Are citizens' voices heard in rulemaking?

The government might be great at creating rules, but it is less skilled at getting feedback on them, according to the Government Accountability Office.

Public comments are typically part of the rulemaking process and aim to increase transparency. Agencies publish an average of 3,000 to 4,000 final regulations each year, but a large percentage of them do not involve public feedback.

From 2003 to 2010, agencies published 568 major rules — those that could have an annual economic impact of $100 million or more — and about 30,000 non-major rules, which have less of an economic impact and may involve routine administrative issues.

According to a newly released GAO report, 35 percent of the former and 44 percent of the latter did not include a notice of proposed rulemaking (NPRM) to alert the public to the opportunity for comment.

In addition, agencies commonly neglected to respond to public comments, often citing the “good cause” and other statutory exceptions for publishing final rules without an NPRM. “Good cause” is typically used when agencies deem notice-and-comment procedures “impracticable, unnecessary or contrary to the public interest.” That exception was claimed in 77 percent of major rules and 61 percent of nonmajor rules published without an NPRM.

Sometimes, the rules are fairly trivial so agencies do not necessarily need much input, said Daniel Schuman, policy counsel at the Sunlight Foundation.

“It’s not necessary that they always do so, but generally speaking, it’s usually useful,” he added, supporting GAO’s conclusion that failing to respond to feedback is a missed opportunity for agencies. When agencies did respond to public comments, they often made changes to improve the rules, the GAO report states.

How people interact with or provide feedback to the government is still stuck in a 1950s model that fails to consider today’s technologies and the public’s needs, Schuman said. He added that fixing the process requires more work.

“There’s so much more that needs to be done — just the phrase ‘federal regulatory’ make people’s eyes glaze over, or they start pulling out their hair and moaning, and that’s not good,” he said.

GAO recommended that the Office of Management and Budget issue guidance to encourage agencies to respond to comments on final major rules, but OMB disagreed that such a framework would offer substantial benefits. Schuman called OMB’s reaction unfortunate for a few reasons, including the fact that helpful comments deserve attention.

“When you file a comment and [it’s] six months or a year later when the regulation comes out, it’s not clear they’re responding to what you said,” he said. “While [a certain reference] might address your point, you don’t have any way of making that connection. It’s like ships passing in the night, and there isn’t any way of saying, ‘You asked a question and here’s the answer’ like normal people would.”