@INFO.POLICY: Robert Gellman

Cost-saving move jeopardizes Federal Register

Robert Gellman

Today's poster child for the Internet-sparked revolution is the Federal Register. Will the Register survive in its current form?

This question arises because of a recent decision by the Commerce Department's International Trade Administration to stop publishing certain materials in the Register. ITA is responsible for making decisions in cases involving countervailing duties and dumping of foreign goods.

In the past, ITA always published final notices of its decisions in the Register, along with the agency's point-by-point response to public comments. Until now, the Register was the traditional medium for providing public notices and explanations of final agency decisions.

ITA no longer wants to pay for publishing its response to public comments. It contends that not publishing this part of its final notices would save $900,000 per year. Instead, ITA will put the unpublished material on its Web site, and commercial information services have agreed to distribute the material to their customers.

Ironically, ITA published its original proposal for comment in the Register on Aug. 21, 1998. Everyone who commented was against it, but on Jan. 24, ITA decided to ignore its constituency and go ahead.

You have to wonder why ITA even bothered to ask and why it took 16 months to make a decision.

The larger issue here, however, is what happens to the Register if other agencies decide they don't want to pay to print notices and opt for the Web?

It is difficult to overstate the importance of the Federal Register. It has been a shining star of open government since the mid-1930s. It is the central location to which everyone knows they can turn to find all agency rules, notices and similar documents. The Register is a complete and permanent repository for administrative government.

The value of the Register did not diminish with the Internet. If anything, the ability to electronically search voluminous records made the centralized Register even more important. The Government Printing Office offers the public a free online search capability at its Access Web site. The search engine isn't the best, but it has improved significantly over the years.

If every agency decides to publish some or all of its legal notices on local Web sites, the centrality of the Register will disappear. Even if agencies publish short notices announcing decisions and providing Web site pointers, broad searching for agency actions will be more difficult for the public.

I will give ITA a little credit. It did publish a notice of its plans to change its publication policy, and this complies with the Paperwork Reduction Act. But ITA's final decision does not appear to consider the legal requirements of the Federal Register Act. I question if Web site publication will meet the legal notice requirements that are now satisfied by publication in the Register. And agency managers should ask whether they can base a decision not to publish on the transient willingness of a private vendor to provide a high-priced substitute service.

A bigger consideration is who will provide historical access in 20, 30 or 100 years, after ITA loses interest?

ITA says the law requires it to publish but doesn't specify that it must publish in the Federal Register. That kind of reasoning is why a lot of people hate lawyers. When Congress told ITA to publish, it never contemplated Internet publication. Recent laws mandating Internet publication did not change existing requirements for publication in the Register. If ITA wants to change its publication practices, it should first get legislative approval.

Let's talk

Where does the Office of Management and Budget stand on this issue? Is OMB going to let agencies make major information policy changes and undermine the Federal Register just to save a nickel? In any event, no real government savings will result. The cost to other agencies will increase if the overhead of the Register is spread over fewer pages.

OMB should step forward and provide a forum for agencies and the public to debate the role of the Federal Register in the Internet era. It is a perfectly fair issue, and it is worthwhile to consider alternatives. Even if ITA is right, we should not approach fundamental governmentwide publication questions piecemeal.

Robert Gellman is a Washington privacy and information policy consultant. His e-mail address is rgellman@cais.com.

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