Interim Final Rules: A Comprehensive Examination of the Administrative Procedure Act’s Good Cause Exception and Its Profound Implications

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Abstract

The Administrative Procedure Act (APA) of 1946 stands as a monumental legislative achievement, meticulously crafting the procedural bedrock for federal agencies’ policymaking functions, with a particular emphasis on fostering transparency and empowering public participation through its cornerstone notice-and-comment rulemaking procedures. However, the APA, in its recognition of exigent circumstances, also carves out a critical, albeit narrowly construed, ‘good cause’ exception. This provision permits agencies to temporarily or permanently bypass these fundamental procedural safeguards under specific, compelling conditions. This extensive research report undertakes a deep analytical dive into the ‘good cause’ exception, dedicating particular scrutiny to its application in the promulgation of interim final rules (IFRs). By meticulously analyzing the historical genesis of the APA, dissecting seminal court challenges, and unraveling intricate judicial interpretations, this study critically evaluates the multifaceted implications of this exception on the fundamental pillars of regulatory transparency, meaningful public participation, and, critically, the long-term stability and predictability of rules enacted through these expedited processes. The report advocates for a stringent application of the good cause exception, fortified by rigorous judicial oversight, to safeguard the democratic integrity of the administrative state.

Many thanks to our sponsor Panxora who helped us prepare this research report.

1. Introduction: The Delicate Balance Between Administrative Efficiency and Democratic Accountability

Since its enactment, the Administrative Procedure Act (APA) of 1946 has served as the paramount statutory framework governing the processes by which federal agencies formulate, implement, and enforce regulations in the United States. At the heart of the APA lies Section 553, which mandates the principles of notice-and-comment rulemaking—a mechanism designed to ensure that federal regulations are developed transparently, grounded in a robust public dialogue, and informed by diverse perspectives. This procedure, requiring agencies to publish proposed rules, solicit public comments, and consider those comments before issuing a final rule, embodies a fundamental commitment to democratic governance and administrative legitimacy.

However, the administrative landscape is rarely static, often presenting unforeseen challenges, emergent crises, and urgent policy demands. Recognizing the imperative for governmental agility in such situations, the APA prudently incorporates a ‘good cause’ exception. This provision, codified in Section 553(b)(B), empowers agencies to dispense with the standard notice-and-comment procedures when they determine that following them would be ‘impracticable, unnecessary, or contrary to the public interest.’ This critical carve-out is primarily utilized to issue interim final rules (IFRs)—regulations that possess immediate legal effect upon publication, often with a subsequent, post-promulgation period allocated for public comment. While demonstrably intended to equip agencies with the flexibility to address genuinely urgent and time-sensitive situations, the increasingly frequent invocation of the good cause exception, particularly in the context of IFRs, invariably precipitates profound questions concerning its potential impact on core democratic principles, the erosion of public trust in regulatory processes, and the enduring stability and predictability of the regulatory frameworks thus established.

This comprehensive report embarks on an in-depth exploration of the good cause exception and its manifestation through interim final rules. We commence by situating the APA within its historical context, elucidating the motivations behind its enactment and the fundamental values it enshrines. Subsequently, we unpack the specific criteria defining ‘good cause’—impracticable, unnecessary, or contrary to the public interest—providing granular analysis of their interpretive nuances and practical applications. The discussion then pivots to the mechanics and justifications surrounding interim final rules, contrasting their expedited nature with the more deliberate pace of conventional rulemaking. A significant portion of this study is dedicated to a rigorous examination of historical precedents and critical judicial interpretations, highlighting the judiciary’s role as a vital check on agency discretion. Finally, the report delves into the far-reaching implications of IFRs for regulatory transparency, the vibrancy of public participation, and the long-term stability and predictability essential for a coherent and trustworthy regulatory environment. By synthesizing legal theory, historical practice, and judicial review, this research aims to illuminate the complex interplay between administrative efficiency and the foundational principles of democratic accountability that underscore the American administrative state.

Many thanks to our sponsor Panxora who helped us prepare this research report.

2. The Administrative Procedure Act and the ‘Good Cause’ Exception: Foundations of Modern Administrative Rulemaking

2.1 The Genesis and Purpose of the Administrative Procedure Act (APA)

The Administrative Procedure Act of 1946 did not emerge from a vacuum; rather, it was the culmination of decades of evolving administrative practice and burgeoning concerns regarding the unchecked power of a rapidly expanding federal bureaucracy. Prior to the APA, the procedural landscape for federal agencies was largely ad hoc and fragmented. Each agency often developed its own internal rules, leading to a lack of uniformity, transparency, and accountability across the federal government. The growth of the administrative state, particularly spurred by the New Deal programs of the 1930s, amplified these concerns. As agencies increasingly wielded legislative-like powers through rulemaking and judicial-like powers through adjudication, demands for greater procedural fairness and public input grew louder.

Key precursors to the APA included the Attorney General’s Committee on Administrative Procedure, established in 1939, which produced a seminal report in 1941 advocating for standardized procedures. This report served as a crucial blueprint for the APA, aiming to strike a delicate balance between granting agencies the flexibility necessary to execute complex statutory mandates and safeguarding individual rights and democratic principles. The APA’s overarching goals were multifold: to clarify the fundamental requirements for agency procedures, to promote public participation and transparency in agency decision-making, to ensure administrative fairness, and to provide for meaningful judicial review of agency actions. It sought to provide a ‘basic minimum of uniform procedure’ for all federal agencies, thus bringing order to what many perceived as an administrative wilderness (Gellhorn, W. and Byse, C., 1974).

2.2 Core Principles of APA Rulemaking: Section 553’s Mandate

Section 553 of the APA outlines the general requirements for agency rulemaking, establishing what is commonly known as ‘notice-and-comment’ rulemaking. This structured process is designed to inject democratic accountability and substantive rationality into the regulatory process. The core components include:

• Notice of Proposed Rulemaking (NPRM): Agencies are generally required to publish an NPRM in the Federal Register. This notice must include: (1) a statement of the time, place, and nature of public rulemaking proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved (5 U.S.C. § 553(b)). The purpose of this notice is to provide regulated entities and the general public with sufficient information to understand the potential impact of a proposed rule and to prepare informed comments.
• Opportunity for Public Comment: Following the publication of an NPRM, agencies must ‘give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation’ (5 U.S.C. § 553(c)). This period typically lasts 30 to 60 days, although it can be extended for complex or highly controversial rules. The public comment process is critical for several reasons: it allows agencies to gather diverse information and perspectives, identify potential unintended consequences, and build a more robust administrative record, thereby enhancing the substantive quality and political legitimacy of the final rule.
• Statement of Basis and Purpose: When a final rule is promulgated, the agency must incorporate in the rule ‘a concise general statement of their basis and purpose’ (5 U.S.C. § 553(c)). This statement explains the agency’s rationale for the rule, addresses significant public comments, and demonstrates that the agency has engaged in reasoned decision-making. This accountability mechanism is vital for facilitating judicial review and ensuring that agency actions are not arbitrary or capricious.

2.3 The ‘Good Cause’ Exception: A Narrow Carve-Out (5 U.S.C. § 553(b)(B))

While notice-and-comment rulemaking is the default and preferred method, the APA recognizes that certain extraordinary circumstances may necessitate an expedited process. Thus, Section 553(b)(B) provides the ‘good cause’ exception, allowing agencies to bypass the prior notice and public comment requirements when they find, ‘for good cause, that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’ Agencies invoking this exception are statutorily obligated to ‘incorporate the finding and a brief statement of the reasons therefor in the rules issued’ (5 U.S.C. § 553(b)(B)).

Crucially, courts have consistently interpreted this exception narrowly, emphasizing that it is not a loophole for agency convenience but rather a tool to be used sparingly and only in truly exigent circumstances (United States v. Garner, 1985). The burden of demonstrating good cause rests squarely with the agency, and the justification must be clear, compelling, and factually supported.

Let us delve deeper into each prong of the good cause exception:

2.3.1 ‘Impracticable’

The ‘impracticable’ prong applies when prior notice and comment would effectively be impossible or futile. This typically arises in situations demanding immediate action to prevent imminent harm or to respond to an urgent, unforeseen event. Examples include:

• Imminent Threat to Public Health or Safety: A sudden outbreak of a dangerous disease, a widespread food contamination event, or an environmental catastrophe requiring immediate regulatory intervention to protect human life or welfare.
• Financial Market Instability: Situations where delaying a rule could trigger or exacerbate a financial crisis, requiring swift regulatory measures to stabilize markets or prevent systemic collapse.
• Defeating the Purpose of the Rule: Where prior notice would allow regulated parties to take action to circumvent the rule’s intent before it takes effect. For instance, if an agency aims to prevent a rapid depletion of a natural resource, publishing an NPRM might trigger a rush to exploit that resource before the protective rule becomes effective (Council of the Southern Mountains, Inc. v. Federal Mine Safety & Health Review Commission, 1981). Similarly, preventing capital flight or speculative actions might justify immediacy.
• Responding to Natural Disasters or Emergencies: Rules implementing immediate relief measures or adjusting operations in response to hurricanes, earthquakes, or other large-scale disasters.

However, ‘impracticable’ does not mean inconvenient or time-consuming. Agencies cannot claim impracticability due to self-created delays or failure to anticipate foreseeable events (United States v. Gavrilovic, 1977). The urgency must be genuine and external to the agency’s control.

2.3.2 ‘Unnecessary’

The ‘unnecessary’ prong is invoked when the public’s input is genuinely not needed because the rule involves a matter of minor impact, is merely technical, or does not involve significant policy choices. This often applies to:

• Minor Technical Amendments: Corrections of typographical errors, updating addresses, or other non-substantive adjustments that do not alter the meaning or impact of a regulation. The Centers for Medicare & Medicaid Services (CMS) example from the original article, involving the correction of technical errors in previously finalized rules, is a classic instance where the ‘unnecessary’ prong is appropriately invoked, as the public is unlikely to have meaningful input on such non-controversial, purely corrective matters (Centers for Medicare & Medicaid Services, 2024).
• Rules of Agency Organization, Procedure, or Practice: These are rules governing the internal workings of an agency, how it processes applications, or its internal administrative structure, which generally do not directly impact the substantive rights or interests of the public. However, if a procedural rule has a significant impact on substantive rights, it may not qualify for this exception (American Federation of Government Employees v. Block, 1981).
• Interpretive Rules and General Statements of Policy: While these categories are distinct from legislative rules (which typically require notice-and-comment), they can sometimes be issued without prior notice and comment because they merely advise the public of an agency’s interpretation of existing law or explain how an agency intends to exercise its discretionary power, rather than creating new law or imposing new obligations (Chamber of Commerce of U.S. v. U.S. Dept. of Labor, 1999). The critical distinction lies in whether the rule creates new legal duties or substantially changes existing ones. If it does, it is likely a legislative rule and thus requires notice and comment.

2.3.3 ‘Contrary to the Public Interest’

This is often the broadest and most challenging prong to justify, requiring agencies to demonstrate that delaying the rule to solicit public comment would result in direct, significant harm to the public interest. It typically encompasses situations where the benefits of immediate action clearly outweigh the benefits of prior public input. This prong often overlaps with ‘impracticable’ but carries a distinct emphasis on the harm of delay to the broader public welfare. Examples include:

• Preventing Fraud or Abuse: Rules designed to immediately stop widespread fraudulent schemes that are actively harming the public (e.g., consumer fraud, financial scams).
• Protecting Public Welfare from Urgent Threats: Similar to ‘impracticable,’ but often more focused on broad societal benefits rather than just immediate preventability. For instance, a rule needed to immediately secure critical infrastructure against a cyber threat (National Federation of Federal Employees v. Devine, 1982).
• Addressing Economic Disruption: Regulations designed to stabilize a volatile market or prevent widespread economic harm that would only be exacerbated by the delay inherent in notice-and-comment. This was often seen during the 2008 financial crisis where federal agencies issued expedited rules.

Agencies must provide a compelling and specific argument as to how the public interest would be harmed by the delay and why this harm outweighs the public’s right to participate. General assertions of public interest are insufficient; agencies must demonstrate a direct and substantial adverse impact (Mack v. Rusk, 1968).

2.4 The Mandate for a ‘Brief Statement of Reasons’

Regardless of which prong is invoked, the APA explicitly requires agencies to ‘incorporate the finding and a brief statement of the reasons therefor in the rules issued’ (5 U.S.C. § 553(b)(B)). This requirement is not merely a formality; it serves as a critical procedural safeguard. It compels agencies to articulate their rationale publicly, providing transparency and laying the groundwork for potential judicial review. The adequacy of this statement is often a key point of contention in legal challenges to rules issued under the good cause exception. A vague or conclusory statement will likely fail to withstand judicial scrutiny, as it prevents courts from determining whether the agency made a reasoned decision to bypass established procedures.

Many thanks to our sponsor Panxora who helped us prepare this research report.

3. Interim Final Rules: Mechanism, Justification, and Practice

3.1 Defining and Operationalizing Interim Final Rules (IFRs)

Interim final rules represent a specific application of the ‘good cause’ exception, constituting a unique species of administrative regulation. Unlike standard final rules, which typically emerge from a deliberative notice-and-comment process, IFRs are regulations that agencies issue without prior notice and comment, making them legally effective immediately upon publication in the Federal Register. This immediate effectiveness means that regulated parties are obligated to comply with the rule from its promulgation date, sometimes even retroactively if specifically provided and legally permissible.

While IFRs bypass pre-promulgation public input, they almost invariably include a post-promulgation comment period. This allows the public, affected industries, advocacy groups, and other stakeholders to submit feedback after the rule has taken legal effect. Agencies then review these comments and may, based on the input received, choose to revise, amend, or even withdraw the interim final rule. The revised rule, if substantial, may then be issued as a final final rule or another interim rule. This two-stage process — immediate effect followed by retrospective comment — attempts to reconcile the need for swift action with the broader APA mandate for public engagement.

3.2 The Rationale and Justification for IFRs

Agencies typically justify the use of interim final rules under the ‘good cause’ exception, often citing one or a combination of the ‘impracticable, unnecessary, or contrary to the public interest’ prongs. The underlying rationale is usually rooted in circumstances demanding an urgent regulatory response where the delay inherent in traditional notice-and-comment rulemaking would be detrimental.

Common scenarios justifying the issuance of IFRs include:

• Emergency Situations: Public health crises (e.g., pandemic response, immediate measures against contagions), natural disasters (e.g., emergency relief, infrastructure repair regulations), or immediate environmental threats. During the COVID-19 pandemic, numerous federal agencies, particularly those within the Department of Health and Human Services (HHS), extensively utilized IFRs to implement testing requirements, vaccine distribution protocols, and emergency healthcare funding mechanisms, citing ‘contrary to the public interest’ due to the urgent need to protect public health.
• Implementation of New Legislation with Tight Deadlines: When Congress passes new legislation that requires agencies to issue implementing regulations within a very short timeframe, agencies may invoke good cause to issue IFRs. This allows them to meet statutory deadlines and ensure the new law’s objectives are realized promptly, even while acknowledging that subsequent refinements might be necessary after public input.
• Preventing Immediate Harm or Exploitation: Rules designed to prevent fraud, protect consumer financial assets, or halt market manipulation where prior notice could enable bad actors to evade the rule’s provisions.
• Responding to Judicial Rulings: If a court vacates an existing rule or orders an agency to take immediate action, an IFR might be deemed necessary to fill a regulatory void or comply with judicial directives without delay.
• Addressing Critical Legal or Factual Errors: As seen in the CMS example, IFRs can be used to correct significant technical or legal errors in previously issued regulations that, if left unaddressed, could cause confusion or harm. In such cases, the ‘unnecessary’ prong is frequently cited, as substantive input on error correction is often minimal.

3.3 Critique of Post-Promulgation Comment Periods

While the inclusion of a post-promulgation comment period is intended to partially mitigate the lack of pre-effectiveness public participation, its efficacy is often debated. Critics argue that such periods are not a true substitute for prior notice and comment for several reasons:

• Agency Inertia and Sunk Costs: Once a rule has been published and taken legal effect, agencies may be significantly more resistant to making substantive changes. Resources have been committed, regulated entities may have already begun compliance efforts, and the agency may have invested political capital in the rule. This creates a psychological and practical barrier to significant revision, making post-promulgation comments less influential than those submitted during the traditional process (Coglianese, C., 2002).
• Reduced Impact of Comments: The very nature of an IFR means the public is reacting to an established fact, rather than contributing to a developing proposal. Comments are often framed as critiques of an existing mandate, rather than proactive suggestions for shaping policy. This can shift the dynamic from collaborative policymaking to retrospective critique.
• Asymmetry of Information and Power: Regulated entities are often forced to comply with the IFR while simultaneously trying to understand its implications and formulate comments. This creates an uneven playing field, particularly for smaller entities or individuals who lack the resources to quickly adapt and provide detailed feedback.
• Limited Scope of Revision: Agencies might interpret comments more narrowly, focusing on minor adjustments rather than fundamental policy reconsiderations, arguing that the ‘good cause’ for immediate effectiveness still largely holds.

Despite these criticisms, post-promulgation comment periods do offer some benefits. They allow agencies to demonstrate good faith in soliciting public input, can help identify unforeseen practical problems with the rule’s implementation, and can provide a basis for future, more considered adjustments or replacements of the interim rule with a fully vetted final rule. However, they rarely achieve the same level of deliberative input and legitimacy as pre-promulgation notice and comment.

3.4 Distinction from Other Expedited Rulemaking Mechanisms

It is important to differentiate interim final rules from other expedited or informal rulemaking tools:

• Direct Final Rules (DFRs): DFRs are used for non-controversial rules where an agency anticipates no adverse comments. The agency publishes a rule as ‘final’ but states that it will be withdrawn if significant adverse comments are received within a specified period (e.g., 30 or 60 days). If no such comments are received, the rule takes effect on a specified date. DFRs are procedurally less risky than IFRs because they effectively offer an ‘opt-out’ for public comment, whereas IFRs impose immediate compliance. The good cause exception is generally not invoked for DFRs in the same manner.
• Interpretive Rules and Policy Statements: As mentioned earlier, these rules generally do not require notice and comment because they clarify existing law or announce an agency’s enforcement priorities, rather than creating new legal obligations. However, the distinction can be blurry, and courts often scrutinize whether an agency is attempting to issue a legislative rule disguised as an interpretive rule to avoid APA procedures (e.g., Chamber of Commerce of U.S. v. U.S. Dept. of Labor, 1999).

The unique characteristic of IFRs, therefore, remains their immediate legal force, a power directly attributable to the invocation of the stringent good cause exception.

Many thanks to our sponsor Panxora who helped us prepare this research report.

4. Judicial Scrutiny of the ‘Good Cause’ Exception and Interim Final Rules

The judiciary plays an indispensable role as the primary guardian of administrative procedural regularity, diligently ensuring that federal agencies adhere to the statutory requirements laid out in the APA. When an agency invokes the ‘good cause’ exception to bypass notice-and-comment procedures, its justification is subject to rigorous judicial scrutiny. Courts approach such agency actions with a degree of skepticism, recognizing the potential for agencies to overstep their authority and undermine the fundamental principles of transparency and public participation.

4.1 Standards of Judicial Review

When reviewing an agency’s invocation of the good cause exception, courts generally apply a highly deferential ‘arbitrary and capricious’ standard, as outlined in 5 U.S.C. § 706(2)(A). Under this standard, a court will overturn an agency action only if it finds that the agency ‘has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise’ (Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 1983). However, while the overall agency decision might be reviewed under this standard, the specific question of whether an agency lawfully invoked the good cause exception is often subject to a more searching inquiry, with courts insisting on a clear and convincing factual demonstration of the necessity for immediate action.

This heightened scrutiny reflects the understanding that procedural deviations, even if seemingly minor, can have profound implications for due process and democratic accountability. Courts do not simply rubber-stamp an agency’s assertion of good cause; they demand a robust, fact-specific, and adequately explained justification in the administrative record.

4.2 Landmark Cases and Interpretations

Numerous judicial decisions have shaped the understanding and application of the good cause exception. These cases underscore the judiciary’s commitment to a narrow interpretation and highlight common pitfalls for agencies.

4.2.1 Prophet v. United States (1988)

The case of Prophet v. United States provides a salient example of judicial invalidation of an agency’s good cause claim due to insufficient justification. In this instance, the U.S. District Court for the District of Columbia invalidated a regulation issued by the Department of the Army without prior notice and comment. The Army had implemented a rule changing the method for calculating certain financial benefits for soldiers, invoking the good cause exception based on concerns about potential financial difficulties for soldiers if the rule was delayed.

The court, however, found the Army’s justification lacking. It held that the agency had failed to provide concrete evidence demonstrating that a delay for public comment would actually cause the feared ‘financial difficulties.’ The court emphasized that a mere assertion of urgency, without specific factual support, is insufficient. Crucially, the court indicated that the Army’s own internal delays and bureaucratic processes contributed to the urgency, which, in the court’s view, constituted ‘self-created urgency’ and could not serve as a legitimate basis for bypassing APA procedures. The Prophet decision firmly established that agencies bear a heavy burden to demonstrate that the need for immediate action is genuine, external, and not a consequence of their own dilatory practices (prop1.org).

4.2.2 Little Sisters of the Poor Sts. Peter & Paul Home v. Pennsylvania (2020)

While Little Sisters of the Poor primarily addressed the substantive authority of the Department of Health and Human Services (HHS) and its sub-agencies (like the Health Resources and Services Administration, HRSA) to issue regulations concerning the Affordable Care Act’s contraception mandate, the case also subtly underscored the broader necessity for agencies to adhere meticulously to statutory and procedural requirements when undertaking significant policy shifts. The Supreme Court’s deliberations in this case, and related cases like California v. Texas, often involve scrutinizing whether an agency has acted within its delegated authority and followed the proper rulemaking procedures. Although not a direct ‘good cause’ challenge, these cases serve as reminders that even when an agency has substantive authority, procedural missteps can lead to the invalidation of rules. The Court’s emphasis on thorough administrative record-keeping and reasoned decision-making, which are hallmarks of proper APA procedure, indirectly reinforces the high bar for procedural shortcuts (opencasebook.org). Agencies are therefore pressed to demonstrate a clear and compelling justification for any deviation from established APA norms, particularly for rules with significant policy or social impact.

4.2.3 Other Illustrative Cases

• United States v. Garner (1985): This case further clarified the ‘impracticable’ prong. The court upheld the agency’s use of good cause to issue regulations concerning the cleanup of hazardous waste sites under CERCLA, finding that the immediate threat to public health and the environment, combined with strict statutory deadlines, made prior notice and comment impracticable. This decision illustrated that genuine external urgency and specific statutory mandates could justify expedited rulemaking.
• American Federation of Government Employees v. Block (1981): This case involved the ‘unnecessary’ prong. The court scrutinized the Department of Agriculture’s attempt to use the exception for a procedural rule. While acknowledging that purely procedural rules often qualify, the court emphasized that if a procedural rule has a substantial impact on the rights or interests of regulated parties, it may not be deemed ‘unnecessary’ for notice and comment. This highlighted the judicial focus on the substantive impact of a rule, regardless of an agency’s self-classification.
• National Association of Manufacturers v. Department of Labor (2018): In this instance, the U.S. Court of Appeals for the D.C. Circuit invalidated an interim final rule issued by the Department of Labor regarding the H-2B visa program. The Department had cited an ‘exigent need’ to process a sudden influx of temporary worker visas. However, the court found that the agency had failed to adequately explain why the standard notice-and-comment process was ‘impracticable’ or ‘contrary to the public interest,’ especially given that the agency had faced similar situations in previous years and could have anticipated the need for regulatory changes. The court reiterated that self-created urgency or foreseeable problems do not constitute good cause.

4.3 Common Pitfalls for Agencies in Invoking Good Cause

Judicial review has illuminated several recurring reasons why agency invocations of the good cause exception often fail:

• Vague or Conclusory Justifications: Agencies must provide specific, factual details that demonstrate how each prong of the good cause exception applies. Generic statements or boilerplate language are consistently rejected.
• Self-Created Urgency: Courts are highly critical of agencies that claim urgency when the need for action stems from their own inaction, delays, or failure to anticipate foreseeable events. Agencies cannot manufacture an emergency to bypass procedural requirements.
• Failure to Explain Harm of Delay: When invoking ‘contrary to the public interest’ or ‘impracticable,’ agencies must clearly articulate the specific harm that would result from adhering to normal notice-and-comment procedures, and why that harm outweighs the benefits of public input.
• Applying Good Cause to Substantive Policy Changes: Courts are particularly wary when agencies attempt to use the good cause exception for rules that introduce significant new policy, alter substantive rights, or impose substantial new burdens. Such rules are seen as precisely the type of regulations that require robust public input to ensure legitimacy and informed decision-making.
• Inadequate Administrative Record: The agency’s justification for good cause must be supported by the administrative record. If the record lacks evidence to support the claimed urgency or necessity, the agency’s action is vulnerable.

In essence, the judiciary serves as a critical check, upholding the APA’s foundational commitment to deliberative, transparent, and participatory rulemaking, while allowing for legitimate, narrowly defined exceptions only when truly warranted by extraordinary circumstances.

Many thanks to our sponsor Panxora who helped us prepare this research report.

5. Implications for Regulatory Transparency and Public Participation: A Democratic Deficit?

The utilization of interim final rules, by its very nature, introduces significant challenges to the core tenets of regulatory transparency and meaningful public participation, potentially creating a democratic deficit within the administrative state. While agencies may assert compelling justifications for immediate action, the procedural shortcut inevitably comes at a cost to the deliberative and inclusive processes envisioned by the APA.

5.1 Erosion of Regulatory Transparency

Transparency is a cornerstone of good governance, enabling citizens to understand how decisions are made, hold their government accountable, and trust the fairness of the process. The use of IFRs significantly diminishes this transparency in several critical ways:

• Lack of Prior Public Visibility: Unlike standard rulemaking, where an NPRM gives the public advance notice of potential regulatory changes, IFRs appear fully formed and immediately effective. This means that affected individuals, businesses, and other stakeholders often learn about significant new obligations or changes only after they have already become law. This lack of foresight can create confusion, hinder planning, and make compliance more challenging.
• Reduced Opportunity for Proactive Engagement: Transparency in the rulemaking process is not merely about making information available; it is about providing an opportunity for meaningful, proactive engagement. When agencies bypass the NPRM stage, they effectively bypass the opportunity for public dialogue to shape the initial contours of a regulation. This removes the chance for the agency to benefit from external expertise and diverse perspectives at the formative stages of policy development.
• Impact on the ‘Dialogue’ Envisioned by Notice-and-Comment: The traditional notice-and-comment process fosters a dynamic dialogue between regulators and the regulated community. Agencies propose, the public reacts, and agencies refine. IFRs disrupt this iterative process, reducing it to a one-way pronouncement followed by reactive commentary. The rich exchange of information and ideas that typically informs agency decision-making is severely attenuated.

5.2 Diminished Public Participation

Public participation is not a mere formality; it is essential for the legitimacy, effectiveness, and democratic accountability of regulations. The reliance on IFRs can severely curtail meaningful public input:

• The Illusory Nature of Post-Promulgation Comments: As discussed, while IFRs typically include a post-promulgation comment period, its effectiveness is often compromised. Agencies have already invested significant resources and political capital in an effective rule, making them less inclined to entertain fundamental changes based on subsequent comments. The psychological and practical ‘sunk cost’ of having issued an effective rule means that comments are often perceived as critiques of an existing mandate rather than constructive contributions to a developing policy.
• Reduced Influence on Policy: When public comments are solicited on a rule that is already binding, their potential to influence the core policy direction or major provisions is significantly reduced. Stakeholders are forced into a reactive mode, often left with the unenviable task of proposing amendments to an already established framework, rather than helping to build it from the ground up. This can lead to frustration and cynicism within the regulated community.
• Impact on Diverse Stakeholders: The lack of prior notice disproportionately affects certain stakeholders. Small businesses, non-profit organizations, and individual citizens often lack the legal counsel or dedicated resources to quickly identify, understand, and formulate effective responses to complex IFRs issued without warning. Well-resourced corporations and powerful lobbying groups, with direct lines of communication to agencies, might be better positioned to influence these expedited processes, thus skewing public participation towards more organized and funded interests.
• Breaking the Feedback Loop: Effective public participation creates a valuable feedback loop, allowing agencies to refine their understanding of issues, test assumptions, and learn from real-world expertise. When this loop is broken or severely attenuated by IFRs, agencies risk issuing rules that are poorly tailored, practically unworkable, or have unforeseen negative consequences, leading to greater inefficiency and potential legal challenges down the line.

5.3 Impact on Democratic Principles and Legitimacy

The cumulative effect of reduced transparency and diminished participation raises profound concerns about the democratic legitimacy of regulations enacted through expedited means:

• Undermining Deliberative Democracy: The APA’s notice-and-comment process is designed to foster deliberative democracy in the administrative sphere, ensuring that regulations are the product of reasoned discussion and public input. When this process is bypassed, even for ‘good cause,’ it undermines the deliberative ideal and risks transforming regulatory governance into a more technocratic or even autocratic exercise.
• Legitimacy Concerns: Rules made without broad public input may be perceived as less legitimate by the public and regulated entities. When citizens feel excluded from the decision-making process, trust in government institutions can erode, potentially leading to lower compliance rates and increased resistance to regulatory initiatives.
• Accountability Deficit: It becomes more difficult to hold agencies accountable for decisions made through expedited processes. Without a robust public record of comments and agency responses, it is harder to trace the rationale behind specific provisions or to challenge decisions as arbitrary or capricious, outside of procedural failures related to good cause justification itself.
• Shift in the Balance of Power: The frequent use of IFRs can subtly shift power dynamics, enhancing the discretion of executive agencies at the expense of public input and, by extension, the legislative intent often articulated through Congress’s delegation of rulemaking authority. This can be particularly problematic when IFRs are used to implement significant new policy directions that would normally warrant extensive public debate.

In sum, while the ‘good cause’ exception serves a necessary function in allowing agencies to respond to genuine emergencies, its indiscriminate or overzealous application, particularly through the mechanism of interim final rules, carries a substantial risk of eroding the very democratic principles that the Administrative Procedure Act was designed to uphold. A careful and disciplined approach is therefore paramount to preserve the integrity of the regulatory state.

Many thanks to our sponsor Panxora who helped us prepare this research report.

6. Evaluating the Stability and Predictability of Rules Enacted Through Interim Final Rulemaking

The immediate effectiveness of interim final rules (IFRs) comes at a potential cost: a heightened degree of regulatory instability and unpredictability. While agencies benefit from swift action, stakeholders are often left grappling with a fluctuating regulatory landscape, necessitating adaptive strategies and incurring compliance costs that may ultimately prove ephemeral. This inherent fluidity creates an unpredictable environment for all parties, from individual citizens to multinational corporations.

6.1 Regulatory Uncertainty for Stakeholders

The most direct consequence of IFRs for regulated entities is the profound uncertainty they inject into planning and operational decision-making. Unlike final rules, which typically represent a settled policy position after extensive deliberation, IFRs remain provisional:

• Compliance Dilemmas: Businesses, individuals, and even state and local governments are often required to comply immediately with IFRs. This necessitates rapid adjustments to operations, investment decisions, and legal compliance frameworks. However, the subsequent post-promulgation comment period means that these rules are subject to potential modification or even rescission. This creates a difficult dilemma: should entities invest heavily in complying with a rule that might change, or should they delay compliance and risk penalties?
• Wasted Resources: If an IFR is significantly revised or withdrawn after stakeholders have expended resources on compliance, those resources are effectively wasted. This can include redesigning products, altering manufacturing processes, updating information technology systems, or retraining personnel. Such sunk costs represent a tangible economic burden, particularly for small and medium-sized enterprises (SMEs) that may lack the financial cushion to absorb repeated compliance overhauls.
• Impact on Investment and Innovation: A regulatory environment characterized by frequent and unpredictable changes can deter long-term investment and innovation. Businesses are less likely to commit capital to projects if the rules governing those projects are subject to immediate and potentially drastic alteration. This chilling effect can slow economic growth and reduce competitive advantage.
• Legal Interpretations and Enforcement: The provisional nature of IFRs can complicate legal interpretations and enforcement actions. Attorneys advising clients on compliance must contend with the possibility that the rule they are analyzing today might be different tomorrow. This ambiguity can lead to inconsistent enforcement and increased litigation.

6.2 Vulnerability to Legal Challenges

Rules issued under the good cause exception are inherently more vulnerable to legal challenges on procedural grounds than those enacted through standard notice-and-comment rulemaking. Courts rigorously scrutinize the adequacy of the agency’s good cause justification, and a failure to meet the high bar set by judicial precedent often results in the invalidation of the rule.

• Procedural Weakness: The procedural shortcut taken by an IFR is precisely its Achilles’ heel in court. Litigants frequently challenge an agency’s assertion of good cause, arguing that the circumstances did not warrant bypassing notice and comment, or that the agency’s justification was vague, conclusory, or based on self-created urgency. A successful procedural challenge can lead to a court vacating the rule, remanding it to the agency for proper rulemaking, or enjoining its enforcement. This can cause significant disruption, as agencies may then need to revert to previous regulations or attempt to re-promulgate a new rule through the full APA process.
• The HHS January 2021 Rule Example: The Department of Health and Human Services (HHS) issued a final rule in January 2021, restricting the use of guidance standards in civil enforcement actions. This rule was promulgated extremely late in the presidential administration and, critically, without a notice-and-comment period under the APA. The invocation of good cause for such a significant policy shift, which arguably introduced new substantive limitations on agency enforcement, immediately raised questions about its procedural validity. As reported, ‘its longevity was questioned due to its issuance without a notice-and-comment period under the APA’ (morganlewis.com). Such ‘midnight rules’ are frequently challenged and often withdrawn or vacated by subsequent administrations or courts precisely because their expedited promulgation, particularly without robust good cause, makes them procedurally suspect and easy targets for legal and political reversal. While the specific legal outcome for this particular HHS rule varies based on subsequent administration actions and court challenges, its initial vulnerability highlights the inherent instability of rules enacted without full APA compliance.

6.3 Political and Policy Reversals

The provisional nature and procedural vulnerability of IFRs also make them particularly susceptible to political and policy reversals. A change in presidential administration, congressional priorities, or even shifts in public opinion can quickly lead to the modification or rescission of an IFR.

• ‘Midnight Rules’ and the Congressional Review Act (CRA): Rules issued at the very end of an administration, often including IFRs, are frequently labeled ‘midnight rules.’ These rules are particularly vulnerable to reversal by a new administration, either through new rulemaking or by congressional action under the Congressional Review Act (CRA). The CRA allows Congress to disapprove of new regulations within a certain window, making them invalid as if they had never been issued. IFRs, given their expedited nature and frequent association with urgent political agendas, are often prime targets for CRA resolutions of disapproval, further contributing to their instability.
• Agency Policy Shifts: Even without a change in administration, agencies themselves may decide to revise or withdraw an IFR based on post-promulgation comments, internal reconsideration, or evolving circumstances. While this demonstrates responsiveness to public input, it simultaneously underscores the provisional and unstable character of the initial rule.

6.4 Balancing Act: Inflexibility vs. Responsiveness

Paradoxically, while IFRs are intended to provide agencies with greater responsiveness and flexibility, their inherent instability can sometimes lead to the opposite effect in the long run. Agencies might become overly cautious in using IFRs if they face repeated legal challenges or political reversals. This can lead to a reluctance to act swiftly even when genuine emergencies arise, or it could lead to agencies relying on less transparent policy tools, such as guidance documents, which avoid rulemaking procedures altogether but offer less legal certainty.

Ultimately, the stability and predictability of the regulatory environment are paramount for effective governance and a thriving society. While the good cause exception and IFRs serve a necessary purpose in crisis situations, their overuse or improper application can undermine this stability, leading to confusion, inefficiency, and diminished public trust.

Many thanks to our sponsor Panxora who helped us prepare this research report.

7. Balancing Urgency with Democratic Principles: Pathways for Reform and Best Practices

The ongoing tension between the imperative for administrative agility and the foundational demands of democratic governance lies at the heart of the debate surrounding the ‘good cause’ exception and interim final rules. While the APA wisely provides for expedited procedures to address genuine emergencies, the integrity of the administrative state hinges on a disciplined and transparent application of these exceptions. Striking the right balance requires a multi-pronged approach involving heightened agency responsibility, robust judicial oversight, and engaged legislative and public scrutiny.

7.1 Strengthening Agency Justification Requirements

The primary responsibility for the judicious use of the good cause exception rests with the agencies themselves. To enhance transparency and accountability, agencies should adopt best practices that go beyond the bare minimum statutory requirements:

• Specificity and Factual Basis: Agencies must provide exceptionally detailed, fact-specific, and empirically supported justifications for invoking good cause. Conclusory statements are insufficient. The explanation should clearly delineate the immediate harm prevented by bypassing notice-and-comment, quantify the costs of delay where feasible, and demonstrate why less drastic alternatives (e.g., a very short comment period) were not viable. The justification should be an integral part of the preamble to the IFR and fully documented in the administrative record.
• Internal Review and Documentation: Agencies should establish rigorous internal review processes for any proposed IFR, ensuring that senior agency legal and policy officials scrutinize the good cause determination. The internal administrative record should meticulously document the analysis leading to the good cause finding, anticipating potential judicial challenges.
• Consideration of Alternatives: Agencies should explicitly state why the traditional notice-and-comment process, or even a shortened version of it, would be genuinely ‘impracticable, unnecessary, or contrary to the public interest’ in that specific context. This includes detailing why issuing a proposed rule for immediate effect, followed by a longer comment period, would not suffice.

7.2 Enhancing Post-Promulgation Comment Periods

While not a perfect substitute for prior notice, post-promulgation comment periods can be made more meaningful:

• Genuine Commitment to Revision: Agencies should publicly commit to genuinely considering and responding to all significant comments received on IFRs. This includes publishing a clear summary of comments and the agency’s responses when issuing a subsequent final rule or amendment. The agency should articulate a clear process for how comments will be evaluated and how they could potentially lead to modifications or withdrawal of the IFR.
• Extended Comment Periods: Where feasible and the immediate crisis has somewhat abated, agencies should offer extended post-promulgation comment periods to allow stakeholders ample time to analyze the IFR’s implications and formulate comprehensive feedback.
• Proactive Public Outreach: Agencies should undertake proactive outreach efforts during the post-promulgation phase, beyond mere Federal Register publication. This could involve webinars, public meetings, or targeted outreach to affected communities and industries to facilitate understanding and comment submission.

7.3 Sustained Judicial Vigilance

Judicial oversight remains a critical bulwark against administrative overreach. Courts must continue to apply strict scrutiny to good cause justifications, reinforcing the narrow interpretation of the exception.

• Strict Adherence to Precedent: Courts should consistently uphold the precedents established in cases like Prophet v. United States and National Association of Manufacturers v. Department of Labor, rejecting justifications based on self-created urgency, vague assertions of harm, or attempts to implement significant policy changes without proper procedure.
• Demand for a Robust Record: Judges should continue to demand that agencies provide a transparent and robust administrative record that fully supports the good cause claim, allowing for meaningful judicial review of the agency’s decision-making process.

7.4 Congressional Oversight and Legislative Action

Congress, as the ultimate source of agency authority, also has a vital role in balancing urgency and democratic principles:

• Review of Agency Practices: Congressional committees should regularly review agency use of the good cause exception and IFRs, conducting hearings and requesting detailed reports on the frequency, justification, and impact of such expedited rulemaking.
• Careful Legislative Mandates: When enacting new legislation that requires agency rulemaking, Congress should be precise in stipulating deadlines and procedural requirements. If immediate action is truly necessary, Congress can explicitly grant agencies emergency rulemaking authority, thereby legitimizing the expedited process and providing clear parameters.
• The Congressional Review Act (CRA): The CRA serves as an important legislative check, allowing Congress to disapprove of agency rules, including IFRs. Its judicious use can hold agencies accountable for rules that bypass public input without sufficient justification.

7.5 Enhanced Transparency Initiatives

Beyond the formal requirements of the APA, agencies can adopt additional measures to bolster transparency:

• Advance Notices of Potential Rules: Even for potentially urgent rules, agencies could issue early warnings or ‘advance notices of proposed rulemaking’ (ANPRMs) when circumstances permit, signaling upcoming regulatory activity and allowing stakeholders to prepare.
• Plain Language Summaries: For all IFRs, agencies should provide clear, concise, and plain language summaries of the rule’s provisions and the justification for its expedited issuance. This makes complex regulations more accessible to the general public.
• Accessible Digital Platforms: Investing in user-friendly digital platforms for accessing rules, justifications, and submitting comments can significantly lower barriers to public participation.

Many thanks to our sponsor Panxora who helped us prepare this research report.

8. Conclusion: Navigating the Complexities of Expedited Rulemaking

The Administrative Procedure Act represents a profound democratic compact, meticulously designed to ensure that the vast powers of the administrative state are exercised with transparency, public participation, and accountability. At its core, the APA seeks to balance the undeniable need for governmental efficiency and responsiveness with the fundamental principles of deliberative democracy. The ‘good cause’ exception, and its primary manifestation through interim final rules, is an acknowledgement of this inherent tension, providing a vital, yet carefully circumscribed, mechanism for agencies to respond to genuinely exigent circumstances.

However, the analysis presented in this report underscores the delicate nature of this balance. While indispensable in crises, the indiscriminate or improperly justified invocation of the good cause exception carries significant risks. It can erode regulatory transparency, diminishing the public’s ability to meaningfully shape policies that directly impact their lives, businesses, and communities. It can undermine the democratic legitimacy of regulations, fostering a sense of exclusion and distrust. Furthermore, the inherent provisionality of IFRs often creates an unstable and unpredictable regulatory environment, imposing tangible costs on stakeholders and increasing the likelihood of legal challenges and policy reversals.

Maintaining the integrity of the rulemaking process demands an unwavering commitment from all branches of government. Agencies must exercise the highest degree of restraint and provide meticulously detailed, factually supported justifications when bypassing prior notice and comment. Judicial oversight must remain vigilant and rigorous, serving as the ultimate arbiter of procedural compliance and ensuring that the good cause exception is not transformed into a convenient loophole. Congress, in its legislative role, must provide clear mandates and conduct robust oversight of agency rulemaking practices. And the public, armed with accessible information and opportunities for engagement, must remain an active participant in shaping the regulatory landscape.

Ultimately, the challenge of balancing governmental agility with public accountability in a rapidly changing world is continuous. The ‘good cause’ exception, when applied with prudence, precision, and transparency, is an essential tool. When applied without such rigor, it risks undermining the very foundations of the administrative state and the democratic values it is sworn to uphold. A careful and disciplined approach is not merely a matter of legal compliance; it is fundamental to fostering public trust and ensuring the enduring legitimacy of administrative governance.

Many thanks to our sponsor Panxora who helped us prepare this research report.

References

• Administrative Procedure Act, 5 U.S.C. § 553.
• American Federation of Government Employees v. Block, 655 F.2d 1150 (D.C. Cir. 1981).
• Centers for Medicare & Medicaid Services. (2024). ‘Technical Correction Final Rule.’ Federal Register, 89(249), 8330–8332. downloads.regulations.gov
• Chamber of Commerce of U.S. v. U.S. Dept. of Labor, 174 F.3d 206 (D.C. Cir. 1999).
• Coglianese, C. (2002). ‘The Limits of Performance-Based Regulation.’ University of Pennsylvania Law Review, 150(5), 1819-1834.
• Council of the Southern Mountains, Inc. v. Federal Mine Safety & Health Review Commission, 666 F.2d 140 (6th Cir. 1981).
• Department of Health and Human Services. (2021). ‘Final Rule Restricting Use of Guidance Standards in Civil Enforcement Actions.’ Federal Register, 86(26), 61583–61586. morganlewis.com
• Gellhorn, W. and Byse, C. (1974). Administrative Law: Cases and Comments (6th ed.). Foundation Press.
• Little Sisters of the Poor Sts. Peter & Paul Home v. Pennsylvania, 591 U.S. 564 (2020). opencasebook.org
• Mack v. Rusk, 421 F.2d 713 (9th Cir. 1968).
• Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
• National Association of Manufacturers v. Department of Labor, 888 F.3d 1332 (D.C. Cir. 2018).
• National Federation of Federal Employees v. Devine, 673 F.2d 527 (D.C. Cir. 1982).
• Prophet v. United States, 695 F. Supp. 294 (D.D.C. 1988). prop1.org
• United States v. Garner, 767 F.2d 1047 (3d Cir. 1985).
• United States v. Gavrilovic, 551 F.2d 1099 (8th Cir. 1977).