From the U.S. Government Accountability Office, www.gao.gov

Transcript for: Public Comments In Federal Rulemaking 

Description: Federal agencies propose thousands of regulation changes
every year, and generally collect public comments on these changes.
However, some proposals have received extremely large numbers of
comments in recent years, raising questions about how this information
is used and where it actually comes from. We talk with GAO's Seto
Bagdoyan to find out more.

Related GAO Work: GAO-21-103181, Federal Rulemaking: Selected Agencies
Should Fully Describe Public Comment Data and Their Limitations

Released: September 2021

[Intro Music]

[Seto Bagdoyan:] The agencies do not check the identity of the
commenter, and they are not required to either.

[Holly Hobbs:] Hi, and welcome to GAO's Watchdog Report. Your source for
news and information from the U.S. Government Accountability
Office--celebrating 100 years, a fact-based, nonpartisan government
oversight. I'm Holly Hobbs. Before federal agencies make changes to
regulation, they generally provide the public with an opportunity to
comment on proposed changes. Some proposals have received extremely
large numbers of comments in recent years, raising questions about how
this information is used and where comments actually come from. Today,
we'll talk with GAO's Seto Bagdoyan, a director in our Forensic Audits
and Investigation Service team who has a new report out on public
comments use in federal rulemaking. Thanks for joining us, Seto.

[Seto Bagdoyan:] Hi, Holly. Thanks for having me on. 

[Holly Hobbs:] So what's a good example of a proposed regulation change
that received an extremely large number of comments? 

[Seto Bagdoyan:] Sure. From fairly recent memory, I would point to the
rulemaking on net neutrality. Starting in 2014, when the Federal
Communications Commission proposed implementing net neutrality, it
received about 3 million comments, which was the most ever that agency
had received. In 2017, when the prior administration proposed repealing
that rule, they received over 22 million comments. So that's quite a lot
of comments.  

[Holly Hobbs:] So for the net neutrality decision, we looked at or
surveyed some of the comments that were submitted. What did we find? 

[Seto Bagdoyan:] Sure. From the respondents to the survey, 63 percent of
the respondents said that, yes, they were indeed the commenters.  But on
the other hand, 24 percent responded that they had never actually
submitted the comment, and they couldn't understand why that comment was
associated with their name. And because of the elapsed time, I believe,
about 13 percent of respondents said that they did not recall making the
comment.

[Holly Hobbs:] So having that large of a number of people say 'that's
not my comment,' seems like a big deal. 

[Seto Bagdoyan:] Yeah, it is concerning in terms of a survey result, but
agencies are not really concerned about who submits the comment.  It
just didn't raise any alarms for them. 

[Holly Hobbs:] So if they're not checking the identities, how do they
know whether they're legitimate or not?

[Seto Bagdoyan:] Well, that raises another good question in terms of are
the agencies really concerned about who is making the comment? They do
not check the identity of the commenter, and they are not required to
either. And they also tell us that if they were to probe into the
identity of the commenters, they suspect that there would be quite a
chilling effect on the public's ability to submit comments freely and
openly. So that is a consideration where they tend to back off from
probing too deeply into the identity issue.  

[Holly Hobbs:] And I'm guessing the concern is when you get a lot of
these comments that some are legitimate, but some could also be trolls
or could even be foreign entities trying to interfere with our
processes. 

[Seto Bagdoyan:] Right, exactly. And that has been a concern among the
public and Congress and among media reporting--who is actually
submitting these comments and for what purpose. The agencies do not rely
on the identity of the commmenters when making their rules and
finalizing them. Instead, they focus on the substance of the comments,
regardless of who allegedly is making them. Some agencies accept
anonymous comments. They have no insight in terms of who is submitting
them at all. 

[Holly Hobbs:] So for the net neutrality proposal in 2017, who went
through those millions and millions of comments to see what people said?

[Seto Bagdoyan:] Yeah, well, the agency, in this case, the Federal
Communications Commission, or FCC, have dedicated staff, including
attorneys and other specialists who look through the comments. And, at
the time of our work, the tally of the 22 million broke approximately at
13 million pro-net neutrality, which meant do not repeal it; and then
there were about 9 million comments who were anti-net neutrality and who
were urging the FCC to repeal the rule. 

[Holly Hobbs:] So the balance of that did not match the decision.

[Seto Bagdoyan:] That's correct. And that is an important point to make.
All agencies, regardless of which administration they are operating
under, emphasized that public comment does not equal a vote on a
particular rule, and it is not a head count. In this case, 13 million
pro-net neutrality did not supersede the 9 million anti-net neutrality.
It was simply the agency reflecting then-President Trump's policy intent
to repeal net neutrality.  And that's what they did. 

{MUSIC}

[Holly Hobbs:] So Seto just told us that federal agencies will collect,
sometimes, millions of comments from the public about proposed
regulation changes. And while agencies may tally results, they aren't
necessarily looking to see who is submitting comments, nor are they
necessarily using comments to make decisions. So Seto, did we make any
recommendations to agencies to improve the transparency of public
comment data and its use? 

[Seto Bagdoyan:] Yes, we did. We made a total of 10 recommendations. We
recommended that they better describe the data from the comments that
they made available to the public, and especially focusing fully on
describing the limitations of those data--like that, the agencies do not
verify the identity information that is associated with comments. And to
follow up, we made a recommendation to the General Services
Administration. That is the agency that runs regulations.gov, which is a
consolidated system for public comments and rulemaking.  We recommended
that GSA coordinate with the various agencies we made recommendations to
arrive at a workable solution. And all of the agencies agreed with the
recommendations. And in fact, two or three of them have already
implemented their recommendations. So that's good news on that front. 

[Holly Hobbs:] And last question, what's the bottom line of this report?

[Seto Bagdoyan:]  The bottom line of this report is that the agencies we
reviewed had some level of comments where the actual commenters said
they did not submit them. But again, this was not important for the
agencies themselves. They didn't even dwell on that in our reporting,
because, what they are concerned about is the substance of the comments,
something that moves the needle for a particular rule. And they're not
really interested in identifying who the commenters are. 

[Holly Hobbs:] That was Seto Bagdoyan talking about GAO's recent review
of public comments used in federal rulemaking. Thanks for your time,
Seto. 

[Seto Bagdoyan:] Thank you. 

[Holly Hobbs:] And thank you for listening to the Watchdog Report. To
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