A report from the Government Accountability Office indicates that 35 percent of the major federal regulations issued from 2003 to 2010 were done so without public notice. Likewise, 44 percent of non-major regulations were also issued without public notice, also known as a Notice of Proposed Rulemaking (NPRM).
“During calendar years 2003 through 2010, agencies published 568 major rules and about 30,000 nonmajor rules,” the GAO said in a December report to Congress. “[Federal] agencies published about 35 percent of major rules and about 44 percent of nonmajor rules without an NPRM during those years.”
Federal law generally requires that regulations, both major and minor, be opened for public comment, allowing interested parties to read the rules and remark on them, potentially enacting changes to the proposed rules. The GAO report notes that the majority of the regulations published without a notice-and-comment period were done so because the government claimed to have “good cause” to do so. The federal government invokes “good cause” when it believes a comment period or comments are contrary to the public interest or if public notice may be deemed unnecessary or impractical.
In fact, of those regulations that were issued without public notice, 77 percent of the major rules utilized the “good cause” exception, as did 61 percent of the non-major rules.
And of those “good cause” exceptions, approximately 68 percent of them cited that public comment was against the public interest, while 55 percent asserted public notice was impractical, and another 49 percent claimed it was unnecessary.
According to the GAO, a major spike in the issuance of regulations without NPRM occurred under President Barack Obama. Under his presidency, the percentage of regulations issued without public notice jumped from 26 percent in 2008 to 40 percent in 2009.
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