Use of the Internet as a "Backdoor" Federal Register

Today as never before, state and federal government agencies are utilizing the Internet as a fast and inexpensive means of data dissemination. Officials responsible for virtually all aspects of governance - from environmental regulation, to product safety standards, to food quality, to health care - direct the electronic publication of an enormous variety of information. Key features of this practice include:

• Many government agencies have established their own extensive Internet sites of "Web pages" (e.g. www.fda.gov, www.epa.gov, www.hcfa.gov, etc.) and employ full-time staff merely to maintain and update these databases.

• Agencies routinely publish reports, studies, and other data that may impact a firm's sales, public relations, market position, stock value, research and development efforts, and other business measurements or activities.

• Once posted on the agency Web page, the information is immediately disseminated worldwide.

Unfortunately, the processes for appropriate administrative review of the information these agencies are placing on the Internet has not kept pace with the technology. CRE is concerned that some agencies are attempting to use the Internet transmissions to avoid administrative review processes established to assure government data quality.

At the federal level, the Federal Register serves as the mandatory mechanism for publishing federal agency notices and certain other critical information. By ignoring or circumventing the required data review procedures, which are often viewed as bothersome or mere technicalities, agencies are attempting to use the Internet as a backdoor Federal Register. One example would be EPA's attempt to create and include a "toxicity weighting factor" in its Sector Facility Indexing Project (SFI) database on its Internet site.

This action was challenged in court in Tozzi v. Browner (D.D.C. No. CV 98-00169) and ultimately was resolved by EPA's agreement not to place the challenged data in its website. Many similar agency actions go unchallenged, however.

The ultimate result of this new agency practice, in some cases, is the weakening of the public's right to participate in government decision making. CRE is concerned that the government's increased, and largely unsupervised, use of the Internet may be undermining the public's right to notice and comment, which is guaranteed under statutes such as the Administrative Procedures Act, the Federal Advisory Committee Act, the Paperwork Reduction Act, and others. Therefore, interested parties are encouraged to be vigilant of agency regulatory practices which seek to circumvent mandated public notice and comment requirements. This issue is one which CRE plans to address in the future as part of its Data Quality initiative.