Report: Agencies skipped steps on 67 major regulations

Report: Agencies skipped steps on 67 major regulations
© The Hill

The Obama administration skipped legally required steps when issuing 67 major regulations, the conservative American Action Forum (AAF) says in a new report.


Sam Batkins, AAF’s director of regulatory policy, said the policy group reviewed all of the major rules catalogued by the Government Accountability Office (GAO) and found 20 major rules, 12 of which were listed as “notices,” that had no public comments, and 47 major rules that had public comments but were issued without a proposal.

For each rule it found, AAF said it cross-checked whether there was a proposed rule logged in the Federal Register and whether the docket at had a record of public comments

Combined, Batkins argues the 67 rules have imposed nearly $7 billion in costs and more than 8.3 million paperwork hours, all with little public input.

“If 67 sounds like a high number, it represents roughly 11 percent of all major rules,” he said in his report. “In other words, for one-in-ten major rules, the administration and independent agencies have denied the public the ability to comment on or review proposed major regulations.”

Major rules are considered those that carry an economic impact of $100 million or more.

AAF, however, did find some major rules that weren’t notices that later received public comment. A regulation under the Affordable Care Act (ACA) called “Adoption of Operating Rules” was one. The administration reportedly received 281 comments after the rule was finalized.

“Generally, issuing any regulation without first proposing a rule is reserved for rare circumstances,” Batkins said in the report. “After at least 67 instances, it appears this practice has grown more common.”

Amit Narang, a regulatory policy advocate at Public Citizen, said AAF is unfairly blaming agencies for not going through the notice and comment rulemaking steps Congress explicitly told them to skip in order to provide disaster relief or respond to another urgent issue.

For the ACA rule, which AAF used as an example, Narang said the agency states flatly that they are statutorily required to go directly to an interim final rule with no proposed rule stage.

“The notice and comment rulemaking process for major rules has slowed to a grinding halt with numerous laws from Obama’s first term still without implementing regulations,” he said. “Given the numerous congressional proposals to add even more delay to the rulemaking process, agencies may have to increasingly forego notice and comment rulemaking to meet congressional deadlines or respond to pressing public health and safety threats.”

The GAO would not comment on AAF’s report and instead directed The Hill to a 2012 GAO report, which found that agencies frequently cite the "good cause" exception and other statutory exceptions for publishing final rules without a notice of proposed rulemaking.

“Agencies may use the good cause exception when they find that notice and comment procedures are 'impracticable, unnecessary, or contrary to the public interest,' the report said. “In practice, agencies may find an NPRM 'impracticable' when the rule must be issued by a statutory deadline, 'unnecessary' when the rule pertains to technical corrections, and 'contrary to the public interest' in an emergency situation.”