1. RETHINKING THE GOOD CAUSE EXCEPTION TO NOTICE-AND-COMMENT RULEMAKING IN LIGHT OF INTERIM FINAL RULES.
- Author
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Seidenfeld, Mark
- Subjects
Exceptions (Law) -- Laws, regulations and rules ,Effectiveness and validity of law -- Analysis ,Public notice (Law) -- Laws, regulations and rules ,Bias (Law) -- Prevention -- Remedies -- Laws, regulations and rules ,Judicial review of administrative acts -- Laws, regulations and rules ,Social values -- Political aspects ,Judgments -- Political aspects -- Laws, regulations and rules ,Government regulation ,Administrative Procedure Act - Abstract
INTRODUCTION I. THE GOOD CAUSE EXCEPTION CONUNDRUM A. Current Bounds of the Good Cause Exception B. The Good Cause Exception Conundrum 1. The Costs of Invoking the Good Cause Exception [...], The Administrative Procedure Act (APA) created notice-and-comment rulemaking as the paradigm for informal rulemaking. Scholars have recognized the benefits of this process for generating rules that reflect more inclusive public preferences and values and that are more carefully drafted to better serve the public interest. But the APA also permits an agency to adopt a rule without notice-and-comment when the agency shows good cause for why those procedures are impractical, unnecessary, or contrary to the public interest. Traditionally, the first and third ground for the good cause exception to notice-and-comment procedures were understood to be narrow, applying only when there is an unforeseen emergency and when advance notice of the rule would undermine the effectiveness of it. But the notice-and-comment rulemaking process has become protracted since the enactment of the APA in 1946, resulting in long lag times between when a rule is proposed and when it is finally adopted. Thus, this process imposes a cost of delay before the benefits of a new or amended rule are realized. This translates into a conundrum for use of the good cause exception because such use can alleviate the costs of delay but at the expense of the likely extent to which the rule serves the public interest. Recently, agencies have used a mechanism called interim final rulemaking to adopt rules. Under this mechanism, the agency issues an interim final rule (IFR)--a rule that becomes effective before the agency receives public comments on it but on which the agency invites comments after the rule takes effect. The agency essentially commits to considering whether to amend the IFR in response to the postpromulgation comments that the IFR generates. Issuance of an IFR can solve the good cause exception conundrum because it both allows the IFR to go into effect quickly but does not preclude ultimately delivering the benefits of notice-and-comment procedures when the agency considers the post-promulgation comments and issues a final final rule. But IFRs can themselves alter the rulemaking process so that the final final rule might not be as good as the rule that would have resulted from prepromulgation notice-and-comment proceedings. In light of the potential for IFRs to solve the good cause exception conundrum, this Article advocates that agencies more broadly invoke the exception by issuing IFRs, and that courts become more tolerant of that practice. At the same time, the Article reviews how use of IFRs might result in harm to the public interest and suggests some restrictions on the broadened use of IFRs to avoid their use resulting in less benefit to the public interest than would derive from the traditional notice-and-comment rulemaking paradigm.
- Published
- 2023