Contents

Preface

Chapter 1

A Brief Overview of Rulemaking and Judicial Review(

Summary

Introduction

Types of Rulemaking

Informal/Notice-and-Comment/§ 553

Formal

Hybrid

Direct Final

Negotiated

Exceptions to the APA’s § 553 Rulemaking Requirements

Wholly Exempt

Exceptions to the Notice-and-Comment Procedures

Rules of Agency Organization, Procedure, or Practice

Non-legislative Rules

Good Cause

Exceptions to the 30-Day Delayed Effective Date

Judicial Review

End Notes

Chapter 2

The Good Cause Exception to Notice and Comment Rulemaking: Judicial Review of Agency Action(

Summary

Introduction

Notice and Comment Rulemaking

Are There Actually Two Good Cause Standards?

What Constitutes Good Cause?

Emergencies

Congressional Intent

Harm Caused by Prior Notice

Standards of Review

Judicial Review of Agency Action

Review of Legal Conclusions

Review of Factual Determinations and Discretionary Decisions

Standard of Review When Agencies Invoke the Good Cause Exception

What Happens When a Court Rejects an Agency’s Good Cause Finding?

Presidential Transitions

Congressional Proposals to Alter the Standard

End Notes

Chapter 3

Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments*

Why GAO Did This Study

What GAO Recommends

What GAO Found

Abbreviations

Background

Agencies Issued about 35 Percent of Major Rules and about 44 Percent of Nonmajor Rules without an NPRM from 2003 to 2010

Agencies Most Often Invoked the Good Cause Exception When Publishing Rules without an NPRM

Good Cause Exception Commonly Used

Agencies’ Use of Exceptions in Statutes Other than APA

Agencies’ Use of APA’s Broad Categorical Exceptions

When Agencies Publish Major Rules without an NPRM, They Often Provide Information on Economic Effects and Request Comments, But Do Not Always Respond to Comments

Agencies Provided Information on Economic Effects of Most Major Rules without an NPRM

Although Not Required, Agencies Often Requested Comments on Major Final Rules Issued without an NPRM, but Did Not Always Respond to Comments Received

Conclusion

Recommendation for Executive Action

Agency Comments and Our Evaluation

Appendix I: Scope and Methodology

Appendix II: Detailed Results of GAO Analyses of Final Rules Issued without an NPRM, 2003 through 2010

Appendix III: Frequency of Interim Rulemaking, 2003 through 2010

Appendix IV: Summary Information on Final Major Rules Issued without an NPRM, in Whole or in Part—2003 through 2010

End Notes

End Notes for Appendix I

End Notes for Appendix III

Index