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Government agencies allowing comment don’t necessarily respond

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When a government agency issues a new rule, generally the public is given the opportunity to provide input. A new report suggests, however, the government doesn't always respond to comment, even on major rules.

The Government Accountability Office issued a report Tuesday that concluded that when some major rules are published, agencies don't necessarily respond to public comment. The GAO said in more than a third of major rules published where agencies had discretion and requested comments, the agency did not respond to those comments.

"For example, in one of the 26 rules (where comments were solicited but not responded to), an agency defined a pre-existing condition to implement the Patient Protection and Affordable Care Act and sought public comment," the report states. "The agency received 4,627 comments, but has not published a response to them.  … As the courts have recognized, the opportunity to comment is meaningless unless the agency responds to significant points raised by the public."

A major rule is one considered to have significant economic impact – at least $100 million annually. Between 2003 and 2010, agencies published 568 major rules.

"Some of these rules related to significant national issues such as health care," the GAO report stated. "When agencies solicit but leave unclear whether comments were considered, the public record is incomplete. Though such follow-up is not required, agencies may be missing an opportunity to fully obtain for themselves, and provide to the public, the benefits of public participation."

The report found that when the agencies followed up on public comment, agencies often made substantial changes in response to the public comments.

As a result of its findings, the GAO requested the Office of Management Budget to issue guidelines to encourage agency response to public comment on major rules. The OMB disagreed with the GAO's recommendation, but the GAO insisted enhanced guidance would improve quality and transparency of rulemaking procedures.

"In its response, OMB reiterated the value of public participation during the rulemaking process and noted that it routinely encourages agencies to establish procedures to consider public comments received on interim final rules," the GAO report states, summarizing a letter of response from the OMB. "However, OMB believes that the timing and extent of an agency's responses is a discretionary matter that an agency must consider in the context of the nature and substance of the particular rulemaking, as well as the particular agency's resource constraints and competing priorities."

The full report can be found here: http://www.gao.gov/assets/660/651052.pdf