The Administrative Procedure Act (APA) generally requires agencies to follow certain procedures when promulgating rules. The statute's "good cause" exception, however, permits age ncies to forgo Section 553's notice and comment requirement if "the agency for good cause finds" that compliance would be "impracticable, unnecessary, or contrary to the public interest" and to bypass its requirement that rules be published 30 days before implementation if good cause exists. However, federal courts reviewing this agency practice have varied in their analysis—as to the proper standard of review, whether there are actually two good cause provisions, and what factors justify the exception—resulting in confusion as to precisely what constitutes "good cause." Some courts have indicated that these are two distinct standards; others do not always distinguish between the two. What Constitutes Good Cause? Consequently, leaving aside minor or technical rules where compliance with Section 553 is unnecessary, it may be helpful to divide good cause cases into several categories: (1) emergencies; (2) contexts where prior notice would subvert the underlying statutory scheme; and (3) situations where Congress intends to w aive Section 553's requirements. Standard of Review When Agencies Invoke the Good Cause Exception

As mentioned above, courts differ as to the proper standard of review when agencies invoke the good cause exception. One pitfall is the proper characterization of the agency's action—is an agency determination that good cause exists to bypass Section 553 a discretionary decision or a legal conclusion? Challenges to agency discretionary decisions are governed by Section 706(2)(A)'s arbitrary and capricious standard, while procedural challenges pursuant to Section 706(2)(D) that an agency failed to comply with the provisions of the APA are often reviewed de novo . Some courts have applied the former standard when reviewing good cause determinations, others the latter. Complicating matters, however, is the practice of some courts to not clearly adopt either standard, but focus instead on simply "narrowly constru[ing]" the provision. Recent judicial analysis of the Attorney General's actions pursuant to the Sex Offender Registration and Notification Act (SORNA) illustrates the divergence respecting interpretations of the good cause exception. The Attorney General issued an interim rule applying SORNA's requirements retroactively and relied on the good cause exception to bypass the notice and comment rulemaking requirements as well as the 30-day publication rule. Presidential Transitions

Agency use of the good cause exception can also be important in the context of presidential transitions. Recent outgoing presidential administrations have engaged in "midnight rulemaking," whereby federal agencies increase the number of regulations issued during the final months of a presidential administration. A subsequent presidential administration of a different party, however, may have different policy priorities. Nonetheless, once a rule is finalized by an agency, repeal of a rule requires compliance with Section 553's notice and comment procedures. Consequently, in order to gain control of the rulemaking process, some Presidents have sought to impose a moratorium on new regulations at the beginning of their administration.
While the Administrative Procedure Act (APA) generally requires agencies to follow certain procedures when promulgating rules, the statute's "good cause" exception permits agencies to forgo Section 553's notice and comment requirement if "the agency for good cause finds" that compliance would be "impracticable, unnecessary, or contrary to the public interest" and bypass its 30-day publication requirement if good cause exists. Federal courts reviewing this agency practice have varied in their analysis, resulting in confusion as to precisely what constitutes "good cause." In addition, some courts have indicated that these are two distinct standards; others do not always distinguish between the two.
What precisely constitutes good cause is not explicit from the APA's text. In order to understand the operation of the good cause exception, it may be helpful to divide good cause cases into several categories: (1) emergencies; (2) contexts where prior notice would subvert the underlying statutory scheme; and (3) situations where Congress intends to waive Section 553's requirements.
Courts differ as to the proper standard of review when agencies invoke the good cause exception. One pitfall is the proper characterization of the agency's action—is an agency determination that good cause exists to bypass Section 553 a discretionary decision or a legal conclusion? Challenges to agency discretionary decisions are governed by Section 706(2)(A)'s arbitrary and capricious standard, while procedural challenges pursuant to Section 706(2)(D) that an agency failed to comply with the provisions of the APA are often reviewed de novo. Some courts have applied the former standard when reviewing good cause determinations, others the latter. Still other courts appear to not clearly adopt either standard, but focus instead on simply "narrowly construing" the provision. Recent judicial analysis of the Attorney General's actions pursuant to the Sex Offender Registration and Notification Act (SORNA) illustrates this divergence. The Attorney General issued an interim rule applying SORNA retroactively and relied on the good cause exception to bypass Section 553's requirements. Federal courts split as to the legality of the Attorney General's actions as well as to the appropriate standard of review when examining good cause invocations.
Agency use of the good cause exception can also be important in the context of presidential transitions. Recent outgoing presidential administrations have engaged in "midnight rulemaking," whereby federal agencies increase the number of regulations issued during the final months of a presidential administration. A subsequent presidential administration of a different party, however, may have different policy priorities. Nonetheless, once a rule is finalized by an agency, repeal of a rule requires compliance with Section 553's notice and comment procedures. In order to gain control of the rulemaking process, some Presidents have sought to impose a moratorium on new regulations at the beginning of their administration. Agencies implementing such moratorium directives have often relied on use of the good cause exception to justify their actions.