- - Thursday, March 21, 2013

President Obama has pledged “an unprecedented level of openness” and “a system of transparency, public participation, and collaboration,” and observed that public participation “enhances the Government’s effectiveness and improves the quality of its decisions.” Unfortunately, evidence from the 2012 Unified Agenda suggests that many economically significant regulations may be put in place over the coming year without the benefit of public involvement.  

Regulations are a powerful tool for achieving policy goals. They have the force of law, but do not need approval from Congress to go into effect because they are issued directly by federal agencies such as the Transportation Department or Environmental Protection Agency. Given today’s political climate—with concerns over the fiscal budget and divisions in Congress—Mr. Obama has found that regulations are particularly attractive tools for achieving his policy goals, and experts expect an ambitious lineup of new regulations over the next few years.  

The administration’s most recent Unified Agenda of Regulatory and Deregulatory Actions corroborates that expectation. The agenda identifies 2,387 regulatory actions underway, of which 841 are listed for the first time. Some of these new regulations are mandated by legislation passed in Mr. Obama’s first term, such as Obamacare and the Dodd-Frank Act, while others would rely on authority in older statutes to implement presidential priorities, such as climate change mitigation. Perhaps more significant than these numbers, however, is the way many of these regulations will be put into effect.

For almost 70 years, the U.S. federal regulatory system has been grounded in the principle that new regulations should not be enforceable until agencies consider views and information provided by the public. Yet, a recent Government Accountability Office report found that federal agencies did not go through this “notice-and-comment” process for over one-third of the major rules issued between 2003 and 2010. This means that a significant percentage of new regulations expected to have an impact of $100 million or more on the economy are given the force of law without public input. GAO finds a sharp increase in the practice of issuing a final regulation without first seeking public comment in 2009, when 40 percent of all major final rules were issued without notice and comment, compared to 26 percent in 2008.

The Obama administration’s latest agenda indicates that this trend may be continuing. Of the economically significant rules listed for the first time in the 2012 agenda that are at the final stage of rulemaking, 55 percent are interim final rules, which become final without first receiving input from the public. These interim final rules represent 17 percent of all economically significant proposed and final rules that are listed for the first time in the 2012 agenda. 

The two agencies responsible for the majority of major rules issued without a proposal in GAO’s sample — the Department of Agriculture (USDA) and the Department of Health and Human Services (HHS) — justify bypassing public input on deadlines in authorizing statutes, particularly the 2008 Farm Bill and 2009 Affordable Care Act, respectively. However, most of the interim final rules identified in the new agenda — forthcoming from the Coast Guard, Department of Homeland Security, HHS and the Department of Veterans Affairs — do not appear to be motivated by the same immediate legislative deadlines. Only a Treasury Department rule issued pursuant to the Dodd-Frank Act appears to be in response to a new statutory deadline, and only two other interim final rules are in response to any statutory deadline at all.  Also on Treasury’s agenda are plans to issue several final regulations this year for which proposals were last issued a decade or more ago. Considering the number of events that have transpired since the rules were initially proposed, surely the public deserves an opportunity to provide input before they are finalized.

Particularly given the importance of regulations to achieving the administration’s goals over the coming years, the administration should make a greater commitment to listening and responding to public input on new regulations before they become the law of the land. 

Susan E. Dudley is director of the George Washington University Regulatory Studies Center and research professor in the Trachtenberg School of Public Policy and Public Administration. Sofie E. Miller is a policy analyst in the GW Regulatory Studies Center and editor of the Center’s Regulation Digest.

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