October 19, 2021

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

16 min read
<div>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 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.</div>
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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

Centers for Medicare and 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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated 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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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