Yesterday, I posted the first of three separate statements filed by ACUS members in response to Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments. The second statement comes from Senior Fellow Nina A. Mendelson (Michigan Law):

This Recommendation, the product of much hard work, will help guide agencies managing mass comments and addressing falsely attributed and computer-generated comments. But these rulemaking-related challenges raise very different concerns.  Comments from ordinary individuals, whatever their volume, and whether they supply situated knowledge or views, can be relevant, useful, and even important to many rulemakings.  The Recommendation correctly does not imply otherwise. The Conference should address the proper agency response to such comments separately, and soon. 

First, public comment’s function encompasses more than the purely “technical,” whether that is supplying data or critiquing an agency’s economic analysis.  For some statutory issues, certainly, public comments transmitting views are less relevant.  Under the Endangered Species Act, for example, an agency determining whether an animal is endangered must assess its habitat and likelihood of continued existence.  Public affection for a species is not directly relevant.

But agencies address numerous issues that, by statute, extend far beyond technocratic questions, encompassing value-laden issues.  An agency deciding what best serves public-regarding statutory goals must balance all such considerations. 

Nonexclusive examples relevant to agency statutory mandates include: 

• The importance of nearby accessible bathrooms to the dignity of wheelchair users, at issue in a 2010 Americans with Disabilities Act regulation. 

• Weighing potential public resource uses.  For multiple-use public lands, the Bureau of Land Management must, by regulation, balance recreation and “scenic, scientific and historical values” with resource extraction uses, including timbering and mining.

• Potential public resistance to an action, such as the Coast Guard’s ultimately abandoned decision creating live-fire zones in the Great Lakes for weapons practice in the early 2000s.  Had the agency seriously sought out public comment, it would have detected substantial public resistance to this action, which, without the benefit of participation, the agency considered justified and minimally risky.

• Public resistance to a possible mandate as unduly paternalistic, burdensome, or exclusionary, whether ignition interlock or a vaccine passport requirement.  Justice Rehnquist identified this issue in Motor Vehicles Mfg. Ass’n v. State Farm Mutual Auto Ins., 463U.S. ­29 (1983).  Though Justice Rehnquist’s dissent linked the issue to presidential elections, he underscored its relevance to rulemaking.

• Environmental justice/quality of life matters.  In a 2020 rule implementing the National Environmental Policy Act, the Council on Environmental Quality decided that an agency need no longer assess a proposed action’s cumulative impacts in its environmental impact analysis. This decision will especially impact low-income communities and communities of color, including Southwest Detroit, where multiple polluting sources adjoin residential neighborhoods.  Whether to require cumulative impacts analysis is not a technical issue. It is a policy decision whether community environmental and quality of life concerns are important enough to justify lengthier environmental analyses.  The comment process enables communities to express directly the importance of these issues. 

Rulemaking is certainly not a plebiscite.  Besides representativeness concerns, that is mainly because statutes typically require agencies to consider multiple factors, not only public views.  But ordinary people’s views and preferences are nonetheless relevant and thus appropriately communicated to the agency.  The text of 5 U.S.C. 553(c) is express here: “interested persons” are entitled to submit “data, views, or arguments.”

Second, the identity of individual commenters may provide critical context.  That a comment on a proposed ADA regulation’s importance is from a wheelchair user should matter.   The same is true for 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 Conference’s position in Recommendation 2018-7, 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 interests—even important ones—are 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 computer-generated 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 rule’s need or impacts.  Large comment volumes, most pragmatically, may signal an agency regarding the rule’s 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 other considerations.  But an answer will communicate, importantly, that individuals have been heard.  The Federal Communication Commission’s 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.

This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.