Exemptions to notice-and-comment
What is Notice-and-Comment Rulemaking?
Under the Administrative Procedure Act (APA) §553, federal agencies must generally:
Provide public notice of proposed rules,
Allow for public comment on those proposals,
And then issue a final rule considering those comments.
This process ensures transparency, public participation, and accountability.
Exemptions to Notice-and-Comment Rulemaking
However, the APA recognizes that some agency actions do not require notice and comment. There are three major categories of exemptions:
Interpretive Rules
General Statements of Policy
Procedural Rules
Additionally, the APA provides exceptions for "good cause" where notice and comment would be impracticable, unnecessary, or contrary to the public interest.
Detailed Explanation with Case Law
1. Interpretive Rules Exemption
What: Rules that explain or clarify existing statutes or regulations, but do not create new legal obligations.
Reason: They do not bind the public but guide agency staff and regulated parties.
Case: American Mining Congress v. Mine Safety & Health Administration (1976)
Facts: The agency issued interpretive rules without notice and comment.
Holding: The D.C. Circuit held that interpretive rules are exempt from notice and comment but must be consistent with the statute and prior rules.
Significance: Clarified that agencies can issue interpretive rules without formal rulemaking procedures.
2. General Statements of Policy Exemption
What: Statements indicating how an agency intends to exercise discretionary enforcement or adjudication power, not binding rules.
Reason: They announce agency policy but do not impose legally binding requirements.
Case: Chrysler Corp. v. Brown (1979)
Facts: EPA issued a general statement of policy about enforcement priorities.
Holding: The Court held that such policy statements are exempt from notice and comment because they do not have the force of law.
Significance: Agencies can issue broad policy statements without formal procedures.
3. Procedural Rules Exemption
What: Rules that relate to agency internal organization or procedural requirements for administrative processes.
Reason: They govern agency operations but do not affect the rights or duties of the public.
Case: Norton v. Southern Utah Wilderness Alliance (2004)
Facts: The case involved procedural rules about agency planning processes.
Holding: The Court distinguished between substantive rules (which require notice and comment) and procedural rules (which do not).
Significance: Affirmed that procedural rules are generally exempt.
4. Good Cause Exception
What: Allows agencies to bypass notice and comment when there is "good cause" — e.g., when notice would be impracticable, unnecessary, or contrary to public interest.
Reason: To allow swift agency action in emergencies or when notice and comment serve no meaningful purpose.
Case: Halverson v. Slater (1999)
Facts: The Forest Service bypassed notice and comment citing good cause.
Holding: The court accepted good cause where the agency showed reasons such as urgency or protecting interests.
Significance: Demonstrated courts' willingness to uphold good cause exceptions when justified.
Case: FCC v. Fox Television Stations, Inc. (2009)
Facts: The FCC changed its policy regarding fleeting expletives without notice and comment.
Holding: The Supreme Court held the agency could do so under the good cause exception because the change did not impose new obligations.
Significance: Showed flexibility in allowing policy changes without formal rulemaking in certain contexts.
5. Substantive Rules vs. Interpretive or Procedural Rules
Key distinction:
Substantive (Legislative) rules: Must follow notice-and-comment (unless good cause applies). They create new rights or duties.
Interpretive or procedural rules: Exempt.
Case: Perez v. Mortgage Bankers Association (2015)
Facts: The Department of Labor issued interpretive rules without notice and comment.
Holding: The Court reaffirmed that interpretive rules are exempt from notice and comment under the APA.
Significance: Reinforced the interpretive rules exemption.
Summary Table
| Exemption Type | Definition | Key Case | Holding / Significance |
|---|---|---|---|
| Interpretive Rules | Explain existing laws, no new rights/duties | American Mining Congress (1976) | Exempt from notice and comment |
| General Policy Statements | Announce agency intentions, not binding rules | Chrysler Corp. (1979) | Exempt from notice and comment |
| Procedural Rules | Internal agency procedures | Norton v. SUWA (2004) | Exempt from notice and comment |
| Good Cause Exception | Bypass when notice impracticable/unnecessary | Halverson v. Slater (1999); FCC v. Fox (2009) | Allows skipping notice for urgency or policy shifts |
| Substantive Rules | Create new legal rights/duties | Perez v. MBA (2015) | Must follow notice and comment unless good cause applies |
Conclusion
While the APA requires notice and comment rulemaking for most substantive agency rules, several important exemptions exist to balance efficiency, flexibility, and public participation:
Interpretive rules, general policy statements, and procedural rules are generally exempt.
The good cause exception allows agencies to act quickly or avoid unnecessary procedures in appropriate cases.
Courts carefully scrutinize these exemptions to ensure agencies don’t evade public accountability.
RELATED Blog
0 comments