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Agencies avoid public comments on many rules

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Federal agencies did not allow the public to comment on roughly 35 percent of rules that have an annual economic impact of $100 million or more, says the Government Accountability Office.

In a Dec. 20 report (.pdf) first published Jan. 22, GAO says agencies did not publish a notice of proposed rulemaking, which allows for public comment, on roughly 200 major rules from 2003 through 2010.

During the same time period, agencies also used exceptions to not publish NPRMs on 44 percent of the roughly 30,000 non-major rules published, says the GAO.

The concern, says the report, is that public comments are often beneficial and responses to comments legitimize the process in the eyes of the public. When agencies responded to public comments "they often made changes to improve the rules," writes the GAO. Not allowing or responding to questions also causes public concerns because "as the courts have recognized, the opportunity to comment is meaningless unless the agency responds."

Agencies cited the good cause exception for 77 percent of major rules and 61 percent of non-major rules published without an NPRM. This exception applies if the comment procedure is "impracticable, unnecessary, or contrary to the public interest," which covers near-term statutory deadlines, technical corrections or emergency situations.

Even when issuing rules without an NPRM, agencies can ask for comments, but often did not respond to them--without an NPRM agencies are not obligated to respond to comments.

Agencies requested comments on 77 of the 123 major rules issued without an NPRM in GAO's sample, but they did not issue a follow-up rule or respond to comments on 26 of these rules. Auditors express concern over these 26 rules because of their economic impact, some of which account for more than a billion dollars a year, and their coverage of national issues like healthcare policies and manufacturing incentives.

One rule defined a pre-existing condition related to the Affordable Care Act, sought public comment and received 4,627 comments, but has not published any response to them.

The report recommends that the Office of Management and Budget, which has authority to provide guidance on regulatory issues, issue guidance to encourage rules to respond to comments on major rules. However, OMB disagreed and said guidance would not offer any substantial benefits.

For more:
- download the report, GAO-13-21 (.pdf)

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