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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices religious group members describing potential interference with their practices, residents near a pipeline addressing safety or public notice requirements, or Native American tribal members speaking to spiritual values and historical significance of public lands.
Third, a meaningfully open comment process supports broader public engagement by otherwise underrepresented individuals and communities, whether because of race, ethnicity, gender identity, or something else.
Studies consistently show that industry groups and regulated entities, with disproportionate resources, access to agency meetings, and ability to exert political pressure, punch above their weight in the comment process. Suggesting that agencies can appropriately ignore comments from individuals would simply reinforce this disparate influence. It would also undercut the Conferences position in Recommendation 20187, Public Engagement in Rulemaking, that agencies should act to broaden and enhance public participation.
Moreover, while groups can support participation, agencies should not assume that group action sufficiently conveys individual views. Many individual interestseven important onesare underrepresented. With respect to employees such as truck drivers, for example, unions represent only 10% of U.S. wage workers.
Where groups do support individual comment submission, their involvement should not be understood to taint participation. Well-funded regulated entities typically hire attorneys to draft their comments. We nonetheless attribute those views to the commenters. We should treat individual comments similarly even if they incorporate group-suggested language.
Fourth, although mass comments in certain rulemakings may have encouraged computergenerated and falsely attributed comments, agencies should directly tackle these latter problems. And while comments from individuals vary in usefulness and sophistication, that is true of all comments.
In short, agencies should respond to large volumes of individual comments not by attempting to deter them but instead, following Recommendation paragraphs 11
13, by providing clear, visible public information on how to draft a valuable comment.
Finally, the most difficult issue is how, exactly, agencies should respond to individual comments that convey views as well as, or instead of, specific information regarding a rules need or impacts. Large comment volumes, most pragmatically, may signal an agency regarding the rules political context, including potential congressional concern. Further, large comment quantities can alert agencies to underappreciated or undercommunicated issues or reveal potential public resistance. Such comments might constitute a yellow flag for an agency to investigate, including by reaching out to particular communities to assess the basis and intensity of their views.
At a minimum, an agency should acknowledge and answer such comments, even briefly. The agency might judge that particular public views are outweighed by
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other considerations. But an answer will communicate, importantly, that individuals have been heard. The Federal Communication Commissions responses to large comment volumes in recent net neutrality proceedings are reasonable examples.
I urge the Conference to consider these issues soon and provide guidance to rulemaking agencies.
Separate Statement for Administrative Conference Recommendation 20211 by Senior Fellow Richard J. Pierce, Jr.
Filed June 29, 2021 This Is an Abbreviated Version of a Statement That Is Available on the ACUS Website.
These three phenomena and the many problems that they create have only one sourcethe 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 believe that ACUS
can and should assist agencies in explaining to the public why the notice and comment process is not, and cannot be, a plebiscite, and why the number of comments filed in support of, or in opposition to, a proposed rule should not, and cannot, be a factor in an agencys decision making process.
The Notice and Comment Process Allows Agencies To Issue Rules That Are Based on Evidence The notice and comment process is an extraordinarily valuable tool that allows agencies to issue rules that are based on evidence. It begins with the issuance of a notice of proposed rulemaking in which an agency describes a problem and proposes one or more ways in which the agency can address the problem by issuing a rule.
The agency then solicits comments from interested members of the public. The comments that assist the agency in evaluating its proposed rule are rich in data and analysis. Some support the agencys views with additional evidence, while others purport to undermine the evidentiary basis for the proposed rule. The agency then makes a decision whether to adopt the proposed rule or some variant of the proposed rule in light of its evaluation of all of the evidence in the record, including both the studies that the agency relied on in its notice and the data and analysis in the comments submitted in response to the notice. Courts require agencies to address all of the issues that were raised in all well-supported substantive comments and to explain adequately why the agency issued, or declined to issue, the rule it proposed or some variation of that rule in light of all of the evidence the agency had before it. If the agency fails to fulfill that duty, the court rejects the rule as arbitrary and capricious.
ACUS has long supported efforts to assist the intended beneficiaries of rules in their efforts to overcome the obstacles to their ability to participate effectively in rulemakings. ACUS should continue to help members of the public file comments that
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assist an agency in crafting a rule that addresses a problem effectively.
Mass Comments Are Not Helpful to Agency Decision Making and Create Major Problems Sometimes the companies and advocacy organizations that support or oppose a proposed rule organize campaigns in which they induce members of the public to file purely conclusory comments in which they merely state their support for or opposition to a proposed rule. The proponents or opponents then argue that the large number of such comments prove that there is strong public support for the position taken in those comments. Comments of that type have no value in an agencys decision-making process. Every scholar who has studied the issue has concluded that the number of comments filed for or against a proposed rule is not, and cannot be, a reliable measure of the publics views with respect to the proposed rule.
Mass comment campaigns create major problems in the notice and comment process.
Many of those problems were evident in the 2017 net neutrality rulemaking. The New York Attorney General documented the results of the well-orchestrated mass comment campaign in that rulemaking in the report that she issued on May 6, 2021. She labeled as fake 18 million of the 22 million comments that were filed in the docket. The number of fake comments filed in support of net neutrality were approximately equal to the number of fake comments filed by the opponents of net neutrality. One college student filed 7.7 million comments in support of net neutrality, while ISPs paid consulting firms 8.2 million dollars to generate comments against net neutrality.
Two things are easy to predict if the public continues to believe that the number of comments for or against a proposed rule is an important factor in an agencys decisionmaking process. First, the next net neutrality rulemaking will elicit even more millions of comments as the warring parties on both sides escalate their efforts to maximize the vote on each side of the issue. Second, the firms that have a lot of money at stake in other rulemakings will begin to replicate the behavior of the firms that are on each side of the net neutrality debate. The results will be massive, unmanageable dockets in which the noise created by the mass comments will make it increasingly difficult for agencies and reviewing courts to focus their attention on the substantive comments that provide the evidence that should be the basis for the agencys decision.
ACUS Should Initiate Another Project To Address Mass Comments in Rulemakings I think that ACUS should initiate a new project in which it decides whether to discourage mass comments, computergenerated comments and fraudulent comments and, if so, how best to accomplish that. I believe that ACUS can and should discourage these practices by, for instance, encouraging agencies to assist in educating the public about the types of comments that can assist agencies in making evidence-based decisions and the types of comments that are not helpful to agencies and that instead
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