103 Iowa L. Rev. 1277 (2018)

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Abstract

Section 553 of the Administrative Procedure Act (“APA”) governs informal agency rulemaking and requires agencies to proceed through what is known as “notice-and-comment” rulemaking. The good cause exception to these proceedings allows agencies to bypass notice-and-comment rulemaking and immediately promulgate a rule if the agency has good cause to do so. The appropriate standard of review for an agency’s use of the good cause exception is ambiguous. Some courts review the action de novo, while others apply a lesser, more deferential “arbitrary and capricious” standard. This Note advocates that the appropriate standard of review is yet a third standard that strikes a middle ground between de novo review and deferential review. In doing so, this Note examines the inadequacies of applying either standard on their own in order to highlight the strength of a mixed or blended standard. This standard satisfies the purpose of the APA and would serve as a clear guide to agencies for future use of the good cause exception.