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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices
basis and purpose. 3 When a rule is challenged on judicial review, courts have required agencies to demonstrate that they have considered and responded to any comment that raises a significant issue.4 The notice-and-comment process is an important opportunity for the public to provide input on a proposed rule and the agency to avoid errors and make a more informed decision on its rulemaking.5
Technological advances have expanded the publics access to agencies online rulemaking dockets and made it easier for the public to comment on proposed rules in ways that the Administrative Conference has encouraged.6 At the same time, in recent high-profile rulemakings, members of the public have submitted comments in new ways or in numbers that can challenge agencies current approaches to processing these comments or managing their online rulemaking dockets.
Agencies have confronted three types of comments that present distinctive management challenges: 1 Mass comments, 2 computer-generated comments, and 3
falsely attributed comments. For the purposes of this Recommendation, mass comments are comments submitted in large volumes by members of the public, including the organized submission of identical or substantively identical comments. Computergenerated comments are comments whose substantive content has been generated by computer software rather than by humans.7
Falsely attributed comments are comments attributed to people who did not submit them.
These three types of comments, which have been the subject of recent reports by both federal 8 and state 9 authorities, can raise 35

U.S.C. 553.
v. Mortg. Bankers Assn, 575 U.S. 92, 96
2015 An agency must consider and respond to significant comments received during the period for public comment..
5 Azar v. Allina Health Services, 139 S. Ct. 1804, 1816 2019.
6 See Admin. Conf. of the U.S., Recommendation 20187, Public Engagement in Rulemaking, 84 FR
2146 Feb. 6, 2019; Admin. Conf. of the U.S., Recommendation 20135, Social Media in Rulemaking, 78 FR 76269 Dec. 17, 2013; Admin.
Conf. of the U.S., Recommendation 20118, Agency Innovations in eRulemaking, 77 FR 2264 Jan. 17, 2012; Admin. Conf. of the U.S., Recommendation 20112, Rulemaking Comments, 76 FR 48791 Aug.
9, 2011.
7 The ability to automate the generation of comment content may also remove human interaction with the agency and facilitate the submission of large volumes of comments in cases in which software can repeatedly submit comments via Regulations.gov.
8 See Permanent Subcommittee on Investigations, U.S. Senate Comm. on Homeland Security and Govt Affairs, Staff Report, Abuses of the Federal Notice-and-Comment Rulemaking Process 2019;
U.S. Govt Accountability Off., GAO20413T, Selected Agencies Should Clearly Communicate How They Post Public Comments and Associated Identity Information 2020; U.S. Govt Accountability Off., GAO19483, Selected Agencies Should Clearly Communicate Practices Associated with Identity Information in the Public Comment Process 2019.
9 N.Y. State Off. of the Atty Gen., Fake Comments: How U.S. Companies & Partisans Hack Democracy to Undermine Your Voice 2021.

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challenges for agencies in processing, reading, and analyzing the comments they receive in some rulemakings. If not managed well, the processing of these comments can contribute to rulemaking delays or can raise other practical or legal concerns for agencies to consider.
In addressing the three types of comments in a single recommendation, the Conference does not mean to suggest that agencies should treat these comments in the same way. Rather, the Conference is addressing these comments in the same Recommendation because, despite their differences, they can present similar or even overlapping management concerns during the rulemaking process. In some cases, agencies may also confront all three types of comments in the same rulemaking.
The challenges presented by these three types of comments are by no means identical.
With mass comments, agencies may encounter processing or cataloging challenges simply as a result of the volume as well as the identical or substantively identical content of some comments they receive. Without the requisite tools, agencies may also find it difficult or time-consuming to digest or analyze the overall content of all comments they receive.
In contrast with mass comments, computer-generated comments and falsely attributed comments may mislead an agency or raise issues under the APA and other statutes. One particular problem that agencies may encounter is distinguishing computer-generated comments from comments written by humans. Computergenerated comments may also raise potential issues for agencies as a result of the APAs provision for the submission of comments by interested persons. 10 Falsely attributed comments can harm people whose identities are appropriated and may create the possibility of prosecution under state or federal criminal law. False attribution may also deceive agencies or diminish the informational value of a comment, especially when the commenter claims to have situational knowledge or the identity of the commenter is otherwise relevant. The informational value that both of these types of comments provide to agencies is likely to be limited or at least different from comments that have been neither computergenerated nor falsely attributed.
This Recommendation is limited to how agencies can better manage the processing challenges associated with mass, computergenerated, and falsely attributed comments.11
By addressing these processing challenges, the Recommendation is not intended to imply that widespread participation in the rulemaking process, including via mass comments, is problematic. Indeed, the Conference has explicitly endorsed widespread public participation on multiple occasions,12 and this Recommendation U.S.C. 553.
Recommendation does not address what role particular types of comments should play in agency decision making or what consideration, if any, agencies should give to the number of comments in support of a particular position.
12 See Recommendation 20187, supra note 6;
Admin. Conf. of the U.S., Recommendation 2017

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should help agencies cast a wide net when seeking input from all individuals and groups affected by a rule. The Recommendation aims to enhance agencies ability to process comments they receive in the most efficient way possible and to ensure that the rulemaking process is transparent to prospective commenters and the public more broadly.
Agencies can advance the goals of public participation by being transparent about their comment policies or practices and by providing educational information about public involvement in the rulemaking process.13 Agencies ability to process comments can also be enhanced by digital technologies. As part of its eRulemaking Program, for example, the General Services Administration GSA has implemented technologies on the Regulations.gov platform that make it easier for agencies to verify that a commenter is a human being.14 GSAs Regulations.gov platform also includes an application programming interface APIa feature of a computer system that enables different systems to communicate with itto facilitate mass comment submission.15 This technology platform allows partner agencies to better manage comments from identifiable entities that submit large volumes of comments. Some federal agencies also use a tool, sometimes referred to as de-duplication software, to identify and group identical or substantively identical comments.
New software and technologies to manage public comments will likely emerge in the future, and agencies will need to keep apprised of them. Agencies might also consider adopting alternative methods for encouraging public participation that augment the notice-and-comment process, particularly to the extent that doing so ameliorates some of the management challenges described above.16 Because 3, Plain Language in Regulatory Drafting, 82 FR
61728 Dec. 29, 2017; Admin. Conf. of the U.S., Recommendation 20172, Negotiated Rulemaking and Other Options for Public Engagement, 82 FR
31040 July 5, 2017; Admin. Conf. of the U.S., Recommendation 20146, Petitions for Rulemaking, 79 FR 75117 Dec. 17, 2014; Recommendation 20135, supra note 6; Recommendation 20118, supra note 6; Admin. Conf. of the U.S., Recommendation 20117, Federal Advisory Committee Act: Issues and Proposed Reforms, 77
FR 2261 Jan. 17, 2012; Recommendation 20112, supra note 6.
13 For an example of educational information on rulemaking participation, see the Commenters Checklist that the eRulemaking Program currently displays in a pop-up window for every rulemaking web page that offers the public the opportunity to comment. See Commenters Checklist, Gen. Servs.
Admin., https www.Regulations.gov last visited May 24, 2021 navigate to any rulemaking with an open comment period; click comment button; then click Commenters Checklist. In addition, the text of this checklist appears on the project page for this Recommendation on the ACUS website.
14 This software is distinct from identity validation technologies that force commenters to prove their identities.
15 See Regulations.gov API, Gen. Servs. Admin., https open.gsa.gov/api/regulationsgov/ last visited May 24, 2021.
16 See Steve Balla, Reeve Bull, Bridget Dooling, Emily Hammond, Michael Herz, Michael Livermore, & Beth Simone Noveck, Mass,
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