GAO Recommends Improvements For Comments on Proposed Federal Agency Rules

Have you ever felt like you were screaming into the void when submitting your comments to a proposed rule in the Federal Register? That your well thought out comments were being drowned out by a mass of other comments on a proposed rule or attributed to someone else? Have you wondered what agencies do with all that information you send them when you submit a comment on a proposed rule?

Well, GAO seems to have the same questions and concerns regarding the proposed rule comments process and has taken time these past few months to examine how agencies wade through comments on proposed rules, publish them, and clearly attribute identities to them.

One foundation of federal contracting is agency regulations that set the limits for the contracting landscape. These regulations are governed by the Administrative Procedure Act (APA) rule making process consisting of basically three phases: (1) initiation of rule making; (2) developing proposed rule making actions through Notices of Proposed Rule making (NPRM); and (3) developing final rule making actions. Included in this process are opportunities for deliberations and public comments. According to GAO, about 3,700 NPRMs are published a year, many of which impact federal procurement. Consequently, federal contractors will frequently see proposed rules they may want to comment on.

GAO decided to discuss the public comments process in a June 2019 report, and at the end of this October released a follow-up testimony focusing on how agencies determining and publish the identities of commenters in the rule making process.

In its testimony, GAO made a point of examining rules that produce voluminous amounts of comments (e.g. the comment campaign against the FCC’s “Restoring Internet Freedom”) and how agencies could effectively publish these large amounts of comments and commenter identities for public review. Revealing commenter names would presumably help the public determine whether the comments were meaningfully made by an interested party or simply submitted to flood the commenting system, thus making comments a more useful part of the rule making process for the public at large.

GAO focused its testimony on four topics:

  1. Identity information selected agencies collect through and agency-specific comment websites.
  2. The internal guidance of selected agencies addressing the identity of commenters.
  3. How selected agencies treat identity information collected during the public comment process.
  4. The extent to which selected agencies clearly communicate their practices associated with posting identity information collected during the public comment process.

GAO selected 10 agencies to examine. The APA doesn’t require agencies to authenticate the identity of any comment-makers, and the ISP information (IP address, time submitted etc.) tied to comments submitted online cannot be linked to specific comments. Consequently, agencies must rely on those who self-report identity information.

Agencies vary on how they store comments and identity information, but in general they will either maintain all submitted comments within the comment system itself, or they maintain some duplicate comment records outside the comment system.

GAO found that the majority of agencies do have some sort of internal guidance associated with the identity of commenters, but the guidance varies. This leads to vastly different forms of storing and presenting identity information.

In one instance, almost 18,000 duplicate comments were included in attachments to a proposed rule and all 18,000 were presented under one individual’s name in the comment title. None of the individual identity information attributed to those 18,000 comments could be easily found without manually opening and searching all the attachments, most of which contained approximately 2,000 comments. In another instance, it was the agency’s policy to post all the comments submitted separately. This scattered approach by agencies leads to inconsistent comment presentation to the public.

GAO testified that although the APA allows discretion in how agencies post comments, agencies do not clearly communicate their comment publishing practices, including publishing commenter identity. This lack of publication leaves the public in the dark and “could affect their ability to use and make informed decisions about the comment data and effectively participate in the rule making process themselves.” GAO testified that there is simply not enough information posted to help the public determine whether all the identity information supplied during the comments phase is actually posted or not.

GAO found that the inconsistent agency guidance, information storage/treatment, and communication of publishing practices needs to be remedied. In its June 2019 report, GAO suggested that five of the ten agencies examined establish a policy for posting comments, and eight of the ten agencies take action to more clearly communicate their policies for posting of comments. The eight agencies agreed with these recommendations, and identified actions they could take. However, since the June 2019 report, only one agency has taken action, clearly posting a disclaimer about collection and publishing of identity information. Without remedying these inconsistencies, GAO worries that “public users of the comment websites could reach inaccurate conclusions about who submitted a particular comment, or how many individuals commented on an issue.”

For federal contractors, this issue can hit rather close to home. Any change to the FAR, DFARS, or other regulations that can directly affect your contracting will likely go through the APA rule making process. Your chance to voice issues or questions with these proposed rules is by submitting a comment to the proposed rule.

If agencies consistently collected and published identity information along with comments made on rules that affect federal contracting, federal contractors could easily find what your peers in the contracting community think about an upcoming regulatory change, and determine whether they should lend their voice to the discussion. However, as GAO noted, without consistency across agencies, you may find yourself wading through attachments with thousands of names and comments to see what has already been said.

Hopefully, the report and testimony by GAO leads more agencies to update their commenting procedures, so that becoming involved in the rule making process is less discouraging. In the meantime, don’t be surprised if you start to see more agencies asking for identity information when you submit a comment on a proposed rule, and be prepared to see varying forms of comment publishing by agencies.

Questions about this post? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.