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Letter to Mr. Bershteyn - Public Should Have Input on Rulemaking Process, Answers on Regulations

Letter

By:
Date:
Location: Washington, DC

Senator Ron Johnson (WI) today joined several congressional colleagues in a letter to the White House Office of Management and Budget (OMB) regulatory affairs office encouraging greater public input into the rulemaking process. In addition to Senator Johnson, the letter is signed by Chairman Darrell Issa (CA) of the House Committee on Oversight and Government Reform, and Chairman Bob Goodlatte (VA) of the House Judiciary Committee.

Johnson explained, "the federal government answers to the American people. When agencies propose new rules with dramatic effects on jobs, investment, and the day-to-day lives of millions of Americans, they should allow those impacted to review the rules and comment on them before they go into effect. That's simply common sense."

"The independent Government Accountability Office (GAO) recently found that the percentage of major rules that are announced without opportunity for public comment nearly doubled between 1998 and 2010 -- increasing from 18% to 35%. The GAO recommended that agencies solicit and respond to public comment, but the OMB has refused to take this counsel. With this letter, we are encouraging them to reconsider."

Chairman Issa said, "the Government Accountability Office's recommendation to the White House Office of Management and Budget to improve certain rulemakings was made after nearly two years of extensive and thorough analysis. The fact that the Administration thinks it knows better and refuses to fully address the problems GAO identified is troubling."

Chairman Goodlatte added "public participation is at the heart of our democracy. When it comes to government regulation, the public should have every right to expect transparency, review such rules and voice their concerns for the sake of improving quality and lowering costs for all Americans. OMB should follow the GAO's recommendation to ensure public input plays this crucial role in the rulemaking process."

The text of the letter is below:

Dear Mr. Bershteyn:

The Government Accountability Office (GAO) recently completed a report, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments. This report studies how often agencies cite the "good cause" and other statutory exceptions to avoid publishing notices of proposed rulemakings (NPRMs) before they issue new rules. GAO found that agencies are using these exceptions more than ever before to issue major rules. This means that the public has a diminishing opportunity to both provide feedback, and have that feedback considered by the agency. This trend is particularly troubling since public input often helps agencies improve the rules and lower their costs.

As a result of its findings, GAO recommended that the Office of Management and Budget (OMB), in consultation with the Administrative Conference of the United States (ACUS), issue guidance to encourage agencies to respond to comments on major rules issued without NPRMs. We are disappointed to learn that you disagreed with GAO's recommendation. Every year federal agencies write thousands of new regulations. In order to better serve the American people, agencies must have a consistent, transparent process for the public to respond. We therefore ask you to implement GAO's recommendation.

Agencies are required to publish NPRMs in the ordinary course of rulemaking. This is a critical part of the rulemaking process. The publication of NPRMs ensures that the public is allowed to comment on proposed rules. Agencies are required to respond to those comments. In certain instances agencies may invoke the "good cause" or other statutory exceptions to issue rules without NPRMs. In limited circumstances, it can be appropriate for agencies to do so. However, rulemakings without NPRMs should not be common. This is particularly important in major rulemaking.

GAO found that approximately 18 percent of final major rules were published without NPRMs in 1998. This number nearly doubled by 2012. From 2003 through 2010, agencies invoked exceptions and did not publish NPRMs for approximately 35 percent of major rules and 44 percent of non-major rules. The largest number of major rules finalized without NPRMs occurred during the Obama Administration.

While GAO found that agencies sometimes sought comments after the fact on regulations previously issued without NPRMs, GAO also found agencies frequently failed to respond to these comments. This is an important concern because "courts have recognized that the opportunity to comment is meaningless unless the agency responds to significant points raised by the public."

GAO found that when agencies did respond to comments after rules were issued, they often made changes to the rules. In some instances, the changes resulted in less costly rules. When agencies fail to respond to comments they waste public resources expended in seeking and receiving comments. They also forgo potentially beneficial modifications to rules.

GAO determined that the public would benefit and the "quality and transparency" of rulemakings would improve if OMB directed agencies to respond to comments on major rules issued without NPRMs. GAO cautioned that agencies may otherwise "create the perception that they are making final decisions about the substance of major rules without considering data, views, or arguments submitted in public comments." ACUS has previously recognized the importance of agency requests for and responses to public comments even after rules are finalized. According to GAO, "ACUS recommended that agencies request comments whenever they invoke "impracticable' or "contrary to the public interest' reasons under the good cause exemption and publish a responsive statement . . . ." Agencies have yet to implement this recommendation.

In response to GAO's recommendation, you stated that agencies currently respond to such comments on a case-by-case, "discretionary" basis, and that you do not believe "a more general, undiscriminating policy . . . would offer substantial benefits" (emphasis added). GAO's recommendation, however, is based on extensive research, and GAO has found that the benefits of implementing the recommendation would be substantial. Furthermore, GAO is not suggesting that OMB implement an undiscriminating policy. Rather, GAO recognized that OMB could develop guidance that maintains needed flexibility for agencies. We therefore respectfully request that you work with ACUS to implement GAO's recommendation. This will help ensure the public has a fair chance to comment on new rules and agencies better and more promptly identify when regulatory quality can be improved and regulatory costs lowered.

Sincerely,

Senator Ron Johnson

Ranking Member, Subcommittee on Financial and Contracting Oversight

Representative Darrell Issa

Chairman, Committee on Oversight and Government Reform

Representative Bob Goodlatte

Chairman, Committee on the Judiciary


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