GSA's Mass and Fake Comments Meeting

January 31, 2020

Opening remarks by Steven J. Balla:

From the transcript:

Over the last few years, we've been, with a bunch of colleagues at George Washington University, working on a project on mass comment campaigns and agency rulemaking. And I want to spend a few minutes sharing what we've been up to, what we've found. And what we think some of the broader implications of the research are, but for the larger interests we're discussing today.

So just to review the bidding, what are we talking about with mass comment campaigns? These are collections of identical, near duplicate comments that are sponsored by an organization. We've heard from several organizations that are active in this space.

And who's submitting these comments? It's group members. It's supporters of the group's mission.

Now our focus in the research project is on three main questions. So first, who sponsors mass comment campaigns? Who are the organizations that are doing it generally speaking?

Secondly, what do these mass comment campaigns say? What is their content?

And then finally, what do agencies do with mass comment campaigns? How do they handle them once they come into their dockets?

So our focus is on the EPA for a couple of reasons. One, EPA is a great place to start for looking at this phenomenon because the agency's an active rulemaking agency with stakeholders on all sides of the issues that it regulates on. More practically speaking, the agency does, to the best of our knowledge, relative to other agencies, an interesting way of recording these mass comment campaigns in a transparent and a systematic way that's easily accessible and understandable.

So for example, when a mass comment campaign comes into the EPA -- and by the way, we're taking the EPA's judgment at face value here -- So what the EPA says is a mass comment campaign for us as researchers is a mass comment campaign.

When the mass comment campaign comes in, the agency creates a record in Regulations.gov. What's that record contain? Up at the top of the screen, the mass comment campaign sponsor if the agency is able to figure that out is identified. In the one that we're looking at here, it's the Natural Resources Defense Council.

On the right-hand side, the agency notes how many of these identical and near duplicate comments there are in the docket. So in this case, it's over 100,000 in the campaign that we're looking at.

And then finally on the lower left-hand side, the agency presents one illustrative comment in that campaign. So here it's as a PDF attachment.

But note what that means is there aren't 100,000+ records created in Regulations.gov, there's one record created that then references the number, which gives a flavor of the content. And if it's known, talks about who the organization who sponsored the campaign.

So now if we look at who the sponsors are, to get that first question. The EPA is not always able to identify the sponsoring organization. So that was a point that was raised on the previous panel about anonymous mass comment campaigns versus those that are attributable to a group. And we can talk about that in the Q&A if anybody is interested about the differences across these two types.

We've divided simply two broad classes of stakeholders, if you will. At the top -- that's not a great name -- Advocates of Intrinsic Regulations. What we mean by that is environmental advocacy groups like the NRDC, Labor Unions, general progressive type groups organizing for actions. We might expect that as mass membership organizations, these are going to be organizations that are particularly active in this space. And that's certainly true.

But if you look at the bottom half of the table, it’s regulated entities. So in the case of the EPA, it's mainly the agriculture industry, or the Energy sector. They're actually players in this space as well. And again, Patrick suggested that NAMs active in mass comment campaigning. There is a lot of that in the sectors that the EPA is usually interacting with in the notice and comment process.

f we look at those two numbers, 542 versus 198, that's about 75/25 breakdown in terms of percentages. So certainly the mass membership groups, sort of the traditional advocacy groups if you will, are more active in this space. But there is mass comment campaigning happening across a variety of stakeholders. And we were a bit surprised to see how much activity there was in fact among what we're calling here "regulated entities." We thought that would be a much rarer occasion.

Now what do they say? So what we're going to just depose here on the screen in front of us, if we go to the next slide is two extreme examples of mass comment campaigns. On the left hand side, you are looking at a mass comment campaign in its entirety. The text of the campaign in its entirety. Twelve words to say thumbs up to the clean power plant. So that campaign was initiated by a state level environmental group.

On the right-hand side, this is the other extreme. This is from a national agriculture organization, this is a very small snippet of a much longer mass comment campaign. So I want to emphasize both those points. Because it's a very detailed campaign -- a very detailed comment that was submitted by many, many, many different individual commenters -- individuals or organizations.

In this little piece that we're looking at, you can see there's data, there's analysis. This is a well-reasoned, well researched, well sourced mass comment campaign. So those do exist.

And so I want to emphasize that there really is variety in the space of what we call a mass comment campaign. Now, where's the center of gravity? It's more toward the left-hand side of the screen. That's for sure in terms of raw numbers. But those mere statements of directional preference and nothing else in terms of argument or evidence. But we do see reasoning and data on occasion.

Finally third question, how do agencies handle mass comment campaigns? So we looked here at a number of different sources; one of which I'll show you. Which is the response to comment documents that the EPA will put out, along with its final regulation. And a typical template for these documents which can be hundreds or thousands pages long is to exert one comment or a series of comments. And then respond to that particular argument or piece of evidence that's being raised.

And what we found is when we look across mass comment campaigns versus your, if you'll call it, traditional stand-alone comments that we historically think of in the notice and 5 comment process, what the EPA typically does is with a mass comment campaign that makes like a quick directional statement -- we love your rule, we hate your rule, and nothing else -- that tends to get mentioned almost every time in the docket. But the agency's response, it's usually mentioned one time. The agency responds quickly and it moves on.

What about the more substantive comments, if you will, that have reasoning and evidence? You'll see the agency repeatedly going back to those comments, addressing each piece of evidence or substantive point individually. So we do see the agency able to deal with mass comment campaigns in what we think might be an appropriate manner -- mention that they were received, react to them quickly, and move on to spend much more time with the other comments on the docket. I'll come back to that in a second.

Last slide, our view of mass comment campaigns if I could sum up, it is indeed a form of participation that's exercised by a variety of stakeholders. So it's not just the mass membership groups per se that we might traditionally think of. Again most of the time, statements of directional preference, for or against the rule, nothing else. But occasionally -- not rarely -- data argumentation.

And then finally at least in the context of the EPA, we see the agency readily identifying the campaigns, cataloguing them in a systematic and accessible way in Regulations.gov. And then responding to them in a way that we think is reflective of their content.

So if we get to the last point at the bottom of the slide. If we step back from the empirical findings, we don't see mass comment campaigns as an abuse of the rulemaking process. We think they're a legitimate form of expression 1 in this particular space.

That said, we don't think mass comment campaigns have democratized the rulemaking process. There was so hope of that a decade+ ago. Nor do we think that agencies have been inundated with notice and span that has ground their decision making processes to a halt.

If anything, we see these campaigns as a phenomenon that are managed within the process. The technology hasn't changed the process, rather the process has adapted to the technology. And so that's why we don't see these, at least most of the time as it's currently constituted, as an abuse of the rulemaking process.

Thank you.