{
  "id": "R44356",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R44356",
  "active": true,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 449230,
      "date": "2016-01-29",
      "retrieved": "2016-04-06T17:21:58.613709",
      "title": "The Good Cause Exception to Notice and Comment Rulemaking: Judicial Review of Agency Action",
      "summary": "While the Administrative Procedure Act (APA) generally requires agencies to follow certain procedures when promulgating rules, the statute\u2019s \u201cgood cause\u201d exception permits agencies to forgo Section 553\u2019s notice and comment requirement if \u201cthe agency for good cause finds\u201d that compliance would be \u201cimpracticable, unnecessary, or contrary to the public interest\u201d and bypass its 30-day publication requirement if good cause exists. Federal courts reviewing this agency practice have varied in their analysis, resulting in confusion as to precisely what constitutes \u201cgood cause.\u201d In addition, some courts have indicated that these are two distinct standards; others do not always distinguish between the two.\nWhat precisely constitutes good cause is not explicit from the APA\u2019s text. In order to understand the operation of the good cause exception, it may be helpful to divide good cause cases into several categories: (1) emergencies; (2) contexts where prior notice would subvert the underlying statutory scheme; and (3) situations where Congress intends to waive Section 553\u2019s requirements. \nCourts differ as to the proper standard of review when agencies invoke the good cause exception. One pitfall is the proper characterization of the agency\u2019s action\u2014is an agency determination that good cause exists to bypass Section 553 a discretionary decision or a legal conclusion? Challenges to agency discretionary decisions are governed by Section 706(2)(A)\u2019s arbitrary and capricious standard, while procedural challenges pursuant to Section 706(2)(D) that an agency failed to comply with the provisions of the APA are often reviewed de novo. Some courts have applied the former standard when reviewing good cause determinations, others the latter. Still other courts appear to not clearly adopt either standard, but focus instead on simply \u201cnarrowly construing\u201d the provision. Recent judicial analysis of the Attorney General\u2019s actions pursuant to the Sex Offender Registration and Notification Act (SORNA) illustrates this divergence. The Attorney General issued an interim rule applying SORNA retroactively and relied on the good cause exception to bypass Section 553\u2019s requirements. Federal courts split as to the legality of the Attorney General\u2019s actions as well as to the appropriate standard of review when examining good cause invocations.\nAgency use of the good cause exception can also be important in the context of presidential transitions. Recent outgoing presidential administrations have engaged in \u201cmidnight rulemaking,\u201d whereby federal agencies increase the number of regulations issued during the final months of a presidential administration. A subsequent presidential administration of a different party, however, may have different policy priorities. Nonetheless, once a rule is finalized by an agency, repeal of a rule requires compliance with Section 553\u2019s notice and comment procedures. In order to gain control of the rulemaking process, some Presidents have sought to impose a moratorium on new regulations at the beginning of their administration. Agencies implementing such moratorium directives have often relied on use of the good cause exception to justify their actions.",
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      "typeId": "REPORTS",
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      "topics": []
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  "topics": [
    "American Law"
  ]
}