The Good Cause Exemption

Guidance for EPA Rule Writers

EPA ‘s Rule Writer’s Guidefor Claiming the Good Cause Exemption

1. What is the purpose of this guidance?

This guidance provides information on the proper use ofthe “good cause” exemption to the requirements for notice and comment rulemaking procedures in the Administrative Procedure Act (APA). Use this guidance ifyou:

• 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 ifyou 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 that

becomes effective on a specified date unless you receive adverse

comment within a specified period oflime.’ This option is not available for controversial rules on which you expect adverse comment

Good Cause Exemption: EPA normally uses this for technical corrections and minor rules but it

also may be appropriate to use when:

• advance notice would prevent EPA from achieving the regulatoiy objective;

• immediate action is necessaiy to reduce or avoid health hazards

or other imminent harm to persons or property; or

• a fiiilure to act will lead to serious dislocation in govemment

programs or the marketplace. 2

‘See “Direct Final Rulemaking: Guidance for EPA Rule-writers. Prepared by EPA Office ofGeneral Counsel, Cross-cutting Issues Law Office, October, 1998. This Guidance document can be found at http://dchqdominol 

wsm

epa

gov:9876loppeIrisfrdweb

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2. What is the “good cause” exemption?

Section 553 ofthe 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” is an express

exception to this requirement

The good cause exemption, contained in section 553(bXB) ofthe AM, suspends the usual

notice and comment requirements “when the agency for good cause finds (and incorporates the finding

and a briefstatement ofthe reasons in the rule issued) that notice and public procedure thereon areimpracticable, unnecessary, or contrary to the public interest.” (Emphasis added)

Generally, courts have construed the “good cause” exemption veiy narrowly. You should view this

exemption as a last resort rather than a general escape clause. A valid finding of good causerequires 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 issue a final nile without a prior proposal when we find that notice

and an 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 used as reasons to invoke the good cause exemption?

The APA’s legislative history defines “impracticable” as a situation in which the due and

required execution of agency functions would be unavoidably prevented ifit used public rulemakingproceedings. You may use thisjustification when compelling circumstances exist (e.g., when there is an

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 ofinterestjustifies eliminating publicparticipation. Agencies often apply the “impracticable” and the “contrary to the public interest”

justifications together since they are so closely related.

It is appropriate to use the “impracticable” justification to forgo notice and comment

d

dili
effort to meet that deadline, 3but nevertheless finds it impracticable to meet the deadline and to provide notice and coinmentsirnuLtaneously.

Example: In American Transfer and Food Storage v. ICC 4the Ffih Circuit Court of Appeals upheld interimfinal rules issued to make the new Motor CarrierAct (MCA) effective and to achieve the goals set by Congress. The MCA became effective

immediately andprovided no transition periodfor developing newprocedures to implement the signicant legislative changes. The ICC took comments on the interim

final rule andpublished 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 or property.

Example: In Washington State Farm Bureau v. Marshall. 5the Ninth Circuit upheld the Secretary ofLabor action ofdeleting two pesticides identj/ied as suspected carcinogensfrom a previously issued list ofapprovedpesticides with preharvest intervals (PHIs). The court upheld the deletion ofthe two pesticidesfrom the PHIs list without notice and comment rulemaking procedures because strawberry season was already at hand and there was an immediate need to protect childrenfrom the risk ofexposure to the two suspected carcinogens.

The justification that notice and comment rulemaking procedures were “impracticable” is UQi appropriate when the absence oftime for promulgating the nile through notice and comment rulemaking is the result ofEPA’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 the

good cause exemption?

‘Unnecessary” is defined as unnecessary so far as the public is concerned, for example, when a minor or merely technical amendment is involved in which the public is not likely to be particularly

3Note that EPA cannot routinely use a statutory or other deadline as a basis for avoiding notice and comment 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

j
interested. The “unnecessaiy” justification also is apprupriate when notice and comment have been

provided through other means such as previous notice and opportunity for comment on the same issues.

Thisjustilication generally is pj appmpriate, however, when EPA is making changes to its regulations

to conform to new 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 ofthe

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 make a finding of good cause?

Judicial case law indicates that the existence of a deadline, either statutory orjudicial, 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

6When 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 ofthe 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.

7The 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 ofthese reviewing courts rejected
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

challenged

review. The burden ofshowing good cause falls upon EPA when one ofour final rules is

when

on the basis that we failed to comply with the APA’s notice and comment requirements

limited

we promulgated the rule. In defending our decision to use the good cause exemption, we are to the justification we offered in the nile. Consequently, basis it is important that we filly explain the

cimumstances

in the preamble to the nile. Generally, our action most likely will be upheld ifwe responded to

initiated

beyond our control, ifthe emergency rule is oflimited scope or duration, and if we prompt follow-up proceedings allowing for public participation.

and

If a court finds that EPA emmeously made a finding of good cause, it can invalidate the rule require us to reissue it with notice and comment. Alternatively, remain in it could decide to allow the rule to effect pending completion ofnew 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.

final

Section

nile

553(d) of the APA contains separate provisions that generally require agencies to publish a

finding

at least 30 days before its effective date. Section 553(d)(3), however, allows an agency, upon good cause, to make

a rule effective immediately, thereby avoiding the 30-day delayed effective date requirement

that

in section 553(d). This, however, is

a separate good cause finding from the finding

good

a proposal and public comment is unnecessaly, impractical, or contrary to the public interest The 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?

As

Rules issued without notice and comment wider the good cause exception still are final rules.

preamble

such, you must address the applicability ofthe other regulatory statutes and executive oniers in the

Act

to your nile, just as you would for any final nile. In general, neither the Regulatory Flexibility (RFA), nor sections 202 or 205 ofthe Unfunded Mandates Reform Act (UMRA) apply to final rules for which we claim the good cause exemption 8However, because there is potential judicial
review of an agency’s compliance with the RFA, it is essential that you use the good cause exemption

properly, because the exemption also exempts EPA from the analytical requirements ofthe RFA (i.e.,

certification or regulatozy flexibility analysis). Accordingly, small entities adversely affected by the rule

can challenge the mle both on APA grounds and RFA grounds. The other regulatoty statutes and

executive orders still may apply to your rule. You must detenmne their applicability based on the

regulatoiy impact ofyour rule.

8. What language should I use in my preamble if the good cause exemption applies?

A. For final rules containing merely technical non-substantive corrections

If your nile is merely a technical, non-substantive correction for which EPA is making a “good

cause” finding under section 553(b)(B) ofthe Administrative Procedure Act, 5 U.s.c. 553 (b)(B), that

notice and public procedure axe unnecessaly, you should use the following language in the “Summary”

section or the “Supplementaiy Jnfomiation” section ofthe Federal Register document, as appropriate.

SUPPLEMENTARYINFORMATION: Section 553 ofthe Administrative Procedure Act, 5

US. C. 553(b)(B). provides that, when an agencyfor good causefinds that notice andpublic

procedure are impracticable, unnecessary or contrary to the public interest, the agency may

issue

a rule without providing notice and an opportunityfor public comment. EPA has

determined that there is good causefor making today’s rulefinal withoutpriorproposal and

opportunityfor comment because finsert reason here,for example, “EPA is amending the

table in 40 CFR part

9 (Section 9.1) ofcurrently approved information collection request

(ICR) control numbers issued by 0MBfor various regulations. The affected regulations are

codified at 40 CFR part 63 subpart GG, sections 63.752 and 63.753. The correct 0MB

control numberfor thisfinal rule is 2060-0314. This ICR was previously subject to notice

and commentprior to 0MB approvaL]. Thus, notice andpublic procedure are unnecessary.

EPAfinds 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

Regulatoty Assessment section ofthe preamble.Administrative Requirements: Under Executive Order 12866 (58 F.R. 51735, October 4, 1993),

agency is required to issue a proposal under the APA or any 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 to prepare a Small Government Agency Plan for

i

EPA t

h
this action is not

a “signIcant regulatory action” and is therefore not subject to review by the Office ofManagement and Budget. 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 finsert citation to section ofpreamble where you made good causefinding), it is not subject to the regulatoryflexibility provisions ofthe Regulatory Flexibility Act (5 U.S. C. 601 et seq.), or to sections 202 and 205 ofthe Unfunded Mandates

Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not signWcantly or uniquely affect small governments or impose

a signicant intergovernmental mandate, as described in sections 203 and 204 ofUMRA. This rule also does not significantly or uniquely affect the communities oftribal governments, as specj/Ied by Executive Order 13084 (63 F.R. 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, 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 technicalstandards; thus, the requirements ofsection 12(d) ofthe National Technology Transfer andAdvancement Act of

1995 (15 US. C. 272 note) do not apply. The rule also does not involve special consideration of environmentaljustice 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 drafting

errors and ambiguity, minimize potential litigation, andprovide

a clear legalstandardfor affected conduct, as required by section 3 ofExecutive 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 ofthe rule in accordance with the “Attorney General’s Supplemental Guidelinesfor the Evaluation ofRisk and Avoidance ofUnanticipated Takings” issued under the executive order. flfyour approval imposes additionalpaperwork burdens, add

a section addressing the Paperwork Reduction Act;for all other rules include the

following sentence.J This rule does not impose an information collection burden under the

provisions ofthe Paperwork Reduction Act of 1995 (44 US.C. 3501 et seq.). (Use the following sentence only ifthis action is

a technical amendment to an edsting regulation and the original rule discussed these statutes and E.O.sj EPA compliance with these statutes and

Executive Ordersfor the underlying rule is discussed in the finsert date rule published in the F.R.j Federal Register notice.

The Congressional Review Act (5 U.S. C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before

a rule may take 
impracticable, unnecessary or contrary to the public interest. This determination must be

supported by a briefstatement. 5 US.C. 808(2). As statedpreviously, EPA has made such a

good causefinding, 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 ofRepresentatives, and the Comptroller General ofthe United

States prior to publication ofthe 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 ofthe Federal Register document as appropriate.

SUPPLEMENTARYINFORMATION: Section .553 ofthe Administrative Procedure Act, 5

US. C. 553(b)(B), provides that, when an agencyfor good causefinds that notice and public

procedure are impracticable, unnecessary or contrary to the public interest, the agency may

issue a rule withoutproviding notice and an opportunityfor public comment. EPA has

determined that there is good cause for making today’s rulefinal without prior proposal and

opportunityfor comment because finsert reason here,for example, “EPA is acting to prevent

overharvesting in the third seasonal apportionment ofthe 1999 Pacific halibut bycatch

mortality allowance specfledfor.the trawl deep-water speciesfishery in the GulfofAlaska

A commentperiod 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 ofthe preamble.

Administrative Requirements: [Please indude the template languageforproceduralstatutes

and Executive Orders, which is available on the intranetsite:

htip://dchqdominol. wsm.epa.gov:98 76/oppilrWrdweb.nsf In the section addressing the

applicability ofRFA, please state thefollowing: 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

i

f

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Procedure Act or any other statute finsert citation to section ofpreamble where you made good causefinding], it is not subject to sections 202 and 205 ofthe 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 ofRegional Counsel, as well as the Steeiing Committee representative for your office.