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Agencies Frequently Dodge Public Comments, GAO Study Says

Joe Mont | January 28, 2013

Regulators rely on public comments to guide their actions and flesh out proposed rules into final ones.

At least that is how it is supposed to work. A newly released study by the Government Accountability Office, however, finds that government agencies often shirk that duty.

Agencies did not publish a notice of proposed rulemaking (NPRM), thereby inviting public comment, for about 35 percent of major rules (with an annual effect on the economy of $100 million or more) and about 44 percent of non-major rules published between 2003 and 2010, it determined. Agencies published a total of 568 major rules and about 30,000 non-major rules from 2003 through 2010.

According to GAO, agencies frequently cited a "good cause" exception for publishing final rules without first issuing an NPRM. Agencies may use this exception, enacted by Congress in 1946 as part of the original Administrative Procedure Act,  when they find that notice and comment procedures are "impracticable, unnecessary, or contrary to the public interest."The sampling of agencies reviewed by the GAO used the "good cause" exception for 77 percent of major rules and 61 percent of non-major rules that were published without an NPRM. To a lesser extent, agencies also used other statutory exceptions to bypass an NPRM, such as a deadline for a rule or program that didn't allow sufficient time to issue one.

GAO found that agencies often requested comments on major final rules issued without an NPRM, but did not always respond to them. Agencies requested comments on 77 of the 123 major rules issued, but did not issue a follow-up rule or respond to comments on 26 of them.

“This is a missed opportunity, because when agencies did respond to public comments they often made changes to improve the rules,” the report says. “Each of these 26 rules (covering issues ranging from health care policy to manufacturing incentive programs) is economically significant and some have an impact of a billion dollars a year or more.” For example, one of the 26 rules, defining a pre-existing condition to implement the Patient Protection and Affordable Care Act received 4,627 comments, but has not published a response to any of them.

“The opportunity to comment is meaningless unless the agency responds to significant points raised by the public,” the GAO report says. In a recommendation, it suggested that the Office of Management and Budget, the agency that vets all new regulations on behalf of the Executive Office of the President, issue guidance encouraging agencies to respond to comments on final major rules issued without a prior notice of proposed rulemaking.

An official response from OMB  stressed that it “continues to believe firmly in the value” of public comments, but nevertheless rejected the GAO's seemingly modest proposal.

“We do not believe it is necessary to issue guidance on this topic at this time,” it wrote in response to a draft version of the study. “As Congress recognized… there are situations in which it would be impractical, unnecessary, or contrary to the public interest for a rulemaking agency to seek public comment before acting.”