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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices
this Recommendation. So, I have a good sense of the hard work that went into the preparation of the Recommendation by the Consultants, the Rulemaking Committee Chair Cary Coglianese, the Committee members, and the ACUS staff, and I am grateful for their dedication.
I support adoption of the Recommendation in the context of the express limitation of the scope of the project as stated: This 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.
I wish to associate myself generally with the Comment of Senior Fellow Richard Pierce, dated May 25, 2021, especially his concern that the ACUS Recommendation not be misconstrued to foster the widespread but mistaken public belief that notice and comment rulemaking can and should be considered a plebiscite in which the number of comments filed for or against a proposed rule is an accurate measure of public opinion that should influence the agencys decision whether to adopt the proposed rule.
I have submitted comments and/or reply comments in every net neutrality proceeding, however denominated, the Federal Communications Commission has conducted over the last fifteen yearsand, yes, the back-and-forth battle over various net neutrality proposals has been going on that long and there have been at least a dozen comment cycles. However, especially in the last two net neutrality rulemaking cycles, in 20142015 and 2017, there has been a major escalationyou could call it exercising the nuclear optionin the effort, by both opposing sides, to generate as many mass, computer-generated form comments as possible. By form comments I mean comments that concededly contain little or no information beyond cursorily stating a pro or con position.
The startling results of going nuclear, in terms of generating the sheer number of mass, computer-generated form comments in the latest net neutrality round are now well-known. The phenomenon has been the subject of federal and state studies cited in the Recommendations Preamble, with some of the most significant details cited in Professor Pierces separate statement. Aside from any other concerns, I can personally testify that the deluge of approximately 22
million mass, computer-generated form comments often overwhelmed the FCCs ability to keep its electronic filing system operating properly and often rendered the ability to search for comments that might possibly contain relevant data and information well-nigh impossible.
And, of course, the huge costs expended by private parties engaging in the effort that led to the submission of approximately 22
million mass, computer-generated form comments including the 18 million fake comments were enormous, not to mention the direct and indirect costs imposed on the government merely to compile, process, and review the comments.
It is blinking reality not to recognize that the proand connet neutrality interests
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responsible for generating 22 million comments assumed, in some significant way, that the outcome of the rulemaking would be impacted by which side won the comment battle. In other words, it must have been assumed that, in some meaningful sense, the rulemaking would be decided on the basis of a plebiscite, counting comments, not on the basis of the quality of the data, evidence, and arguments submitted.
So, while I accept the constraints imposed by the parameters of this Recommendation which, on its own terms, contains useful guidance to assist agenciesI hope that, going forward, ACUS will initiate a project that considers the appropriateness of curbing the submission of mass, computer-generated form comments, and, if so, how best to accomplish this. Certainly public education, including by government officials, and especially the pertinent agency officials, regarding the objectives of the rulemaking process in general, and specific rulemakings in particular, can play an important role.
I wish to make clear that I recognize the value of widespread participation by interested persons, as the Administrative Procedure Act puts it, in the rulemaking process, not only because of the value of the evidence put on the record through such participation, but because of the instrumental value bestowed upon interested persons by the opportunity to participate in government decision-making processes that affect them.
With due deliberation, with recognition of the need to exercise care in drawing relevant distinctions among various types of rulemaking proceedings and their objectives, there ought to be a proper way to discourage the type of comment war that occurred in the two most recent FCC net neutrality proceedings, while, at the same time, encouraging the type of widespread public participation that is most helpful to agencies in promulgating sound public policies.
Separate Statement for Administrative Conference Recommendation 20211 by Senior Fellow Nina A. Mendelson Filed June 27, 2021 This Is an Abbreviated Version of a Statement That Is Available on the ACUS Website.
This Recommendation, the product of much hard work, will help guide agencies managing mass comments and addressing falsely attributed and computer-generated comments. But these rulemaking-related challenges raise very different concerns.
Comments from ordinary individuals, whatever their volume, and whether they supply situated knowledge or views, can be relevant, useful, and even important to many rulemakings. The Recommendation correctly does not imply otherwise. The Conference should address the proper agency response to such comments separately, and soon.
First, public comments function encompasses more than the purely technical, whether that is supplying data or critiquing an agencys economic analysis.
For some statutory issues, certainly, public comments transmitting views are less relevant. Under the Endangered Species Act, for example, an agency determining whether an animal is endangered must assess its habitat and likelihood of continued
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existence. Public affection for a species is not directly relevant.
But agencies address numerous issues that, by statute, extend far beyond technocratic questions, encompassing value-laden issues.
An agency deciding what best serves publicregarding statutory goals must balance all such considerations.
Nonexclusive examples relevant to agency statutory mandates include:
The importance of nearby accessible bathrooms to the dignity of wheelchair users, at issue in a 2010 Americans with Disabilities Act regulation.
Weighing potential public resource uses.
For multiple-use public lands, the Bureau of Land Management must, by regulation, balance recreation and scenic, scientific and historical values with resource extraction uses, including timbering and mining.
Potential public resistance to an action, such as the Coast Guards ultimately abandoned decision creating live-fire zones in the Great Lakes for weapons practice in the early 2000s. Had the agency seriously sought out public comment, it would have detected substantial public resistance to this action, which, without the benefit of participation, the agency considered justified and minimally risky.
Public resistance to a possible mandate as unduly paternalistic, burdensome, or exclusionary, whether ignition interlock or a vaccine passport requirement. Justice Rehnquist identified this issue in Motor Vehicles Mfg. Assn v. State Farm Mutual Auto Ins., 463 U.S. 29 1983. Though Justice Rehnquists dissent linked the issue to presidential elections, he underscored its relevance to rulemaking.
Environmental justice/quality of life matters. In a 2020 rule implementing the National Environmental Policy Act, the Council on Environmental Quality decided that an agency need no longer assess a proposed actions cumulative impacts in its environmental impact analysis. This decision will especially impact low-income communities and communities of color, including Southwest Detroit, where multiple polluting sources adjoin residential neighborhoods. Whether to require cumulative impacts analysis is not a technical issue. It is a policy decision whether community environmental and quality of life concerns are important enough to justify lengthier environmental analyses.
The comment process enables communities to express directly the importance of these issues.
Rulemaking is certainly not a plebiscite.
Besides representativeness concerns, that is mainly because statutes typically require agencies to consider multiple factors, not only public views. But ordinary peoples views and preferences are nonetheless relevant and thus appropriately communicated to the agency. The text of 5
U.S.C. 553c is express here: interested persons are entitled to submit data, views, or arguments.
Second, the identity of individual commenters may provide critical context.
That a comment on a proposed ADA
regulations importance is from a wheelchair user should matter. The same is true for
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