When agencies propose new regulations, the Administrative Procedure Act requires that they provide interested persons an opportunity to submit written data, views, and arguments. These public comments can provide the agency with additional situated knowledge and potential costs, benefits, and limitations associated with their regulatory proposals from a wide-range of individuals, businesses, public interest groups, trade associations, and other diverse entities. Agencies benefit most from comments that provide objective information and analysis that explains the benefits or drawbacks of the proposal while providing supportive data. Agencies additionally often receive “mass comments” in response to their proposals. Mass comments are comments that are nearly identical and often submitted by members of organizations or groups that aim to demonstrate the number of individuals who support or oppose a proposed rule. As agencies have made greater use of e-rulemaking, mass comment submissions have increased, and agencies have experienced new issues, including potentially “fake” comments submitted by bots and individuals using another’s identity. ACUS has adopted several recommendations, including Recommendation 2011-1, Legal Considerations in e-Rulemaking, Recommendation 2011-2, Rulemaking Comments, and Recommendation 2011-8, Agency Innovations in e-Rulemaking, aimed at helping agencies address comments submitted during their rulemakings, particularly those submitted electronically.
On October 5, 2018, ACUS and the Administrative Law Review, will host a forum on Mass and Fake Comments in Agency Rulemaking to consider these legal issues further. Dominic J. Mancini, Deputy Administrator of the Office of Information and Regulatory Affairs, will provide a keynote address. The event will convene two panels consisting of leading academics and agency officials, including ACUS members and senior fellows, Cary Coglianese, Cynthia Farina, Michael Herz, Christina McDonald, and Nina Mendelson. The first panel will discuss how agencies address mass comments and how they affect the rulemaking process. The second panel will discuss the recent rise of “fake” comments in the rulemaking process and potential legal considerations. If you are interested in attending, please RSVP. We look forward to seeing you at this fascinating event.