In response to the General Services Administration’s request for comment on its initiative to modernize regulations.gov, the American Bar Association’s Section of Administrative Law and Regulatory Practice filed the following comment on March 20, 2020:

On behalf of the Section of Administrative Law and Regulatory Practice of the American Bar Association (the Section), I write in response to General Services Administration’s (GSA’s) request for comment regarding the modernization of Electronic Rulemaking Management. The views expressed herein are presented on behalf of the Section. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association (ABA) and, accordingly, should not be construed as representing the policy of the ABA.

The Section is a nonpartisan organization that is interested in the powers and responsibilities of government agencies, the processes by which they operate, review of their actions, their executive, legislative, and judicial branch relationships, and their relationship with the public. Both politically and geographically diverse, the Section is composed of specialists in administrative law and includes private practitioners, government attorneys, judges, law professors, and members of nonprofit organizations. Officials from all three branches of the federal government sit on its governing Council.

The Section supports GSA’s goals of modernizing the rulemaking process and increasing transparency and public participation. We recognize that this is an important undertaking on GSA’s part, and we commend GSA for creating this opportunity for us to share our views. We hope that, as GSA steps into its new role as the managing partner for the eRulemaking Program, it will continue to solicit and take seriously input from the broad array of eRulemaking stakeholders. If it does so, we are confident that GSA will succeed as a steward of a vital aspect of the U.S. regulatory process.

Some of our comments offer specific recommendations, which we hope will be implemented to the extent budgetary realities permit. Other comments are intended to identify topics that merit additional study. Our comments are not presented in order of importance, but instead grouped around three sets of considerations: functionality, content, and consistency.

Functionality

The Section believes that GSA can increase the functionality of regulations.gov. A website that is easier to use should attract greater public participation.

To begin, for rulemakings that receive large numbers of comments, the Section believes it would be helpful if GSA were to develop technology that would allow agencies to identify categories that commenters could select when submitting comments. This would allow those reviewing comments, if they choose, to narrow the scope of their review by only reviewing comments in relevant categories. In other words, someone interested in issue A could access comments dealing with that issue without having to read comments that deal with issues B and C.

Relatedly, to the extent technologically feasible, the Section urges GSA to further develop and deploy mechanisms to identify and bundle duplicative and near-duplicate comments to make the docket easier to navigate. In the Section’s experience, rulemakings that attract a large volume of comments often contain comments that are virtually word-for-word copies of other comments. It would be helpful to better identify and group similar comments, especially as artificial intelligence and machine-learning technologies advance in this area. Similarly, rather than listing comments in the order received, regulations.gov should give agencies the option to list comments by category. This approach could help promote discussion among commenters on important issues, possibly increasing deliberation and the quality of feedback provided to the agency.

The Section also endorses adding functionality for agencies to allow commenters to reply directly to comments that have already been filed. Agencies may often find great value in allowing reply comments: It is easier for other members of the public to understand disputed issues and contribute to their resolution when related comments are linked. Linking related comments may also enhance the quality of comments and help agency officials more efficiently respond to comments. Unfortunately, reply comments also pose complications. There is, for example, a risk that, rather than responding helpfully to an issue that has already been raised, a reply comment will introduce new issues or lead to unproductive belaboring of issues that are already in play. Moreover, our support for functionality that would allow for reply comments does not mean GSA should facilitate the submission of comments that merely express support for or opposition to a prior comment. The Section recommends that GSA prepare government-wide instructions designed to help minimize the risks of reply comments while attempting to capture their benefits. Likewise, to the extent possible, technology may exist or be developed to help ensure that nominally related comments are, in fact, related.

Reading comments on regulations.gov could also be more user-friendly. In particular, before opening a comment, the website could provide additional information about the comment, such as the number of words or pages of the comment. Similarly, perhaps commenters could be allowed to provide short descriptions of their comments, or the system could suggest a summary for the commenter to approve when submitting.

To the extent practicable, material on regulations.gov should be accessible to third-party search engines. This functionality may help more members of the public identify rulemakings on which to comment and identify materials to inform their comments.

As GSA considers its approach to modernizing regulation management, we encourage GSA to orient its use of technology around solving problems facing users of these systems. We, and likely many other stakeholders, stand ready to advise GSA on how to prioritize among multiple competing possibilities.

Content

The Section also has several recommendations regarding the content available on regulations.gov. The Section, however, does not take a position regarding whether materials that are currently not part of the public record should be made so.

To begin, the Section recommends that all public materials in the administrative record that are within government control and that are relevant to a regulation be placed on regulations.gov. Ideally, to the extent that the information is public, the docket for each rulemaking could include copies of statutory provisions that the agency identifies as authorizing the rulemaking, regulatory impact analyses, risk assessments, peer review information, court decisions, and relevant guidance documents. The Section believes that the difficulty associated with assembling relevant information prevents many members of the public from participating in rulemakings and also reduces the quality of the participation that does occur.

The Section also recommends that agencies be required to place archival records online. In particular, to the extent reasonably feasible, digitized files of rulemakings that occurred before the advent of regulations.gov or that for whatever reason were not placed on regulations.gov should be placed there now in an easily searchable format. Because new rulemakings often build on prior rulemakings, the quality of public commenting should increase if more relevant information is available. At a minimum, if an agency proposes a rule that builds on a prior rulemaking whose content is not itself available on regulations.gov, the agency should place that content online. Agencies should also identify related rulemakings.

More ambitiously, the e-CFR could be linked to the regulations.gov archive. Ideally, as new sections are added to the e-CFR, the public could review the corresponding archive of the relevant rulemaking. As it is now, it can be quite difficult to identify and review the rulemaking record associated with particular regulations that could stretch back over many different rulemaking proceedings.

Consistency

Finally, to the extent reasonably possible, we urge greater consistency across agencies in providing access to comments in a prompt and comprehensive way. In the Section’s experience, agency practices vary widely in how they use regulations.gov and, importantly, which comments can be accessed on regulations.gov. Consistency is important, especially for members of the public who are not experts on a particular agency. Based on their experience with other agencies, for instance, individuals may erroneously believe that the material available on regulations.gov is complete when it is not. Inconsistency also makes cross-agency comparisons difficult.

For example, some agencies promptly upload comments received via hard copy or their own webpages onto regulations.gov. Other agencies, by contrast, may not upload such comments at all, or if they do, may not act with the same speed. Similarly, different agencies may employ different archiving policies. All of this diminishes the value of regulations.gov and reduces access for the public.

The need for consistency also extends to excluding comments that contain profanity or other objectionable material. In our experience, agencies employ different policies when it comes to screening which comments will be displayed. This inconsistency makes it difficult to know how complete a particular docket is on regulations.gov. The lack of a government-wide policy also may impose costs on individual agencies as they create their own policies. Similar inconsistency concerns apply to how agencies approach anonymous comments; attachments to comments; copyrighted materials in comments; and confidential business information in comments.

We would be pleased to answer any questions you may have. Thank you for your consideration of the Section’s views.

Sincerely,

Linda D. Jellum
Chair, ABA Section of Administrative Law & Regulatory Practice