Federal Agencies Continue to Bypass Public Comment Period on Regulations

Federal agencies are increasingly using “good cause” exceptions to bypass the standard public comment period when issuing regulations, according to a report released by the U.S. Government Accountability Office (GAO). This practice, which allows agencies to forgo public input when they deem it impracticable, unnecessary, or contrary to the public interest, was cited in approximately 71% of major interim final rules reviewed by the GAO between January 20, 2013, and January 20, 2025. This finding aligns with previous GAO work from 2012, which indicated that 77% of rules issued without a notice of proposed rulemaking cited good cause as justification.

The use of expedited rulemaking saw a significant surge during the peak of the COVID-19 pandemic in 2020 and 2021, with agencies expediting the issuance of 55 rules in response to the public health crisis. Of these pandemic-related rules, 41 cited good cause as the reason for bypassing the public comment period. Outside of the pandemic years, the frequency of expedited rulemaking remained relatively consistent, with agencies issuing between two and ten major rules annually without a prior notice-and-comment period. The GAO’s review encompassed 116 major interim final rules and 12 direct final rules published within the specified timeframe, along with supporting documentation and relevant legal frameworks.

While agencies are generally required to solicit public feedback on proposed regulations to enhance rule quality and ensure accountability, the “good cause” exception allows for an expedited process in certain circumstances, such as responding to natural disasters or public health emergencies. The GAO report also indicated that agencies provided information on the economic effects of 66% of the reviewed rules. However, rules issued in response to COVID-19 were less likely to include such economic assessments, a trend attributed to the emergency nature of those regulations. Despite the expedited process, agencies did request public comments on nearly all interim final rules reviewed, with 94% of these rules receiving feedback, an increase from the 63% reported in the 2012 study. This suggests that even when bypassing the initial proposed rule comment period, agencies are still seeking some level of public input on interim final rules.

Article by Mel Anara, based upon information from the U.S. Government Accountability Office

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