Over One Third of Major Federal Regulations Issued Without Public Notice

WASHINGTON, D.C. – The Government Accountability Office (GAO) reports there was a significant increase in major rules issued without public notice during President Obama’s first term. The number of major rules issued under the public radar hit a high point in both 2009 and 2010 with an increase from 26 to 40 percent from 2008 to 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.”

There was also a dramatic increase by the White house in the use of what are called interim final rules. Such rules become effective without public notice but generally can be commented on by the public after they are enacted. The GAO report shows that interim final rules rose from 11 percent of federal rules to 13 percent in 2009 to 22 percent in 2010.

Customarily, federal law requires that all regulations be opened for public inspection and comment through the publication of an NPRM (Notice of Proposed Rulemaking), allowing the public and interested groups to read the regulations and submit comments on proposed changes. This allows interested groups and the public in general to study such regulations and submit comments on the proposed changes.

The GAO said that a federal agency can claim it has “good cause” to avoid giving public notice if the government thinks it is contrary to the public interest or if giving public notice is considered impractical or unnecessary. The Department of the Interior, for example, ruling to temporarily ban offshore oil and gas drilling in 2010 was issued without public notice. The reason given was that allowing time to read and submit comments conflicted with public interest because the ban was issued in response to the Deepwater Horizon oil spill.

In fact, the Obama administration claimed such “good cause” to issue 77 percent of major rules without public notice. According to the GAO, 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.

The majority of 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.