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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices technology is rapidly changing, agencies will need to stay apprised of new developments that could enhance public participation in rulemaking.
Not all agencies will encounter mass, computer-generated, or falsely attributed comments. But some agencies have confronted all three, sometimes in the same rulemaking. In offering the best practices that follow, the Conference recognizes that agency needs and resources will vary. For this reason, agencies should tailor the best practices in this Recommendation to their particular rulemaking programs and the types of comments they receive or expect to receive.

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Recommendation Managing Mass Comments 1. The General Services Administrations GSA eRulemaking Program should provide a common de-duplication tool for agencies to use, although GSA should allow agencies to modify the de-duplication tool to fit their needs or to use another tool, as appropriate.
When agencies find it helpful to use other software tools to perform de-duplication or extract information from a large number of comments, they should use reliable and appropriate software. Such software should provide agencies with enhanced search options to identify the unique content of comments, such as the technologies used by commercial legal databases like Westlaw or LexisNexis.
2. To enable easier public navigation through online rulemaking dockets, agencies may welcome any person or entity organizing mass comments to submit comments with multiple signatures rather than separate identical or substantively identical comments.
3. Agencies may wish to consider alternative approaches to managing the display of comments online, such as by posting only a single representative example of identical comments in the online rulemaking docket or by breaking out and posting only non-identical content in the docket, taking into consideration the importance to members of the public to be able to verify that their comments were received and placed in the agency record.
When agencies decide not to display all identical comments online, they should provide publicly available explanations of their actions and the criteria for verifying the receipt of individual comments or locating identical comments in the docket and for deciding what comments to display.
4. When an agency decides not to include all identical or substantively identical comments in its online rulemaking docket to improve the navigability of the docket, it should ensure that any reported total number of comments such as in Regulations.gov or in the preambles to final rules includes the number of identical or substantively identical comments. If resources permit, agencies should separately report the total number of identical or substantively identical comments they receive. Agencies should also consider Computer-Generated, and Fraudulent Comments 4348 June 1, 2021 report to the Admin. Conf. of the U.S..

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providing an opportunity for interested members of the public to obtain or access all comments received.
Managing Computer-Generated Comments 5. To the extent feasible, agencies should flag any comments they have identified as computer-generated or display or store them separately from other comments. If an agency flags a comment as computer-generated, or displays or stores it separately from the online rulemaking docket, the agency should note its action in the docket. The agency may also choose to notify the submitter directly if doing so does not violate any relevant policy prohibiting direct contact with senders of spam or similar communications.
6. Agencies that operate their own commenting platforms should consider using technology that verifies that a commenter is a human being, such as reCAPTCHA or another similar identity proofing tool. The eRulemaking Program should continue to retain this functionality.
7. When publishing a final rule, agencies should note any comments on which they rely that they know are computer-generated and state whether they removed from the docket any comments they identified as computer-generated.
Managing Falsely Attributed Comments 8. Agencies should provide opportunities including after the comment deadline for individuals whose names or identifying information have been attached to comments they did not submit to identify such comments and to request that the comment be anonymized or removed from the online rulemaking docket.
9. If an agency flags a comment as falsely attributed or removes such a comment from the online rulemaking docket, it should note its action in the docket. Agencies may also choose to notify the purported submitter directly if doing so does not violate any agency policy.
10. If an agency relies on a comment it knows is falsely attributed, it should include an anonymized version of that comment in its online rulemaking docket. When publishing a final rule, agencies should note any comments on which they rely that are falsely attributed and should state whether they removed from the docket any falsely attributed comments.
Enhancing Agency Transparency in the Comment Process 11. Agencies should inform the public about their policies concerning the posting and use of mass, computer-generated, and falsely attributed comments. These policies should take into account the meaningfulness of the publics opportunity to participate in the rulemaking process and should balance goals such as user-friendliness, transparency, and informational completeness. In their policies, agencies may provide for exceptions in appropriate circumstances.
12. Agencies and relevant coordinating bodies such as GSAs eRulemaking Program, the Office of Information and Regulatory Affairs, and any other governmental bodies that address common rulemaking issues should consider providing publicly available materials that explain to prospective
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commenters what types of responses they anticipate would be most useful, while also welcoming any other comments that members of the public wish to submit and remaining open to learning from them. These materials could be presented in various formatssuch as videos or FAQsto reach different audiences. These materials may also include statements within the notice of proposed rulemaking for a given agency rule or on agencies websites to explain the purpose of the comment process and explain that agencies seriously consider any relevant public comment from a person or organization.
13. To encourage the most relevant submissions, agencies that have specific questions or are aware of specific information that may be useful should identify those questions or such information in their notices of proposed rulemaking.
Additional Opportunities for Public Participation 14. Agencies and relevant coordinating bodies should stay abreast of new technologies for facilitating informative public participation in rulemakings. These technologies may help agencies to process mass comments or identify and process computer-generated and falsely attributed comments. In addition, new technologies may offer new opportunities to engage the public, both as part of or as a supplement to the notice-and-comment process. Such opportunities may help ensure that agencies receive input from communities that may not otherwise have an opportunity to participate in the conventional comment process.
Coordination and Training 15. Agencies should work closely with relevant coordinating bodies to improve existing technologies and develop new technologies to address issues associated with mass, computer-generated, and falsely attributed comments. Agencies and relevant coordinating bodies should share best practices and relevant innovations for addressing challenges related to these comments.
16. Agencies should develop and offer opportunities for ongoing training and staff development to respond to the rapidly evolving nature of technologies related to mass, computer-generated, and falsely attributed comments and to public participation more generally.
17. As authorized by 5 U.S.C. 5942, the Conferences Office of the Chairman should provide for the interchange among administrative agencies of information potentially useful in improving agency comment processing systems. The subjects of interchange might include technological and procedural innovations, common management challenges, and legal concerns under the Administrative Procedure Act and other relevant statutes.
Separate Statement for Administrative Conference Recommendation 20211 by Senior Fellow Randolph J. May Filed June 18, 2021
I attended several of the Committee meetings that considered the preparation of
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