Modernizing the Regulatory Comment Process
By OIRA Administrator Richard L. Revesz
Submitting comments on agency regulatory proposals is an important way that the public can participate in the regulatory process. New technologies offer ways to improve this process, but can also raise new issues that must be addressed.
Recognizing the critical role that technology plays in the notice-and-comment rulemaking process, President Biden directed the Office of Information and Regulatory Affairs (OIRA) to “consider guidance or tools to modernize the notice-and-comment process, including through technological changes” as part of Executive Order 14094 on Modernizing Regulatory Review. The Executive Order specified that those “may include guidance or tools to address mass comments, computer generated comments (such as those generated through artificial intelligence), and falsely attributed comments.” Since then, OIRA has worked to fulfill the President’s direction.
OIRA started by engaging with a variety of stakeholders—including Federal agencies, organizations and individuals who use the notice-and-comment process, and artificial intelligence (AI) experts—to better understand their various perspectives on how technology can present opportunities and challenges for the current comment process.
OIRA is now taking a number of steps to respond to emerging concerns. First, OIRA is addressing mass comments—an unusually large number of public comments submitted as part of an agency’s rulemaking. For example, the public submitted over 20 million comments as part of the Federal Communication Commission’s “net neutrality” rulemaking. When agencies receive this many comments, they often are the result of campaigns encouraging large numbers of individuals to submit similar comments. It takes agencies time and other resources to consider this influx of comments, which can delay the issuance of final rules and have other deleterious consequences.
Moving forward, it is critical that agencies have the tools to manage mass comments: they must be able to identify unique comments and efficiently group repetitive ones. The General Services Administration (GSA) manages the e-Rulemaking tools agencies use, and OIRA has worked with GSA to provide agencies with a variety of tools to better manage mass comments. These include, for example, a deduplication tool that one agency used to distill from 300,000 comments on a proposed rule a much more manageable set of 30,000 distinct comments.
Second, OIRA is addressing computer-generated comments—those that are generated in part or in full by a computer tool, such as generative AI. Such tools might aid commenters, such as when someone new to the regulatory process uses generative AI in drafting a comment. However, the combination of mass and computer-generated comments has the potential to create operational challenges for agencies. Regulations.gov—a Federal government website where the public can submit comments—currently uses the reCAPTCHA v2 verification service to help ensure that comment submitters are human beings. OIRA is working with GSA to implement additional checks at the front end of the comment submission system, in order to help make sure that no one is abusing the system.
Finally, agencies are continuing to monitor the potential for falsely-attributed comments—those that are submitted using the name of someone who did not consent to the submission, and who might not even know about it. OIRA has set up an informal interagency technical working group to discuss best practices and share tips on how to manage comments effectively. This working group regularly brings together dozens of regulatory professionals across many different agencies to ensure that issues like falsely-attributed comments can be addressed as new challenges develop.
While OIRA has taken steps to protect the integrity of the rulemaking system, we know relevant technologies are changing rapidly. Accordingly, OIRA will engage from time to time with individual experts outside of the Federal government whose background, training, and expertise can help us understand how such technologies are developing, as well as how we can employ technological advancements to further protect and improve the regulatory system.
The steps we have taken will help ensure that the Federal regulatory system will continue to be responsive to public comments while efficiently addressing mass, computer generated, and falsely attributed comments.
