Exceptions to Notice and Comment Rulemaking Requirements: An Overview

Exemptions to Notice and Comment Rulemaking Requirements

In some situations, agencies can make rules without going through the procedural process described in APA section 553: 

When APA section 553 Does Not Apply to Rulemaking Processes

First, according to APA section 553(a), 553 doesn’t apply when (1) a military or foreign affairs function of the United States is involved or (2) the rule is a matter of agency management or personnel or to public property, loans, grants, benefits, or contracts. Congress decided that these types of decisions should not be left to the public. 

The “Good Cause” Exception

Second, APA section 553(b) provides exceptions to notice and comment rulemaking when (A) an agency is making interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice or (B) when the agency for good cause finds that notice and public procedure are:

1) Impracticable

2) Unnecessary or

3) Contrary to the public interest

APA section 553(b)(B) requires that the agency include its rationale for bypassing APA section 553 requirements in its rule when an agency bypasses notice and comment with one of these exceptions. 

Each of the three exceptions has its own body of case law interpreting it, but generally, the exceptions are “narrowly construed and only reluctantly countenanced” according to American Federation Government Employees v. Block, 655 F.2d1153 (D.C. Cir. 1981). 

In some cases, agencies will invoke the “good cause” exception when acting quickly is in the public interest. For instance, when there are oil spills or public health emergencies, agencies have promulgated rules without waiting for public input. Additionally, when rules do not impact the public interest, or public input would be “unnecessary” in situations where the rules are making minor, technical amendments to regulations, they may not require notice and comment according to the APA. Finally, when rulemaking reflects changes that have already come to pass, like regulations that amended country names after the Soviet Union collapsed, agencies may invoke the good cause exception to forgo notice and comment procedures. 

Courts have considered the good cause exception in the context of 1) emergencies, 2) situations where prior notice would subvert Congressional intent or deadlines, and 3) situations where Congress meant to waive APA section 553 requirements. In Hawaii Helicopter Operators Association v. FAA the Ninth Circuit Court of Appeals considers the good cause exception in cases of emergency and in New Jersey v. EPA, the D.C. Circuit considers the good cause exception in light of statutory deadlines.