GAO Report Urges Agencies to Improve Efforts to Respond to Public Comments

In a report released on January 22, the Government Accountability Office (GAO) found that federal agencies did not publish a notice of proposed rulemaking (NPRM) for more than a third of major rules, making meaningful public participation more difficult, decreasing transparency of rulemaking records, and creating the perception that final rules are issued without consideration of public comments.  Agencies published 568 major rules and 30,000 non-major rules during 2003 through 2010, and failed to publish NPRMs for about 35 percent of major rules and about 44 percent of non-major rules during that period.  Although agencies often requested comments on major final rules published without an NPRM, they did not usually respond to the comments received, likely because agencies are not obligated to request or respond to comments submitted after a final rule is issued.

Several rules issued by the Department of Commerce were published without an NPRM, including the Broadband Initiatives Program and the Broadband Technology Opportunities Program; rules with an economic impact of over $7 billion.  NTIA and the Rural Utilities Service determined that an NPRM was unnecessary in these cases because “notice and comment procedures would unduly delay the provision of benefits associated with these broadband initiatives and be contrary to the public interest.”  However, GAO notes, “when rulemaking is expedited, there is a trade-off between obtaining the benefits of advanced notice and comment and the goal of issuing the rule quickly.”

NTIA issued several other major rules without an NPRM: The 2009 State Broadband Data and Development Grant Program, which awarded $240 million to track broadband availability and adoption; the 2009 rule extending the deadline for analog-to-digital conversion and the converter box coupon program, and; The Public Safety Interoperable Communications Grant Program, which gave nearly $1 billion to public safety agencies in 2007.  For the first two rules, NTIA cited “good cause,” and for the third, NTIA said an NPRM was not necessary because the rule related to public property, loans, grants or benefits.

For many of the missing NPRMs, agencies cited the “good cause” exception and other statutory exceptions for publishing final rules without an NPRM; agencies used the “good cause” exception for 77 percent of major rules, and 61 percent of non-major rules published without an NRRM.  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 Administrative Conference of the United States (ACUS) recommended that agencies request comments whenever they invoke the “impracticable” or “contrary to public interest” reasons for the “good cause” exception.  ACUS believes this effort will help improve transparency and public participation in rulemaking.

GAO recommended that the Office of Management and Budget (OMB), in consultation with ACUS, issue guidance to encourage agencies to respond to comments on final major rules that are issued without a prior NPRM.  However, OMB disagreed that guidance would offer substantial improvement.  GAO maintains that agencies’ failure to publish NPRMs before issuing a final rule and failure to respond to public comments is a “missed opportunity.”  GAO found that when agencies did respond to public comments, they frequently made changes to improve the rules.  GAO emphasized that “what matters is not simply providing opportunity for comment but also public understanding of whether comments were considered . . . .  As courts have recognized, the opportunity to comment is meaningless unless the agency responds to significant points raised by the public."