No. 61 …

No. 61                                                                                       Page C-5
Friday March 30, 2007
ISSN 1523-567X
                                                             Analysis & Perspective
Government Operations
Structural, Other Flaws Said to Impede
Effectiveness of E-Rulemaking Web Site
Since it went online four years ago, the government's E-Rulemaking project has been hit with complaints
from users who say the effort to consolidate more than 100 agency regulatory dockets onto a single Web
site fails to serve the needs of either the agencies or the public.

                    ADVANCED SEARCH SCREEN ON E-RULEMAKING WEB SITE

Critics say the E-Rulemaking Web site is handicapped by two major problems: poor search capability and
the fact that agencies are not required to submit information to the Web site under a uniform protocol.
Combined, these two complications make it difficult for unsophisticated users to easily navigate the Web
site (http://www.regulations.gov).

"It's hard to find things on the Web site," said Thomas R. Bruce, director of Cornell University's Legal
Information Institute, who has studied usability and design aspects of Web sites for 17 years and built the
first law-oriented Web site.

Cornell students studying human-computer interaction, when asked to evaluate the E-Rulemaking Web
site's public interface in early 2006, rated it "absolutely horrific," Bruce recounted. While he personally
believes that the assessment was a bit harsh and acknowledges that the site has improved since then,
Bruce said that "most problems with the Web site stem from the amount of knowledge you need to have
to make it work effectively."


                                Keyword Searches Difficult, Critics Say

In particular, Bruce said, effective use of the site depends on users having both a high degree of
familiarity with the rulemaking process and a knowledge of which government entity regulates specific
subjects.

As an example, Bruce asked: "What does the site look like to an operator of a dry-cleaning facility? He
knows he's regulated but he may not be very familiar with the federal rulemaking process. Where does he
start to find the information he needs?"

Starting at the home page of the E-Rulemaking Web site, the dry cleaning operator would be faced with
different search options, including a choice of searching through "all" agencies or selecting a single
agency from a daunting dropdown list of some 85 separate rulemaking entities.

Applying Bruce's hypothetical, BNA conducted a basic search on www.regulations.gov by using the
keywords "dry cleaning" and clicking on the search option for "all" agencies. The search resulted in "no
results found."



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A second search for "dry cleaning" documents, limited to EPA's open and closed rulemaking dockets,
again produced "no results found."

However, a different search--using the keyword "Perchloroethylene," a regulated solvent used in dry
cleaning solution--resulted in 185 documents, listed according to docket number, type of document,
document title, and date posted.

The quirks involved in navigating the E-Rulemaking Web site, Bruce said, "mean that the site's principal
beneficiaries are those who already possess the background and sophistication to find their way through
the site to find what they need."

To make the Web site more "user friendly," apart from an overall technical redesign, Bruce suggests
adding educational materials, or a basic primer that describes in simple terms what the federal
rulemaking process is and how it works, as well as explaining more fully what the Web site is intended to
do.

For example, in the case of public comments on a proposed rule, Bruce said, "I'm not sure the public
understands them to be anything other than a general plebiscite on the rule."


                                     Full Text Searches Unavailable

An additional problem related to the Web site's search capability is the lack of a full text search option,
according to several experts, who say that the ability to do keyword searches within the text of specific
documents is essential. "If www.regulations.gov is not going to offer this, then it has really been oversold,"
said Barbara Brandon, a law librarian at the University of Miami School of Law.

The Web site enables users to conduct searches by agency, with a few different search fields such as
"open" and/or "closed" agency dockets. Once the search fields are selected, the user types in keywords
for the search. At that point, the Web site will conduct its search through the available dockets.

A key limitation on the search, however, is that it goes only as far as the titles of documents, stopping well
short of digging into the text of any particular document, Brandon explained.

"In the age of Google, it's surprising that you can't search for a particular phrase in all these documents,"
said Cary Coglianese, a professor of law and political science at the University of Pennsylvania who has
followed and written about the development of the E-Rulemaking project since its inception. "It's not up to
the state of the art," he said, adding, "Right now we're stuck with field-based searching, which is a real
limitation."

To illustrate this limitation, Brandon offered the following: "If I wanted to find all comments made by the
Natural Resources Defense Council in an EPA rulemaking docket, for example, I would put in their full
name or 'NRDC' and the Web site might give me something like 30 hits showing their comments."

However, what the search would not find, Brandon explained--and what is of particular interest to outside
advocacy groups and researchers--are all the documents within a docket that happen to mention NRDC.

"In other words, with a full text search, I would be able to see all the agency documents that cite NRDC's
comments, which could tell me what the agency had to say about the comments," Brandon said. "I would
also be able to see what other commenters said about NRDC's comments."


                                    Managers Plan System Upgrades



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The E-Rulemaking project's managers are aware of the concerns about the Web site's search options
and have tentative plans to upgrade the site to allow full text searches later this year.

Any new feature added to the site, however, must be reviewed and approved by members of the E-
Rulemaking project's "Change Control Board," a group of agency representatives comprising IT and
rulemaking officials. Once approved by the Change Control Board, any enhancements must also go to
the program's 25-member executive committee for final approval, a process that could affect how quickly
any changes are implemented.

A planning document for the E-Rulemaking project obtained by BNA, issued in November 2006, states
that adding full-text-search capability is "under consideration" for a system upgrade scheduled to take
place in September 2007. "We're aware of the complaints about search capability and we hope to get it
soon," Oscar Morales, the E-Rulemaking project director, told BNA.


ADVANCED SEARCH SCREEN ON DEPARTMENT OF TRANSPORTATION'S E-DOCKET WEB SITE

                                   Lack of Uniformity Plagues Web Site


Another significant problem with the site, mentioned by several critics, is a lack of uniform standards for
how agencies label the information that goes onto it, a flaw that makes it difficult to find information, they
say.

"It's chaotic, there's no standardization," said Robert Carlitz, director of Internet technology firm
Information Renaissance, who has followed the E-Rulemaking program closely.

"Basically, the E-Rulemaking program's managers told agencies 'here are a few standard fields we want
you to use but you can add any additional fields you want,'" he said. "This has led to a certain amount of
anarchy because you can have the same information submitted in different ways by the agencies."

Said Bruce at Cornell: "It's like trying to find a book in a library that has different information in the card
catalog, depending on whether the book is about biology, or automobiles, or furniture--and where some
cards are missing altogether."

Citing the need for "a consistent gatekeeper," Coglianese, at the University of Pennsylvania, said "the
failure to report information consistently for all dockets presents a real question of data management."

This deficiency is particularly annoying to researchers, Coglianese said, because a substantial amount of
uniform information is already being routinely supplied by agencies either to the Federal Register or as
part of the Office of Management and Budget's regulatory agenda.

"It would be logical to expect that, at a minimum, agencies would submit the same information to the E-
Rulemaking Web site that they have already submitted to the Federal Register or OMB," said Carlitz, "but
for whatever reason, that is not happening."

Coglianese noted that OMB requires agencies to categorize agency rulemakings according to whether
they are "economically significant" or not. That particular designation does not consistently appear in
dockets placed on the E-Rulemaking Web site, however, making it impossible to conduct searches for
those rules, Coglianese said.




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Similarly, information such as the legal authority for regulations, CFR citations, statutory deadlines, and
the impact on small entities and state governments is already being reported by agencies, Coglianese
said, "but cannot be found on the www.regulations.gov public interface." He added, "It's possible that the
E-Rulemaking team is still storing that information, but the public certainly cannot see it online."

In a related problem, Carlitz said, there appears to be little or no effort by the E-Rulemaking program to
check information submitted by agencies for accuracy. As a result, he said, "there are many misspellings,
invalid dates, blank fields, and inconsistencies."

"You won't be able to find what you're looking for because somebody keyed it in incorrectly," said Carlitz.

Full text search capability would solve much of this problem, said Carlitz. Many search engines such as
Google are programmed to perform "fuzzy" language searches, which will retrieve documents with small
spelling mistakes, he noted.


                                   Project Managers Defend Variations

Asked about these critiques, Morales, the project's director, defended the decision to allow agencies
flexibility in submitting information to the Web site, saying it is necessary to accommodate different
agency rulemaking practices.

"The system is expressly designed and built for a high degree of configurability by agencies," he told
BNA. "Agency A may ask for one set of fields, while agency B might ask for another set of fields, which is
in line with the rulemaking practices of those agencies."

"What we tried to do is establish a common baseline that allows a lot of flexibility," Morales continued.
"We give agencies a choice. There's always a choice because they own the content."

John Moses, the E-Rulemaking project's deputy director, added: "We built a lot of different fields in the
system to accommodate a variety of different agency legacy systems [that were brought onto
www.regulations.gov]. Since agencies have discretion on which fields they want to use, the public will see
that variance."

The end result of the effort to accommodate this diversity, however, "is a system that is way less
functional than it could be," said Bruce at Cornell. "The real question is how you get uniformity, but that's
outside the authority of the implementation team," he noted. "That question quickly spirals into the larger
question of how you get multiple agencies to agree on anything."

Despite the project's efforts to accommodate differences among agencies, not all agencies are satisfied
with the current system. Several agency officials contacted by BNA, who declined to speak on the record,
noted that the decision to place agency rulemaking dockets on a single Web site has made it exceedingly
difficult for them to adapt their own rulemaking cultures to the new Web-based system.


                                       Other Functionality Problems

Along with major structural problems, critics say there are several other deficiencies that have hindered
the Web site's overall usability. Until recently, these have included an inability to "bookmark" documents
found in a search, which forced users to repeat numerous keystrokes in order to return to a document,
and the lack of any e-mail notification, or "listserver" function, to alert users to new information added to a
particular docket. Both of these features were added in mid-March as part of a system upgrade.




                                                       4
One capability still lacking is a feature that would allow bulk downloads of agency documents. "Many
professional users will ultimately be interested in accessing large amounts of information from the system
such as the entire contents of selected dockets," noted Carlitz.

"For such users, and certainly for researchers, the value of the present system is very limited," he
continued. "Such users require mechanisms for bulk download, which are not currently implemented."

In addition, there may be times when a user, such as a labor union, may want to submit multiple
comments from its members, Carlitz said. In those instances, he said, it would be helpful to have the
capability for bulk uploads to the Web site.

Aware of these concerns, Morales said the E-Rulemaking program is still considering the possibility of
adding bulk downloading and uploading capabilities to the system. However, the program does not
currently have a schedule for doing so.


                             Early Decisions Led to Problems, Critics Say

Many of the structural shortcomings of the E-Rulemaking Web site stem from decisions made early on by
the program's executive committee, comprising 25 chief information officers in agencies across the
government, critics of the current system said.

One pivotal decision came in 2002 when the committee decided to use a centralized design hosting all
government agencies on a single Web site, as opposed to a so-called "distributed design," which would
have allowed users to enter from a single portal but then tap into agency-specific Web sites.

"From the earliest days, the project's creators were talking about a monolithic system," Carlitz told BNA.
"That type of system ignored the complexity of different agency cultures and the ways they had of
handling their own particular rulemaking needs."

As early as 2000, the Government Accountability Office reported that officials at five major rulemaking
agencies "questioned the need for a standardized approach."

In a letter to Sen. Joseph Lieberman (D-Conn.) and Rep. Henry Waxman (D-Calif.), then (as now)
chairmen, respectively, of the Senate and House committees overseeing plans for E-Government, the
GAO warned, "Standardization could decrease the agencies' ability to tailor regulatory approaches and
inhibit further agency innovation by 'freezing into place' the particular practices that have been developed
so far." The GAO's conclusions were based on interviews with agency employees.

The GAO report added, "The current flexible arrangement permits agency officials to ensure that the use
of IT in rulemaking is carried out within the agency's overall IT strategic planning efforts."

Even after the early version of www.regulations.gov was up and running in 2003 there were warnings
about the dangers of relying on a centralized, "top down" approach to E-Rulemaking.

According to Stuart W. Shulman, an assistant professor of information sciences and public administration
at the University of Pittsburgh, participants at a conference on E-Rulemaking held at George Washington
University in June 2004 said that the "effort to build an [E-Rulemaking Web site] that is 'all things to all
people' . . . would produce a 'lowest common denominator' system that rulemaking agencies and
stakeholders alike would reject or ignore."

In addition, other participants noted that different agency cultures and constituencies could serve "as a
barrier to effective centralization that in the worst case might thwart innovation at the agency level and



                                                      5
foist an unwanted system on thousands of rule analysts and millions of commenting citizens," Shulman
later wrote in a report on the conference.

On the other hand, those who favored a centralized approach maintained that placing all agencies on a
single Web site would "solve a significant digital divide that exists within the federal government, between
those agencies (about 30) that have electronic docketing systems and the over 150 rule-writing entities
that do not," Shulman wrote.


                                  Former OMB Official Defends Choice

Officials who were involved in the decision to centralize E-rulemaking continue to believe they made the
right call. "The survey data we had at the time made it very clear that citizens wanted to see regulations
and make comments on a single Web site," said Mark Forman, who served as OMB administrator of E-
Government from June 2001 through August 2003.

"Before rules were published in the Federal Register, every agency probably wanted its own version of
the Federal Register," Forman told BNA. "Just as we don't need that today, every agency does not need
its own Web-based version of the Federal Register."


                                 Program Miscast as Business Service?

Along with complaints about centralization, critics say OMB has miscast the E-Rulemaking project by
grouping it with other E-Government projects that primarily serve business interests, rather than citizens
at large. When the 24 E-Government programs were first established in 2003, following passage of the E-
Government Act (Pub. L. No. 107-347) in 2002, OMB organized the 24 projects into several general
"portfolios," including a "government to citizen" portfolio and a "government to business" portfolio.

OMB decided early on to place E-Rulemaking in the government-to-business portfolio instead of the
government-to-citizen portfolio, a choice that Carlitz with Information Renaissance calls "interesting in
itself."

This decision came at the same time that OMB officials, at the formal launch on Jan. 23, 2003, touted the
E-Rulemaking Web site as a system that "improves public access, removes barriers, and better informs
the public." Since then, managers of the project continue to cite the E-Rulemaking project's public
benefits as a "trusted source" providing "one stop access to all federal rulemakings" where "the public can
view and download rulemaking documents and dockets."

Defending the decision to place E-Rulemaking in the government-to-business portfolio, Forman, who now
does IT work with accounting firm KPMG, said, "In reality, government does not deliver direct service to
citizens but mainly to businesses." He added, "The bulk of electronic transfers on E-Rulemaking concern
the ability of businesses to comment on proposed rules and regulations that affect them."

Public interest advocates take issue with the business-centered approach to the E-Rulemaking project. "It
flies in the face of everything the E-Rulemaking program is telling people at their outreach meetings," said
Robert Shull, deputy director for auto safety and regulatory policy at Public Citizen, the consumer-
oriented public interest group.

"They say that their Web site is an effort to allow the public to avoid the middle man, go directly to the
online regulatory docket and participate in the process," Shull told BNA. "Obviously, they just mean well-
financed businesses."




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To help the E-Rulemaking Web site better serve the public at large, Bruce, at Cornell, advocates the idea
of adding a basic, easy-to-understand guide to the federal rulemaking process. "It points to the need for
some educational material alongside the Web site itself," he said.


                                  Shift in Managers Affects Program

Another early decision that turned out to have a significant impact on how the system developed
concerned which government agency would run the E-Rulemaking program. Under the Bush
administration's plan, implementation of each of the 24 E-Government initiatives would be managed by a
particular government agency, which would serve as the program's "managing partner."

In the case of E-Rulemaking, OMB initially selected the Department of Transportation to oversee the
program's implementation. At the time, DOT--one of the government's most active generators of proposed
rules--was also widely viewed as having perhaps the most advanced E-docketing system within the
federal government.

Established in 1998, DOT's electronic docketing system now contains over 1.2 million pages of regulatory
and adjudicatory information searchable in a variety of ways, including by keyword and docket
identification number. The DOT Web site also provides full access to supporting materials, including all
studies, comments, and other documents that form the agency's rulemaking record for 18 separate
rulemaking offices in the department.

So sophisticated is DOT's electronic docketing system that it was certified by the National Archives and
Records Administration to serve as the department's official administrative record, allowing DOT to save
more than $1 million each year in storage costs by eliminating its paper docket.

However, by late 2002, a series of steps occurred that resulted in OMB's shifting management of the E-
Rulemaking project from DOT to EPA, which by that time had also constructed its own online E-docketing
system. The consequences of that move continue to reverberate today.


                                Decision Made to Use Single Web Site

Earlier in 2002, OMB had contracted with a consulting firm to examine whether the E-Rulemaking Web
site should be built as a centralized site hosting multiple agency E-docketing systems, or use a so-called
"distributed design," which would involve linking to existing agency E-docketing systems.

E-Government officials at OMB selected the centralized design, based on the consultant's conclusion that
it would be more cost-effective, provide more stability as a Web platform, and offer more breadth and
functionality sought by agencies and the public.

Having decided to go with a centralized design, OMB then sponsored a competition among agencies to
implement the E-Rulemaking program. DOT and EPA, because of their experience with E-docketing, both
competed to be suppliers of the E-Rulemaking project, Forman said.

However, Transportation officials were "not willing to surrender their own agency's approach" or "accept
the advantages" of using a single Web platform to host E-Rulemaking and instead leaned more toward
using the distributed design with links to separate agency Web sites, Forman said. The EPA
representatives, on the other hand, told OMB "we can handle this" in the way OMB wanted to do it, he
said.




                                                     7
At the time, OMB had just learned that the Government Printing Office, which publishes the Federal
Register, and the National Archives and Records Administration already maintained extensive online
databases for agency rulemaking, Forman recounted. OMB's plan was to construct the governmentwide
E-Rulemaking platform by using the pre-existing GPO and NARA databases.

EPA understood the advantages of adding a new centralized portal to the electronic databases
maintained by the GPO and NARA, Forman said. "The online system already existed," Forman said of the
databases. "We just found it."

Critics cite the decision to build the E-Rulemaking platform from the existing GPO and NARA databases
as another flaw in the program's development, which has impaired the overall usability of the Web site.
"That's a backwards way of doing it," observed Carlitz at Information Renaissance, who said the starting
point for the Web site design should have been to look at what users of the site would need.

A 2006 Cornell University study of the E-Rulemaking Web site also noted that it was "built from the
perspective of the underlying database 'outward' and therefore violates the most basic tenets of webpage
usability."

In reviewing OMB's decision to transfer management of the E-Rulemaking program to EPA, Carlitz said it
was significant that "the OMB consultants had looked solely at technical considerations." He added,
"Because EPA's system was the newest, it came out the best." Moreover, by focusing primarily on
technical features, OMB gave short shrift to other factors such as "the complexity of agency cultures in
rulemaking," Carlitz said.


                                        Change in Direction Noted

Once the E-Rulemaking program moved from DOT to EPA, outside observers began noticing a definite
change in direction. DOT's electronic docketing system, to a large extent, had been designed by and was
run by the department's office of general counsel, Carlitz noted, which he said added to that E-docketing
system's usefulness and effectiveness. "Once EPA took over, E-Rulemaking tended to become more of
an IT project," he said.

At an early outreach session, when EPA announced plans to build an engine that would search all
agency dockets, "the lawyers in the room looked at them like they were nuts," said an agency official who
has closely followed the program's development.

"It was clear they had no conception of who their user community was," the official observed, explaining
that it was difficult to see why anyone would need to pursue a single search through all agency dockets.
"There's no one over there with a J.D. degree that has any role in this," the official said.

At another public outreach session, conducted by EPA in August 2004, a mock- up of the new system
"revealed something surprising to those who follow rulemaking closely," according to Coglianese at the
University of Pennsylvania. "It did not appear to contain all the data fields found in existing online dockets,
such as the DOT's docket management system," said Coglianese.

DOT's E-docket Web site offers users dozens of search fields just within the document category, ranging
from "affidavit" to "writ." The E-Rulemaking site, by contrast, offers only four choices of document
categories, including "notices," "rules," "proposed rules," and "other."

Worse than that, the E-Rulemaking Web site offers fewer features than even EPA's own E-docketing Web
site, critics pointed out. As one example, Brandon, at the University of Miami Law School, noted that
EPA's Web site allowed for full text searches but www.regulations.gov does not.



                                                      8
"It appeared to those outside the E-Rulemaking initiative that the EPA and its contractor, the Lockheed
Corporation, were more preoccupied with other concerns, such as technical issues about
communications and data storage protocols for the new system," Coglianese observed.


                                 'Bad Feelings' After Management Shift

The decision to shift program management from DOT to EPA "left bad feelings" between the two
agencies, said Carlitz. Moreover, several of the other large agencies and departments that had their own
Web-based docketing systems "were not thrilled with the centralized approach," according to Kim Nelson,
a former EPA chief information officer, who co-chaired the E-Rulemaking executive committee from 2002
through 2005.

"Several of the larger departments, including Transportation, Commerce, Interior and [Health and Human
Services], said they could run their own E-docketing systems for far less than the unified E-Rulemaking
program was costing," Nelson told BNA. "They were not very supportive."

The dissatisfaction between the E-Rulemaking program and certain agencies continues to fester, Nelson
acknowledged. Moreover, it has continued to play out in some of the funding difficulties the program has
had on Capitol Hill.

In a type of rear-guard insurgency over the past few years, some agency dissenters have contacted their
appropriations subcommittees to voice their frustrations with the E-Government initiatives, according to
officials at the agencies and aides on Capitol Hill. The appropriators, in turn, with language inserted in the
appropriations bills, have responded by pressing OMB to provide more justification for the programs (see
related story in this section).

A member of the E-Rulemaking executive committee told BNA "it was no coincidence" that many of the
restrictions placed on E-Government programs have turned up in appropriations bills covering the
departments of Transportation, Treasury, Health and Human Services, Interior, and Commerce. By July
2006, OMB officials instructed agencies to stop contacting Capitol Hill staff about the E-Government
programs, an agency official told BNA.

The Department of Transportation is widely acknowledged to be one center of opposition. Agency
representatives outside of DOT, who have attended meetings of the E-Rulemaking advisory committee,
told BNA that DOT officials have been outspoken at meetings in challenging some of the key aspects of
the E-Rulemaking program, including agency funding assessments and issues related to the functionality
of the E-Rulemaking Web site.

However, the subject of DOT's objections to the E-Rulemaking program is so sensitive within the
department that DOT's press office refused to allow department personnel to speak with BNA in a way
that would allow their remarks to be used. "We don't want to risk rocking the boat with OMB," said a DOT
spokesman.


                                 Project Moves Ahead Despite Problems

Despite what many view as miscues along the way, most outside observers give the E-Rulemaking
program managers credit for making the best of a difficult situation. "They have built what they could with
what they had to work with," said Bruce at Cornell. "The program implementers are struggling to build a
good system in the face of some fairly difficult institutional and funding problems."




                                                      9
Echoing Bruce's comment, Coglianese at the University of Pennsylvania, said, "This has been an
enormously complicated undertaking." He added, "It's very difficult to make changes to the system when
you're dealing with so many different agencies."

Sean Moulton, director of federal information policy with OMB Watch, who has attended a number of the
E-Rulemaking program's public outreach sessions, gives high marks to the program managers for being
responsive to suggestions from outside stakeholder groups.

"I get the impression they want to make improvements to make the system more functional," Moulton
said. "They seem to be taking our comments seriously," he added. "They've got Lockheed, their
contractor, right there in the room and can respond to how difficult or feasible any of the ideas might be to
implement. They're moving in the right direction but I think the frustration is the speed at which they're
moving."

Ultimately, critics of the project may be asking too much of technology, said Coglianese. "Technology is
not going to be able to replace the fine-grain knowledge that rulemaking deals with," he said. "Rulemaking
issues are issues that Congress has found too difficult to deal with," he noted, adding, "I just don't know
how far technology can take us to solve those kinds of problems."


By Ralph Lindeman




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No. 61                                                                                         Page C-1
Friday March 30, 2007
ISSN 1523-567X
                                                              Analysis & Perspective
Government Operations
As Dockets Go Online, E-Rulemaking Confronts Objections From
Congress, Users
An ambitious five-year project by the federal government to place all agency rulemaking dockets on the
Internet is moving into its final phase this year, even as it continues to face skepticism from appropriators
on Capitol Hill and criticism from many of those who use the new E-Rulemaking Web site.

Since it was launched in 2003, the E-Rulemaking project--one of 24 separate initiatives arising out of the
Bush administration's multiagency E-Government program--has faced objections from congressional
appropriators as well as a vocal segment of the project's user base.

Lawmakers are troubled by the funding scheme the Office of Management and Budget employs to keep
the projects operating. Instead of receiving a direct appropriation from Congress, OMB collects funds
from participating agencies and uses them to run the E-Government programs.

Moreover, skepticism in Congress about the value of the programs has prompted appropriators to impose
steadily more burdensome reporting requirements on OMB to demonstrate the benefits and cost savings.
These requirements have resulted in interruptions in funding for the E-Rulemaking program, which have,
in turn, delayed program implementation.

There is also concern--particularly within participating agencies--about whether the $35 million E-
Rulemaking program is over budget. This concern is spurred in part by the fact that, after four years, little
more than a third of agency dockets have moved online.

At the same time, some members of the user community--along with a few critics within the agencies--
express concern that the project's efforts to accommodate the varying needs of agencies are creating a
lowest-common-denominator Web portal that fails to deliver first class service to anyone (see related
report in this section).


                                       Progress Despite Problems

Yet, as agency regulatory dockets continue to migrate from filing cabinets to the E-Rulemaking Web site
(http://www.regulations.gov), there is little question that the program has made significant strides since it
was officially launched in January 2003.

Mushrooming from just five agencies online during its first year of operation, the E-Rulemaking Web site
now hosts proposed rules from 70 separate rulemaking entities housed in 19 departments and agencies,
including major rule manufacturers such as the Environmental Protection Agency, the Department of



                                                      11
Labor, and the Department of Energy. The goal is to have the regulatory dockets for most federal
rulemaking entities, totaling about 160, available for public access on the Internet by the end of 2007.

However, most of the 70 rulemaking entities now on www.regulations.gov are less prominent regulatory
bodies such as the Southwestern Power Administration, and the Foreign Agricultural Service, leading
some critics to charge that the project has gone after the "low hanging fruit" among agencies in order to
boost its numbers.


                                  Simple Web Portal Upgraded in 2005

Until 2005, the site was a simple Web portal, displaying rudimentary information about proposed
regulations and allowing citizens to post comments online.

The site was expanded and upgraded in September 2005 with a new version known as the Federal
Docket Management System, which allows the public to view the entire rulemaking docket--including
supporting materials--for a regulatory proceeding. Once agencies convert from the rudimentary system to
FDMS, the E-Rulemaking program considers them to have been "fully implemented" on the Web site.

After four years, however, only a handful of major agencies and departments have been "fully
implemented," with www.regulations.gov currently displaying only about 36 percent of the complete
rulemaking dockets in the federal government, according to the project's managers.

"We left some of the larger and more complex agencies toward the end," said Oscar Morales, who has
served as director of the E-Rulemaking program since it began. Morales said the project aims to add to
the percentage of federal dockets online by the end of 2007, with more than 90 percent expected to join
by Dec. 31.

Among the departments scheduled to move their dockets to www.regulations.gov this year is the
Department of Transportation, one of the largest rulemaking agencies in government, with 18 separate
rulemaking offices.

Though less than half of the government's complete rulemaking dockets appear on www.regulations.gov,
Karen Evans, OMB's administrator for the Office of Electronic Government and Information Technology,
views the site as a success. "This is one initiative that reaches out to the American people," Evans said at
a recent awards ceremony, "and it is about transparency."

As of November 2006, www.regulations.gov had logged more than 57 million hits and more than 17.5
million page views of over 310,000 documents posted online, according to statistics compiled by the
project. Just since October 2005, hits on the Web site have increased by 153 percent, with an average of
4.3 million hits per month, according to statistics compiled by the project.


                                     Funding Remains Key Obstacle

For all its ambitions, however, the E-Rulemaking project has been plagued by funding problems since it
began. With great fanfare, in December 2002 Congress passed the E-Government Act (Pub. L. No. 107-
347), which among other things directs agencies to make electronic dockets publicly available online and
to accept public comments in electronic form "to the extent practicable."

Although the E-Government Act authorized some $345 million for the program during fiscal years 2003-
2007, Congress has never appropriated more than $5 million annually to fund all of the Bush
administration's 24 E-Government projects, including E-Rulemaking.



                                                     12
To make up for this shortfall, OMB devised a funding scheme that directs federal departments and
agencies to pay money from their appropriated budgets into an E-Government Fund, which serves as the
funding source for the administration's E-Government projects.

It is this funding mechanism, established outside the congressional appropriations process, that has
provoked concern among appropriators on Capitol Hill. Over the past two funding cycles, lawmakers have
imposed increasingly more stringent reporting requirements on OMB officials, forcing them to supply more
data each year to demonstrate cost savings achieved by the E-Government programs.

In FY 2006, agencies contributed $189 million to OMB to fund the E-Government initiatives, according to
a December 2006 report from OMB's E-Government office. The E-Rulemaking program alone cost $12.1
million in FY 2006, making it one of the largest single recipients of disbursements from the E-Government
fund, according to an OMB report to Congress. The $12.1 million includes expenditures for maintaining
the project as well as moving additional agency dockets online.

Payments from 22 agencies went to the E-Rulemaking project in FY 2006, with the size of payment
based on a formula that takes into account the agency's overall budget and the extent of its rulemaking
activity.

The EPA serves as the coordinating agency, or "managing partner," for the E-Rulemaking project. Each
year, the E-Rulemaking project managers at EPA enter into a memorandum of understanding with each
participating agency for the fund transfer. The project managers also collect agency funds and manage
program implementation through an outside contractor, Lockheed Martin Corp., which is working under a
five-year contract for the project, according to the Government Accountability Office.

Individual agency contributions to E-Rulemaking in FY 2006 ranged from $175,000 paid by smaller
rulemaking agencies, such as the General Services Administration and Small Business Administration, to
$1.1 million paid by the Defense Department, according to an OMB report to Congress. Most major
rulemaking agencies, such as the departments of Labor, Agriculture, and Transportation, paid $825,000
each. A draft OMB projection for the current year obtained by BNA shows similar levels of contributions.

The agency assessments have caused a certain amount of grumbling, particularly among agencies
forced to pay at the high end that have not yet moved online. "We are being hit up each year for $825,000
and we are not receiving any service," said one agency official. "That's a lot to pay when we are one of
the last agencies scheduled to be placed online.


                              Project Cost Exceeds Estimates, Some Say

Another source of concern--also voiced by officials at some of the agencies assessed at the higher
contribution rate--is that the E-Rulemaking project is significantly over-budget, at least compared with its
original cost estimates.

The project's managers deny the claims, insisting that critics fail to distinguish between original cost
estimates to build the system and ongoing costs needed to operate it. At the same time, neither the E-
Rulemaking program office nor officials at OMB were willing to provide BNA detailed cost information
about the project.

From FY 2003 through FY 2006, the E-Rulemaking project has cost a total of $35.1 million, based on
aggregate figures provided to BNA by the project managers. This amount, all of which came from agency
contributions, includes $5.7 million in FY 2003, $5.9 million in FY 2004, $11.5 million in FY 2005, and $12
million in FY 2006.




                                                     13
Neither the EPA project managers nor OMB officials were willing to discuss the project's original cost
estimates. However, according to a September 2005 GAO report, the original cost estimate was
significantly less than the $35 million spent to date.

The GAO report says that in 2002 a consultant submitted to the E-Rulemaking Executive Committee a
cost estimate of between $18.7 million and $20.1 million "to deliver and operate" a centralized design,
which was the design ultimately selected for the E-Rulemaking project. The consultant also estimated
costs of between $22.8 million and $94.9 million for two other designs that would involve integrating a
centralized system with existing agency-specific electronic docket systems.

The E-Rulemaking executive committee selected the less expensive centralized design based on the
consultant's conclusion that it was the "most cost effective, had the lowest risk for deployment and
support instability, was the most secure, and was most likely to deliver the breadth and functionality
sought by agencies and the public," according to the GAO report.

Asked about the discrepancy between the original estimate and the project's costs to date, John Moses,
deputy director of the E-Rulemaking project, said the original estimate did not include operating costs,
which he noted total about $10 million each year. "The analyses that were quoted in the GAO report only
included the cost to construct an application like FDMS," he said in an e-mail response.

Also left out of the original cost estimate, Moses said, were "costs to build and operate the interim
rulemaking portal"--which operated until September 2005--as well as "costs to establish and operate a
program management office" and "costs to migrate agencies into a federal docket system."

Informed of the apparent contradiction as to whether the original cost estimate included operating costs,
Orice M. Williams, GAO's director of strategic issues, who worked on the report, told BNA that one
explanation might be that the original cost estimate included only the few agencies that went online in
2003, rather than the 70 rulemaking entities now on the E-Rulemaking Web site.


                             Lawmakers Skeptical About E-Gov Benefits

OMB's E-Government funding scheme, which is conducted outside of the regular congressional budget
process, has caused continuing consternation among appropriators on Capitol Hill. Over the past two
appropriations cycles, lawmakers have responded to what they view as OMB's infringement on their turf
by inserting language in major appropriations bills to block agency fund transfers to E-Government
projects without express approval from the appropriating committees.

"Congress believes that it is inappropriate for OMB to go hat in hand [to other agencies] to fund this
program," a spokesman for the House Appropriations Committee said at the time the FY 2006 restrictions
were put in place. "They've got to sell Congress on the plan and they didn't do a decent job before, so
they tried an end run."

Expressing a similar view, an aide for the Senate Appropriations Committee said, "The administration
says it wants to operate these programs like a business, but they haven't been able to provide specific
measures of success." The aide added, "They should be able to demonstrate what benefits the agencies
and the public are receiving for the money spent on these projects."

Language placed in the FY 2006 Transportation-Treasury appropriations bill, for example, expressly
prohibited agencies from transferring funds for the E-Government initiatives until OMB submitted a report
to Congress that outlined the costs and benefits of each E-Government initiative for every federal agency
and department.




                                                    14
This congressionally imposed limitation set the E-Rulemaking program back on its heels in FY 2006.
Under an aggressive implementation plan, the E-Rulemaking project had scheduled four to five new
agencies to move online each calendar quarter through 2007. With the delays caused by congressional
action, however, the implementation plan was put on hold and no agencies moved online from January to
September 2006.

"E-Rulemaking will suspend all further agency implementation and development activities effective
beginning second quarter of FY 2006," the co-chairs of the E-Rulemaking Executive Committee advised
in a letter sent to agencies in December 2005. Until the budget issue was resolved, the co-chairs said,
OMB would allocate funds only "to operate and maintain" the current system.

Along with the halt on adding agencies to the Web site, the program stopped all employee training and
postponed several planned system enhancements, according to Moses, the deputy program manager.


                                     OMB Quickly Produces Report

In response to the lawmakers' demands, OMB scrambled to put together a 186-page report, which
detailed the benefits of each agency's participation in the project. Though OMB officials rushed the report
to Congress in January 2006, just weeks after the new requirements were enacted, the lengthy process
of obtaining separate congressional approvals for each agency brought the E-Rulemaking program to a
standstill.

Three major departments--Commerce, Justice, and Transportation--failed to receive approval to transfer
funds to E-Government until June 30, the last day of the third quarter in FY 2006. Even after the approval,
there was further delay in moving the funds from one account to another at the Treasury Department,
project officials said. As a result, for the first nine months of 2006 the E-Rulemaking project remained in
standby mode, still operating but adding no new agencies or features.

For FY 2007, the 109th Congress failed to pass 11 of the 13 annual appropriations bills, leaving OMB's
24 E-Government programs, including E-Rulemaking, in limbo about exactly what requirements or
limitations the appropriations committees would seek to impose in the next funding cycle. The 110th
Congress passed a continuing resolution to fund government programs through the end of FY 2007 which
includes none of the restrictions placed on E-Government programs in previous years.


                                     Doubts Remain on Capitol Hill

At the time the 109th Congress adjourned in December 2006, however, it was clear lawmakers had
intended to force the E-Government programs to jump through hoops again for another year.

In the Senate, for example, the bill pending in the Commerce, Justice and State Appropriations
Committee would have required E-Government officials to spell out specifically the costs and savings for
each agency and department transferring funds to E-Government programs. In addition, lawmakers
sought information on how each agency planned to offset its payments to E-Government projects and
asked for more details on how each agency's E-Government payments would be used.

In the House, appropriators took aim at OMB's Program Assessment Rating Tool (PART), often used as
justification for program spending decisions, including E-Government, saying it "was devoid of useful
information."

"The Committee has little patience for secretaries and administrators who cannot explain the rationale
behind a program's funding level other than 'the PART score,' or 'getting to green' or 'this is what OMB



                                                    15
provided,'" the committee said in a report accompanying the Transportation, Treasury and Housing and
Urban Development appropriations bill.

"The committee refuses to relinquish oversight of the development and procurement of information
technology projects of the various agencies under its jurisdiction," the report continued.

Taking the appropriators' concerns seriously, OMB set about establishing a methodology for agencies to
measure savings and benefits from their participation in the E-Government programs. In an August 2006
memo, Evans, the OMB Administrator for E-Government and Information Technology, instructed each
agency and department "to develop a baseline" in order to measure cost savings resulting from their
"investments" in the projects.

The eight-page memo contained detailed instructions on what costs agencies were to include in their
"Baseline Cost Reporting Templates." Asking for an extraordinary level of detail, the memo asked
agencies to tabulate E-Government costs and savings which ranged from a "12 percent overhead factor"
to a "standard fringe benefit rate of 32.85 percent."

The chief information officers at agencies and departments were directed to report this information to
OMB by the end of September 2006. Despite the detailed instructions from OMB, the quality of
information produced by the exercise is unclear. Asked about his department's calculations, one official
laughed and said, "Much of this is make-believe."

OMB released its report Feb. 5, the same day the Bush administration submitted its FY 2008 budget
request to Congress. The 248-page report does not quantify savings and benefits for agency participation
in the E-Government programs, as Congress requested. Asked about the omission, an OMB
spokeswoman told BNA that "OMB is continuing to work with Congress to provide the necessary
information." She also noted that Congress failed to pass the appropriations bills containing the reporting
requirement.

Looking ahead, OMB officials do not expect the recently enacted continuing resolution to fund
government programs for the remainder of FY 2007 to pose significant funding problems for the E-
Rulemaking program.

"We've done the analysis and it's going to have minimal impact," Evans said at a recent meeting with
reporters. The key issue, she said, is whether the implementation steps planned for each agency
participating in the E-Rulemaking initiative are considered to be "ongoing projects," which the CR would
permit, or "new starts," which it most likely would prohibit. Officials at each agency's budget and general
counsel's office will make the final decisions, she said.

A senior official at the E-Rulemaking program said it is too early to tell exactly what impact the CR will
have on activities planned for 2007. "We're still looking into it," he told BNA.


                                 Lieberman Supportive; ABA Panel Set

Ironically, the shift to Democratic control in Congress may actually smooth the way for the Bush
administration's efforts to fund the E-Government programs. Clay Johnson, OMB deputy director for
management, recently recounted a December 2006 meeting with Sen. Joseph Lieberman (I/D-Conn.),
who now chairs the Senate Government Operations Committee and was a chief sponsor of the E-
Government Act.

"Lieberman is a huge ally of E-Government," Johnson noted at a meeting with reporters Feb. 1. He
added, "We plan to leverage that out the wazoo." Johnson said Lieberman told him "to be sure and let
him know if we were getting any push-back from appropriators."


                                                     16
In another development that may help tamp down some of the congressional concern, the American Bar
Association's Administrative Law Section in February convened a blue ribbon panel, comprising about 25
nationally-known rulemaking and IT experts, to examine the E-Rulemaking project.

A specific mandate of the committee is to provide "outside intervention" to "separate E-Rulemaking from
the general congressional appropriator concerns about E-Government projects," by better explaining the
benefits the program could offer the public, government agencies, and the regulated community.

In addition, the panel will examine "the structural, financial, technical, and agency-cultural factors that
impede the success of the E-Rulemaking project," according to the committee organizing memo obtained
by BNA. The committee, which hopes to produce a report by the end of the current fiscal year, is chaired
by Sally Katzen, now a University of Michigan law professor who headed the Clinton administration's
regulatory office at OMB. She did not immediately return a call for comment about the committee.


                             E-Government Victim of Organizational Flaw?

Outside observers of the OMB funding struggles with Congress say the problem goes beyond
appropriators' turf concerns or which party happens to control the majority.

There is a "fundamental mismatch between the horizontal nature of government-wide E-Government
initiatives and the vertical organization of government funding and oversight mechanisms," wrote Jeffrey
W. Seifert in an article published in May 2006. Seifert is an analyst with the Congressional Research
Service who has studied the E-Rulemaking program.

"Congressional authorizing committees are organized by department and/or agency," Seifert noted, while
the E-Government programs span most of the federal government. "There is a larger need to develop
policy solutions that provide adequate flexibility for collaborative initiatives while maintaining appropriate
oversight," he said.

Another outside expert blames Congress for not creating "a proper home" for E-Government when it
approved the 2002 E-Government Act. "When it passed the legislation, Congress failed to create any
specific entity to make it happen," observed Cary Coglianese, a professor of law and political science at
the University of Pennsylvania who has written extensively on E-Rulemaking issues.

Without a central, congressionally mandated and funded entity to guide the E-Government projects,
Coglianese said, the E-Rulemaking project, for example, will likely continue to struggle with funding
difficulties.

Kim Nelson, who served as co-chair of the E-Rulemaking executive committee, likened the program's
current problems to "trying to build a skyscraper without a foundation." She faulted E-Government officials
at OMB, particularly during E-Rulemaking's early years, for failing "to develop a shared vision with
Congress."


By Ralph Lindeman




                                                      17