September 26, 2003 TO: The Honorable Joshua B.

Bolten Director Office of Management and Budget 725 17th Street, NW Washington, DC 20503 CC: Dale N. Bosworth Forest Service Chief United States Department of Agriculture 4NW Sidney R. Yates Federal Building 201 14th Street, SW at Independence Ave., SW Washington, DC 20250 VIA FACSIMILE and POST RE: US Forest Service E-Comment Polices and Regulations.gov

Dear Director Bolten: We are a nonpartisan coalition of national advocacy organizations, representing millions of members nationwide. We write to urge you to ensure broad public access to government agency actions. Our concerns arise at this time from several U.S. Forest Service (USFS) actions that have restricted public comments already and a proposal it is currently considering that would further restrict them in the future. We are especially concerned because of indications that these restrictions may become a model for other agencies and for Regulations.gov. Because of its oversight role in Regulations.gov, the Office of Management and Budget is positioned to define how American citizens are allowed to participate in creating the rules that govern them. We hope this letter will encourage you to ensure that other agencies avoid the USFS model and instead continue to value the public’s voice. Background A fundamental feature of a democracy is that it allows its citizens to have their voices heard by government and to participate in governmental decisionmaking. Yet in American government today, ordinary citizens often have difficulty making their voices heard, especially in agency decisionmaking. Millions of those citizens, representing the full breadth of the political spectrum, rely on advocacy organizations to help them participate in crafting policies on issues they care about. Advocacy groups explain the

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issues to average citizens, who otherwise would have to attempt to interpret the bureaucratic language of proposed rulemakings and Federal Register notices on their own. These organization also streamline the process for both citizens and the receiving agency by ensuring that citizen communications meet the strict formal requirements contained in the Notice of Proposed Rulemaking or other governing document, by providing topical sample language for letters and by ensuring that the comment reaches the proper destination within the agency at the proper time. With the advent of the Internet, advocacy organizations of all political stripes have used new technology to make it easier and more convenient for average citizens to communicate with their government from the privacy of their homes. Organizations ranging from the Campaign for Tobacco Free Kids to Environmental Defense have created websites, usually called “action centers,” to allow their members and others to make their voices heard on issues that concern them. Many action centers allow users to customize their letters, while others rely entirely on prewritten messages. No matter how an action center operates, however, every communication it generates is an attempt by an individual to speak to his or her government. We believe that reducing the barriers to speaking to government is one of the greatest gifts of the Internet to citizens, and this development is consistent with the goals of Regulations.gov. Forest Service Steps in the Wrong Direction As we stated above, our interest in this issue at this time stems from several unfortunate decisions and proposals about public input that have come from the U.S. Forest Service over the last nine months. While not all of the signatories below participate in Forest Service decisions, we mention these procedures because we believe they are concrete examples of the kinds of policies that should not be implemented by any government agency or made a part of Regulations.gov. For instance, the proposed rule at 36 C.F.R. § 219.19(d)(1) would ban "form letters, check-off lists, pre-printed post cards, or similar duplicative materials" from being considered as public objections to proposed rules under the National Forest Management Act (NFMA). While some within USFS have attempted to portray this change as merely procedural, we feel that this new standard for rejection would be a fundamental shift in the public’s relationship with government agencies if applied during the public comment period. In fact, it may even violate an agency’s constitutional and statutory duties. We hope that OMB notes this in its scoring of the USFS proposal. Moreover, we understand that USFS has already used technology designed to filter unsolicited commercial e-mail (or “spam”) to reject thousands of public comments from advocacy action centers in this very rulemaking. This filtering apparently occurred even before the rule was adopted, without any other policy or regulatory justification, and without notice to the senders that the agency would be rejecting duplicative messages or messages coming from a single online source. These anti-spam tools were designed to

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stop unsolicited commercial email and have well-documented problems, including overbroad application, poor or unpredictable functionality and lack of transparency. The technology is poorly suited for use in the context of a federal rulemaking procedure involving constitutionally-protected speech and again, we urge OMB to ensure that such technologies are not endorsed or used by Regulations.gov. There are many tools and methods that an agency can use to limit unsolicited commercial e-mail from invading a public comment process without rejecting legitimate comments whether intentionally or negligently. We would be happy to assist OMB (and the Forest Service) in investigating these more appropriate options. Finally, we believe that USFS could, like other agencies, benefit from the standardization and quality assurance provided by cooperation with Regulations.gov. Conclusion Free, unfettered speech between the public and federal agencies is a cornerstone of our democratic tradition. We the undersigned take very seriously our role in assisting members of the public in communicating with their government on issues of concern and view ourselves as a service to both the public and the cause of good government. We urge you to ensure that we can continue in this role, specifically by continuing to allow Regulations.gov to accept the full range of public communication and resisting misguided policies like those discussed above. Should you like to discuss these matters further, we would be happy to do so. Please contact Ren Bucholz at the Electronic Frontier Foundation (415/436.9333 x 121 or ren@eff.org) to coordinate such a dialogue. Thank you for your time.

Yours Sincerely,

Thomas Matzzie AFL-CIO http://www.aflcio.org Ellen Heier American Cancer Society http://www.cancer.org Cassandra Welch American Lung Association http://www.lungusa.org

S. Elizabeth Birnbaum American Rivers http://www.americanrivers.org Carter Headrick Campaign for Tobacco Free Kids http://www.tobaccofreekids.org Paul Schwartz Clean Water Action http://www.cleanwateraction.org

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Ren Bucholz Electronic Frontier Foundation http://www.eff.org Ben Smith Environmental Defense http://www.environmentaldefense.org Barbara Elkus League of Conservation Voters http://www.lcv.org Lexi Shultz Mineral Policy Center, www.mineralpolicy.org Robert Vandermark National Environmental Trust http://environet.policy.net Jim Lyon National Wildlife Federation www.nwf.org Amy Mall Natural Resource Defense Council http://www.nrdc.org

Ted Morton Oceana http://www.oceana.org Melissa Brennan OMB Watch http://ombwatch.org Mary C. Mitchell Rock Creek Alliance http://www.rockcreekalliance.org Michelle Robinson Union of Concerned Scientists http://www.ucsusa.org Tiernan Sittenfeld U.S. Public Interest Research Group http://www.uspirg.org Leslie Jones Wilderness Society http://www.tws.org

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