How much does it cost our government to wade through public comments across its vast network of regulatory agencies?
Millions, tens of millions, or billions of dollars? The government’s current accounting process doesn’t disaggregate that data, so there’s no way to know. But be assured it’s more than a drop in a $4 trillion bucket that is our annual federal budget.
{mosads}In a recent Op-Ed in The Hill about the inefficiencies and costs of public comment consideration in the rulemaking process, I described the procedural delays and technical failures which occurred at the FCC during Net Neutrality rulemaking in 2015. I roughly calculated the consideration process required a staff of 700 FCC lawyers nine months to complete, at an estimated cost of $50 million — a dollar figure which stirred up some fervor within the Commission, as well as outside.
While a particularly severe case, due to intense public interest in the issue at the time, Net Neutrality represents just one example of a grossly inefficient public comment-consideration apparatus across the entire spectrum of federal agencies and commissions.
Even more eye-opening than the FCC example, my colleagues at Notice & Comment and I recently attempted to estimate the total number of all federal regulatory dockets active in 2015 — there were approximately 11,000 — to get a basic idea of the resources required for the government to consider all public-comment submissions, as required by law.
Estimating an average number of 6,472 comments per docket, based on a sampling of almost 2,000 of the roughly 11,000 active dockets in 2015, we calculated 77,664,000 total public comments were submitted within the docket set. We then assigned 15-minutes time spent manually reviewing each comment — a conservative number, I believe, since the documents range in complexity from mere signatures on a group form-letter submission, to scientific studies several hundred pages in length.
Based on an average $50 per hour year for government staff lawyers, senior management, and subject matter experts (again, conservative), we arrived at a “back of the envelope” estimate for the cost of public comment consideration for all dockets active in 2015 at almost $4 billion.
I believe the actual costs are considerably higher than that, since the 15-minute-per-comment consideration in the above equation should probably be valued far higher to reflect reality.
Michael P. Bolger, the former Director of the Chemical Hazards Assessment staff in the FDA’s Office of Food Safety and a food safety expert with the World Health Organization, recently told me he thought the average amount of time spent considering and responding to each public comment at the FDA was closer to a full day.
Indeed, while some comments are fairly simple, it’s not uncommon for agency personnel to spend weeks or even months preparing responses to more complex submissions.
Using an average estimate of one day spent per comment by agencies to review and respond, at a personnel pay rate of $50 per hour, the total cost of considering 77,664,000 comments totals over $31 billion.
The federal courts already have accepted the scientific validity of Natural Language Processing to produce unbiased, factual evaluation of written content – one of the core principles of fair public comment consideration. As such, NLP offers a breakthrough technology for automating and accelerating basic manual processes necessary to categorize and assess millions of comments in days or weeks, rather than months.
Right now, as a Trump administration prepares to assume office, two key vacancies in government exist which — if filled with the right type of forward-thinking professionals — would signal a true shift toward broad adoption of advanced analytics technology in the rulemaking process.
These two important positions include the Chair of the Administrative Conference of the United States (ACUS), a nonpartisan independent agency which promotes the efficiency, adequacy, and fairness of federal regulatory programs; and the Administrator of the Office of Information and Regulatory Affairs (OIRA), charged with planning and coordinating regulatory review and oversight and making the process more accessible and open to the public.
It’s time to modernize the public comment consideration process and for all the more than 300 federal agencies to adopt best practices across the whole government. With the right leadership at ACUS and OIRA, the new White House can start driving a more sensible, business-like system which will profoundly accelerate and enhance the decision-making capability of policy makers, significantly reduce costs for taxpayers, and ensure a more responsive government for the American public.
John W. Davis II is the founder and CEO of Notice & Comment Inc. He previously served as a federal prosecutor and criminal defense attorney, as well as a professor of ethics and professional speaking at George Mason University.
The views expressed by Contributors are their own and are not the views of The Hill.