New federal regulations generally are supposed to go through a “notice and comment” period that allows affected parties and the public to give agencies feedback. But that requirement has loopholes, as the Government Accountability Office explains in a December report.
The biggest loophole is the “good cause exemption,” which allows agencies to determine, without oversight, when it would be impractical or harmful to issue a notice of proposed rulemaking (NPRM). From 2003 through 2010, the GAO found, “agencies published about 35 percent of major rules [which have an annual economic impact of $100 million or more] and about 44 percent of nonmajor rules without an NPRM.”
During the Obama administration, the report notes, federal agencies have become even less accountable. “From 2008 to 2009,” the GAO says, “the percentage of major rules without an NPRM increased from 26 percent to 40 percent. Agencies issued the largest numbers of major rules without an NPRM in 2009 and 2010 (34 in each year).”