Federal Rulemaking

Federal agencies issue more than 4,000 regulatory actions each year on everything from the timing of bridge openings to the permissible levels of contaminants in drinking water. Agencies are required to (1) publish a notice of proposed rulemaking in the Federal Register; (2) allow interested persons an opportunity to provide "written data, views, or arguments;" and (3) publish the final rule 30 days before it becomes effective. Agencies are allowed to issue final rules without notices of proposed rulemaking in certain cases, such as when the agency determines for "good cause" that notice and comment procedures are "impracticable, unnecessary, or contrary to the public interest." GAO has previously reported that agencies have published a number of final regulatory actions without having published notices of proposed rulemaking. This report (1) identifies the extent to which agencies published final regulatory actions without notices of proposed rulemaking during 1997 and the characteristics of those cases, (2) describes the reasons that agencies gave for not publishing notices, and (3) discusses the implications of publishing final actions without notices of proposed rulemaking.

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

Our recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.

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