Federal Rulemaking:

Agencies Often Published Final Actions Without Proposed Rules

GGD-98-126: Published: Aug 31, 1998. Publicly Released: Aug 31, 1998.

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Pursuant to a congressional request, GAO provided information on the: (1) extent to which agencies published final regulatory actions without a published notice of proposed rulemaking (NPRM) during calendar year 1997, and the characteristics of those cases; (2) reasons that the agencies gave for not publishing NPRM; and (3) implications of publishing final actions without NPRM.

GAO noted that: (1) about half of the 4,658 final regulatory actions published in the Federal Register during 1997 were published without NPRMs; (2) seven agencies accounted for about 70 percent of both the final actions in GAO's sample and the actions without NPRMs; (3) most of the actions without NPRMs appeared to involve administrative or technical issues with limited applicability; (4) however, 11 of the 61 final rules published during 1997 that were major rules under the congressional review provisions of the Small Business Regulatory Enforcement Fairness Act also did not have NPRMs; (5) the agencies most commonly cited the Administrative Procedure Act's (APA) good cause exception as their justification for not publishing NPRMs for final regulatory actions, frequently noting the time-sensitive nature of the actions being taken; (6) the agencies also appeared to use categorical exceptions permitted in the APA and, to a much lesser extent, specific statutory exceptions in other laws, as reasons for not publishing NPRMs; (7) when an agency uses the good cause exception, the APA requires the agency to include a statement in the rule as to why a NPRM was impracticable, unnecessary, or not in the public interest; (8) in the bulk of the good cause cases that GAO examined, the agencies provided clear explanations in the preambles to the actions; (9) however, in other cases, the agencies' explanations in the preambles for why NPRMs were not used were not so clear or understandable; (10) the APA recognizes that NPRMs are not always practical, necessary, or in the public interest; (11) sometimes, public safety or other factors require rules to be issued quickly; (12) NPRMs may also be unnecessary or not in the public interest when minor, noncontroversial actions are being promulgated, or for other reasons; (13) publishing rules without NPRMs generally limits the public's opportunity to participate in and have an impact on the regulatory decisions that agencies make and may restrict the ability of agencies to obtain new perspectives on their rules; (14) final actions that are published without NPRMs are not subject to statutory analytical or procedural requirements in the Regulatory Flexibility Act and other statutes that are triggered by the publication of a notice; (15) at least two pieces of pending legislation would, if enacted, add to these current NPRM-triggered requirements; and (16) some agencies specifically cited the absence of a NPRM as the reason they did not have to evaluate the impact on small entities of some of their rules under the Regulatory Flexibility Act.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: OIRA has not issued a general notification regarding agencies' use of the good cause exception (i.e., when an agency claims that it has "good cause" for not seeking public comment before issuing a final regulatory action), as specifically envisioned in the recommendation. However, OIRA has taken other actions that, in effect, accomplish the original intent of the recommendation--increasing OIRA oversight of agencies' use of the good cause exception during rulemaking. In OIRA's original written response to this recommendation, the agency's Acting Administrator stated that OIRA would address, as part of its regulatory reviews, the agencies' reliance on the good cause exception. On November 16, 2005, an OIRA representative confirmed that, during the 7 years since GAO's recommendation, OIRA staff have regularly questioned agencies' use of the good cause exception when the staff review draft rules submitted under Executive Order 12866 to ensure that public comment is sought whenever possible.

    Recommendation: The Acting Administrator, Office of Information and Regulatory Affairs (OIRA), should notify executive departments and agencies that the statements in the rules providing the agencies' reasons for using the good cause exception should clearly explain why notice and comment was impracticable, unnecessary, or not in the public interest.

    Agency Affected: Executive Office of the President: Office of Management and Budget: Office of Information and Regulatory Affairs

  2. Status: Closed - Implemented

    Comments: OIRA has not issued a general notification regarding agencies' use of the good cause exception (i.e., when an agency claims that it has "good cause" for not seeking public comment before issuing a final regulatory action), as specifically envisioned in the recommendation. However, OIRA has taken other actions that, in effect, accomplish the original intent of the recommendation--increasing OIRA oversight of agencies' use of the good cause exception during rulemaking. In OIRA's original written response to this recommendation, the agency's Acting Administrator stated that OIRA would address, as part of its regulatory reviews, the agencies' reliance on the good cause exception. On November 16, 2005, an OIRA representative confirmed that, during the 7 years since GAO's recommendation, OIRA staff have regularly questioned agencies' use of the good cause exception when the staff review draft rules submitted under Executive Order 12866 to ensure that public comment is sought whenever possible.

    Recommendation: The Acting Administrator, OIRA, should notify executive departments and agencies that OIRA will, as part of its review of significant final rules, focus on whether agencies clearly explained why the good cause exception was being used.

    Agency Affected: Executive Office of the President: Office of Management and Budget: Office of Information and Regulatory Affairs

 

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