TheGoodCauseExemptionGuidanceforEPARuleWritersPreparedbyEPAOfficeofGeneralCounselCmssCuttingIssuesLawOfficeNovember1999IEPA ‘s Rule Writer’s Guide for Claiming the Good Cause Exemption

1. What is the purpose of this guidance? This guidance provides information on the proper use of the “good cause” exemption to the

requirements for notice and comment rulemaking procedures in the Administrative Procedure Act

(APA). Use this guidance if you:

• need to issue a rule quickly;

• determine that notice and comment procedures will cause unacceptable delays; and

•

need to detemune if you legally may issue a nile without using notice and comment

rulemaking procedures. There axe two options that may be available to you if you need to expedite issuing final rules:

direct final rulemaking and invoking the “good cause” exemption. Direct Final Rule: In this case you issue a final nile, without notice and comment thatbecomes

effective on a specified date unless you receive adversecomment

within a specified period of lime.’ This option is not availablefor

controversial rules on which you expect adverse comment Good Cause Exemption: EPA normally uses this for technical corrections and minor rules but italso may be appropriate to use when:

• advance notice would prevent EPA from achieving theregulatoiy objective;

• immediate action is necessaiy to reduce or avoid health hazardsor other imminent harm to persons or property; or

• a fiiilure to act will lead to serious dislocation in govemmentprograms or the marketplace. 2 ‘See “Direct Final Rulemaking: Guidance for EPA Rule-writers. Prepared by EPA Office of General Counsel,

Cross-cutting Issues Law Office, October, 1998. This Guidance document can be found at

http://dchqdominol .wsm.epa.gov:9876loppeIrisfrdweb.nsf. 2 The good cause exemption is used usually, but not always, in the context of Interim-final rules. An

interim-final rule is a rule that is immediately effective but solicits post-adoption comment. Although interim-final

rules are final rules under the APA, they may be further “finalized” (amended) in light of those post-adoption

comments. Interim-final rules are subject to immediate legal challenge. 22. What is the “good cause” exemption? Section 553 of the APA generally requires an agency to publish a proposal and request comments on the proposed rule before issuing a final nile. The “good cause exemption” isan express exception to this requirement The good cause exemption, contained in section 553(bXB) of the AM, suspends the usual notice and comment requirements “when the agency for good cause finds (and incorporates the finding anda brief statement of the reasons in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” (Emphasis added) Generally, courts have construed the “good cause” exemption veiy narrowly. You should view this exemption asa last resort rather thana general escape clause. A valid finding of good cause requires legitimate grounds supported in both law and the facts.
3. What are the APA-recognized reasons to support a finding of good cause? As stated above, EPA can issuea final nile without a prior proposal when we find that notice andan opportunity for public comment are “impracticable, unnecessary, or contrary to the public interest.” a. JJ1,at do the terms “impracticable” and “contrary to the public interest” mean and when can they be usedas reasons to invoke the good cause exemption? The APA’s legislative history defines “impracticable” asa situation in which the due and required execution of agency functions would be unavoidably prevented if it used public rulemaking proceedings. You may use this justification when compelling circumstances exist (e.g., when there isan immediate and severe risk to public health and safety, and the circumstances are outside EPA’s control). The “contrary to the public interest” justification supplements the temis “impracticable” or “unnecessary”; it requires that an agency’s decision to affoni notice and comment does not hinder its ability to operate, or in the alternative, that the public’s lack of interest justifies eliminating public participation. Agencies often apply the “impracticable” and the “contrary to the public interest” justifications together since they areso closely related. It is appropriate to use the “impracticable” justification to forgo notice and comment rulemaking when, for example, there isa statutory or judicial deadline and EPA has madea diligent

3effort to meet that deadline, 3 but nevertheless finds it impracticable to meet the deadline and to provide

notice and coinmentsirnuLtaneously. Example: In American Transfer and Food Storage v. ICC 4 the Ffih Circuit Court of

Appeals upheld interim final rules issued to make the new Motor Carrier Act (MCA)

effective and to achieve the goals set by Congress. The MCA became effectiveimmediately

and provided no transition period for developing new procedures toimplement

the signicant legislative changes. The ICC took comments on the interimfinal

rule and published afinal rule six months later. Similarly, the “contraiy to the public intercst’ justification is appropriate when immediate action

is necessary to avoid or reduce hann to public health or safety, or other imminent harm to person orproperty. Example: In Washington State Farm Bureau v. Marshall. 5 the Ninth Circuit upheld theSecretary

of Labor action of deleting two pesticides identj/ied as suspected

carcinogens from a previously issued list ofapproved pesticides with preharvest intervals(PHIs).

The court upheld the deletion of the two pesticides from the PHIs list withoutnotice

and comment rulemaking procedures because strawberry season was already athand

and there was an immediate need to protect children from the risk of exposure tothe

two suspected carcinogens. The justification that notice and comment rulemaking procedures were “impracticable” is UQi

appropriate when the absence of time for promulgating the nile through notice and comment rulemaking

is the result of EPA’s own failure to properly plan for the nile’s issuance. The “impracticable”

justification also is not appropriate when the problem addressed by the nile is long-standing, and there

is no evidence of a change in circumstances that would increase the risk to justify the expedited action.

b. What does ‘necessa” mean and when can it be used as a reason to invoke thegood cause exemption? ‘Unnecessary” is defined as unnecessary so far as the public is concerned, for example, when aminor

or merely technical amendment is involved in which the public is not likely to be particularly 3 Note that EPA cannot routinely use a statutory or other deadline as a basis for avoiding notice andcomment

procedures; a majority of courts have held that a deadline alone is insufficient to exempt agencies from

providing notice and comment. EPA would have to show the impracticality of prior notice and comment. jç

question 4 for further discussion on this issue. 719 F.2d 1283 ( 5 th dr. 1983). 625 F. 2d 296 ( 9 th Cir. 1980). 4interested. The “unnecessaiy” justification also is apprupriate when notice and comment have been provided through other means suchas previous notice and opportunity for comment on the same issues. This justilication generally is pj appmpriate, however, when EPA is making changes to its regulations

to conform tonew legislatior or the addition ofnew responsibilities (for example, the regulations would substantively alter the existing regulatory fiamework or produce a detrimental impact on the rights of the parties regulated). In these citturastances the “impracticable” justification may be available as discussed in questions 3a. and 4. 4. Are statutorily-imposed deadlines sufficient to makea finding of good cause? Judicialcase law indicates that the existence ofa deadline, either statutory or judicial, does not
by itself constitute “good cause.” You must show that it was impossible or impractical to comply with both the APA’s rulemaking requirements and the deadline. 7 6 When a rule is nondiscretionary (both in its issuance and in its content), notice and comment rulemaking procedures would serve no useful purpose. For example, if new legislation or a court decision vacates an existing regulation as it applies only to certain covered entities, and EPA amends its regulation solely to change the applicability of the regulation to conform to the legislation or court decision, notice-and-comment rulemaking would
not be required because EPA is not exercising any discretion. However, if a statute requires an agency to implement

it through rulemaking, it is generally because the statute is incomplete and, normally, there will be some room for agency discretion. If this were not the case, there would be no need for the implementing rules—Congress would

have written them into the statute. 7 The best known cases in which the good cause exemption was unsuccessfully invoked to meet express statutory deadlines are the “nonattalnment area cases.” In 1977, Congress passed major amendments to the Clean

Air Act and imposed a new schedule for achieving air quality standards. The new timetable had three stages:
(1) by December 5, 1977, states were required to submit to the EPA Administrator a list of those air qualitycontrol regions which, on August 7, 1977, met the national air quality standards (the so-called “attainment areas”), those regions that did not meet the standards (“nonattainment” areas), and those for which there were insufficient data to permit classification (“unclassifiable”); (2) by February 3, 1978, the Administrator was directed to promulgate “each such list with such modifications as he deems necessary”; and (3) by January 1, 1979, each State, using the Administrator’s modified list, was to formulate plans for the

“implementation, maintenance, and enforcement” of air quality standards. The Administrator promulgated the list of nonattainment areas on March 3, 1978, without using notice and comment rulemaking procedures. Seven appellate courts reviewed EPA’s decision to promulgate the list of areas that did not meet federal air quality standards without notice and comment. Five of these reviewing courts rejected EPA’s argument that it needed to move quickly to comply with statutory deadlines, and held that EPA must show impracticability in addition to a statutory deadline tojustifi the use of the good cause exemption. These five courts reasoned that EPA could have published the list of nonattainment areas as a proposal and then obtained public comment. They concluded that EPA had not made a good faith attempt to comply with the APA’s requirements for notice and comment rulemaking. 5

## 5. Is there judicial review of the administrative finding of “good cause”? When we use the good cause exemption to issue a final nile, the rule is subject to immediate judicial review. The burden of showing good cause falls upon EPA when one of our final rules is challenged on the basis that we failed to comply with the APA’s notice and comment requirements when we promulgated the rule. In defending our decision to use the good cause exemption, we are limited to the justification we offered in the nile. Consequently, it is important that we filly explain the basis in the preamble to the nile. Generally, our action most likely will be upheld if we responded to cimumstances beyond our control, if the emergency rule is of limited scope or duration, and if we initiated prompt follow-up proceedings allowing for public participation. If a court finds that EPA emmeously made a finding of good cause, it can invalidate the rule and require us to reissue it with notice and comment. Alternatively, it could decide to allow the rule to remain in effect pending completion of new rulemaking proceedings.

6. Can I use this good cause exemption to make my rule immediately effective? No. You must include a separate good cause finding to make a rule inirnediately effective. Section 553(d) of the APA contains separate provisions that generally require agencies to publish a final nile at least 30 days before its effective date. Section 553(d)(3), however, allows an agency, upon finding good cause, to make a rule effective immediately, thereby avoiding the 30-day delayed effective date requirement in section 553(d). This, however, is a separate good cause finding from the finding that a proposal and public comment is unnecessaly, impractical,

or contrary to the public interest The good cause finding for making a nile immediately effective under 553(d) does not require a statement that providing notice and comment is impracticable, unnecessaly,

or contrary to the public interest

7. Do other administrative requirements, such as the Regulatory Flexibffity Act, apply to rules issued using the good cause exemption? Rules issued without notice and comment wider the good cause exception still are final rules.
As such, you must address the applicability of the other regulatory statutes and executive oniers in the preamble to your nile, just as you would for any final nile. In general, neither the Regulatory Flexibility Act (RFA), nor sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA) apply to final rules for which we claim the good cause exemption 8 However, because there is potential judicial 8 With respect to final rules, the analytical requirements of the RFA and many provisions of UMR.A only apply to rules for which the agency issued a proposal. Specifically, the RFA only applies to rules for which the

6review ofan agency’s compliance withtheRFA, itis essential that you usethegoodcause exemption properly, because the exemption alsoexempts EPA fromthe analytical requirements ofthe RFA (i.e., certificationor regulatozy flexibility analysis). Accordingly, small entities adversely affectedby therule can challenge the mleboth onAPA grounds andRFA grounds. Theother regulatoty statutes and executive orders stillmay apply toyour rule.Youmust detenmne their applicability based onthe regulatoiy impact ofyour rule. 8. What language shouldIuseinmy preamble if the good cause exemption applies?
A. For final rules containing merely technical non-substantive corrections
Ifyour nileismerelyatechnical, non-substantive correction for which EPAismakinga “good cause” finding under section 553(b)(B) ofthe Administrative Procedure Act, 5 U.s.c. 553(b)(B), that noticeand public procedure axe unnecessaly, you shouldusethe following language inthe “Summary” sectionor the “Supplementaiy Jnfomiation” section oftheFederal Register document,as appropriate. SUPPLEMENTARYINFORMATION: Section 553ofthe Administrative Procedure Act, 5 US.C. 553(b)(B). provides that, whenanagency for good cause finds that notice and public procedure are impracticable, unnecessary orcontrary tothepublic interest, theagency may issuearule without providing notice andan opportunity for public comment. EPAhas determined that thereisgood cause for making today’s rule final without prior proposal and opportunity forcomment because finsert reason here, for example, “EPAis amending the tablein40CFR part 9 (Section 9.1) of currently approved information collectionrequest (ICR) control numbers issued by 0MB for various regulations. The affected regulations are codifiedat40 CFRpart 63 subpart GG, sections 63.752 and 63.753. Thecorrect 0MB control number forthisfinal ruleis 2060-0314. ThisICRwas previously subject to notice andcomment prior to0MB approvaL]. Thus, notice and public procedure areunnecessary. EPA finds thatthis constitutes good cause under5US.C 553(b) (B). In addition, pleaseuse the following language to address administrative requirements in the Regulatoty Assessment section of the preamble. Administrative Requirements: Under Executive Order 12866(58 F.R. 51735, October4, 1993), agency is required to issuea proposal under the APAorany other statute: the good cause exemption relieves

agencies of this requirement. Sections 202 and 205 of UMRA only apply to proposed rules and final rules for which

a proposal was issued. Section 203 of UMRA, which requires EPA toprepare a Small Government Agency Plan for

rules that might significantly or uniquely affect small governments, and section 204, which requires EPA to havea process for consulting with elected officers of State, local and tribal governments on rules containing significant

federal intergovernmental mandates, however, are not tied to the requirement to issuea proposal; thus, they may be triggered ifyour rule significantly or uniquely impacts small governments, or imposes a significant federal intergovernmental mandate. 7this action is not a “signIcant regulatory action” and is therefore not subject to review by theOffice

of Management and Budget. Because the agency has made a “good cause “finding thatthis

action is not subject to notice-and-comment requirements under the AdministrativeProcedure Act or any other statute finsert citation to section ofpreamble where you madegood cause finding), it is not subject to the regulatory flexibility provisions of the Regulatory

Flexibility Act (5 U.S. C. 601 et seq.), or to sections 202 and 205 of the Unfunded MandatesReform

Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not sign Wcantly oruniquely

affect small governments or impose a signi cant intergovernmental mandate, asdescribed

in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely

affect the communities of tribal governments, as spec j/Ied by Executive Order 13084 (63 F.R.27655,

May 10, 1998). This rule will not have substantial direct effects on the States, on therelationship

between the national government and the States, or on the distribution ofpower andresponsibilities among the various levels of government, as specfled in Executive Order 13132(64

F.R 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62

FR. 19885, April23, 1997), because it is not economically sign (ficant. This technical correction action does not involve technical standards; thus, therequirements

of section 12(d) of the National Technology Transfer and Advancement Act of1995

(15 US. C. 272 note) do not apply. The rule also does not involve special consideration ofenvi

ronmental justice related issues as required by Executive Order 12898 (59 FR. 7629,

February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate draftingerrors

and ambiguity, minimize potential litigation, and provide a clear legal standard foraffected

conduct, as required by section 3 of Executive Order 12988 (61 F.R. 4729, February 7,

1996). EPA has complied with Executive Order 12630 (53 FR. 8859, March 15, 1988) by

examining the takings implications of the rule in accordance with the “Attorney General’sSupplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings”

issued under the executive order. flfyour approval imposes additional paperwork burdens,

add a section addressing the Paperwork Reduction Act;for all other rules include thefollowing sentence.J This rule does not impose an information collection burden under theprovisions

of the Paperwork Reduction Act of 1995 (44 US.C. 3501 et seq.). (Use thefollowing sentence only if this action is a technical amendment to an edsting regulation andthe

original rule discussed these statutes and E.O.sj EPA compliance with these statutes andExecutive

Orders for the underlying rule is discussed in the finsert date rule published in theF.R.j

Federal Register notice. The Congressional Review Act (5 U.S. C. 801 et seq.), as added by the Small BusinessRegulatory Enforcement Fairness Act of 1996, generally provides that before a rule may takeeffect,

the agency promulgating the rule must submit a rule report, which includes a copy of therule, to each House of the Congress and to the Comptroller General of the United States.Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided
by the CRA f the agency makes a good cause finding that notice and public procedure is

8impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 US.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons eherefor, and established an effective date of_____________ EPA will submit a report containing this rule and other required information to
the U.S. Senate. the US. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule”

as defined by 5 U.S.C 804(2). B. For final rules that are fbi minor technical, non-substantive corrections
If your rule is a minor rule or a technical correction, and you are using the good cause exemption because affording notice and comment is unnecessary, impracticable or contrary to the public interest, please use the following language in the “Summary” section or the “Supplementary Information” section of the Federal Register document as appropriate. SUPPLEMENTARYINFORMATION: Section .553 of the Administrative Procedure Act, 5 US. C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today’s rule final without prior proposal and opportunity for comment because finsert reason here, for example, “EPA is acting to prevent overharvesting in the third seasonal apportionment of the 1999 Pacific halibut bycatch mortality allowance specfledfor.the trawl deep-water species fishery in the Gulf of Alaska

A comment period would be contrary to the public interest because, as stated above, the resulting delay would result in overharvesLj. Thus, notice and public procedure are finsert appropriate term, “Impracticable” or “contrary to the public interest”j EPA finds that this constitutes good cause under 5 US.C. 553(b) (B). In addition, please use the following language to address administrative requirements in the Regulatory Assessment section of the preamble. Administrative Requirements: [Please indude the template language for procedural statutes and Executive Orders, which is available on the intranet site: htip://dchqdominol. wsm.epa.gov:98 76/oppilrWrdweb.nsf In the section addressing the applicability of RFA, please state the following: Because the agency has made a “good cause “finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (insert citation to section ofpreamble where you made good cause findingj, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 US. C. 601 et seq.). In the section addressing the applicability of UMRA, please state the following: Because the agency has made a “good cause “finding that this action is not subject to notice-and-comment requirements under the Administrative
9Procedure Act or any other statute finsert citation to section ofpreamble where you made

good cause finding], it is not subject to sections 202 and 205 of the Unfunded Mandates Reform

Act of 1995 (UMRA) (Pub. L. 104-4).] 9. Where do I go if I have questions about the good cause exemption? You should consult with the attorney assigned to your rule from the Office of General Counsel or Office

of Regional Counsel, as well as the Steeiing Committee representative for your office. 10