Document Type

Article

Publication Date

2023

Abstract

Technological innovations since the turn of the century have created opportunities to increase public participation in notice and comment rulemaking, increase the efficiency of the process, and increase the quality of the rules adopted by agencies. For some rules, online rulemaking and social media have facilitated increased public participation, but have not necessarily facilitated improvements in the quality of public comments. In addition, in some cases, the transformation of the process has created new challenges for government agencies by making it easier for supporters or opponents of rules to flood agencies with duplicative and potentially false comments to which the agencies must respond.

Artificial intelligence, including ChatGPT, is the latest tech trend to create opportunities to transform notice and comment rulemaking. If ChatGPT is only used by members of the public and organizations as a tool to draft comments, it may increase the involvement of the public in the process and assist them in drafting clear and intelligible comments. However, it is unlikely to improve the quality of public comments that they provide to agencies, because it will not help them understand the type of information that agencies are seeking in public comments. In addition, if ChatGPT is used to any significant extent in drafting comments, it could create challenges for agencies by flooding agencies with significantly greater numbers of seemingly unique comments, most of which merely express sentiment, values or preferences, and many of which may include false information.

There is, however, an alternative path forward for ChatGPT and artificial intelligence in notice and comment rulemaking. If agencies use ChatGPT to create tools that help members of the public understand proposed rules, the rulemaking process and the types of comments that are effective in that process, agencies may enable members of the public to provide them with more useful comments. In addition, agencies may be able to use other artificial intelligence tools to make it easier to organize and analyze the comments they receive and to notify members of the public about proposed rules that might be of interest to them. Embracing these alternative uses of artificial intelligence and ChatGPT could generate some of the gains in public participation that other technological tools have promised, but not delivered.

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