Study: More than one-third of major regulations begin without public input

By Megan R. Wilson - 01/28/13 05:46 PM ET

More than one-third of federal regulations move through the early stages without input from the public, according to a government watchdog.

The Government Accountability Office (GAO), an investigative arm of Congress, conducted a study of federal rules and found that 35 percent of “major” regulations — those with an economic impact of $100 million or more — are issued without a public comment period.

“This is a missed opportunity, because GAO found that when agencies did respond to public comments they often made changes to improve the rules,” the report says.

From 2003 to 2010, federal agencies and departments published 568 major rules and 30,000 non-major rules, according to the GAO. Officials failed to offer a notice of proposed rulemaking on 35 percent of the major rules and 41 percent of the non-major rules, the study found. From 2008 to 2009, the percentage of major rules without an notice increased from 26 percent to 40 percent.

Federal officials gave the GAO several explanations for the lack of comment periods. In some cases, they had been “required or authorized” to issue the rule without a notice. In others, the program or regulation had a deadline that needed to be met. Of the non-major rules, many were mundane or procedural, officials said.

Although federal agencies allowed the public to comment on final rules, they often failed to reply. The GAO noted that a single regulation on the healthcare reform law received more than 4,600 comments — none of which drew a response from the issuing agency. Officials responded by saying that "4,100 of these comments were on a single aspect of the rule and that public comments informed subsequent program guidance."

“When agencies do not respond to comments requested, the public does not know whether the agency considered their comments, or if it intends to change the rule,” the GAO said.

The GAO urged the Office of Management and Budget (OMB) to design guidelines for agencies that encourages officials to respond to comments on final rules. OMB disagreed with that recommendation, saying the guidance wouldn’t have much benefit.

The GAO study looked at a random sample of 1,338 final rules published during the eight-year period by 52 federal agencies, including all major rules from 2003 to 2010. The Environmental Protection Agency had the best record, allowing the public to have advance comment on all of the agency's major rulemakings.