Why It Matters

A Government Accountability Office (GAO) report released September 4 found that agencies cited good cause to bypass public notice-and-comment procedures for approximately 71 percent of major expedited rules issued over the past 12 years. The finding raises questions about whether the good cause exception to notice-and-comment rulemaking has become routine rather than exceptional.

The Administrative Procedure Act (APA) establishes the basic procedural requirements agencies generally must follow when issuing regulations, including providing the public with an opportunity to comment on proposed rules. Agencies can invoke good cause to forgo these notice-and-comment procedures when the process would be impracticable, unnecessary, or contrary to the public interest. The exception can apply when agencies are responding to natural disasters or public health emergencies.

When agencies bypass public input, regulated industries, affected workers, and citizens lose their formal voice in how government operates. The data also shows whether agencies are adequately documenting the economic consequences of rules issued without advance notice.

The Big Picture

Scope of Expedited Rulemaking

Between January 20, 2013, and January 20, 2025, agencies published 116 major interim final rules and 12 direct final rules, both mechanisms for issuing regulations without a prior Notice of Proposed Rulemaking (NPRM). The GAO reviewed all of them.

Agencies cited good cause reasons for approximately 71 percent of the major interim final rules reviewed. That marks a decline from a 2012 GAO report, which found that 77 percent of major rules issued without an NPRM cited good cause. Yet the baseline itself is striking: even in 2012, three-quarters of expedited rules invoked the exception.

During non-pandemic years from January 20, 2013, through January 20, 2025, agencies issued between two and ten major rules without an NPRM per year. The practice was not confined to crisis moments.

COVID-19 Spike

Use of expedited rulemaking peaked during the COVID-19 pandemic in 2020 and 2021, when agencies expedited the issuance of 55 rules in response to COVID-19. Of those 55 COVID-19 rules, agencies cited good cause for 41 of them. On average, agencies publish over 2,000 final regulations each year.

Documentation Gap

The GAO examined whether agencies were adequately analyzing the economic impact of rules issued without public comment. Agencies reported on the economic effects of 66 percent of the rules reviewed. That means one-third of expedited major rules lacked documented economic analysis.

COVID-19 related rules were less likely to include economic effects information due to the emergency nature of the rules. That finding underscores a tension embedded in the good cause exception: the circumstances that justify bypassing notice-and-comment procedures are often the same ones that make rigorous economic analysis difficult or impossible to complete. Yet the absence of that analysis leaves policymakers and the public without a clear picture of regulatory costs and benefits.

Public Comment Patterns

Agencies requested public comments for 99 percent of the interim final rules reviewed. Agencies received comments on 94 percent of the interim final rules for which they requested comments. The GAO's 2012 report found agencies requested comments for 63 percent of major rules issued without an NPRM.

The shift suggests agencies have moved toward post-hoc comment periods rather than pre-hoc ones. Instead of proposing a rule, gathering feedback, and then issuing a final rule, agencies now issue final rules immediately and then accept comments afterward. That gives the public a voice, but not necessarily one that shapes the initial regulatory decision. The comments come after the rule is already in effect, limiting their practical influence on the rule's core provisions.

The Bottom Line

The data illustrates a regulatory landscape where procedural shortcuts have become a recurring feature of governance, not merely a tool deployed during genuine emergencies. While the 71 percent figure represents a decline from 2012's 77 percent, the persistence of expedited rulemaking across administrations and non-crisis years suggests the good cause exception has evolved into a standard regulatory tool.

The shift toward post-hoc public comment, where 99 percent of interim final rules now solicit feedback after issuance, reflects an attempt to preserve some public input, but the practical influence of comments filed after a rule takes effect remains limited. Policymakers and the public continue to lack complete economic analysis for one-third of expedited rules, leaving a significant gap in the information available to assess regulatory costs and benefits.

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