Federal Rulemaking: Selected Agencies Should Fully Describe Public Comment Data and Their Limitations

GAO-21-103181 Published: Sep 21, 2021. Publicly Released: Sep 23, 2021.
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Fast Facts

We surveyed people whose email addresses were attached to public comments on proposed rules from 10 federal agencies. From 5% to 30% of the people (depending on the agency) said they did not make the comment. At 8 agencies, most of the comments did not have email addresses.

Agencies aren't required to collect information on or verify commenters' identities. While almost all of the agencies we reviewed share comment data online, they didn't always make limitations like this clear when they described the public comment data.

We made 10 recommendations to 10 agencies to fully describe comment data available to the public, including limitations.

Public comments on proposed rules may appear on Regulations.gov.

A person viewing the Regulations.gov website on a desktop computer.

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Highlights

What GAO Found

Regulations.gov and selected agency-specific comment websites collect some identity information, such as email address, from commenters who choose to provide it during the public comment process. Based on GAO's survey, the extent to which commenters with email addresses confirmed that they submitted their comments to rulemakings varied across 10 selected agencies (see figure). Specifically, estimates of commenters with email addresses that confirmed their comments ranged from 48 to 87 percent. Conversely, estimates of presumed commenters with email addresses that did not make the comments ranged from 5 to 30 percent, calling into question the actual source of these comments. Most comments at eight selected agencies did not contain email addresses. Although agencies may collect identity information, the law does not require its collection or verification. Agencies must consider the substance of the comment, rather than the identity of the commenter, as part of the rulemaking process.

Extent of Commenters with Email Addresses that Confirmed They Submitted Their Comments on 10 Selected Agencies' Rulemaking Proceedings

Extent of Commenters with Email Addresses that Confirmed They Submitted Their Comments on 10 Selected Agencies' Rulemaking Proceedings

Note: Estimates in this figure have a margin of error of +/- 9 percentage points or fewer, at the 95 percent confidence level. Circles representing each agency's estimates may overlap if the estimates are similar. For example, the circle at the 85 percent level for Yes responses covers two agencies.

Various aspects of the commenting process can create limitations for certain external users of public comment data. For example, identity information associated with public comments is self-reported and may not always be accurate. Additionally, some agencies do not post all instances of duplicate comments (identical or near-identical comment text but varied identity information), so the public may not have access to all comment data related to a proposed rule. Almost all of the selected agencies share at least some public comment data online, but they do not always fully describe the available data. Specifically, the Federal Communications Commission (FCC) does not define the data elements that may be present in its comment data. Further, FCC, the General Services Administration (GSA) (which manages Regulations.gov), and the eight selected agencies that use that site do not describe limitations to external users of comment data that may affect their use of the data. Key practices for transparently reporting open government data state that agencies should fully describe the information they share, including any limitations. Providing information about available public comment data and their limitations can help external users make informed decisions about their use of the data and help ensure they do not inadvertently draw inaccurate conclusions from the data.

Why GAO Did This Study

Federal agencies publish thousands of proposed rules each year and are generally required to provide interested persons (commenters) an opportunity to comment on them. Although the identity information collected varies, agencies are generally required to make public comments available online, to the extent practical. Some rulemakings have received extremely large numbers of comments in recent years, raising questions about the accuracy of the associated identity information.

GAO was asked to review issues related to identity information associated with public comments. Among other things, this report examines the extent to which commenters confirmed that they submitted comments on rulemaking proceedings for selected agencies and the challenges that exist for external users in reviewing and analyzing public comment data.

GAO selected 10 agencies and obtained electronic comments on their rulemakings that accepted comments from 2013 through 2017. GAO selected generalizable samples of comments with email addresses and surveyed commenters to determine whether they submitted the comments. GAO reviewed comment data and key practices for reporting government data.

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Recommendations

GAO is making a total of 10 recommendations to selected agencies and GSA to fully describe comment data available to the public, including any limitations. The agencies generally agreed with the recommendations and discussed plans to implement them.

 

Recommendations for Executive Action

Agency Affected Recommendation Status
Federal Communications Commission The Chair of FCC should fully describe available public comment data, including what data elements mean and any limitations, to external users of the data. (Recommendation 1)
Open
In March 2022, FCC stated that it would be working to address the recommendation as part of an upgrade to its Electronic Comment Filing System. This will include posting a data dictionary on the user help webpages to explain the elements maintained by the system. FCC expects this system upgrade to occur in 2022, and we will continue to monitor FCC's efforts in this area.
Bureau of Land Management The Director of BLM should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 2)
Open – Partially Addressed
In August 2022, BLM provided support that it developed a webpage on rulemaking dockets to include information regarding public comments highlighted in our report. For example, BLM's webpage provides tips for useful comments, communicates its policy for personally identifiable information associated with comments, and explains BLM's comment-posting practices for duplicate comments. While this information is useful for potential commenters and individuals reviewing comments on BLM dockets, the BLM webpage is not currently linked on Regulations.gov. Including a link to this webpage on Regulations.gov will help Regulations.gov users find this useful information.
Centers for Medicare & Medicaid Services The Administrator of CMS should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 3)
Open
In March 2022, CMS provided an excerpt of boilerplate language it uses in rulemaking documents that addressed some of the limitations highlighted in our report, such as the agency's comment-posting practices for duplicate comments. However, it does not address how CMS uses public comments or specific details regarding required or voluntary elements of personally identifiable information. CMS also stated that it plans to provide a formal corrective action plan by December 31, 2022. We will continue to monitor CMS's efforts in this area.
Consumer Financial Protection Bureau The Director of CFPB should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 4)
Open
In March 2022, CFPB stated that it had met with GSA (the manager of Regulations.gov) and other participating agencies and will continue to coordinate with these agencies to implement the recommendation. We will continue to monitor CFPB's efforts in this area.
Employee Benefits Security Administration The Assistant Secretary of Labor for EBSA should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 5)
Open
In November 2021, EBSA stated that it will work with other impacted agencies and take appropriate steps to implement the recommendation in a coordinated manner. We will continue to monitor EBSA's efforts in this area.
Environmental Protection Agency The Administrator of EPA should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 6)
Open – Partially Addressed
In June 2022, EPA provided support that it had updated its webpage on rulemaking dockets to include additional information highlighted in our report. For example, EPA's webpage provides tips for effective comments, identifies required and optional fields for personally identifiable information, and explains EPA's comment-posting practices for duplicate comments (mass mail campaigns). While this information is useful for potential commenters and individuals reviewing comments on EPA dockets, the EPA webpage is not currently linked on Regulations.gov. Including a link to this webpage on Regulations.gov will help Regulations.gov users find this useful information.
United States Fish and Wildlife Service The Director of FWS should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 7)
Open
In January 2022, the Department of the Interior stated that it concurred with the recommendation and that FWS would update its rulemaking webpage to include information on its public comment data and their limitations. We will continue to monitor FWS's progress in this area.
Food and Drug Administration The Commissioner of FDA should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 8)
Open
In March 2022, the Department of Health and Human Services stated that FDA will work with Regulations.gov to improve language on the website relevant to comments. We will continue to monitor FDA's efforts in this area.
Wage and Hour Division The Administrator of WHD should fully describe available public comment data, including any limitations, to external users of the data. This should include coordination with GSA, as the manager of Regulations.gov, as appropriate. (Recommendation 9)
Open
In November 2021, WHD stated that it will work with other impacted agencies and take appropriate steps to implement the recommendation in a coordinated manner. We will continue to monitor WHD's efforts in this area.
General Services Administration The Administrator of GSA should coordinate with participating agencies to ensure that full descriptions of available public comment data—to include any limitations—are available to external users of the Regulations.gov API. (Recommendation 10)
Open – Partially Addressed
In April 2022, GSA provided documentation of its efforts to work with agencies that use Regulations.gov to clarify information about their public comment data. For example, in January 2022, GSA met with participating agencies to discuss how to communicate this information. Further, GSA updated its Regulations.gov application programming interface webpage to include information on the fields related to comments that are always public, never public, or configurable by agencies that use Regulations.gov. While this information is useful to Regulations.gov users, it does not link to agency-specific information that may be important for users who are reviewing a specific agency's comments. Linking to such agency-specific information, such as agency webpages, can help ensure that users of Regulations.gov benefit from such information.

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