GAO: 35% of Major Federal Regs Issued Without Public Notice
The GAO also said that 44 percent of non-major regulations were issued without a public notice, which is referred to as a Notice of Proposed Rulemaking (NPRM).
"During calendar years 2003 through 2010, agencies published 568 major rules and about 30,000 non-major rules," the GAO said in a December report to Congress. "[Federal] agencies published about 35 percent of major rules and about 44 percent of nonmajor rules without an NPRM during those years."
The GAO found a large spike in this practice under President Barack Obama, with the percentage of major rules issued without public notice jumping from 26 percent in 2008 to 40 percent in 2009. The number of major rules issued this way also hit a high point in both 2009 and 2010. (Obama's first year in office as president began in January 2009.)
"In particular, from 2008 to 2009, the percentage of major rules without an NPRM increased from 26 percent to 40 percent," reported the GAO. "Agencies issued the largest numbers of major rules without an NPRM in 2009 and 2010 (34 in each year), though the percentage was higher in 2009 than in 2010."
The Obama administration also drastically increased the use of so-called interim final rules. These rules are effective immediately and issued without public notice but often allow public comment once they are issued. Interim final rules differ from the normal federal rulemaking process in that they skip the normal notice-and-comment period in favor of simply issuing final regulations immediately, with the possibility that the rule can be changed later.
From 2003 to 2010, the GAO found that about 47 percent of all rules without an NPRM were interim rules.
The GAO found a spike in such immediate rulemaking under the Obama administration, jumping from about 11 percent of federal rules in 2008 to 13 percent in 2009 to 22 percent in 2010.
Some of the regulations the GAO found that had been issued without public notice have been some of the most controversial rules issued in the past several years, including the Obama administration's moratorium on offshore drilling, its Cash for Clunkers program, its rule that adult children up to age 26 could remain on their parents' health insurance, and the rules for the TARP bank bailout program begun under former President George W. Bush and continued under President Obama.
Normally, federal law requires that all regulations – both major and non-major – be opened for public comment and inspection through the publication of an NPRM, allowing the public and interested groups to read the regulations and submit comments on proposed changes.
However, the GAO found that many regulations are simply enacted without this notice-and-comment period. In a few instances this was because Congress had directed the agency to simply publish the regulation without giving public notice. However, in most cases the government simply claimed it had "good cause" to publish a regulation without public notice.
The GAO said that under the law a federal agency could claim it had "good cause" to avoid giving public notice if the government thought it was contrary to the public interest or if giving public notice was deemed impractical or unnecessary...
The GAO found that the government claimed this "good cause" exception in about 77 percent of major rules issued without public notice and in about 61 percent of non-major rules.
In many cases, the GAO found that the government cited multiple reasons why it was entitled to use the good cause exception to avoid giving public notice. About 68 percent of major regulations cited that public notice was against public interest; about 55 percent claimed public notice was impractical; and about 49 percent claim it was unnecessary.
In some cases, the GAO found that congressionally imposed deadlines made issuing public notice impracticable while in others the agency found that legislation had already proscribed the content of the rule, making a public notice unnecessary. Emergency response was the next most common reason cited for using the good cause exception.
The GAO sampled 123 major rules issued without an NPRM and found that the government had cited congressional deadline pressure in 36 cases, legislative proscription in 31, and emergency response in 19 cases when claiming it had good cause to forgo giving public notice.
Most of the major rules issued without public notice were issued by two agencies, the Department of Health and Human Services and the U.S. Department of Agriculture. The HHS issued 38 percent of all major rules enacted without public comment while the USDA issued 24 percent.
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