has indexed the decision and made it available for public inspection or copying, or if the party against whom the agency intends to use the decision has actual and timely notice of the decision.⁽³³⁾ Interpretive rules and policy statements do not bind courts or the public at all, and courts have traditionally accorded them less deference than legislative rules.⁽³⁴⁾ Despite these limitations, agencies continue to use informal adjudication, interpretive rules and policy statements to administer and interpret federal law.

For several reasons, it is unlikely that agencies will abandon these tools in the near future. First, Congress recently enacted legislation that requires agencies to prepare additional studies before promulgating "major" rules⁽³⁵⁾ through notice and comment rulemaking.⁽³⁶⁾ The Small Business Regulatory Enforcement Fairness Act (SBREFA) requires agencies to submit a report to Congress and make cost benefit analyses, regulatory flexibility analyses, and a variety of other information about the impact of major rules on small businesses, available to Congress, before the agencies can promulgate the rules.⁽³⁷⁾ The law delays the effective date of major rules⁽³⁸⁾, allows Congress to disapprove of rules completely⁽³⁹⁾, and allows small businesses to bring lawsuits against agencies if the agencies fail to compy with provisions of the law and the Regulatory Flexibility Act.⁽⁴⁰⁾ Accordingly, the law will increase the cost and time necessary to promulgate rules through notice and comment rulemaking.⁽⁴¹⁾

Second, Congress and the President are making deep budget cuts in an attempt to reduce the federal deficit.⁽⁴²⁾ As a result, many agencies are receiving less funding.⁽⁴³⁾ As agencies receive less funding, they will continue to rely on inexpensive, informal means of decisionmaking, as opposed to notice and comment rulemaking.

Finally, studies have demonstrated that legislative rules that are promulgated by agencies through notice and comment rulemaking are invalidated by courts in 30 - 50% of the cases in which they are challenged.⁽⁴⁴⁾ In addition, challenges to agencies' legislative rules are very common. Former EPA Administrators estimate that over 75% of the major rules promulgated by EPA during their tenure were challenged in court.⁽⁴⁵⁾ Many agencies will be reluctant to spend the time and money necessary to promulgate a rule through notice and comment rulemaking when there is an 75% chance or greater that it will be challenged, and a 30-50% chance that it will be invalidated if it is challenged.

However, agencies and the public suffer when agencies rely too heavily on informal adjudication, interpretive rules, and policy statements as a means of administering and interpreting federal laws. The public suffers because most of the law that agencies make through these vehicles will be inaccessible to them, or will be very difficult to access. In some cases, these agency decisions and policies will be published in the Federal Register.⁽⁴⁶⁾ If they aren't published in the Federal Register, though, they may only be available to those members of the public who (1) know that the policies or decisions may exist; (2) take the time to contact the local office of the agency to find the policies or decisions, and request copies, and (3) pay any copying fees that are not waived by the agency.⁽⁴⁷⁾ It will be very difficult for the public to comply with such shadow law if they can't find it.⁽⁴⁸⁾

The public also suffers when agencies rely too heavily on these informal policymaking vehicles because these vehicles reduce the opportunity for the public to participate in the development of agency policy. When agencies make policy through informal adjudication, public participation is at its nadir. Since the agency has wide latitude in selecting the appropriate case in which to announce a new policy, the agency normally announces its policy in a case with very sympathetic facts for the agency.⁽⁴⁹⁾ Third parties cannot generally participate in the agency's decisionmaking process, and review of the agency's decision in court will be very limited.⁽⁵⁰⁾ Even when an agency makes policy through interpretive rules or policy statements, the agency does not widely disseminate the proposal and seek public input as it would through notice and comment rulemaking.⁽⁵¹⁾ Indeed, the APA does not require the agency to solicit any public input to develop a policy statement or interpretive rule. Public participation is essential to sound agency decisionmaking because (1) it provides oversight of agency action and prevents agencies from being captured by the regulated community or other special interest groups;⁽⁵²⁾ (2) it provides the agency with important information about the impacts of proposed decisions that will enable the agency to interpret and administer the law in a rational, defensible manner; and (3) it instills a sense of legitimacy in the public for the agency's decisions.⁽⁵³⁾

Finally, agencies suffer when they rely too heavily on these informal policymaking tools because these tools reduce the flow of information within the agency itself. It may be difficult for agency staff to find and apply informal agency policy statements, interpretive rules, and guidelines, just as it is difficult for the public to find those policies. To the extent that the agency fails to comply with those policies, though, it runs the risk of treating similarly situated persons differently, and having its actions struck down as arbitrary and capricious.

Traditionally, the Freedom of Information Act⁽⁵⁴⁾ has been the most powerful tool available to help citizens to obtain interpretive rules, statements of policy, guidance manuals, and informal adjudication decisions, as well as important information that the government has gathered about health, safety, and welfare. The Act requires agencies to publish many interpretive rules and policies in the Federal Register⁽⁵⁵⁾, and to make other information available to the public⁽⁵⁶⁾ at little or no cost.⁽⁵⁷⁾ Citizens have effectively used the Act to access vital public information over the years⁽⁵⁸⁾. However, the process for obtaining information under FOIA can be very time consuming⁽⁵⁹⁾.

Today, however, computers, the Internet, and other technological innovations, coupled with laws that require agencies to make information available electronically, could dramatically expand public access to government information, expand the universe of persons that are involved in developing governmental laws and policies, and broaden the power of citizens to influence those laws and policies. Computers, the Internet, and other technological innovations could serve as an effective counterbalance to the movement toward "shadow law" and closed decisionmaking.

The Clinton Administration is embracing this optimistic vision of the future. In a recent report, the Administration asked citizens to imagine the following scenario in the not too distant future:

"A dry cleaner worries about cleaning solvent spills. It hasn't happened yet, but it could. He knows there must be regulatory requirements on this subject. He sits down at a computer and goes to a free Internet site. With a key word search, he discovers that the key question is whether spills are a "reportable quantity." At the click of a button, he transfers to a site where, in real time, he [runs a computer program] to determine what he would have to report for the size of the container he uses. He presses another button and finds out where to report, as well as whom to call locally for help to clean up if a spill ever happens."⁽⁶⁰⁾

Congress and the Executive Branch have taken many steps in recent years to encourage agencies to make information available to the public through electronic means, and to use new technologies to facilitate broader public participation in the government decisionmaking process.⁽⁶¹⁾

In 1996, Congress enacted the Electronic Freedom of Information Act Amendments to encourage agencies to use new technologies to disseminate government information, and to ensure that citizens could access government information that was collected through new technologies.⁽⁶²⁾ The Act amends the definition of "record" under FOIA to clarify that electronic data are "records."⁽⁶³⁾ If a citizen requests agency records in electronic format, and the records are readily reproducible in that format, the agency must provide them in that format.⁽⁶⁴⁾ The Act also requires agencies to create an index of frequently requested files, and to make that index accessible to the public by computer by December 31, 1999.⁽⁶⁵⁾ If an agency creates records after November 1, 1996 that must be made available for inspection and copying under FOIA, the agency must make those records accessible to the public by computer or other electronic means.⁽⁶⁶⁾ Finally, the Act amended the reporting requirements of FOIA to require agencies to make annual reports regarding their compliance with FOIA accessible to the public by computer.⁽⁶⁷⁾

In 1996, Congress passed additional legislation to encourage agencies to use new technologies more effectively. The Information Technology Reform Act⁽⁶⁸⁾ creates a Chief Information Officer in each executive agency to promote "the effective and efficient design and operation" of computer and information resource management systems for the agency.⁽⁶⁹⁾ It also expands the duties of the Director of the Office of Management and Budget to include coordination of the acquisition, use, and disposal of information technology by the Federal government.⁽⁷⁰⁾

Prior Congresses have also recognized the value of technology as a tool for disseminating public information and expanding public participation in government decisionmaking. For instance, in 1986, Congress enacted the Emergency Planning and Community Right to Know Act (EPCRA), which requires certain manufacturers to provide EPA and the States with information about the amount of various toxic chemicals that they use, store, manufacture, and release into the environment each year.⁽⁷¹⁾ In an unusual, but prescient, move, Congress required that EPA establish an electronic database that contains the information submitted by the manufacturers, and that the agency make that information available to the public electronically.⁽⁷²⁾ EPCRA was the first federal law to require the government to create a publicly accessible database,⁽⁷³⁾ and is a model for public access to government information in the next century.⁽⁷⁴⁾ Congress included the requirement in the statute to facilitate public access to information, and to empower citizens to play an active role in forcing manufacturers to reduce the amount of toxic chemicals that they use, store, manufacture, or release into the environment.⁽⁷⁵⁾

The movement toward greater public access to government information through computers is consistent with the Paperwork Reduction Act of 1995, which requires agencies to "ensure that the public has timely and equitable access to the agency's public information, including ensuring such access through -- (A) encouraging a diversity of public and private sources for information based on government public information; ... (C) agency dissemination of public information in an efficient, effective, and economical manner."⁽⁷⁶⁾

The Executive Branch has taken bold steps to make government information and policies available to the public by computer and over the Internet. For instance, the Social Security Administration has posted many of its consumer information handbooks and publications⁽⁷⁷⁾, and an index of its staff manuals and guidelines, on the Internet.⁽⁷⁸⁾ Forms for requesting a social security card, a social security hearing, and a benefits summary are available on the Internet as well.⁽⁷⁹⁾ Citizens can easily reach agency personnel at the agency's headquarters and regional offices over the Internet.⁽⁸⁰⁾

The Federal Trade Commission has posted orders that the agency issued in adjudications, as well as many of the accompanying documents, on the Internet.⁽⁸¹⁾ The agency has also posted reports⁽⁸²⁾, schedules⁽⁸³⁾, rules of practice⁽⁸⁴⁾, and publications on the Internet⁽⁸⁵⁾, and has used the Internet to solicit public input during the development of agency guidelines.⁽⁸⁶⁾

These innovations are spurred by the emphasis that the Executive Branch has placed on making access to public information available through new technologies. In 1996, President Clinton issued an Executive Order on Federal Information Technology⁽⁸⁷⁾ that established the Government Information Technology Services Board to ensure that agencies utilize new technologies to improve access to public information and improve public participation in government decisionmaking, and to ensure that agencies coordinate their efforts with States and the private sector.⁽⁸⁸⁾ The Executive Order also created the system of agency Chief Information Officers that Congress codified in the Information Technology Reform Act.⁽⁸⁹⁾ Earlier in the same year, the President issued an Executive Order that makes it easier for agencies to provide computers and technology to schools, and to train students to use those technologies effectively.⁽⁹⁰⁾

The most powerful technological vehicle for disseminating government information and increasing public participation in government decisionmaking that is available today is the Internet. In order to appreciate the power of the Internet for this purpose, the reader must know something about what the Internet is, and how it works. The following paragraphs provide a rudimentary discussion of the Internet, and the tools that can be used on the Internet.

The Internet is an international computer network that connects over 40,000 individual computer networks.⁽⁹¹⁾ When computers are connected to each other through a network, computers can share information with other computers and individuals can communicate with other persons who are connected to the network.⁽⁹²⁾ The Internet, therefore, allows persons to access information on 40,000 computer networks around the world, and to communicate with anyone who is a member of those networks.⁽⁹³⁾ Although the Internet was originally designed as a government and educational research network, it is now used by government agencies, universities, non-profit organizations, international agencies, small businesses, large companies, and individuals.⁽⁹⁴⁾

Electronic mail (e-mail) is the standard form of communication on the Internet.⁽⁹⁵⁾ Citizens can use e-mail to send messages to agencies, legislators, or anyone else on the Internet in a matter of seconds. Through the use of "discussion lists"⁽⁹⁶⁾ or "news groups"⁽⁹⁷⁾, the Internet also enables persons to send e-mail messages to hundreds of other persons on the Internet that share the same interests.⁽⁹⁸⁾ Citizens could use this tool very effectively to organize support or opposition to government action.

The public can use the Internet for more than merely sending and receiving e-mail messages. A process known as FTP (file transfer protocol) allows persons to download (transfer) files from computers that are connected to the Internet to their own computer, or to upload files from their computer to other computers on the Internet.⁽⁹⁹⁾ Thus, if a government agency has stored policy documents or adjudicative decisions on a computer that is connected to the Internet, the agency can allow citizens to download these files to their own computer over the Internet.

Another process known as Telnet allows persons to log on to other computer networks that are connected to the Internet from their own computer.⁽¹⁰⁰⁾ Thus, if a government agency maintains a database of information about public health and safety on a computer that is connected to the Internet, it can allow the public to search that database on the government's computer over the Internet.

While these tools are powerful, most citizens would lack the expertise or desire to use them if they had to know what they were, and how they worked. Luckily, though, there is another tool that makes all of these tools very easy to use. The World Wide Web (Web) is a group of programs that run on the Internet that make it easier for persons to access and use the information that is stored on the Internet.⁽¹⁰¹⁾ Information is stored on the Web as "hypertext documents."⁽¹⁰²⁾ Web documents contain text and graphics, and many documents even include videos and sound clips.⁽¹⁰³⁾ The text or graphics in a Web document can be "hypertext linked" to other documents. In other words, the Social Security Administration might have a Web document on its computers that lists all of the forms that are available from the Social Security office. A person that accesses that Web page through the Internet might be able to point to the name of a document on the list, click on it with her mouse, and automatically go to another Web page that contains the appropriate form. Similarly, if a Web document lists a contact person, the person accessing the Web page might be able to click on the contact person's name, and send that person an e-mail.

Thus, the World Wide Web makes it easy for persons to download and print files from other computer networks, run programs on other computer systems, and send e-mails without having to learn about the underlying software that makes everything possible.

If government agencies make the information available through the Internet, the Internet and the World Wide Web can allow citizens to (1) quickly and easily locate an agency's interpretive rules, policy statements, guidelines, adjudicatory information, and other public information; (2) access and search databases of government data regarding health, safety, and compliance with laws; (3) participate in the development of rules and policies; and (4) file electronic Freedom of Information Act requests for information that is not available on the Internet.⁽¹⁰⁴⁾ Many agencies are making this information available over the Internet already⁽¹⁰⁵⁾, and are finding that the public is embracing the technology.⁽¹⁰⁶⁾

Many forces are converging to make the Internet a particularly appropriate tool for these purposes today. First, more people are able to afford computers, and the government is able to make more information accessible over the Internet, because the costs of basic computer hardware and software continue to drop.⁽¹⁰⁷⁾ In addition, Internet access is becoming easier and less expensive as technological innovations create more ways to access the Internet.⁽¹⁰⁸⁾ For instance, it is no longer even necessary to own a computer to access the Internet. Individuals can access the Internet through their televisions⁽¹⁰⁹⁾ and through "smart" telephones.⁽¹¹⁰⁾ At the same time, the companies that provide access to the Internet are charging lower fees for access⁽¹¹¹⁾, and some are even providing free access to the Internet.⁽¹¹²⁾ Many public libraries also offer free Internet access. Consequently, the number of persons that have access to the Internet doubled between 1995 and 1996.⁽¹¹³⁾ A recent survey estimated that over 47 million people have access to the Internet. In light of these factors, the Internet seems uniquely qualified to disseminate government information and increase public participation in government decisionmaking. The promise of the Internet can only be fulfilled, though, if government agencies continue to expand the universe of information that is available on the Internet, and begin to use the Internet creatively and proactively to solicit public input in the decisionmaking process, instead of merely reacting to comments that they receive from citizens over the Internet.⁽¹¹⁴⁾

The public and government agencies will benefit in several ways if agencies follow that path. Agencies will be able to provide information to the public at a lower cost and in a more efficient manner through the Internet than they have been able to provide through traditional structures, such as document rooms in regional offices, responses to telephone inquiries, and FOIA responses.⁽¹¹⁵⁾ As soon as public libraries have universal access to the Internet, the government could even cease to publish the Federal Register and many other documents in paper form. In addition, information collection and manipulation will be simplified for agencies as more persons submit data to the agency in electronic format over the Internet.⁽¹¹⁶⁾ An agency can collect information from companies about their compliance with federal law electronically, analyze that data, and make that data available to the public at a lower cost and in a shorter amount of time than if the agency collected that information on paper.

It is also arguable that agencies will be more likely to make consistent, defensible decisions if agency policies, interpretive rules, adjudicative decisions, and other information is made accessible on the Internet. A recent White House report suggests that, in some cases, agency decisionmakers may not be aware that the agency has policies, rules, guidelines, or past decisions that address the issue before the decisionmaker.⁽¹¹⁷⁾ If an agency decisionmaker is not aware of an agency's policies, or past decisions, the decisionmaker may inadvertently make decisions that conflict with those policies or decisions. When agencies ignore their own policies or prior decisions, courts can invalidate the agency's actions as arbitrary and capricious. If the agency's policies, rules and prior decisions are easily accessible over the Internet, though, it is more likely that agency decisionmakers will be aware of those decisions and policies, and will act consistent with them.⁽¹¹⁸⁾

Citizens will benefit from the increased access to information in many ways. First, individuals and businesses will find that it is easier, quicker and cheaper to comply with federal laws because it is easier to find out what the law requires of them. Information about agency policies, rules, and adjudicative decisions will be accessible at the click of a mouse button, as will forms for providing information to the agency or requesting services.⁽¹¹⁹⁾ A recent Executive Branch report on technology suggested that agencies should not merely provide raw information and data over the Internet, but should provide citizens with tools such as on-line worksheets and tutorials that help them to interpret the law and information as it applies to them.⁽¹²⁰⁾ When a person accesses the agency's Web page to search for information about a particular law, they might be asked certain questions about their business or their activities. Based on their responses to those questions, they might be directed to another Web page that provides them with advice on how to comply with the law, and provides them with any forms that they need to comply with the law. Needless to say, they could then submit those forms to the agency electronically over the Internet. In most cases, this will be a much more convenient way to access agency information than the traditional approach.⁽¹²¹⁾

However, agencies may be reluctant to provide on-line compliance tools to help citizens interpret the law as it applies to them, because the tools may provide an inaccurate or incomplete analysis of the law if they are not designed correctly.⁽¹²²⁾ Agencies are not generally bound by the inaccurate advice that they give to the public⁽¹²³⁾

, but support for an agency and confidence in the agency could be greatly eroded if the agency routinely provides erroneous interpretations of the law that it administers.⁽¹²⁴⁾ While agencies may be reluctant to provide compliance tools over the Internet, those tools may be the most valuable information that agencies could provide, since many of the agency's policy statements, interpretive rules, adjudicative decisions and guidelines may be difficult to interpret as applied to a unique fact situation that is not explicitly addressed in the policies or decisions.

Citizens can also play a more central role in the development of new agency policies and rules through the Internet. For instance, the Nuclear Regulatory Commission recently invited the public to participate in a dialogue through a discussion list on the Internet to help the agency develop a proposed rule that would amend the fire protection standards at nuclear power plants.⁽¹²⁵⁾ Similarly, when the Federal Trade Commission recently began reviewing the proposed merger of the Office Depot and Staples superstores, the agency solicited public input on the merger over the Internet, and received thousands of comments.⁽¹²⁶⁾ Even when agencies do not proactively solicit comments on proposed rules and policies, the Internet can be a powerful tool for citizens to find out about proposed policy changes and organize support or opposition to such changes. Many private watchdog organizations maintain Web sites and use them to educate the public about agency decisions and actions.⁽¹²⁷⁾ One organization, Democracy.net, even sponsors live, interactive broadcasts of Congressional hearings and town hall meetings with policymakers, like Federal Communication Commission Chairman Reed Hunt, over the Internet.⁽¹²⁸⁾

While private citizens and interest groups may use the Internet to mobilize support or opposition to agency decisions or changes in agency policies, the Internet is a much more powerful tool for increasing genuine public participation in agency decisionmaking when agencies proactively use it to educate the public and solicit informed public input. Professor Cass Sunstein has astutely noted that "currently, regulation is far too inaccessible to public control. Instead, it is enshrouded in technocratic complexities not subject to public debate, affected by sensationalist anecdotes, or even worse, subject to the influence of well-organized private groups with personal stakes in the outcome.⁽¹²⁹⁾ ...People rarely have enough information to participate at all, or in a sufficiently informed way, in the processes of government.⁽¹³⁰⁾" One of the real powers of the Internet as a democratizing force is that it has the capacity to educate large segments of the population at little cost.⁽¹³¹⁾ Agencies could make information about the reasoning behind proposed policy or rule changes available on the Internet in a manner that the general public could understand, and could hold question and answer sessions or forums over the Internet to clarify ambiguities in that information, and to discover whether the agency is relying on assumptions about society that are inaccurate. Agencies could then solicit input from an informed public on the proposals. An informed public can educate the agency as much as the agency educates the public. This process would take more time than the current process that agencies use, and it is unlikely that agencies will embrace this process immediately. However, as citizens begin to use the Internet as a tool to organize opposition to agency policies and rules after the fact, agencies may decide that it is less costly and time consuming to involve citizens in the initial decisionmaking process.

If citizens play an active role in developing agency rules and policies, they will learn more about the basis for an agency's decisions, and they may be more likely to support it, or at least understand it, as long as it is reasonable.⁽¹³²⁾ In addition, the public will be more likely to view the agency's decisions as legitimate if they feel that they had an opportunity to raise their concerns to the agency, and that the agency considered those concerns in formulating its policy.⁽¹³³⁾ In the long run, everyone wins if the agency educates the public and actively solicits public input when it formulates policies and rules.

Public participation in the development of agency rules and policies through the Internet will also ensure that agencies remain accountable to the public, and are not "captured" by the regulated community.⁽¹³⁴⁾

Although the Internet holds great promise as a tool to make government information more accessible to the public and to increase public participation in agency decisionmaking, it has some important limitations, as well.

The fundamental weakness of relying on the Internet as a democratizing tool is that there is not universal access to the Internet.⁽¹³⁵⁾ If agencies rely too heavily on the Internet as a tool for gathering and disseminating information, citizens who do not have access to the Internet may not have an effective voice in government decisionmaking, or access to important government information. Internet supporters will quickly point out that the Internet will deliver information to a wider audience and will involve more people in government decisionmaking than the Federal Register and current tools. However, that is precisely why it is troubling. If agencies rely too heavily on the Internet and ignore other tools to involve communities in decisionmaking, agencies empower one segment of society (the electronic "haves") to play a more central role in government decisionmaking than other segments (the "have nots"). For that reason, the Internet should supplement, rather than replace, current efforts to increase public participation in agency decisionmaking.

The disparity between the electronic "haves" and "have nots" is more troubling because surveys indicate that access to the Internet is unequal based on race, gender, wealth, and education levels.⁽¹³⁶⁾ The median income of Web users has been estimated at $59,500, which is 65% higher than the national median household income.⁽¹³⁷⁾ Recent surveys have also indicated that almost 90% of Web users are white, and only 5% are African-American.⁽¹³⁸⁾ In 1994, women only constituted 35% of the Web audience⁽¹³⁹⁾, although that gender gap has closed somewhat in recent years.⁽¹⁴⁰⁾ The income and educational disparities are especially troubling because government efforts to empower citizens by providing them with information, rather than economic incentives, tend to favor those citizens that are better educated and financially stable.⁽¹⁴¹⁾ Government reliance on the Internet as a democratizing tool could disempower large segments of society and lead to social instability.⁽¹⁴²⁾

Accordingly, the Executive Branch is exploring and recommending several initiatives to ensure that the public has equal and effective access to the Internet as the government relies on it more heavily to make decisions and disseminate information.⁽¹⁴³⁾ It is unlikely that the public will obtain universal access to the Internet without such affirmative government initiatives.⁽¹⁴⁴⁾ In addition, Federal law requires agencies to ensure that the public has equitable access to agency information.⁽¹⁴⁵⁾

Several of the Federal initiatives to increase public access to the Internet focus on making access available to persons that do not own computers.⁽¹⁴⁶⁾ Through the Telecommunications Act of 1996, the Federal government is enabling public libraries to obtain substantially discounted rates for Internet access.⁽¹⁴⁷⁾ Theoretically, by accessing the Internet from public libraries, persons who do not own computers will still have access to the same information and will have the same opportunities for public input through the Internet as persons who own computers and have access to the Internet at home.⁽¹⁴⁸⁾ The government also envisions that local offices of Federal agencies will provide computer terminals in agency "reading rooms" that will provide customers with Internet access to government information and opportunities for public input through the Internet.⁽¹⁴⁹⁾ In addition, a recent Executive Branch report suggested that agencies could convert some Postal Service vehicles into 21^st century bookmobiles to provide Internet access to communities that do not have access.⁽¹⁵⁰⁾ Similarly, the report suggested that the Department of Housing and Urban Development could establish computer learning centers and other outreach programs in public housing projects to provide Internet access to those communities.⁽¹⁵¹⁾ The report also suggested, less ambitiously, that the government could provide more limited access to information and public participation through the use of computer kiosks in federal offices or libraries.⁽¹⁵²⁾

Increased points of access to the Internet will be meaningless, however, unless persons who do not currently have access to the Internet can receive training on the mechanics of Internet use, and the values of the Internet. For this reason, the Federal government is committing millions of dollars toward funding Internet access and Internet education for schools.⁽¹⁵³⁾ Private corporations are also contributing time and money to this effort.⁽¹⁵⁴⁾

Through these efforts, the problem of unequal access to the Internet may be significantly reduced. Indeed, some of the disparities in Internet access and use are already disappearing.⁽¹⁵⁵⁾ Several recent studies have suggested that 45% of Internet users are women, as opposed to 35% just a few years ago.⁽¹⁵⁶⁾ In addition, experts estimate that more than half of the households in the United States will own a computer by the new millennium.⁽¹⁵⁷⁾ Nevertheless, the government must continue to diligently pursue initiatives to make the Internet universally accessible as agencies rely more heavily on the Internet as a decisionmaking tool.

There are other concerns, though, that are raised by the government's increased use of the Internet as a tool to provide access to public information and solicit public participation. As agencies make information available over the Internet, it is more likely that agencies may inadvertently violate individual privacy rights.⁽¹⁵⁸⁾ For instance, earlier this year, the Social Security Administration allowed individuals to type in their social security number, mother's maiden name, and date of birth at a Web site on the Internet, to access information about their annual income, Social Security retirement benefits and death benefits.⁽¹⁵⁹⁾ Shortly thereafter, Congressional leaders forced the agency to curtail access to that information over the Internet because the agency did not provide sufficient safeguards for individual privacy.⁽¹⁶⁰⁾ Similarly, to the extent that agencies receive copyrighted information from individuals or companies, it may be difficult for them to make that information available over the Internet without violating Federal copyright laws.⁽¹⁶¹⁾

Even if agencies design their computer systems to make public information available over the Internet in a way that protects privacy, that information could be corrupted through breaches in the security systems of government computers. In recent months, computer hackers have infiltrated computer systems at the CIA, the Justice Department and the Air Force through the Internet.⁽¹⁶²⁾ Security and privacy concerns will become even more significant as agencies begin to share data with other Federal, State and local agencies to achieve more efficient governance.⁽¹⁶³⁾

In the short term, technological factors may also limit the Internet's effectiveness as a tool for disseminating government information and increasing public participation in agency decisionmaking. First, as anyone who has accessed the Internet from home over traditional telephone lines can attest, the Internet can be very slow.⁽¹⁶⁴⁾ Although the Internet is superior to agency electronic bulletin boards and any other technological means of delivering information, citizens may still become frustrated as they spend hours searching for information about government policies and decisions on the Internet. In addition, since the Internet hopefully will never be the sole point of access for government information, members of the public may become further disenchanted with Internet access to government information if they learn that their neighbors were able to obtain the same information in a matter of minutes by calling the agency or reviewing the agency's files at the local office. Technological advances that are expected in the next few years should greatly increase the speed at which the public can access the Internet,⁽¹⁶⁵⁾ without additional increases in cost.⁽¹⁶⁶⁾ In addition, even using current technology, government agencies can design their Web pages on the Internet to deliver information quickly.⁽¹⁶⁷⁾

The format of the Internet may create an additional obstacle to its widespread use to access government information. Although there are organizations that establish voluntary standards that govern the manner in which information is stored and displayed over the Internet, there is no centralized organizational structure for the Internet. As a result, it is often difficult to find information that is on the Internet. Although there are several programs (search engines) on the Internet that allow users to search the Internet for specific information, these tools do not solve all of the organizational problems.⁽¹⁶⁸⁾ The public may experience information overload as they sift through dozens of Web pages in search of a particular agency policy or adjudicative decision.⁽¹⁶⁹⁾ However, the lack of organization on the Internet is not an insurmountable problem for government. In order to effectively utilize the Internet to deliver and receive information, agencies must spend the time and money necessary to design a readable and rationally organized Web page that will serve as the gateway to all of the information that the agency stores on the Internet.⁽¹⁷⁰⁾ Many agencies include programs on their Web pages that allow users to instantly search all of the agency's Web pages for particular keywords. ⁽¹⁷¹⁾ Many agencies already have computerized "card catalogs" of public information and means of accessing public information,⁽¹⁷²⁾ and the Electronic Freedom of Information Act Amendments of 1996 require agencies to take further steps to organize information in a manner that will be accessible to the public.⁽¹⁷³⁾

Even these organizational advances will be useless, however, to a person who does not know which agency may have the information that they are seeking. In order to alleviate that problem, the White House has developed a centralized Web page that helps citizens determine which agency they need to contact for particular information.⁽¹⁷⁴⁾

However, even if the Internet operates faster, and government information is organized in a more readable, accessible manner, the Internet will not provide citizens with access to all of the information in agency records. First, much of the historical information in agency records only exists in paper form.⁽¹⁷⁵⁾ Agencies would have to spend inordinate amounts of time and money to convert that information into an electronic format.⁽¹⁷⁶⁾ Even today, agencies receive public comments, compliance reports, permit applications and reams of other information solely in paper form.⁽¹⁷⁷⁾ Unless agencies force the public to send all communications to the agency in electronic format, increasing the public's cost to participate in government and shutting some segments of society out of the process entirely, agencies will continue to receive a substantial amount of information that cannot be made available over the Internet unless it is converted into electronic form.⁽¹⁷⁸⁾ Furthermore, to some degree, the cost of computer storage devices may limit the amount of information that agencies make available over the Internet.⁽¹⁷⁹⁾ This does not mean, however, that the Internet is an inappropriate tool for disseminating government information. It merely illustrates that agencies must use the Internet as a means to supplement, rather than replace, the traditional tools for disseminating public information and encouraging public participation.

Some commentators argue, though, that increased public participation may actually hamper agency decisionmaking. Professor Jim Rossi argues that mass public participation can interfere with an agency's ability to set its own agenda and can force the agency to divert its efforts to focus on the interests of small, but vocal, interest groups.⁽¹⁸⁰⁾ While Professor Rossi may be correct in that assessment, the Internet may alter that dynamic. First, since the Internet should enable a wider cross-section of society to participate meaningfully in agency's decisionmaking process, it should become harder for individual interest groups to control agencies and to force them to abandon their agendas. As agencies receive broader public input, it is likely that they will receive information from the public that they can use to rationally justify actions that are consistent with their agenda and with Congressional directives. In addition, mass public participation may be valuable to hold agencies accountable and prevent agencies from being captured by any interest groups, even though such participation may interfere with an agency's ability to set its own agenda.

Professor Rossi also notes that mass public participation can delay agency action and overwhelm agency decisionmakers.⁽¹⁸¹⁾ Professor Rossi is undoubtedly correct that agencies will have to spend more time reviewing public comments, considering their validity, and determining appropriate responses to those comments, if citizens play a more active role in framing government policies. In addition, agencies may be overwhelmed by a flood of citizen input. However, if government agencies take the time to educate citizens in the manner suggested by Professors Pildes and Sunstein,⁽¹⁸²⁾ agencies should receive public comments that are helpful and informative, and agencies should be able to make decisions that are more rational, defensible, and acceptable to society as public participation in agency decisionmaking increases. Arguably, these benefits would outweigh any delay in agency decisionmaking or the potential that the information that the agency received would overwhelm the agency.

Cokie Roberts, National Public Radio and ABC News journalist, argues that mass public participation in government decisionmaking through the Internet can erode the fundamental concepts of representative government.⁽¹⁸³⁾ In a recent syndicated newspaper article, Ms. Roberts and her husband argued that electronic participation in government decisionmaking could lead to "no more deliberation, no more consideration of an issue over a long period of time, no more balancing of regional and ethnic interests, no more protection of minority views."⁽¹⁸⁴⁾ However, those dire forecasts envision a world where the public makes all of the decisions about governance through electronic town meetings, and the government abdicates its right and responsibility to govern.⁽¹⁸⁵⁾ There is an intermediate ground available which this article has hopefully suggested. Agencies can solicit a broad range of views and acquire substantial amounts of information to assist their decisionmaking through the Internet, without abdicating their right or responsibility to make the ultimate legal or policy decisions.

This dynamic interchange of information between agencies and the public would be extremely beneficial in the context of notice and comment rulemaking. Agencies can use the Internet to greatly improve the quality and defensibility of rules that they promulgate through notice and comment rulemaking. The following section of this article explores the manner in which agencies can use the Internet to supplement existing notice and comment rulemaking procedures, and the benefits and limitations of such changes.

The Administrative Procedure Act (APA) establishes relatively few procedural requirements for informal notice and comment rulemaking.⁽¹⁸⁶⁾ Before a Federal agency can issue a binding legislative rule, the APA requires the agency to publish a general notice of proposed rulemaking in the Federal Register.⁽¹⁸⁷⁾ The notice must include (1) a statement of the time, place, and nature of any public rulemaking proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule, or a description of the subjects and issues involved.⁽¹⁸⁸⁾ The APA does not require the agency to hold public meetings or hearings regarding the rulemaking⁽¹⁸⁹⁾, but it does require the agency to give the public an opportunity to comment, in writing, on the proposed rule.⁽¹⁹⁰⁾ After the agency receives and considers the public comments, it must publish the final rule in the Federal Register, with a concise general statement of the basis and purpose of the rule.⁽¹⁹¹⁾ The agency must describe major issues that were raised in the comments, and explain the agency's response to those issues, in the "concise general statement" that accompanies the final rule.⁽¹⁹²⁾

Although the APA only imposes those minimal procedural requirements on agencies, some agencies use additional procedures in notice and comment rulemaking to solicit public input. First, before an agency issues a general notice of proposed rulemaking in the Federal Register, it may publish an "advanced" notice of proposed rulemaking (ANPR).⁽¹⁹³⁾ In an ANPR, the agency notifies the public that it is developing a proposed rule and is soliciting public participation in the development of the proposed rule. The agency may solicit public input through written comments, public meetings, or other methods, and the agency uses the information that it receives from the public to craft a proposed rule. The agency then issues a general notice of proposed rulemaking in the Federal Register, and solicits public comment on the proposal through the traditional APA procedures.

Instead of issuing an ANPR, an agency can use more formal procedures to solicit public participation in the development of a proposed rule through negotiated rulemaking. Agencies first used the negotiated rulemaking process in 1982⁽¹⁹⁴⁾, and Congress enacted the Negotiated Rulemaking Act of 1990⁽¹⁹⁵⁾ to codify uniform procedures for negotiated rulemaking. Although agencies have used the process sparingly over the past decade and a half⁽¹⁹⁶⁾, the White House is encouraging agencies to use negotiated rulemaking in more cases.⁽¹⁹⁷⁾ When an agency uses negotiated rulemaking, it invites representatives of all of the parties that will be impacted by a new regulation to negotiate with the agency,⁽¹⁹⁸⁾ through the assistance of an impartial "facilitator"⁽¹⁹⁹⁾, to develop a proposed rule. The negotiating committee is a federal "advisory committee", and must comply with the procedures in the Federal Advisory Committee Act⁽²⁰⁰⁾, in addition to the Negotiated Rulemaking Act. The agency publishes the proposed rule in the Federal Register⁽²⁰¹⁾, and solicits public comment on the proposal through the traditional APA procedures.

Negotiated rulemaking provides many benefits to agencies and the public. First, since interested parties work closely to develop rules through negotiated rulemaking, it is less likely that negotiated rules will be challenged in court.⁽²⁰²⁾ As a result, the rules will be implemented more quickly, compliance rates for the rules will be high, and agencies will spend less time and money enforcing the rules.⁽²⁰³⁾ Studies have also suggested that negotiated rules are promulgated more quickly than traditional notice and comment rules.⁽²⁰⁴⁾ Finally, negotiated rulemaking can encourage agencies and their constituents to develop cooperative relationships and to work together to develop creative and innovative approaches to rulemaking.⁽²⁰⁵⁾

Agencies are now exploring the Internet as an additional way to expand public participation in the development of legislative rules through notice and comment rulemaking. The Internet could be used to revolutionize each step of the process that agencies must follow under the APA by supplementing, rather than replacing, those processes.⁽²⁰⁶⁾ First, in addition to publishing a notice of proposed rulemaking in the Federal Register, agencies could publish proposed rules and supporting documents, background information and studies, and other relevant documents and information about the proposed rule on the Internet.⁽²⁰⁷⁾ Second, in addition to accepting comments in writing through traditional channels, the agency could allow the public to submit comments on a proposed rule electronically over the Internet, and the agency could publish comments that it received on the proposal on the Internet during the comment period.⁽²⁰⁸⁾ Finally, in addition to publishing a final rule and the concise general statement of basis and purpose for the rule in the Federal Register, the agency could publish the final rule and the entire rulemaking record on the Internet. Agencies could also expand on the APA procedures by using the Internet to hold on-line forums or discussions with interested parties and the public before the agency issues a proposed rule, in order to gather information to develop the proposed rule. Such "chat group" rulemaking is a natural evolution from ANPR's and negotiated rules.

The Nuclear Regulatory Commission recently experimented with "chat group" rulemaking in its "RuleNet" initiative. The NRC is considering whether to change certain "fire protection" rules for nuclear power plants⁽²⁰⁹⁾ from "prescriptive" rules to "performance-based" rules, and the agency used the Internet to create an electronic forum to discuss proposed changes.⁽²¹⁰⁾ The agency posted the existing rule, previous versions of the rule, relevant policy statements, scientific studies, and other relevant information about fire protection at nuclear power plants on the Internet.⁽²¹¹⁾ The agency also posted a glossary of terms for the rule on the Internet.⁽²¹²⁾

The agency then identified several topics that needed to be addressed in order to formulate a proposed rule.⁽²¹³⁾ The agency used electronic mail and discussion group software to create electronic forums (or town meetings) on the Internet to discuss each of the major topics.⁽²¹⁴⁾ Anyone who had access to the Internet could participate in any of the forums.⁽²¹⁵⁾ Each topic forum was moderated by a "facilitator," who led the discussions, summarized the comments and periodically asked participants to vote in favor of, or against, various positions.⁽²¹⁶⁾ The discussions were held over a period of several weeks, so participants did not have to be on-line at the same time.⁽²¹⁷⁾ Instead, participants could log in to participate whenever it was most convenient for them. In addition, participants could caucus electronically with other participants on the agency's computer network, or on their own.⁽²¹⁸⁾ Although the agency did not censor anyone, it established ground rules for participation in the forums, and reserved the right to prohibit individuals from participating in electronic discussions in the forums if they violated those ground rules.⁽²¹⁹⁾

The forums were divided into three phases.⁽²²⁰⁾ During the first 5 days (Phase I), participants in the forums identified major issues relating to the specific topic that the forum addressed.⁽²²¹⁾ During the next 12 days (Phase II), participants identified alternative ways to address each of the issues identified in Phase I.⁽²²²⁾ During the final 9 days (Phase III), participants analyzed the alternatives and provided final comments on the alternatives.⁽²²³⁾

Unlike negotiated rulemaking, the agency did not seek, through RuleNet, to develop a consensus proposed rulemaking. Instead, it intended to solicit a broad range of public input, which it could use to develop the proposed rulemaking. After the agency completed the RuleNet forums, the agency planned to formulate a proposed rule, publish the rule in the Federal Register and on the Internet, accept comments in writing and electronically, and publish a final rule in the Federal Register and on the Internet.⁽²²⁴⁾

The Internet can provide many benefits to agencies and the public when agencies use it to carry out the traditional notice and comment procedures of the APA, or when agencies use it, as NRC used it, to solicit public participation through "chat group" rulemaking in order to develop a proposed rule.

When agencies use the Internet to provide notices of proposed rulemakings and to solicit comments on proposed rules, they broaden the level of public participation in development of the rule.⁽²²⁵⁾ In the past, agencies might hold public meetings or hearings in a half-dozen cities or less, if the agency held meetings or hearings at all. Citizens who could not attend one of those meetings could only participate in the development of the proposed rule through the submission of written comments. Through the Internet, agencies can hold "virtual" meetings and hearings to explain proposed rules, answer questions about the rules, and solicit comments on the rules. In addition, to the extent that agencies hold live public meetings and hearings on proposed rules, agencies can make videos, audio recordings, or transcripts of those events available to the public over the Internet. Citizens who were unable to attend public meetings or hearings in the past because the events were not scheduled in their town, or because the events were scheduled at inopportune times, will have more opportunities to learn about, question, and comment on proposed rules through such electronic innovations.

Agencies can also use the Internet to make more information about proposed rules available to the public than is possible under traditional processes. When an agency develops a proposed rule, it often relies on scientific studies, data, and a wealth of other information. Although much of that information is available to the public at the agency's headquarters, the information is not published in the Federal Register with the proposed rule. In addition, the agency may charge members of the public fees for copying that information. Thus, very few people have access to that information. However, through the Internet, an agency can make that information widely accessible to the public for free when the agency issues a proposed rule.⁽²²⁶⁾ Agencies can use the Internet to educate citizens about the issues addressed in the proposed rulemaking, and the public are likely to provide the agency with more informed and influential comments in return.

Similarly, during the comment period for a proposed rule, agencies can use the Internet to answer questions that are raised by commenters on the proposal⁽²²⁷⁾, and to make public comments received by the agency available for review.⁽²²⁸⁾ Since the public will be able to read and evaluate other comments during the comment period, and to obtain clarifications to questions about the proposed rule from the agency during the comment period, commenters should be able to formulate more focused and meaningful comments on proposed rules.⁽²²⁹⁾ Agencies will, therefore, receive more complete information to assist their decisionmaking.⁽²³⁰⁾ In addition, to the extent that citizens and the agency engage in electronic discussions during the comment period on a proposed rule, there will be greater opportunities for interested parties to learn about the views held by other parties, and to develop consensus proposals that satisfy common interests.⁽²³¹⁾

When agencies post notices of proposed rulemaking, hold hearings and meetings, and solicit public comments on the Internet, it is also easier to involve more experts within the agency, or other Federal agencies, in the decisionmaking process.⁽²³²⁾ This increased information-sharing should promote intra-agency and inter-agency coordination and consistency, and should facilitate more rational and defensible agency decisionmaking.⁽²³³⁾

Finally, to the extent that agencies conduct notice and comment rulemaking electronically, it is easier for the agency to maintain an administrative record of the decisionmaking process. This should, in turn, facilitate judicial review of the agency's action.⁽²³⁴⁾

The use of electronic discussion lists and "chat groups" to assist agencies in the development pf proposed rules provides additional benefits for agencies and the public. First, these tools may provide many of the same benefits as negotiated rulemaking (i.e. fewer legal challenges, higher compliance rates, etc.) because they involve interested parties in the development of a proposed rule.⁽²³⁵⁾

Those tools also enable a broader range and larger number of persons to participate in the development of proposed rules, and can empower citizens.⁽²³⁶⁾ Through e-mail, no speaker can dominate agency discussions and every speaker has an opportunity to speak and to be heard⁽²³⁷⁾, regardless of their qualifications or expertise.⁽²³⁸⁾

When electronic discussion lists and "chat groups" are used as they were used by the NRC, the tools can also provide citizens with an opportunity to participate in agency decisionmaking before the agency is committed to a particular approach or outcome.⁽²³⁹⁾ Their participation is, therefore, more meaningful.⁽²⁴⁰⁾

Electronic discussion lists and "chat groups" also encourage interested parties to communicate with each other and with agencies during the formulation of agency rules and policies to establish common ground.⁽²⁴¹⁾

While agencies can use the Internet in notice and comment rulemaking to provide those valuable benefits, reliance on the technology can also create some problems. Since the tools provide the public with more opportunities to participate in agency decisionmaking, they also provide opponents of the agency with more opportunities to engage in strategic behavior to delay the agency's decision. Similarly, the tools could create an information overload for the agency and, thus, delay agency decisions.⁽²⁴²⁾ The tools could, therefore, further ossify the notice and comment rulemaking process.

In addition, since there is not universal access to the Internet, agencies that rely too heavily on the Internet as a means of soliciting public input on legislative rules could unintentionally provide certain segments of the public with greater access to, and a greater voice in, development of the rules.⁽²⁴³⁾ Agencies could inadvertently marginalize the input of groups that are underrepresented on the Internet, such as women, minorities, and the poor.⁽²⁴⁴⁾

Furthermore, it may be very time consuming and expensive for agencies to administer electronic discussion groups to solicit public input to prepare proposed rules, make background information about proposed rules available over the Internet in an organized manner⁽²⁴⁵⁾, and respond to questions and make public comments about proposed rules available over the Internet during the comment period on a rule. Agencies may be deterred from using these tools due to their high initial costs, even though the agencies would likely save time and money in the long term by using the tools. ⁽²⁴⁶⁾

Finally, electronic mail is a very impersonal and imprecise form of communication.⁽²⁴⁷⁾ If agencies rely too heavily on e-mail discussion lists or "chat groups" to develop legislative rules, agencies could inadvertently confuse or alienate the public or interested parties. As a result, the public might be more likely to challenge agency actions, and the regulated community might be less likely to comply with agency rules and policies.

The use of these tools by agencies in notice and comment rulemaking also raises some legal questions. In a 1995 report to the Administrative Conference of the United States, Professor Henry Perritt suggested that an agency's use of electronic discussion lists or "chat groups" to assist in the development of proposed rules could be subject to the Negotiated Rulemaking Act and the Federal Advisory Committee Act (FACA).⁽²⁴⁸⁾ FACA prohibits "advisory committees" from meeting or taking any action until an advisory committee charter has been filed with the agency to whom the committee reports.⁽²⁴⁹⁾ The law also requires that advisory committee meetings must be open to the public and that interested persons must be allowed to attend or file statement with advisory committees.⁽²⁵⁰⁾ If electronic discussion lists or chat groups are "advisory committees," strict application of the reporting, recordkeeping and notice requirements of FACA could hamper effective use of those tools.⁽²⁵¹⁾ In most cases, though, when agencies use electronic discussion lists or "chat groups" to solicit information and public input that they will use to formulate a proposed rule, the procedures should not be governed by FACA or the Negotiated Rulemaking Act.

FACA defines an "advisory committee" as "any committee, board, commission, council, conference, panel, task force, or other similar group ... which is - (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.."⁽²⁵²⁾ When an agency allows any member of the public to participate in an electronic discussion list or chat group to assist the agency in developing a proposed rule, the members of the list or chat group would not seem to be a "panel" or "task force," as those terms are ordinarily defined.⁽²⁵³⁾ Such terms normally refer to small groups with limited membership. Under traditional statutory interpretation rules, members of electronic discussion lists or chat groups also would not constitute an "other similar group."⁽²⁵⁴⁾ The United States Court of Appeals for the D.C. Circuit recently interpreted FACA in this manner, and held that an advisory committee generally has "an organized structure, a fixed membership, and a specific purpose." ⁽²⁵⁵⁾

Even if the plain meaning of the language of FACA were ambiguous, though, it would not further the major purpose of the law to subject electronic discussion lists and chat groups to its coverage.⁽²⁵⁶⁾ One of the major goals of FACA is to hold advisory committees accountable to Congress and the public by opening up their processes to public scrutiny.⁽²⁵⁷⁾ Since all of the discussions on electronic discussion lists and "chat groups" will be open to public scrutiny over the Internet, and since any member of the public could participate in the agency's discussions through the Internet, requiring the agency to comply with FACA when it uses those tools would not provide the public with any greater insight into the agency's decisionmaking process or provide Congress with any greater control over the process.⁽²⁵⁸⁾ The law would merely interfere with the agencies effective use of the tools.

Similarly, unless agencies limit the participation in electronic discussion lists or "chat groups," and rely on those lists or groups to develop a consensus position that the agency will adopt as a proposed rule, lists or "chat groups" should not be subject to the requirements of the Negotiated Rulemaking Act.

The Negotiated Rulemaking Act defines "negotiated rulemaking" as "rulemaking through the use of a negotiated rulemaking committee."⁽²⁵⁹⁾ Although the Act gives agencies discretion to establish a negotiated rulemaking committee to negotiate and develop a proposed rule⁽²⁶⁰⁾, the Act does not require agencies to establish such committees at any time. If an agency uses an electronic discussion list to solicit information from the public generally, and uses that information to develop a proposed rule, the agency has not developed the rule through a negotiated rulemaking committee, and the Negotiated Rulemaking Act should not apply.⁽²⁶¹⁾ Congress clearly indicated that the Act should not be "construed as an attempt to limit innovation and experimentation with ... innovative rulemaking processes otherwise authorized by law."⁽²⁶²⁾ It would be inconsistent with Congress' intent, therefore, to subject electronic discussion lists and "chat group" rulemaking to the requirements of the Negotiated Rulemaking Act.

If FACA and the Negotiated Rulemaking Act do not apply to agency "chat group" rulemaking, and if agencies use the Internet to supplement, rather than replace, traditional notice and comment procedures, the benefits of the new technology seem to outweigh the costs.

The public will clearly benefit if agencies make interpretive rules, policy statements, and informal adjudication decisions available over the Internet, and if agencies use the Internet to solicit public input to develop policy through those tools or through notice and comment rulemaking. First, the public will be able to find, understand and comply with the law as agencies make the full range of their policies and decisions available over the Internet. In addition, the public will play a more meaningful role in the development of agency policy as agencies solicit wider public input in decisionmaking over the Internet.

However, if agencies are currently relying on interpretive rules, policy statements, and informal adjudication to make policy, in lieu of notice and comment rulemaking, why would they embrace the Internet in the manner described in this article? If agencies can make policy more quickly and cheaply through interpretive rules, policy statements, and informal adjudication than through notice and comment rulemaking, why would they spend additional time and money to distribute their policies, interpretive rules and adjudicative decisions over the Internet, and to solicit public input in developing policies and interpretive rules through the Internet? Why would they even consider making rules through notice and comment rulemaking, augmented by electronic procedures? Although these are valid questions, there are several reasons why agencies might use the Internet to open their decisionmaking to the public.

First, Congress may force agencies to make more information about their policies and decisions available to the public over the Internet. The Electronic Freedom of Information Act Amendments of 1996 took a step in that direction, and Congress could enact future legislation that requires agencies to make all policies, guidelines, rules, and decisions available over the Internet. Legislative measures are especially likely if agencies continue to rely on "shadow law" to formulate policies, and disgruntled citizens raise their concerns to their Congressional representatives.

Similarly, the White House could force Executive Branch agencies to make more information about their policies and decisions available over the Internet, and to solicit public input in the development of policies and rules through the Internet. While the current Administration is not forcing agencies to take those steps, it is strongly encouraging them to do so, and it is leading by example.

Even if Congress or the White House do not force agencies to open their decisionmaking processes to electronic surveillance, though, agencies are likely to provide more information about policies, rules, and decisions to the public over the Internet for several reasons. Agencies will likely discover that they have to spend less time and money answering questions on the phone or at agency offices, or responding to FOIA requests, if citizens can quickly and easily find the information that they are seeking on the Internet,⁽²⁶³⁾ especially if the agency provides on-line tutorials, worksheets, or similar compliance tools on the Internet.⁽²⁶⁴⁾ Compliance rates may increase as the regulated community gains a clearer understanding of the law, and agencies may have to bring fewer enforcement actions. Even if compliance rates don't increase, it should be easier for agencies to apply interpretive rules, policies, and prior informal adjudication decisions in enforcement actions, since the agency widely disseminated and articulated their policies to the public.⁽²⁶⁵⁾ It is also likely that agencies will make more consistent and defensible decisions because policies and decisions will be more easily accessible to agency decisionmakers.⁽²⁶⁶⁾

Further, agencies may make their interpretive rules and policy statements available over the Internet, and solicit public input in the development of those policies, in order to retain control of their agendas. If agencies do not make their rules and policies available over the Internet, public interest organizations can easily access that information through FOIA requests and make it available over the Internet. Citizens can then use the Internet to organize opposition to agency rules and policies, and to force agencies to change those policies. Agencies may discover that it is quicker and less expensive to provide citizens with an opportunity to be heard in the initial development of policies.

Agencies may even refocus their attention on notice and comment rulemaking if they believe that the electronic enhancements described in this article can counteract some of the disadvantages of the current process. After all, legislative rules that are promulgated through notice and comment rulemaking have the force of law, and are binding on courts and the public.⁽²⁶⁷⁾ It is easier for an agency to enforce legislative rules than to enforce policies that the agency develops through other informal means.⁽²⁶⁸⁾

While electronic enhancements to notice and comment rulemaking may not shorten the rulemaking process significantly, they can significantly improve the notice and comment rulemaking process in an important respect. If agencies use the Internet to explain proposed and final rules to the public, and to provide the public with more opportunities to participate in the development of the rule, it is likely that legislative rules will be challenged less frequently and that courts will uphold the rules more frequently.

Although those are rosy predictions, they are not completely unfounded. First, citizens may challenge legislative rules less frequently because the agency provided more information to them during the rulemaking process. Consequently, the citizens know more about the rules and the basis for the agency's decision, and can understand the decision, even if they don't fully support it.⁽²⁶⁹⁾ Second, citizens may be less likely to challenge legislative rules if they perceive that the agency made the rules pursuant to a rational, deliberative process⁽²⁷⁰⁾, and that the agency considered their views and responded to them, even if they didn't change the rule to conform to those views. Citizens may feel a sense of ownership for the rule, as they would if the agency made the rule through negotiated rulemaking.⁽²⁷¹⁾ Finally, the process should enable interested parties to communicate with, and understand each other more fully, and to work together more efficiently to develop consensus positions for rules. If the process works, parties would have less reason to challenge the agency's final rule.⁽²⁷²⁾

Even if electronic enhancements to notice and comment rulemaking do not reduce challenges to agency rules, they should enable agencies to prevail more frequently in those challenges. First, the electronic enhancements should provide agencies with more information, and more focused and insightful public comments. It should be easier, then, for an agency to consider all of the relevant factors that it must consider when it makes its decision, and the decision should be more defensible.⁽²⁷³⁾ Similarly, as the agency receives broader public input on proposed rules, it should be easier for the agency to find sufficient evidence in the public comments and the record to support its final decision. The electronic enhancements will also facilitate interagency and intragency participation in the development of rules.⁽²⁷⁴⁾ This should reduce the possibility that agencies will promulgate irrational rules that ignore inconsistent interpretations of the law by other sections of the agency, or by other agencies.

If electronic enhancements to the notice and comment rulemaking process would reduce the frequency or success of challenges to legislative rules, agencies would have a strong incentive to return to notice and comment rulemaking, despite its other limitations. Only time will tell whether the Internet can provide the benefits that it seems to promise. Nevertheless, time will tell, and soon.

1. SeeThomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEXAS L. REV. 525, 528 (1997) [hereinafter McGarity, Response]; Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 82 (1995).

2. See McGarity, Response, supra note 1; Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEXAS L. REV. 483 (1997); Pierce, supra note 2; Thomas O. McGarity, Some Thoughts on Deossifying the Rulemaking Process, 41 DUKE L.J. 1385 (1992) [hereinafter McGarity, Some Thoughts].

3. The Internet also makes it easier for citizens to directly contact the agency or legislators through electronic mail technology, see infra note 95, and to organize opposition to an agency's actions through discussion lists or "chat groups." See infra notes 96-98.

4. However, it is often difficult to challenge policy statements or interpretive rules because those actions are tentative, rather than "final agency action." KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE, § 15.11 (3d ed. 1994). In addition, since policy statements and interpretive rules are not binding and do not have the force of law, many courts will reject challenges to them on ripeness grounds. Id. §§ 15.12, 15.14, 15.15.

5. STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY, 17 (3d ed. 1992).

6. Id. at 17-31.

7. For instance, the Toxic Substances Control Act gives the Environmental Protection Agency (EPA) the power to order chemical manufacturers to submit scientific data regarding the effect of certain chemicals on human health and the environment to the agency before they can manufacture those chemicals. 15 U.S.C. § 2604 (1994). The Emergency Planning and Community Right to Know Act requires the owner or operator of certain types of manufacturing facilities that manufacture, process or use specified amounts of "toxic" chemicals included on a list prepared by EPA to file annual reports with EPA and States. 42 U.S.C. § 11023 (1994). The reports indicate the volume of the chemical that the companies manufactured, processed, or used, and the volume that was released into the air or water, disposed on-site, or transferred off-site for disposal. Id. The Resource Conservation and Recovery Act gives EPA the power to require persons who create, treat, store, dispose, or transport hazardous waste to provide the agency with information about those activities. 42 U.S.C. § 6922 - 6925 (1994). All of the federal environmental laws that require persons to obtain permits for polluting activities require those persons to file reports with the government that indicate whether they are complying with the permits. See, e.g., 33 U.S.C. § 1342(a)(2) (1994); 42 U.S.C. § 6924(a)(2) (1994). Under each of these laws, federal agencies obtain valuable information about the extent and nature of the problems that the laws regulate. The agency then uses that information to determine how to administer and interpret the laws.

8. BERNARD SCHWARTZ, ADMINISTRATIVE LAW, §4.2 (3d ed. 1991). Although agencies only have those powers that are granted by statute, most federal statutes grant agencies the power to promulgate rules and to make decisions through adjudication. Id. § 1.5.

9. The Administrative Procedures Act (APA) defines a rule as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency ..." 5 U.S.C. § 551(4) (1994).

10. The APA defines adjudication as "agency process for the formulation of an order." 5 U.S.C. § 551(7) (1994). The Act defines "order" as "the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking, but including licensing." Id. § 551(6).

11. See National Labor Relations Board v. Bell Aerospace Co., 416 U.S. 267 (1974); Securities Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947).

12. 5 U.S.C. §§ 556-557 (1994). The formal hearing provisions of the APA require an impartial agency official or administrative law judge as an initial decisionmaker. Id. § 556(b). The APA requires that the initial decisionmaker must base his or her decision on the evidence presented at the hearing, and any other evidence that constitutes the official "record" for the decision. Id. § 556(e). Parties must have an opportunity to submit proposed findings and conclusions, exceptions to decisions or recommended decisions of the agency, and supporting reasons for the exceptions or proposed findings or conclusions, id. § 557(c), and an opportunity, in most cases, to appeal the initial agency decision to a higher level in the agency. Id. The procedures for the initial hearing can include depositions, subpoenas, the administration of oaths, and the presentation of evidence. Id. § 556(c). The Act also bans ex parte communications in formal proceedings between the agency decisionmakers and other persons if the communications are relevant to the merits of the proceedings. Id. § 557(d).

13. See infra notes 186-192 and accompanying text. Briefly, the APA requires agencies to publish a notice of proposed rulemaking in the Federal Register, provide an opportunity for comment on the proposed rulemaking, and publish the final rule in the Federal Register with a concise general statement of the basis and purpose of the rule. 5 U.S.C. § 553 (1994).

14. This does not mean, however, that agencies do not have to follow any procedures when they make decisions through informal adjudication. Principles of due process may require the agency to follow certain procedures in informal adjudications. In addition, the statute that authorizes the agency to make a particular decision through informal adjudication may require the agency to follow certain procedures when it makes the decision. See BREYER & STEWART, supra note 5, at 538.

15. Indeed, "informal rulemaking was originally designed to avoid the procedural quagmires that had ensnarled formal rulemaking and adjudication." McGarity, Some Thoughts, supra note 2, at 1398.

16. The APA provides that agencies must use formal rulemaking procedures when the statute that authorizes the agency to make rules requires the agency to make rules "on the record after opportunity for an agency hearing." 5 U.S.C. § 553(c) (1994). The Supreme Court has indicated that the "on the record" language is not magic language, and that other language can trigger the formal hearing requirements of the APA. United States v. Florida East Coast Railway Company, 410 U.S. 224, 238 (1973). However, the Florida East Coast Railway Court rejected an argument that the statutory requirement that the Interstate Commerce Commission make rules "after hearing" triggered the formal hearing procedures of the APA. Id. Subsequent courts have interpreted the court's decision as creating a presumption in favor of informal rulemaking unless the statute that authorizes the agency to make rules specifically requires the rules to be made "on the record after opportunity for an agency hearing." SCHWARTZ, supra note 8, § 4.12.

17. Cornelius M. Kerwin & Scott Furlong, Time and Rulemaking: An Empirical Test of Theory, 2 J. PUB. ADMIN. RES. & THEORY 124 (1992). Since 1972, the average amount of time that it takes for OSHA to promulgate an occupational health standard has grown from 6 months to 5 years. McGarity, Some Thoughts, supra note 2, at 1387.

18. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (1994), for instance, requires agencies to prepare a regulatory flexibility analysis (RFA) for certain rules. See McGarity, Some Thoughts, supra note 2, at 1404. The RFA describes the impact of proposed and final rules on small businesses, and explores alternatives and their impacts. 5 U.S.C. §§ 603-604 (1994).

19. Courts have interpreted the APA requirement that agencies provide a "concise general statement of basis and purpose" of a final rule to mean that agencies must address and rationally respond to the public comments that they receive on a proposed rule. See, e.g., Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561, 1566 (11^TH Cir. 1985); United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252-53 (2d Cir. 1977). As a result, agencies are spending much more time and money developing and articulating defensible responses to public comments in final rules than they spent in the past. For instance, while the "concise general statement" for the original ambient air quality standards under the Clean Air Act was only a page long when the standards were adopted in 1971, the preamble to the revision of one of those standards in 1987 was 36 pages long, and was supported by hundreds of pages of related studies and documentation. See McGarity, Some Thoughts, supra note 2, at 1387.

20. Executive orders that are currently in effect require agencies to conduct cost benefit analyses for many of the rules that are promulgated pursuant to informal rulemaking procedures, see Exec. Order No. 12,866, 58 Fed. Reg. 51735 (1993), and to conduct a "takings" analysis for many rules, to determine whether the rules could effect a "taking" or private property. See Exec. Order No. 12,630, 3 Fed. Reg. 8859 (1988).

21. See, e.g. McGarity, Some Thoughts, supra note 2; Pierce, supra note 1.

22. McGarity, Some Thoughts, supra note 2, at 1393.

23. Interpretive rules are substantive nonlegislative agency rules that interpret existing statutes or legislative rules. Robert A. Anthony & David A. Codevilla, Pro-Ossification: A Harder Look at Agency Policy Statements, 31 WAKE FOREST L. REV. 667, 670 (1996) [hereinafter Anthony, Pro-Ossification]. Interpretive rules might also clarify or explain a judicial or agency adjudicative decision. McGarity, Some Thoughts, supra note 2, at 1441. "Nonlegislative rules are agency rules that are not issued pursuant to statutory authority to make rules with the force of law, or that are not promulgated in accordance with the procedures ... that are required for making legislative rules. Nonlegislative rules do not have the force of law and are not binding on the courts or the public." Id. A legislative rule is "the product of an exercise of delegated legislative power to make law through rules." 2 KENNETH C. DAVIS, ADMINISTRATIVE LAW TREATISE § 7:8 (2d ed. 1979).

24. Policy statements are "substantive nonlegislative agency rules that do not interpret existing legislation." Anthony, Pro-Ossification, supra note 23, at 670. A policy statement "indicates how an agency hopes or intends to exercise discretionary power in the course of performing some other administrative function." McGarity, Some Thoughts, supra note 2, at 1441.

25. McGarity, supra note 2, at 1386.

26. Pierce, supra note 1, at 82.

27. The APA exempts "interpretative rules, general statements of policy, or rules of agency organization, procedure or practice" from notice and comment rulemaking requirements. 5 U.S.C. § 553(b)(3)(A)(1994). Although the Act does not require agencies to use the notice and comment procedures to develop those documents, many agencies will provide notice and solicit some public input on various interpretive rules or policy statements. See, Richard Pierce, Remarks at the A.A.L.S. Annual Meeting, Administrative Law Section Program, The Informal Agency Process (Jan. 6, 1997) [hereinafter Pierce Remarks].

28. See supra note 14.

29. 5 U.S.C. § 552(a)(1)(D) (1994). If the agency fails to publish such policy statements or interpretive rules in the Federal Register, no person may be adversely affected by, or required to comply with the policies or rules unless they have actual and timely notice of the terms of the policies or rules. Id.

30. The APA requires agencies to make available for public inspection and copying "(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public." 5 U.S.C. § 552(a)(2) (1994). "A ... statement of policy, interpretation, or staff manual or instruction ... that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if (i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof." Id.

31. McGarity, Some Thoughts, supra note 2, at 1441; Pierce, supra note 1. These approaches also give the agency the flexibility to change their policies without using costly and time consuming procedures. McGarity, supra, at 1441.

32. The difference between legislative and nonlegislative rules is described above. See supra note 23. Legislative rules possess the force of law, and judicial review of those rules is deferential. See Anthony, Pro-Ossification, supra note 23, at 675-676.

33. 5 U.S.C. § 552(a)(2) (1994). Despite this limitation, even though an agency does not provide notice to the public that it has interpreted a statute in a particular way in the context of an informal adjudication, the agency may interpret the statute in the same way in a subsequent adjudication against a party that has no knowledge of the prior decision, as long as the agency independently justifies the interpretation of the statute in the subsequent adjudication, and does not merely rely on the unpublished precedent.

34. Pierce, supra note 1, at 83. However, Professor Richard Pierce suggests that two recent Supreme Court decisions may change the amount of deference that courts accord interpretive rules and policy statements. Id. Professor Pierce asserts that Stinson v. United States, 113 S.Ct. 1913 (1993) and Williams v. United States, 112 S.Ct. 1112 (1992) imply that "(1) courts accord greater deference to policy statements and interpretative rules than to legislative rules; and (2) in important contexts, interpretative rules and policy statements bind judges and the public to the same extent as do legislative rules." Pierce, supra, at 83. Professor Robert Anthony suggests that such a reading of the Court's decisions "would constitute a profoundly unsound and dangerously antilibertarian practice." Anthony, Pro-Ossification, supra note 23, at 669.

35. A "major rule" is any rule that the Office of Management and Budget's OIRA Administrator finds "has resulted in or is likely to result in (A) an annual effect on the economy of $100 million or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets." 5 U.S.C. § 804(2) (1994).

36. The Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, Title II, 110 Stat. 847 (1996).

37. Agencies must submit a report for every rule (including a copy of every rule, a statement of its basis and purpose, and its effective date) to the House, Senate, and the Comptroller General, before the rule can take effect. 5 U.S.C.A. § 801(a)(1)(A) (West Supp. 1997). The agency must also submit a copy of any cost benefit analysis for the rule, a copy of any proposed or final regulatory flexibility analyses required by the Regulatory Flexibility Act, 5 U.S.C. §§ 602-3 (1994), a copy of any information relevant to compliance with the Unfunded Mandates Law, and a copy of any information relevant to compliance with any other laws or executive orders to the Comptroller General, and must make the information available to Congress. 5 U.S.C.A. § 801(a)(1)(B) (West Supp. 1997). The Comptroller General then must submit a report to Congress regarding the agency's compliance with the procedures described in the preceding sentences for every major rule. 5 U.S.C.A. § 801(a)(2)(A) (West Supp. 1997).

38. Major rules cannot take effect until 60 days after Congress receives the report on the rule required by the law, or the rule is published in the Federal Register, whichever is later. 5 U.S.C.A. § 801(a)(3) (West Supp. 1997).

39. The House and Senate can pass a joint resolution approving or disapproving of major rules, and the President may sign or veto the resolution. 5 U.S.C.A. § 802 (West Supp. 1997). If the House and Senate pass a joint resolution disapproving of an agency's major rule, and the President acquiesces to the resolution, or at least doesn't veto the resolution, the rule cannot take effect, or if it has already taken effect, will be treated as though it never took effect. Id. § 801(b)(1). If the House and Senate pass a joint resolution disapproving of an agency's major rule, and the President vetoes the resolution, the rule cannot take effect until the earlier of (1) the date on which either house votes and fails to override the President's veto, or (2) 30 session days after Congress received the veto and objections from the President. Id. § 801(a)(3).

40. 5 U.S.C.A. § 611 (West Supp. 1997). The Act uses the term "small entities" to refer to small businesses. Id. § 601.

41. It is possible, though, that the law may also delay the formulation of interpretive rules and statements of policy, and increase their costs. The review provisions of SBREFA apply to "rules" as defined in the APA. 5 U.S.C.A. § 804 (West Supp. 1997). The APA definition of "rule" can be read broadly to include interpretive rules and some statements of policy, as well as legislative rules. 5 U.S.C. § 551(4) (1994). While those "rules" are explicitly exempted from the notice and comment procedures of the APA, SBREFA does not explicitly provide that agencies do not have to submit reports to Congress regarding interpretive rules or statements of policy. Since SBREFA includes some explicit exemptions for procedural rules that don't affect the rights of non-agency parties, agency management or personnel rules, and grant rules or other rules of particular applicability, see 5 U.S.C.A. § 804(3) (West Supp. 1997), it is arguable that the law covers certain interpretive rules and statements of policy. If it does, the law could "ossify" these informal processes as well.

42. The White House and Congress recently reached an agreement to eliminate the Federal budget deficit by the year 2002. See Richard W. Stevenson, The Budget Battle: The Overview; After Years of Wrangling, Accord Is Reached on Plan to Balance Budget by 2002, N.Y. TIMES, May 2, 1997, at A1.

43. The recent budget agreement anticipates a $58 billion reduction in domestic nonmilitary spending between 1997 and 2002. See Stevenson, supra note 42.

44. Pierce, supra note 1, at 84; Pierce Remarks, supra note 27.

45. Former Administrator Lee Thomas has estimated that 75% of the rules promulgated by EPA were challenged. Lee Thomas, The Successful Use of Regulatory Negotiations by EPA, 13 ADMIN. LAW NEWS 1 (1987). William Ruckleshaus has estimated that almost 80% of the agency's major rules were challenged while he was the Administrator. William Ruckelshaus, Environmental Negotiation: A New Way of Winning, Address to Conservation Foundation's Second National Conference on Environmental Dispute Resolution, Oct. 1, 1984.

46. See supra note 29.

47. The Freedom of Information Act processes for accessing government information are described in detail in Part II of this article.

48. Interpretive rules or statements of policy do not have the force of law, and decisions made by agencies in informal adjudication may not be generally binding on citizens unless the agency provides notice of those decisions. See supra notes 29-30. However, since courts will invalidate an agency's actions when the agency fails to interpret or administer laws in a consistent manner, or otherwise act unreasonably, 5 U.S.C. § 706(2)(A) (1994), agencies are likely to interpret laws and administer them in a manner consistent with their interpretive rules, statements of policy, and decisions made through informal adjudication. Thus, while the policies that the agency announces through those vehicles may not be binding on the public per se, they provide the public with a strong indication of the manner in which the agency is likely to apply the law in future cases. Citizens cannot plan their actions to conform to an agency's interpretation of the law if they lack that information.

49. David C. Vladek, Remarks at the A.A.L.S. Annual Meeting, Administrative Law Section Program, The Informal Agency Process (Jan. 6, 1997) [hereinafter Vladek Remarks].

50. Id. By its nature, adjudication is a poor vehicle for the formulation of broad general policies affecting a wide variety of interests. McGarity, Some Thoughts, supra note 2, at 1440.

51. Pierce Remarks, supra note 27. See also, McGarity, Some Thoughts, supra note 2, at 1393.

52. Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 NW U. L. REV. (forthcoming 1997). See also, McGarity, Some Thoughts, supra note 2, at 1440-42. Professor McGarity notes that although citizens can challenge the factual and legal bases for interpretive rules, policy statements and guidance documents when they are challenging the application of those policies by the agency to deny them or permit, or to bring an enforcement action against them, most citizens would prefer to avoid the time and costs involved in challenging the policies in that context, and comply with the policies instead. Id. at 1441. Thus, for all intents and purposes, many interpretive rules, policy statements and guidance documents have the same effect on citizens as legislative rules or statutory laws, although citizens lack the opportunity to formulate the laws that they have when agencies promulgate legislative rules or Congress passes a law.

53. "Persons and entitites subject to agency regulations are more likely to view agency decisions as legitimate if the procedures leading to their formulation provide for fair consideration of their views." Rossi, supra note 52.

54. 5 U.S.C. § 552 (1994).

55. Id. § 552(a)(1).

56. Id. § 552(a)(2).

57. The Act allows agencies to charge citizens a fee to cover the cost of searching for, and copying records that citizens request. 5 U.S.C. § 552(a)(4)(A) (1994). However, the Act authorizes the agency to waive those fees if disclosure of the information is in the public interest. Id. § 552(a)(4)(A)(iii).

58. As Congress noted when it amended FOIA in 1996, the Act "has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government ... [and] has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards." See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, § 2(a)(3) - (4), 110 Stat. 3048 (1996).

59. Agencies receive about 600,000 FOIA request each year. Cindy Krushenisky, In the Statehouse, PC NOVICE, Dec. 1996, at 4. The FOIA requests that the FBI answered in 1995 were pending for an average of 923 days before the FBI answered them. Id. President Clinton has acknowledged that agencies have been generally unable to respond to FOIA requests in the time allotted by law. See President's Statement on Signing the Electronic Freedom of Information Act Amendments of 1996, 32 WEEKLY COMP. PRES. DOC. 1949 (Oct. 2, 1996). The Electronic FOIA Amendments of 1996 give agencies 20 days to respond to FOIA requests, instead of the 10 days that the law previously required. Id.

60. GOVERNMENT INFORMATION TECHNOLOGY SERVICES BOARD, ACCESS AMERICA, § A05 , at 1 (visited June 3, 1997) <http://www.GITS.FED.GOV/htm/environ.htm>. [Hereinafter ACCESS AMERICA].

61. The movement has also been embraced by the American Bar Association (ABA) and the now defunct Administrative Conference of the United States (ACUS). The ABA has stated that "[a]gencies should adopt affirmative programs of electronic public information dissemination in order best to carry out their responsibilities to inform persons affected by their activities and generally to promote access to public information." See ABA Recommendation 109C, cited in Henry H. Perritt, Jr. Electronic Dockets: Use of Information Technology in Rulemaking and Adjudication: Report to the Administrative Conference of the United States, §8, at 12 (Oct. 19, 1995) (visited June 3, 1997) <http://www.law.vill.edu/vcilp/items/electronic_dockets/legaliss.htm> [hereinafter Perritt, Electronic Dockets]. Similarly, ACUS recommended that "agencies should acquire information in electronic form when they use, or will use, the information in that form and when most information submitters already maintain information electronically, or have ready access to intermediaries who will prepare and submit it in electronic form." 1 C.F.R. § 305.88-10 (1995) (removed when the Administrative Conference of the United States was terminated by Public Law 104-52, see, 61 Fed. Reg. 3539 (1996)). ACUS also recommended that "agencies should experiment with electronic means of providing public participation in rulemaking, adjudication and other administrative proceedings, while maintaining a means of effective participation for persons who lack the means to access the electronic information system." Id.

62. The amendments were enacted to "(1) foster democracy by ensuring public access to agency records and information; (2) improve public access to agency records and information; ... and (4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal government." See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, § 2(b), 110 Stat. 3048 (1996). In the findings for the amendments, Congress stated that "[g]overnment agencies should use new technology to enhance public access to agency records and information." Id.§ 2(a)(6).

63. The amendments provide that "'record' and any other term used in [FOIA] in reference to information includes any information that would be an agency record subject to the requirements of [FOIA] when maintained by an agency in any format, including electronic format." 5 U.S.C.A. § 552(f)(2) (West Supp. 1997).

64. 5 U.S.C.A. § 552(a)(3)(B) (West Supp. 1997). The amendments also require agencies to make "reasonable efforts to maintain its records in [electronic] forms..." Id.

65. 5 U.S.C.A. § 552(a)(2)(E) (West Supp. 1997). Prior to the amendments, FOIA required agencies to maintain, and make available to the public, an index of the records and information maintained by the agency that must be published in the Federal Register or made available to the public for inspection and copying under FOIA. 5 U.S.C. § 552(a)(2) (1994). The amendments do not require agencies to make that index of documents, which includes statements of policy and decisions in adjudications, accessible by computer. The amendments only require that the index of frequently requested documents, a new requirement imposed on agencies by the amendments, be made accessible by computer.

66. The amendments provide that "[f]or records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means." 5 U.S.C.A. § 552(a)(2) (West Supp. 1997).

67. Agencies must submit an annual report to the Attorney General that describes the number of requests for records under FOIA received by the agency, the number of requests that the agency processed, the median number of days it took the agency to process those requests, the total amount of fees collected for processing FOIA requests, the number of determinations the agency made to withhold records, the number of appeals to those withholdings, and the basis for those withholdings. 5 U.S.C.A. § 552(e)(1) (West Supp. 1997). The report must be made available to the public "including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means." Id. § 552(e)(2). In another progressive move, instead of requiring the Attorney General to submit an annual report to Congress regarding those agency reports, the amendments provide that "The Attorney General ... shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General ... shall notify [various members of Congress] ... that such reports are available by electronic means." Id. § 552(e)(3).

68. Pub. L. No. 104-106, Div. E, 110 Stat. 186 (1996).

69. Id. § 5125(b)(3).

70. Id. § 5112(c).

71. 42 U.S.C. § 11023 (1994).

72. Id. § 11023(j).

73. Gary D. Bass & Alair MacLean, Enhancing the Public's Right-to-Know About Environmental Issues, 4 VILL. ENVT'L L.J. 287,288 (1993).

74. Id.

75. Id. at 287. As Bass and McLean suggest, "In a democratic society, information is power. Computer technology can help ensure equal access to important ... information." Id.

76. 44 U.S.C.A. § 3506(d)(1)(West Supp. 1996).

77. SOCIAL SECURITY ADMINISTRATION, About Social Security Benefits (visited June 3, 1997) <http://www.ssa.gov/about.htm>

78. SOCIAL SECURITY ADMINISTRATION, Freedom of Information (visited June 3, 1997) <http://www.ssa.gov/foia/foia.htm>

79. SOCIAL SECURITY ADMINISTRATION, Forms (visited June 3, 1997) <http://www.ssa.gov/online/forms.html>

80. SOCIAL SECURITY ADMINISTRATION, How to Reach Social Security (visited June 3, 1997) <http://www.ssa.gov/reach.html>

81. FEDERAL TRADE COMMISSION, Commission Actions (visited June 3, 1997) < http://www.ftc.gov/os/actions97.htm>

82. FEDERAL TRADE COMMISSION, FTC Staff Reports and Related Items (visited June 3, 1997) <http://www.ftc.gov/reports/index.htm>

83. FEDERAL TRADE COMMISSION, Conferences, Hearings, and Workshops (visited June 3, 1997) <http://www.ftc.gov/opp/conf.htm>

84. FEDERAL TRADE COMMISSION, FTC Rules of Practice (visited June 3, 1997) <http://www.ftc.gov/os/rules/index.htm>

85. FEDERAL TRADE COMMISSION, FTC Consumer Line (visited June 3, 1997) <http://www.ftc.gov/bcp/conline>

86. The agency solicited public comment on environmental marketing guidelines and "Made in the USA" guidelines over the Internet, and made those comments available for review on the Internet during the agency's formulation of the guidelines. See, e.g., FEDERAL TRADE COMMISSION, Made in the USA Workshop (visited June 3, 1997) <http://www.ftc.gov/opp/usa.htm>

87. Exec. Order No. 13,011, 61 Fed. Reg. 37657 (1996).

88. Id. § 4.

89. Id. § 1.

90. Exec. Order No. 12,999, 61 Fed. Reg. 17227 (1996). In the Executive Order, the President committed to "mak[e] modern computer technology an integral part of every classroom; provid[e] teachers wi