Section 301(d) written or electronic rulemaking docket
Rulemaking docket: Paper or electronic
In what format should the docket, rules, and other
items be maintained -- electronic or paper?
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The law should
provide that these documents must be maintained without prescribing format.
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Alternative 2,
[(d) upon request, the agency shall provide a written docket.] fits best with
our model of rule filing and record keeping.
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The law also
states that state agencies shall maintain a record of rule-making, CRS
24-4-103(8.1), and while the provision does not specify the format of the
documents, it is likely that many of these documents exist in print rather than
electronic format.
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In
I think they can be
maintained in either format. If they are
kept in electronic format, and if they have long term retention, archival and
records management guidelines should be followed to insure access and
preservation. Rule 1B-26 of the Florida
Administrative Code sets guidelines for electronic public records in
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In
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Each agency is
required to maintain a rulemaking record for each rule being promulgated that
will become a final (permanent) rule. This record is made up of all
documents related to the rulemaking including written comments received from
the public, public hearing testimony, memos, etc., as well as the documents
that publish in the Bulletin. This rulemaking record remains open for
public inspection and copying for two years after the rule becomes final.
Many of these documents are created electronically but not all. Mandating
that all of these documents be made available in an electronic format may be an
expensive proposition for many cash-strapped agencies, especially since such
requests are rare. Transcribing a lengthy public hearing or creating
electronic records from hard copy can be expensive and time consuming.
o
I, too, think
that statutory language should be neutral and not prescribe a specific
format. For many obvious reasons the electronic format is the preferable
format to most of us who publish rules and maintain archives. Having the
statutory flexibility to evolve with the available technology and move toward
electronic only formats is necessary. Equally important is the public’s
ability to access official documents regardless of the format.
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Allowing an
agency the flexibility to provide services as cost effectively as possible
makes sense as long as the services are being provided. In
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I too agree with
the thoughts that the law should ensure proper documents are retained and
accessible, but steer clear from prescribing a format.
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Montana law
requires the Secretary of State to keep and maintain a permanent register of
all notices and rules filed and that the register must be open to public
inspection (2-4-306, MCA). It also
requires the Office maintain a permanent set of the registers. These requirements are currently being
fulfilled by retaining a printed log of submittals and copies of the printed
publications.
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As for state
agencies, the statute provides that rulemaking records can be requested from
state agencies by the administrative rule review committee. Thus, state agencies should maintain
rulemaking records to demonstrate compliance of elements described in 2-4-305,
MCA.
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There is no
requirement for centralized docketing in
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According to the
State Rules Act, adopted rules must be filed in paper and electronic
formats. Section
§
Each agency
promulgating any rule shall place the rule in the format and style required by
rule of the records center and shall deliver one original paper copy and one
electronic copy to the records center. The records center shall note
thereon the date and hour of filing. The records center shall maintain
the original copy as a permanent record open to public inspection during office
hours and shall have the rule published in a timely manner in the
o
This requirement
was added to the State Rules Act in 1995 preparatory to creating the New Mexico
Administrative Code. Prior to that, seven paper copies of each rule were
filed. The requirement for filing electronic documents greatly assisted
with the process at that time; however, now the stipulation of paper and
electronic versions could be a detriment. We would like to adopt
electronic rule filing in the future but may have to amend the act before we
could do that. If we do amend the act, we would most likely place
language that would allow filing in accordance with rules established by my
agency. I feel it is better to establish the system without requiring a
specific format. My agency takes this approach with the record retention
schedules we produce. We tell agencies the format of a document does not
change what the document is. For example, it does not matter if a letter
is electronic or paper, it is still correspondence and follows the requirements
established in the retention schedule.
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In
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I agree with Ken
Hansen that the law should provide that these documents must be maintained
without prescribing format. Oregon Statute ORS 183.330(2) says that each state
agency that adopts rules shall maintain copies of all rules adopted by the
agency and be able to provide information to the public about those rules and
rulemaking proceedings. The statute is silent as to format.
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The copy of
record of documents as submitted to the Texas Register by agencies is still maintained
on paper. We have discussed creating an imaging-style electronic repository, as
well as asking the legislature to declare the Internet database of the rules as
the "official copy".
o
Both of these
options raise cost and accuracy issues. In fact one potential flaw in the
Internet-as-official-record option is that it would dictate a specific format.
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The law should
provide that these documents must be maintained without a prescription of
format. This is what
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Following alternative
2, the law should provide that individuals may request a paper copy of these
documents for a nominal fee covering the cost of responding to the request.
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I agree with
others who have responded that the language should be neutral regarding format
to give states flexibility to address their specific needs.
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Virginia law
presently places responsibility on each state agency for maintaining a complete
list of its currently operative regulations for public consultation, making
available a complete file of the full texts of its regulations, and allowing
public copying of the files or making copies available either without charge,
at cost or, or on payment of a reasonable fee. The agency is also mandated to
maintain as a public record a complete file of its regulations that have been
superseded on and after
o
In addition, the
Registrar's office serves as the central repository for state agency
regulations and maintains complete files of all pending and final regulatory
actions of all state agencies. Once a regulation becomes obsolete, after five
years it is transferred to the State Library and Archives for permanent
retention.
o
The Virginia
Register of Regulations as posted on the Virginia Code Commission's website is
the official version. According to a recent report by the American Association
of Law Libraries, the Virginia Register is
To what extent do consumers of government information
in your state access official documents from your agency through the internet,
and to what extent do people come to the agency office and want to see a paper
document?
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Most users prefer
to access documents through the internet.
At this point, versions of rules prior to 2006 remain in print. Users wanting prior versions are referred to
the Colorado Supreme Court Library as they maintain a complete archive of
superseded rules.
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Our office
produces 4 versions of the monthly register, three of which are
electronic. Official documents are kept
electronically and an authenticated version is available online for many
regulations. We receive less than 10
requests per year for paper copies of filings.
The Florida Department of State has some
records available through the internet and constantly tries to provide
additional materials on-line. My experience is that the public wants electronic
access to government information. I know
that with the State Archives digitization of collections has really increased
access to the materials we have. The
internet allows researchers to use materials without coming to
o
Most consumers
are accessing rule documents via the Internet. Requests for individual
rule chapters in hard copy are so infrequent that I generally provide a copy at
no charge to anyone requesting one since it actually costs more to process the
payment for a hard copy that the hard copy itself costs to produce and
mail. It is extremely rare that someone comes into the office to inspect
copies of rules.
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While individuals
may prefer to access information through the web, the information available is
still limited for research purposes. State agencies now submit filings and
replacement pages in an electronic format to us. However, this electronic record only exists
for the past 7 years. Further, only the
current version of the Administrative Rules of Montana is available
online. We do have past years of the
Montana Administrative Register available on our website dating back to July
1999. Individuals needing information
prior to that date or needing a copy of the official version (still the printed
publication here) would contact us directly.
Typically we don't have folk’s walk-in -- they call and we either send
the information by email, fax or regular mail.
o
We do need to
position ourselves now to allow for enhanced digital functionality 5 or 10
years from now. Customer needs are ever evolving and expectations are growing
in relation to public access to government publications and records via the
Internet. There remains the need to strike the right balance and flexibility in
law would be most beneficial.
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The New Mexico
Register and New Mexico Administrative Code websites are both official.
The Register also has an official paper version, but there are only six
paying subscribers. Most people use the Register website. The NMAC
is only available electronically. It was designed in 1995 to be
electronic; there has never been an official paper version of the NMAC.
However, as seen above, the State Rules Act stipulates that the original
paper filing is the copy of record that is open to the public. If the
NMAC varies from the original paper filing, the original paper filing wins.
We only certify the original paper filing; we do not certify the NMAC.
That being said, most people access the rules through the NMAC website, not in
person at our office.
o
There is an
interesting conflict between access and preservation when in comes to rules.
We establish electronic systems that make all the text easily available
to the public. However, those electronic systems rarely consider
long-term storage of permanent records. Because we are the State
Archives, the preservation of rule text is a major consideration in my agency.
Although we have the electronic NMAC, the original paper rule filings are
considered permanent state records and are sent to the State Archives when no
longer current. Ultimately, the paper is what people in the future will
see, not the website.
o
In summary,
because of the conflicting requirements between access and preservation and
because of variances in practice and procedure between the states, I feel the
text of this section of the MSAPA should be kept more general in nature.
I think a wise approach is to establish that the agency should make the rule
material available. The details of how that is accomplished, in my
opinion, are more appropriate in rule. This is how it functions in my
state. My agency has the authority to issue rules that establish the
administrative detail of how rules are made available to the public.
These rules can change as technology does. In the MSAPA, the best
approach may be to add comments after the text that describes how agencies can
make rule material available to the public.
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Article 6-a of
the Executive Law sets procedure for the format, schedule, distribution and
fees for the NYS Register. Section 149
(2) (e) of such article describes the Action Pending Index (API). The Department of State maintains an index of
all proposed rule makings that are pending final action. The API is published each week as part of the
Register. Final actions are removed and
new proposals are added. The API
includes the Proposed Rule Making's I.D. No., Expiration Date, Subject Matter,
and Purpose.
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Article 6-a,
Section 147(3) establishes the Quarterly Index.
The Quarterly Index is a supplement to the Weekly Register. It is a cumulative alphabetical listing by
agency of all rule making actions for the year.
Every action affecting a particular rule making is included. The index includes the subject, purpose and
date of publication of each notice; the type of notice must be denoted, i.e.,
proposed, adoption, emergency, etc.
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Individual rule
making notices include the name and contact information of whom comments may be
submitted to. They also include the
minimum comment period. (Usually 45 days
after publication of the notice).
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The NYS Register
maintains a hearing calendar. The
listing includes the Rule I.D. number, subject, purpose, date, time and
location of the hearings to be held for pending rule makings.
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The tracking of
NYS rule makings is simple due to the prescribed numbering scheme of rule
making submissions used in conjunction with the Action Pending Index and
Quarterly Index.
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The Department of
State performs an average of 100 hard copy NYCRR/Register searches each
year. We photo copy pages from the
Register and/or previously published NYCRR pages. The statutory fee is .25 cents per page. I anticipate that the number of searches will
decrease as the public becomes aware of the new DOS searchable Register. (Just
posted today)
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Visit http://www.dos.state.ny.us/info/register.htm
to view PDF versions of the Register from 2003 to present. The layout of the API and Quarterly Index can
be viewed by choosing the PDF versions.
There is also the new link to the Register that is now
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Researchers in
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People use the
Internet publication--the Secretary of State databases of the Code and Register
or individual state agency web sites--far more often than sources. Many people
probably are unaware that a paper repository even exists. We receive requests
for the filed originals only for very old documents that are not available in
electronic format.
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The researchers
we typically see want to research administrative rules electronically. Since 2003, the official copies of rules
publications are electronic and available on the Internet. Researchers are frustrated when they have to
drive to a specific location and make photo copies. They prefer to download an electronic copy of
the documents.
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Currently, the
Virginia Register can be viewed online beginning in June 1998. The Virginia
Administrative Code online is updated each day and provides public access to
all agencies' regulations currently in effect on any given day. Presently,
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Most Executive
Branch agencies are required by Governor's Executive Order to use the
Department of Planning and Budget's Virginia Regulatory Townhall (http://www.townhall.virginia.gov)
to electronically conduct the required Executive Branch review and approvals of
regulations prior to filing the approved regulations with the Registrar. My
understanding is that no paper copies transfer hands during the Executive
review process. The Townhall contains complete
information on each regulatory action that is made available to the public
after the information is filed for publication in the Virginia Register. We
have worked with the Department of Planning and Budget to so that our
respective servers communicate and allow the agencies to "re-sync"
regulatory text to the Townhall so that it is the same text that is published
in the Register.