Exceptions to notice-and-comment requirements
Notice-and-Comment Rulemaking: Overview
Under the Administrative Procedure Act (APA) §553, federal agencies generally must provide public notice of proposed rulemaking and allow an opportunity for public comment before finalizing a rule. This process ensures transparency, public participation, and better-informed agency decisions.
Exceptions to Notice-and-Comment Requirements
However, there are important exceptions where agencies can bypass the full notice-and-comment procedure:
"Good Cause" Exception (APA §553(b)(B))
Allows agencies to dispense with notice and comment if these procedures are “impracticable, unnecessary, or contrary to the public interest.”
Interpretive Rules
Rules that clarify existing statutes or regulations but do not create binding norms.
Procedural Rules
Rules related to agency organization, procedure, or practice that do not affect rights or interests.
Emergency Situations
Immediate action required that precludes notice and comment.
Detailed Case Law Examples
1. American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987)
Facts: EPA issued new regulations under the Clean Water Act without notice and comment, citing good cause due to urgency.
Issue: Whether EPA’s use of the "good cause" exception was justified.
Holding: The court ruled EPA abused its discretion because it failed to demonstrate why notice and comment were impracticable or contrary to the public interest.
Significance: Strict scrutiny of the “good cause” exception; agencies must justify why normal procedures cannot be followed.
2. United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973)
Facts: Interstate Commerce Commission (ICC) issued interpretive rules without notice and comment.
Issue: Whether interpretive rules require notice and comment.
Holding: The Court held interpretive rules are exempt from notice-and-comment because they do not have the force of law but merely clarify existing regulations.
Significance: Establishes interpretive rules as a recognized exception.
3. Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997)
Facts: The Department of Justice issued a rule interpreting accessibility standards without notice and comment.
Issue: Whether the rule was interpretive and thus exempt.
Holding: The court upheld the DOJ’s exemption, emphasizing the rule was a clarification, not a new substantive rule.
Significance: Confirms that interpretive rules, if genuinely clarifying, do not require notice and comment.
4. Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015)
Facts: The Department of Labor withdrew a prior interpretive rule without notice and comment.
Issue: Whether agencies must use notice and comment to rescind interpretive rules.
Holding: The Supreme Court held agencies are not required to use notice and comment to rescind interpretive rules.
Significance: Clarifies that interpretive rules can be changed or withdrawn without formal procedures.
5. Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d 1322 (D.C. Cir. 1986)
Facts: NHTSA bypassed notice and comment for a safety recall rule citing emergency.
Issue: Whether the emergency exception was valid.
Holding: Court upheld the agency’s action, finding a genuine emergency justifying bypassing notice and comment.
Significance: Confirms the emergency exception applies when immediate action is necessary to prevent harm.
Summary Table of Exceptions and Case Law
| Exception | Description | Key Case | Principle |
|---|---|---|---|
| Good Cause Exception | Impracticable, unnecessary, or contrary to public interest to give notice | American Mining Congress v. EPA | Requires strong justification for bypassing process |
| Interpretive Rules | Clarify existing statutes/regulations; no binding effect | US v. Florida East Coast Railway | Interpretive rules exempt from notice and comment |
| Rescission of Interpretive Rules | Agencies can withdraw without notice | Perez v. Mortgage Bankers Association | No notice required for rescinding interpretive rules |
| Procedural Rules | Rules of agency procedure or practice | (Often upheld by courts; specific cases vary) | Procedural rules exempt if they do not affect rights |
| Emergency Exception | Immediate action needed to avoid harm | Center for Auto Safety v. NHTSA | Emergency can justify bypassing procedures |
Conclusion
The notice-and-comment rulemaking process is a cornerstone of administrative law to ensure transparency and public participation. Nonetheless, courts have recognized practical exceptions where strict adherence would be impractical or harmful. The “good cause” exception is tightly construed, and agencies must clearly justify bypassing the process.
Interpretive and procedural rules are generally exempt, as they do not impose new legal obligations. Emergencies provide a valid ground for immediate action without notice and comment but are subject to judicial review.
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