Federal Rulemaking:

Selected Agencies Should Clearly Communicate Practices Associated with Identity Information in the Public Comment Process

GAO-19-483: Published: Jun 26, 2019. Publicly Released: Jul 26, 2019.

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When federal agencies propose new rules, they usually provide an opportunity for public comment, but agencies aren't required to collect or verify commenters' identity information.

Mass mailing campaigns can result in thousands of duplicate comments. Agencies can post them individually, as attachments to a single comment, or as a count of duplicates received. Practices vary among agencies, within agencies, and for each rule.

The variation in how agencies post comments could create an inaccurate view of who submitted public comments. Our recommendations include more clearly communicating agencies' comment policies.

Man at computer looking at regulations.gov

Man at computer looking at regulations.gov

Additional Materials:

Contact:

Seto J. Bagdoyan
(202) 512-6722
bagdoyans@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

What GAO Found

The Administrative Procedure Act (APA) governs the process by which many federal agencies develop and issue regulations, which includes the public comment process (see figure below).

The Rulemaking Process under the Administrative Procedure Act

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Regulations.gov and agency-specific comment websites collect some identity information—such as name, email, or address—from commenters who choose to provide it during the public comment process. The APA does not require commenters to disclose identity information when submitting comments. In addition, agencies have no obligation under the APA to verify the identity of such parties during the rulemaking process.

GAO found that seven of 10 selected agencies have some internal guidance associated with the identity of commenters, but the substance varies, reflecting the differences among the agencies. The guidance most frequently relates to the comment intake or response to comment phases of the public comment process.

With the discretion afforded by the APA, selected agencies' treatment of commenters' identity information varies, particularly when posting duplicate comments (identical or near-identical comment text but varied identity information). Generally, officials told GAO that their agencies (1) post all comments within the comment system; or (2) maintain some comments outside of the system, such as in email file archives. For instance, one agency posts a single example of duplicate comments and indicates the total number of comments received. However, within these broad categories, posting practices vary considerably—even within the same agency—and identity information is inconsistently presented on public websites.

Selected agencies do not clearly communicate their practices for how comments and identity information are posted. GAO's key practices for transparently reporting government data state that federal government websites should disclose data sources and limitations to help public users make informed decisions about how to use the data. As a result, public users of the comment websites could reach inaccurate conclusions about who submitted a particular comment, or how many individuals commented on an issue.

Why GAO Did This Study

Federal agencies publish on average 3,700 proposed rules yearly and are generally required to provide interested persons (commenters) an opportunity to comment on these rules. In recent years, some high-profile rulemakings have received extremely large numbers of comments, raising questions about how agencies manage the identity information associated with comments. While the APA does not require the disclosure of identifying information from a commenter, agencies may choose to collect this information. This report examines (1) the identity information collected by Regulations.gov and agency-specific comment websites; (2) the guidance agencies have related to the identity of commenters; (3) how selected agencies treat identity information; and (4) the extent to which selected agencies clearly communicate their practices associated with identity information.

GAO selected a nongeneralizable sample of 10 federal agencies on the basis of large comment volume. GAO surveyed 52 program offices within these agencies about their comment process; and reviewed comment websites, agency guidance, and posted comment data. GAO also interviewed relevant agency officials.

What GAO Recommends

GAO is making a total of eight recommendations to the selected agencies to more clearly communicate to the public their policies for posting comments and associated identity information to Regulations.gov and agency-specific comment websites. The selected agencies generally agreed with the recommendations.

For more information, contact Seto J. Bagdoyan at (202) 512-6722 or bagdoyans@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: BLM concurred with the recommendation. In December 2019, BLM indicated that it will develop and issue policy for standard posting requirements regarding public comments and associated identity information as well as duplicative comments which will be available on BLM's website. BLM officials estimate that this will be completed in March 2020. Until these items are completed, our recommendation to BLM remains open.

    Recommendation: The Director of the Bureau of Land Management (BLM) should create and implement a policy for standard posting requirements regarding comments and their identity information, particularly for duplicate comments, and should clearly communicate this policy to the public on the BLM website. (Recommendation 1)

    Agency Affected: Department of the Interior: Bureau of Land Management

  2. Status: Open

    Comments: In January 2020, the Department of Health and Human Services stated that CMS already has policies for standard posting requirements, and noted that they would update their policy and communicate it on the CMS website. However, while CMS provided us with an excerpt of the updated language, as written, it does not include information about how the agency posts duplicate comments. Further, CMS did not provide us with this policy, and our review of the website does not indicate any changes have been made. HHS stated it would provide additional follow up actions by 7/23/2020. Given that we found significant variation in the way that CMS posts comments, even within a single docket, we continue to believe that it is important for CMS to develop and implement a standard policy for posting duplicate comments and their identity information, in addition to communicating this policy to the public on the CMS website.

    Recommendation: The Administrator of Centers for Medicare & Medicaid Services (CMS) should create and implement a policy for standard posting requirements regarding comments and their identity information, particularly for duplicate comments, and should clearly communicate this policy to the public on the CMS website. (Recommendation 2)

    Agency Affected: Department of Health and Human Services: Centers for Medicare and Medicaid Services

  3. Status: Open

    Comments: CFPB concurred with the recommendation. In December 2019, CFPB indicated that it will develop new language for consumerfinance.gov to better explain the Bureau's "post all" policy, and any exceptions to it. Additionally, CFPB is finalizing internal procedures for posting comments. Until these items are completed, our recommendation to CFPB remains open.

    Recommendation: The Director of the Consumer Financial Protection Bureau (CFPB) should finalize its draft policy for posting comments and their identity information, particularly for duplicate comments, and clearly communicate it to the public on the CFPB website. (Recommendation 3)

    Agency Affected: Consumer Financial Protection Bureau

  4. Status: Open

    Comments: EBSA concurred with the recommendation. In September 2019, EBSA stated that it will develop a written policy regarding posting of comments, including that of duplicate comments. This information will be available on their website. Additionally, EBSA will post a reference to Regulations.gov as part of each Notice of Proposed Rulemaking (NPRM) webpage that includes public comments together with an explanation of its relation to Regulations.gov as a means to access public comments on EBSA's rulemaking initiatives. EBSA officials did not provide a date by which these actions will be implemented. Additionally, while EBSA noted that internal and external users prefer the agency's current practice of replicating rulemaking dockets, the agency did not provide evidence that a formal evaluation had been conducted, and did not identify plans to do so. As a result, at this time our recommendation to EBSA remains open.

    Recommendation: The Assistant Secretary of Labor for the Employee Benefits Security Administration (EBSA) should
    1. create and implement a policy for standard posting requirements regarding comments and their identity information, particularly for duplicate comments;
    2. clearly communicate this policy to the public on the EBSA website; and
    3. evaluate the duplicative practice of replicating rulemaking dockets on the EBSA website, to either discontinue the practice or include a reference to Regulations.gov and explanation of how the pages relate to one another. (Recommendation 4)

    Agency Affected: Department of Labor: Employee Benefits Security Administration

  5. Status: Open

    Comments: EPA concurred with the recommendation. In January 2020, EPA indicated that it will finalize its Docket Center's Document Processing Standard Operating Procedure as well as its website. This update will include information detailing when all duplicate comments are posted to Regulations.gov and when just one representative sample of a duplicate comment is posted. EPA officials estimate that this will be completed in February 2020. Until these items are completed, our recommendation to EPA remains open.

    Recommendation: The Administrator of the Environmental Protection Agency (EPA) should finalize its draft policy for posting comments and their identity information, particularly for duplicate comments, and clearly communicate it to the public on the EPA website. (Recommendation 5)

    Agency Affected: Environmental Protection Agency

  6. Status: Open

    Comments: FWS concurred with the recommendation. In December 2019, FWS stated that it will update its service manual to include all standard posting requirements regarding public comments and their identity information. Additionally, FWS will include a statement on the FWS' website to inform the public about posting of public comments and identity information to regulations.gov. FWS officials estimate that this will be completed in June 2020. Until these items are completed, our recommendation to FWS remains open.

    Recommendation: The Director of the Fish and Wildlife Service (FWS) should create and implement a policy for standard posting requirements regarding comments and their identity information, particularly for duplicate comments, and should clearly communicate this policy to the public on the FWS website. (Recommendation 6)

    Agency Affected: Department of the Interior: United States Fish and Wildlife Service

  7. Status: Closed - Implemented

    Comments: In September 2019, SEC revised its existing policy to include internal guidance on the process of posting duplicate comments. This policy states that when SEC receives duplicate comments, it will post the first version received along with a running total of how many of these comments were received. Additionally, SEC added language to the disclosure on the SEC website that articulates how it posts duplicate comments, including how SEC posts associated identity information. These measures will help public users better determine whether and how they can use the data associated with public comments.

    Recommendation: The Chairman of the Securities and Exchange Commission (SEC) should develop a policy for posting duplicate comments and associated identity information and clearly communicate it to the public on the SEC website. (Recommendation 7)

    Agency Affected: United States Securities and Exchange Commission

  8. Status: Open

    Comments: WHD concurred with the recommendation. In August 2019, WHD indicated that it will add text to each webpage for any rulemaking that invites public comments which states that any personal information included in the comments (including duplicate) will be posted to Regulations.gov without change. However, the text provided by officials does not explain WHD's policy of posting duplicate comments as a group under a single document ID, and therefore does not clearly communicate the agency's posting practices to the public. As a result, at this time our recommendation to WHD remains open.

    Recommendation: The Administrator of the Wage and Hour Division (WHD) should clearly communicate its policy for posting comments and their identity information, particularly for duplicate comments, to the public on the WHD website. (Recommendation 8)

    Agency Affected: Department of Labor: Wage and Hour Division

 

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