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Highlights

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.

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Recommendations

Recommendations for Executive Action

Agency Affected Recommendation Status
Office of Information and Regulatory Affairs 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.
Closed - Implemented
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.
Office of Information and Regulatory Affairs 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.
Closed - Implemented
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.

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