Making a Rule Without the Ordinary Comment Period

Rules made in an emergency are made outside the process that ordinarily legitimates them. There is no proposal, no comment period and no response to comments, which removes both the information the process generates and the record it produces. The statutes permit this on a finding, and the finding is the whole of the accountability: it is written into the rule, published with it, and is the first thing examined if the rule is challenged.

Good cause, and what has to be said

The federal administrative procedure statute makes notice and comment the default and then supplies an exception. The requirements do not apply when the agency for good cause finds, and incorporates the finding and a brief statement of reasons for it in the rules issued, that notice and public procedure on them are impracticable, unnecessary or contrary to the public interest.

Three features of that sentence are doing work. The finding must be made by the agency, so it is an exercise of judgment rather than a category the situation falls into. It must be incorporated in the rule as issued, which prevents it being reconstructed afterwards. And it must be accompanied by a brief statement of reasons, so the bare assertion of good cause is not enough.

The three grounds are distinct rather than interchangeable. Impracticable describes a situation where the delay would prevent the agency from acting in time. Unnecessary describes a rule so minor or technical that comment would add nothing. Contrary to the public interest describes a case where advance notice would defeat the rule's purpose, as where announcing a restriction would provoke the conduct it targets. An agency that invokes all three without distinguishing them has weakened rather than strengthened its position.

The delay before a rule operates

A separate provision governs the interval between publication and effectiveness rather than the procedure that precedes it. The required publication or service of a substantive rule is to be made not less than thirty days before its effective date, with stated exceptions, one of which is a rule as otherwise provided by the agency for good cause found and published with the rule.

Because they are separate provisions with separate findings, an agency needing a rule to operate at once and without prior comment must satisfy both. The reasons will often overlap but they are not the same question: one asks whether the agency could afford to hear from the public first, the other whether affected parties can be given time to prepare. A parallel provision in the congressional review framework provides that a rule for which an agency makes the same kind of good cause finding takes effect at such time as the agency determines, which prevents the review mechanism from reimposing a delay the agency has justified dispensing with.

A finding, a clock and a duty to finish the job

State administrative procedure acts are frequently more prescriptive. Florida permits an agency finding that an immediate danger to the public health, safety or welfare requires emergency action to adopt any rule necessitated by that danger, using any procedure that is fair under the circumstances, subject to three conditions. The procedure must provide at least the procedural protection given by other statutes or by the state and federal constitutions. The agency must take only the action necessary to protect the public interest under the emergency procedure. And the agency must publish in writing, at or before the time of its action, the specific facts and reasons for finding an immediate danger and its reasons for concluding that the procedure used is fair in the circumstances.

Notice of the emergency rule, including its full text and the agency's findings of immediate danger, necessity and procedural fairness, must be published in the first available issue of the state register. The rule becomes effective immediately on filing, or on a date less than twenty days later if the agency finds that necessary because of the immediate danger.

The clock then runs. An emergency rule may not be effective for longer than ninety days and may not be renewed, except where the agency has initiated rulemaking to adopt rules on the same subject and either a challenge to the proposed rules is pending or the proposed rules await legislative ratification. Notice of any renewal must be published before the existing rule expires and must state the specific facts and reasons for the renewal.

How the shortcut is contested

A challenge to an emergency rule usually attacks the finding rather than the substance. The argument is that the conditions for dispensing with procedure were not present: that the agency had time to take comment, that the danger was not immediate, or that the rule reached further than the danger required. Because the finding and its reasons must be published with the rule, the challenge is conducted against a fixed text that the agency cannot supplement after the fact.

A second line attacks the scope. Florida's requirement that the agency take only the action necessary to protect the public interest under the emergency procedure, and New York's parallel requirement that a suspension provide for the minimum deviation consistent with the disaster action deemed necessary, both give a challenger a proportionality argument grounded in statutory text. Interim relief pending that challenge is available in the federal system through the provision permitting a reviewing court to postpone an effective date or preserve status pending conclusion of the proceedings, and the mechanics of seeking it are described in challenging an order while the emergency continues. Where the rule was made under a declaration, its life is also bounded by the declaration itself, as set out in how long a declaration lasts and in declaring an emergency and what it unlocks.