Summary

  • GAO examined 116 major interim final rules issued without a prior proposed-rule notice between January 2013 and January 2025. Agencies requested comments after publication on 115 and received comments on 109 of those 115.
  • Agencies documented their consideration of comments for 49 of 52 rules later reissued as final rules. For the other 64, GAO found no subsequent final rule in its review and could not assess the response through that record.
  • The accountability question is how an agency makes the disposition of post-issuance public input legible when the rule has already begun to operate and the expected later explanation never appears.

The door opened after the decision

The ordinary image of public rulemaking is a draft on the table and people arguing over its words before an agency signs. An interim final rule reverses the order. The agency issues a rule without a prior notice of proposed rulemaking, then can invite comments. The microphone is live; the decision has already crossed the threshold.

The Government Accountability Office's 2026 audit counted 128 major rules issued without that prior proposal notice between 20 January 2013 and 20 January 2025. Of these, 116 were interim final rules and twelve were direct final rules, a different mechanism. Agencies cited the Administrative Procedure Act's good-cause exception for 82 of the interim final rules, about 71%. That exception allows the ordinary notice-and-comment sequence to be set aside when an agency determines it is impracticable, unnecessary or contrary to the public interest.

The pandemic left a visible mark: 55 reviewed rules were expedited in response to COVID-19, and 41 of those cited good cause. Yet outside pandemic years the agencies still issued between two and ten major rules without a prior proposal notice each year in GAO's period. The inverted sequence is an operating method, not merely a memory of emergency government.

Plenty of comments; a thinner answer trail

Of the 116 interim final rules, 115 solicited public comments after publication. Of those 115, 109 received them, with counts from one to more than 120,000. Calling this a process without participation misses the evidence. People did speak. The issue is the official trail from what they said to what the agency chose to do.

GAO found a clear trail in much of the subset that reached another rulemaking milestone. Fifty-two interim final rules were later reissued as final rules; 49 of those documented consideration of comments. The Department of Education, for example, incorporated changes prompted by comments when it finalized an interim rule on total and permanent disability student-loan discharge. Post-issuance input can alter the text. Its timing does not make it theater.

But 64 of the 116 interim final rules had no subsequent final rule in GAO's review. GAO could therefore not assess whether agencies addressed comments through a later final-rule record for those cases. That number describes the audit's observable record, not a tally of ignored submissions. The missing artifact matters because a later final rule is where the agency can explain which criticisms changed its mind, which did not and why the rule should continue in its adopted form.

The result is an asymmetry of obligation and visibility. A regulated party must comply with an operative rule. A commenter can spend time and expertise on a docket that the agency opened. Yet the most readable public accounting of that exchange may depend on a later step the agency never takes within the reviewed period. GAO says agencies are not required to respond to comments on these rules. The architecture can collect objections more reliably than it reports their disposition.

A clock without a public receipt

An agency may have a sound reason to move first. A health emergency, statutory deadline or administrative necessity can make waiting costly. The governance test is then sharper, not softer: once a rule is live, the agency's record should let an outsider follow how new evidence met an already binding choice. A form asking for comments supplies the input channel. It does not itself supply that receipt.

GAO did not decide whether each good-cause claim was proper. Its audit exposes a narrower, verifiable gap: in the 64 cases without a later final rule, the final-rule route could not show how comments were handled. For any one rule, a dated agency response in its docket or a later final rule would change that assessment. Until then, the public record offers the invitation and the operative rule, with no comparable closing account through that route.

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