Administrative Law Review
"In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies should respond as a matter of law, policy, and technology."
A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs.
The Federal Communications Commission’s (FCC’s) “Restoring Internet Freedom” (i.e., net neutrality) rulemaking perhaps best illustrates the new challenges posed to the notice-and-comment process. That proposed rule attracted a record number of public comments: almost twenty-two million by the official close of the comment period, with another three million arriving after the fact. Although about six percent of the comments were unique, the rest were submitted multiple times, in some cases hundreds of thousands of times. On nine different occasions, more than seventy-five thousand comments were entered into the docket at the very same second. The submissions “included comments from stolen email addresses, defunct email accounts and people who unwittingly gave permission for their comments to be posted.” A consulting firm later determined that about a third of the comments were sent from temporary or disposable email domains, and about ten million were from senders of multiple comments. FCC Commissioner Jessica Rosenworcel has stressed that five hundred thousand or so comments came from Russia. The New York Attorney General concluded that 9.3 million comments were what this Article refers to as “malattributed”—submitted under false identities—including over seven million from a single submitter. In sum, three forms of public participation in this rulemaking raised concerns: 1) the mass occurrence of identical and near duplicate comments, 2) the malattribution of identities, and 3) the apparent automation of comment submission.
With its new higher profile and an emerging set of technological challenges, the notice-and-comment process has come under increasing scrutiny. In 2019 the U.S. Senate Permanent Subcommittee on Investigations issued a staff report entitled, “Abuses of the Federal Notice-and-Comment Rulemaking Process.” The report identified problems associated with mass, malattributed, and computer-generated comments, including a lack of agency processes and policies aimed at identifying, managing, and addressing such comments. The Administrative Conference of the United States (ACUS) has also been tracking these issues for several years. This attention is partly because all three of these types of comments can generate serious challenges for agencies, raising a pressing set of questions concerning how best to respond while ensuring the functioning of the informal rulemaking process.
In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies should respond as a matter of law, policy, and technology. Our overarching conclusion is that agencies should adopt both low- and high-tech measures to limit the negative impact of these sorts of comments. Mass, malattributed, and computer-generated comments, however, do not represent a crisis for the regulatory state at this time. They have not been found to violate federal law and do not generally undermine the integrity of notice-and-comment rulemaking, and we are not aware of evidence of widespread substantive harms in particular rulemaking efforts or to the rulemaking system overall. However, appropriate responses, especially those that take advantage of new technology, could reduce the cost and negative impacts of technology-enabled comments.
Adopting such techniques could, for example, improve the opportunity for a diverse public to participate in the federal rulemaking process meaningfully and augment current practices with new forms of citizen engagement. Indeed, in addition to exploring how new technologies— the very same technologies that enable mass, malattributed, and computer-generated comments—can help with analyzing those comments, we also explore throughout how technology can help regulatory officials make sense of public input and draw greater insights from public comments of all kinds. Finally, other jurisdictions at the state and local level and internationally are turning to new technology to enable innovative forms of public participation, thus improving the quality of rule and policymaking. These activities illustrate hopeful opportunities for future experimentation.
This Article is based on a report submitted by the authors to the ACUS and is informed by a set of interviews during the summer and fall of 2020 with agency personnel with a background in the rulemaking process at agencies with substantial rulemaking dockets. The interviews, which were not meant to capture the views of a representative or random sample, were with staff of the Environmental Protection Agency (EPA), the Consumer Financial Protection Bureau, the Department of Transportation, and the FCC, as well as with officials from the General Services Administration (GSA) responsible for developing and maintaining the Federal Docket Management System (FDMS). A technical advisory group of experts drawn from government, private industry, and academia also provided feedback to the authors, as did an additional online roundtable of agency officials with experience in the notice-and-comment process.
This Article is divided into seven parts. Part I provides a general introduction to notice-and-comment rulemaking and the role of technology in that process. Part II discusses recent technological developments that have contributed to the growth of mass, malattributed, and computer-generated comments, and describes some of the challenges associated with these types of comments. Parts III, IV, and V focus on each of these comment types in turn. Part VI discusses technological opportunities, with a focus on current, available tools that can be used to facilitate the processing of information from the notice-and-comment process or enhance supplements to the notice- and-comment process. Part VII concludes.