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5 U.S.C. § 553

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law…

Except when notice or hearing is required by statute, this subsection does not apply—

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(aka § 553 rulemaking exceptions)

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Exceptions to

Informal Rulemaking

Good

Cause

Exception

Rule is about public property/loans/benefits/

contracts

Military or

Foreign Affairs

Functions are

Involved

Interpretative

Rules

Rule is about agency

management/

personnel

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If "the agency for good cause finds"

What is

"good cause"?

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What is

"Good Cause"

to skip the

§ 553 Rulemaking process?

Impracticable
Unnecessary
Contrary to the public interest

final rule

proposed rule

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American Federation of Government Employees v. Block (D.C. Cir. 1981)

narrowly construed and only reluctantly countenanced

the good cause exception is

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Contrary to Public Interest/Impracticable

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Would this work?

(We will revisit this at the end of class)

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When might notice be unnecessary?

“This prong of the good cause inquiry is ‘confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”

Mack Trucks, Inc. v. E.P.A., 682 F.3d 87, 94 (D.C. Cir 2012).

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Unnecessary

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Hawaii Helecopter Operators Association v. FAA (9th Cir. 1995)

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How do courts assess the good cause

exception for emergencies?

Inquiry proceeds on a case-by-case basis “sensitive to the totality of the factors at play”

Notice and comment procedures should be waived only when “delay would do real harm”

Did agency adequately explain its basis for taking emergency action without waiting for public participation?

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Good Cause ✗

Good Cause ✅

Issuing a letter disallowing parachuting without any explanation of why it felt emergency action was needed and where only known accident had occurred two years earlier.

Regulating special operating procedures for helicopter air tour operators in Hawaii when FAA described numerous accidents in 1994.

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The Hawaii Helicopter Operators Association throws the kitchen sink of arguments at the regulation

Good cause exception was improper

FAA established emergency basis

Regulation is arbitrary and capricious

FAA provided sufficient record explaining its rationale

Violates due process

Vermont Yankee, you sillies

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New Jersey v. EPA (D.C. Cir. 1980)

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“Congress imposed a new, and tight schedule for achieving the air quality standards ”

Remember TRAC Factors?
Why does the Court pay so much attention to congressionally-mandated timelines? (And give less deference to agencies about timing in situations like these?

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Is a post hoc public comment period sufficient in this case, according to the Court?

N O

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Why did judges

treat FAA's situation

so differently than

the EPA's?

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Arbitrary and Capricious

The spice

(salt?)

of agency lawsuits

some arb & caprish

a procedural issue

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