With Good Cause: Risk, Public Participation, and Rulemaking

• In Event: US Law & Courts: Courts & Judging Mini-Conference: Lower & Administrative Courts

Abstract

When are agencies more likely to avoid inviting public participation prior to the publication of rules? The notice of proposed rulemaking (NPRM) requirement of the Administrative Procedure Act (APA) requires that agencies publish a notice of proposed rules, solicit comments, and publish a final rule at least 30 days before it becomes effective. This procedure has the potential to invite both favorable and oppositional forces into the rulemaking process. With the good cause exemption (GCE), however, agencies can forgo notice-and-comment procedures in certain situations. While this option may be attractive to agencies for a variety of reasons, avoidance of notice and comment procedures introduces risks for agencies, including litigation and angering stakeholders. To what extent does litigation risk and other factors influence willingness of federal employees to use the GCE? Our objective is to understand the conditions under which federal government employees who work directly in the regulatory process are most likely to support the publication of rules without prior notice and comment. We argue that federal employee support for publication of rules without notice and comment will vary depending on whether the employee is informed of negative consequences of using the GCE, such as resultant litigation, and the designation of the official recommending publication without notice and comment.

Authors

• Gbemende Johnson, University of Georgia

• Susan Marie Miller, Arizona State University