Agencies Should Do Better Job Responding to Comments in Absence of NPRM, GAO Report Says

Federal agencies could do a better job soliciting and responding to comments from the public, the Government Accountability Office said in a report released Tuesday (http://xrl.us/bobvzg). From 2003-10, agencies failed to publish a notice of proposed rulemaking 35 percent of the time when passing “major” rules, the report found. GAO defined a major rule as one that has a significant impact on the economy, with an annual effect of at least $100 million. For “nonmajor” rules, which have less economic significance and involve more routine issues, agencies neglected to publish an NPRM 44 percent of the time, the report said. GAO recommended that the Office of Management and Budget encourage agencies to respond to comment on final major rules that were issued without an NPRM.

Agencies often cite a “good cause” exception to justify publishing final rules without an NPRM, the report found. The good cause exception was used in 77 percent of the major rules GAO studied. Agencies also use other statutory exceptions, such as when a statute authorizes issue of the rule without an NPRM, or when a deadline doesn’t allow enough time for a formal NPRM and comment process, the report said. Agencies often requested comments on major final rules issued without an NPRM, but they did not always respond to those rules. “This is a missed opportunity, because GAO found that when agencies did respond to public comments they often made changes to improve the rules,” the report said. “When agencies do not respond to comments requested, the public does not know whether the agency considered their comments, or if it intends to change the rule."

GAO cited several rules passed by the Department of Commerce. The Broadband Initiatives Program and Broadband Technology Opportunities Program, which set aside over $7 billion in loans and grants to facilitate broadband deployment in rural and unserved areas, was not preceded by an NPRM. NTIA and the Rural Utilities Service determined at the time that an NPRM wasn’t needed because “notice and comment procedures would unduly delay the provision of benefits associated with these broadband initiatives and be contrary to the public interest” (http://xrl.us/bobv46).

NTIA gave similar reasons for skipping the NPRM process in other proceedings, the report said. The 2009 State Broadband Data and Development Grant Program, which awarded $240 million to track broadband availability and adoption within each state; and a 2009 rule extending the deadline for analog-to-digital conversion and the converter box coupon program, both lacked NPRMs due to agency-determined “good cause,” the report said. NTIA’s Public Safety Interoperable Communications grant program, which in 2007 gave nearly $1 billion to public safety agencies for deploying interoperable communications systems that used reallocated public spectrum, was also not preceded by an NPRM. There, NTIA had said an NPRM wasn’t necessary because the rule related to public property, loans, grants or benefits.

"As the courts have recognized, the opportunity to comment is meaningless unless the agency responds to significant points raised by the public,” the report said. For that proposition, GAO cited Home Box Office v. FCC, a 1977 case in which the D.C. Circuit Court of Appeals struck down four FCC orders limiting the programs cable and subscription broadcast television stations could offer to the public, to try to prevent “siphoning” viewers away from free broadcast television. “A dialogue is a two-way street,” that case said. “There must be an exchange of views, information, and criticism between interested persons and the agency."

OMB’s Melissa Emrey-Arras, acting director-strategic issues, said OMB doesn’t believe it’s necessary to issue guidance on when to respond to comments in the absence of an NPRM. Although the Office of Information and Regulatory Affairs “continues to believe firmly” in obtaining public comment, sometimes doing so is contrary to the public interest, she said last month in response to a draft of the GAO’s report. Her comments were included as an appendix to the final report. “The timing and extent of an agency’s responses is a discretionary matter that an agency must consider in the context of the nature and substance of the particular rulemaking, as well as the particular agency’s resource constraints and competing priorities,” she said. “We believe that this case-specific approach is generally appropriate.”