Federal Rulemaking: Selected Agencies Should Fully Describe Public Comment Data and Their Limitations
Fast Facts
We surveyed people whose email addresses were attached to public comments on proposed rules from 10 federal agencies. From 5% to 30% of the people (depending on the agency) said they did not make the comment. At 8 agencies, most of the comments did not have email addresses.
Agencies aren't required to collect information on or verify commenters' identities. While almost all of the agencies we reviewed share comment data online, they didn't always make limitations like this clear when they described the public comment data.
We made 10 recommendations to 10 agencies to fully describe comment data available to the public, including limitations.
Public comments on proposed rules may appear on Regulations.gov.
Highlights
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.
Recommendations
GAO is making a total of 10 recommendations to selected agencies and GSA to fully describe comment data available to the public, including any limitations. The agencies generally agreed with the recommendations and discussed plans to implement them.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| 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) |
In March 2022, FCC stated that it would be working to address the recommendation as part of an upgrade to its Electronic Comment Filing System. In April 2023, FCC released an update to its Electronic Comment Filing System. As part of this update, FCC added a data dictionary to its FAQ page. The data dictionary includes definitions of the data elements present in the agency's public comment data, a description of which data elements are viewable by the public, and a field that indicates whether FCC verifies data elements that are not internally generated. FCC's data dictionary helps clarify its comment practices and provide more complete descriptions of available public comment data, including limitations. This information helps ensure that external users make informed decisions about their use of public comment data and that they do not inadvertently draw inaccurate conclusions from the data.
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| 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) |
In August 2022, BLM provided support that it developed a webpage on rulemaking dockets to include information regarding public comments highlighted in our report. For example, BLM's webpage provides tips for useful comments, communicates its policy for personally identifiable information associated with comments, and explains BLM's comment-posting practices for duplicate comments. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on BLM's webpage. BLM's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to BLM's webpage, help provide more complete descriptions of available public comment data, including limitations.
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| Centers for Medicare & 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) |
In March 2022, CMS provided an excerpt of boilerplate language it uses in rulemaking documents that addressed some of the limitations highlighted in our report, such as the agency's comment-posting practices for duplicate comments. In December 2022, CMS told us that it had taken steps to provide additional information regarding public comments it collects and how it uses those comments. Specifically, CMS posted information on its website that explains its comment posting practices. For example, it notes that comments will be made public, including comments that are identical in content to other comments. The webpage also provides suggestions for commenters to help ensure that their comments have the greatest impact. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the CMS webpage. CMS's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to CMS's webpage, help provide more complete descriptions of available public comment data, including limitations.
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| 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) |
In March 2022, CFPB stated that it had met with GSA (the manager of Regulations.gov) and other participating agencies and will continue to coordinate with these agencies to implement the recommendation. In November 2022, CFPB told us that it had taken steps to provide additional information regarding public comments it collects and how it uses those comments. Specifically, CFPB created a webpage that explains CFPB's comment posting practices, including when the agency will not post comments, and links to Regulations.gov's tips for effective comments. The webpage also acknowledges that CFPB does not independently verify identity information provided by commenters. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the CFPB webpage. CFPB's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to CFPB's webpage, help provide more complete descriptions of available public comment data, including limitations.
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| 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) |
In September 2023, EBSA told us that it had taken steps to provide additional information regarding public comments it collects and makes available to the public. Specifically, EBSA has a webpage that explains the agency's comment posting practices. For example, the webpage notes that comments will be made public and explains that commenters are responsible for ensuring that their comments do not include confidential information. Additionally, EBSA's webpage notes that commenters may submit anonymous comments, and the agency may choose to post an example of duplicate or near duplicate comments with a tally of similar comments rather than each individual comment. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the EBSA webpage. EBSA's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to EBSA's webpages, help provide more complete descriptions of available public comment data, including limitations.
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| 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) |
In June 2022, EPA provided support that it had updated its webpage on rulemaking dockets to include additional information highlighted in our report. For example, EPA's webpage provides tips for effective comments, identifies required and optional fields for personally identifiable information, and explains EPA's comment-posting practices for duplicate comments (mass mail campaigns). Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the EPA webpage. EPA's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to EPA's webpage, help provide more complete descriptions of available public comment data, including limitations.
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| 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) |
In November 2022, FWS told us that it had taken steps to provide additional information regarding public comments it collects and makes available to the public. Specifically, FWS created a webpage that explains the agency's comment posting practices, including an example of what a comment will look like once it is posted publicly and situations where the agency may censor comments. The webpage also notes that while FWS does not require a commenter to submit identity information, any identity information submitted in a comment may be available to the public. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the FWS webpage. FWS's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to FWS's webpage, help provide more complete descriptions of available public comment data, including limitations.
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| 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) |
In June 2023, FDA told us that it had taken steps to provide additional information regarding public comments it collects and makes available to the public. Specifically, FDA has a webpage that explains the agency's comment posting practices. For example, the webpage notes that comments will be made public and explains that commenters are responsible for ensuring that their comments do not include confidential information like a Social Security number. Additionally, another FDA webpage provides suggestions for commenters to help ensure that comments have the greatest impact. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the FDA webpage. FDA's webpages clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to FDA's webpages, help provide more complete descriptions of available public comment data, including limitations. This information helps ensure that external users make informed decisions about their use of public comment data and that they do not inadvertently draw inaccurate conclusions from the data.
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| 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) |
In September 2023, WHD told us that it had taken steps to provide additional information regarding public comments it collects and makes available to the public. Specifically, WHD has a webpage that explains the agency's comment posting practices. For example, the webpage notes that comments will be made public, including any personal information provided, and notes that the agency does not independently verify identity or contact information provided by a commenter. Additionally, WHD's webpage lists examples of information that may be included in comment submissions and explains that comments may be submitted anonymously. Furthermore, as of December 2022, GSA (the manager of Regulations.gov) added a frequently asked question on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data, such as the practices outlined on the WHD webpage. WHD's webpage clarifying its comment practices and GSA's new frequently asked question, which can connect Regulations.gov users to WHD's webpage, help provide more complete descriptions of available public comment data, including limitations.
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| 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) |
In April 2022, GSA provided documentation of its efforts to work with agencies that use Regulations.gov to clarify information about their public comment data. For example, in January 2022, GSA met with participating agencies to discuss how to communicate this information. Further, GSA updated its Regulations.gov application programming interface webpage to include information on the fields related to comments that are always public, never public, or configurable by agencies that use Regulations.gov. Furthermore, as of December 2022, GSA added two frequently asked questions on Regulations.gov to help users better understand comment data. Specifically, GSA's website includes an email address for external users to inquire about agency-specific comment practices that may affect the agency's comment data. GSA's coordination with participating agencies and publishing additional information through FAQs on Regulations.gov helps provide more complete descriptions of available public comment data, including limitations.
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