James Yates
86 Geo. Wash. L. Rev. 1438
The Administrative Procedure Act (“APA”) generally requires that all federal administrative rules undergo public “notice and comment.” The “good cause” exception allows an agency to bypass this requirement where it would be “impracticable, unnecessary, or contrary to the public interest.” In recent years, good cause has been increasingly used to excuse “major” rules, or those that have an economic impact of $100 million or more. In some cases, good cause excuses notice and comment altogether. In other cases, it excuses prepromulgation notice and comment in favor of postpromulgation notice and comment.
This Essay argues that either result is unacceptable and that the APA should be amended to require prepromulgation notice and comment for all major rules. Excusing rules from APA procedures deprives them of the democratizing effects of public participation. The remedies created to address improper invocations of good cause each have problems of their own. Specifically, they promote bias in favor of the agency’s position, even where that position is subject to postpromulgation notice and comment. An amendment requiring notice and comment better aligns the APA with executive and legislative treatment of major rules, which reflect an understanding that major rules deserve major attention. Mandated procedures increase oversight for rules with the broadest societal impact and ensure that the public participates in the administrative state when it matters most.
