Earlier this year, the Securities and Exchange Commission proposed a new rule establishing a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer when making a recommendation of any securities transaction or investment strategy involving securities to a retail customer. This proposed so-called "best interest" rule has attracted numerous comments, including several thousand "form type" letters. The Administrative Procedure Act requires agencies to provide reasoned responses to all significant comments. In the words of Judge Harold Leventhal, this requires that ”comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern,” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 394 (D.C.Cir.1973).
What, however, is an agency to do with mass comments or comments from persons impersonating others? That is the subject of a forum being held this Friday in Washington D.C.
As I dip into the future, I can foresee a time when artificial intelligence is used to identify agency rulemaking proposals and to craft comments. Agencies may in turn use artificial intelligence to categorize, analyze and even respond to comments. In this dystopian future, regulations may be entirely drafted, commented on and promulgated by computers.