Agencies could communicate better during rule-making, GAO says

Proposed major regulations on subjects ranging from health care to air cargo are published without public notice in more than one-third of cases, the Government Accountability Office has found.

In a study of 568 rules with an economic impact of more than $100 million annually from 2003 to 2010, auditors found that agencies did not publish a notice that enables the public to submit comments in 35 percent of the instances. Of the 30,000 non-major rules tabulated, some 44 percent solicited no public comment via the Federal Register. The bulk of the rules released without public notice came from the Agriculture and the Health and Human Services departments, accounting for 62 percent of the rules examined, GAO said. One agency that had defined a pre-existing condition to implement the 2010 Affordable Care Act sought public comment and received 4,627 comments, but has not published a response to them, the report noted.

The study, dated Dec. 20 but released on Tuesday, was requested by Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee; Rep. Darrell Issa, chairman of the Oversight and Government Reform Committee; and Sen. Ron Johnson, R-Wis., ranking member of the Senate Homeland Security and Governmental Affairs Subcommittee on the federal workforce.

Under the law, agencies are permitted to make “good cause” exceptions to the requirement for public comment, and did so in 77 percent of the major rules and 61 percent of nonmajor rules covered by the study. Good causes include when public comment is “impracticable, unnecessary or contrary to the public interest."

GAO said agencies should improve the rates at which they serve notice of rulemaking and do better at informing the public that comments were received. “If agencies and the public are to fully benefit from the process of public comments, what matters is not simply providing an opportunity for comment but also public understanding of whether comments were considered,” the report said, noting that agencies often made substantive changes following comments. “When agencies solicit but leave unclear whether comments were considered, the public record is incomplete. Though such follow-up is not required, agencies may be missing an opportunity to fully obtain for themselves, and provide to the public, the benefits of public participation.”

To improve the process, GAO recommended that the director of the Office of Management and Budget, whose subdivision, the Office of Information and Regulatory Affairs, vets agency regulations, consult with the Administrative Conference of the United States and issue clarifying guidance.

OMB disagreed, saying guidance is not needed at this time and that it “routinely encourages agencies to establish procedures to consider public comments received on interim final rules.” OMB said the timing and extent of an agency’s responses is a “discretionary matter that an agency must consider in the context of the nature and substance of the particular rulemaking, as well as the particular agency’s resource constraints and competing priorities.

Amit Narang, regulatory policy advocate at Public Citizen’s Congress Watch, said that while agencies “are required to and should issue notice for public comment to maximize public participation in rulemaking, this is a minor issue in the grand scheme of things.” There are often legitimate reasons, such as national security, for holding back notice, he said, and his group would not favor legislation to force agencies to give notice because “when that’s been tried previously, it was coupled with a lot of other more harmful provisions.”